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Apex court of Australia

The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was established following the passage of the Judiciary Act 1903 (Cth). Its authority derives from chapter III of the Australian Constitution, which vests it (and other courts the Parliament creates) with the judicial power of the Commonwealth. Another legal instrument pertaining to the High Court is the High Court of Australia Act 1979 (Cth). They are appointed permanently until their mandatory retirement at age 70, unless they retire earlier. Typically, the court operates by receiving applications for appeal from parties in a process called special leave. If a party's application is accepted, the court will proceed to a full hearing, usually with oral and written submissions from both parties. After conclusion of the hearing, the result is decided by the court. The special leave process does not apply in situations where the court elects to exercise its original jurisdiction; however, the court typically delegates its original jurisdiction to Australia's inferior courts. The court has resided in Canberra since 1980, following the construction of a purpose built High Court building, located in the Parliamentary Triangle and overlooking Lake Burley Griffin. Sittings of the court previously rotated between state capitals, particularly Melbourne and Sydney, and the court continues to regularly sit outside Canberra.

The court is empowered by section 73 of the Constitution to hear appeals from the supreme courts of the states and territories; as well as any court exercising federal jurisdiction. It may also hear appeals of decisions made in an exercise of its own original jurisdiction. The High Court's appellate jurisdiction is limited by the Judiciary Act, which requires special leave to be granted before the hearing of an appeal. Special leave may only be granted where a question of law is raised which is of public importance, involves a conflict between courts or "is in the interests of the administration of justice". Special leave hearings are typically presided over by a panel of two or three justices of the High Court. Parties are typically limited to an oral submission of 20 minutes, in addition to any written submissions.

Section 74 allowed parliament to prevent appeals to the Privy Council. It did so in 1968 with the Privy Council (Limitation of Appeals) Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council (Appeals from the High Court) Act 1975 was passed, which closed all routes of appeal from the High Court; excepting for those in which a certificate of appeal would be granted by the High Court. In 1986, with the passing of the Australia Act by both the UK Parliament and the Commonwealth Parliament (with the request and consent of the states), appeals to the Privy Council from state supreme courts were closed off, leaving the High Court as the only avenue of appeal. In 2002, Chief Justice Murray Gleeson said that the "combined effect" of the legislation and the announcement in Kirmani "has been that s 74 has become a dead letter, and what remains of s 74 after the legislation limiting appeals to the Privy Council will have no further effect".

Following an agreement between Nauru and Australia signed on 6 September 1976, the High Court became Nauru's apex court. It was empowered to hear appeals from the Supreme Court of Nauru in both criminal and civil cases, but not constitutional matters. There were a total of five appeals to the High Court under this agreement in the first 40 years of its operation. In 2017, however, this jumped to 13 appeals, most relating to asylum seekers. At the time some legal commentators argued that this appellate jurisdiction sat awkwardly with the High Court's other responsibilities, and ought be renegotiated or repealed. Anomalies included the need to apply Nauruan law and customary practice, and that special leave hearings were not required. had said publicly that the Nauru government was unhappy about these arrangements. Of particular concern was a decision of the High Court in October 2017, which quashed an increase in sentence imposed upon political protestors by the Supreme Court of Nauru. The High Court had remitted the case to the Supreme Court "differently constituted, for hearing according to law". Nauru then exercised an option under its agreement with Australia to end its appellate arrangement with 90 days notice. The option was exercised on 12 December 2017 and the High Court's jurisdiction ended on 12 March 2018.

Following Earl Grey's 1846 proposal to federate the colonies, an 1849 report from the Privy Council suggested a national court be created. In 1856, the Governor of South Australia, Richard MacDonnell, suggested to the Government of South Australia that they consider establishing a court to hear appeals from the Supreme Courts in each colony. In 1860 the South Australian Parliament passed legislation encouraging MacDonnell to put the idea to the other colonies. However, only Victoria considered the proposal. At a Melbourne inter colonial conference held in 1870, the idea of an inter colonial court was again raised. A royal commission was established in Victoria to investigate options for establishing such a court, and a draft bill was put forward. This draft bill, however, completely excluded appeals to the Privy Council, causing a reaction in London which prevented any serious attempt to implement the bill through the British Imperial Parliament. then the Premier of Queensland. The attorney general of Tasmania Andrew Inglis Clark also contributed to the constitution's judicial clauses. Clark's most significant contribution was to give the court its own constitutional authority, ensuring a separation of powers. The original formulation of Griffith, Barton and Kingston provided only that the parliament could establish a court. In Adelaide the court's proposed name was changed to be the "High Court of Australia". Many people opposed the idea of the new court completely replacing the Privy Council. Commercial interests, particularly subsidiaries of British companies preferred to operate under the unified jurisdiction of the British courts, and petitioned the conventions to that effect. matters were not as of right, but had to be certified by the High Court. Deakin eventually negotiated amendments with the opposition, reducing the number of judges from five to three, and eliminating financial benefits such as pensions. At one point, Deakin threatened to resign as Attorney General due to the difficulties he faced. The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power It is properly termed the keystone of the federal arch The statute stands and will stand on the statute book just as in the hour in which it was assented to. But the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. [The High Court] enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates. Deakin's friend, painter Tom Roberts, who viewed the speech from the public gallery, declared it Deakin's "magnum opus". The High Court continued its Banco location in Melbourne until 1928, until a dedicated courtroom was built in Little Bourke Street, next to the Supreme Court of Victoria. That space provided the court's Melbourne sitting place and housed the court's principal registry until 1980. The court also sat regularly in Sydney, sharing space in the criminal courts of Darlinghurst Courthouse, before a dedicated courtroom was constructed next door in 1923. The court travelled to other cities across the country, where it would use facilities of the respective supreme courts. Deakin had envisaged that the court would sit in many different locations, so as to truly be a federal court. Shortly after the court's creation, Chief Justice Griffith established a schedule for sittings in state capitals: Hobart in February, Brisbane in June, Perth in September, and Adelaide in October. It has been said that Griffith established this schedule because those were the times of year he found the weather most pleasant in each city. The tradition of special sittings remains to this day, although they are dependent on the court's caseload. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each year, and sittings in Hobart occur once every few years. Sittings outside of these special occurrences are conducted in Canberra. The court's operations were marked by various anomalies during World War II. The Chief Justice, Sir John Latham, served from 1940 to 1941 as Australia's first ambassador to Japan; however, his activities in that role were limited by a pact Japan had entered with the Axis powers prior to his arrival in Tokyo. Owen Dixon was also absent for several years of his appointment, while serving as Australia's minister to the United States in Washington. Sir George Rich acted as chief justice during Latham's absence.

From 1952, with the appointment of Sir Owen Dixon as chief justice, the court entered a period of stability. After World War II, the court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court. The High Court of Australia Act 1979 (Cth), which commenced on 21 April 1980, gave the High Court power to administer its own affairs and prescribed the qualifications for, and method of appointment of, its Justices.

Historical periods of the High Court are commonly denoted by reference to the chief justice of the time. However, the chief justice is not always the most influential figure on the Court.

The first court under Chief Justice Griffith laid the foundations of Australia's constitutional law. The court was conscious of its position as Australia's new court of appeal, and made efforts to establish its authority at the top of Australia's court hierarchy. In Deakin v Webb (1904) It criticised the Victorian Supreme Court for following a Privy Council decision about the Constitution of Canada instead of its own authority. The early constitutional law decisions of the Griffith court was influenced by US constitutional law. An important doctrine peculiar to the Griffith court was that of the reserved state powers. Under this doctrine, the Commonwealth parliament's legislative powers were to be interpreted narrowly; so as to avoid intruding on areas of power traditionally exercised by the state Parliaments prior to federation. Anthony Mason has noted that this doctrine probably helped smooth the transition to a federal system of government and "by preserving a balance between the constituent elements of the Australian federation, probably conformed to community sentiment, which at that stage was by no means adjusted to the exercise of central power".

Adrian Knox became chief justice on 18 October 1919. Justice Edmund Barton died soon after, leaving no original members. During the Knox court, Justice Isaacs Isaacs had strong influence. Under the Knox court the Engineers case was decided, ending the reserved state powers doctrine. The decision had lasting significance for the federal balance in Australia's political arrangements. Another significant decision was Roche v Kronheimer, in which the court relied upon the defence power to uphold federal legislation seeking to implement Australia's obligations under the Treaty of Versailles.

High Court Justices are appointed by the Governor General in Council. The advice of the Council typically consists of the advice of the prime minister assisted by the Attorney General for Australia. Advice from the attorney general is legally required by implication, because since 1979 the attorney general has been required by statute to consult the attorneys general of the states (but not the territories). Some reformers have advocated for states to have a determinative role. Originally, no particular qualifications for appointment to the High Court were required by the Constitution or by statute. The only constitutional requirement is still, since 1977, that the appointee be under the compulsory retirement age of 70. Further qualifications were introduced by statute in 1979: that an appointee be a judge of a federal, state or territory court; or have been an Australian legal practitioner for at least five years. Unlike members of the Parliament, it is not necessary to be an Australian Citizen and a member of the Court may be a dual citizen. The appointment process has been relatively uncontroversial. This has, however, been due in part to the opacity of the process. There is no procedure for application, the only definite criteria are the minimal criteria above, and nothing is publicly known until an appointee is announced. Appointment to federal courts was extensively formalised in 2007, except for the High Court, and those reforms were reversed by the next federal government. Some recent attorneys general have stated that they were consulting widelyto include, for instance, Australian Women Lawyers, the National Association of Commonwealth Legal Centres and the heads of Australian law schools. However, the nature of the attorney general's consultations remains almost wholly discretionary. Some appointments to the High Court have displayed clear political influence. Three early justices had been conservative politicians prior to their appointment as chief justice; and justices Evatt, McTiernan, and Murphy were all Labor party politicians at some stage in their careers prior to being appointed to the High Court by a Labor prime minister.

The High Court has seven justicesthe chief justice and six others. as of 2022 the High Court has had 44 justices, twelve of whom have been chief justice.

The first High Court bench consisted of three justices: Samuel Griffith, Edmund Barton, and Richard O'Connor. According to the contemporary press, among those considered and overlooked were Henry Higgins, Isaac Isaacs, Andrew Clark, John Downer, Josiah Symon, and George Wise. Barton and O'Connor were both members of the federal parliament's government bench. Each appointee had participated in the drafting of the Constitution. All three have been described as relatively conservative justices for the time, and were strongly influenced by law of the United States in their constitutional jurisprudence.

In 1906, at the request of the Justices, two seats were added to the bench, with Isaacs and Higgins being appointed. After O'Connor's death in 1912, an amendment was made to the Judiciary Act expanding the bench to seven, which took place the following year. Following Isaacs' retirement in 1931, his seat was left vacant, and an amendment to the Judiciary Act reduced the number of seats to six. This, however, led to some decisions being split three all. With the appointment of Justice Webb in 1946, the court returned to seven seats, and has had a full bench of seven justices since.

Salaries are determined by the Remuneration Tribunal. The regular justices receive $551,880, while the Chief justice receives $608,150. High Court judicial compensation is constitutionally protected from decrease during appointment. The court typically sits for two weeks for each calendar month of the year, excepting for January and July in which no sitting days are held.

Each judge engages associates for assistance in exercising their functions. The usual practice is to engage two associates simultaneously for a one year term. Additionally, the chief justice is assisted by a legal research officer employed by the court library. Associates have varying responsibilities; typically their work involves legal research, assistance in preparation for oral arguments, tipping in court during oral argument, editing judgments and assisting with extrajudicial functions, such as speech writing. Associates are typically recruited after having graduated from an Australian law school with grades at or near the top of their class. Hundreds of applications for associate positions are received by the High Court annually.

The High Court of Australia building is located on the shore of Lake Burley Griffin in Canberra's Parliamentary Triangle. The High Court was designed between 1972 and 1974 by the Australian architect Christopher Kringas (1936–1975), a director of the firm Edwards Madigan Torzillo and Briggs. The building was constructed from 1975 to 1980. Its international architectural significance is recognised by the Union of International Architects register of Architectural Heritage of the 20th Century. It received the Australian Institute of Architects Canberra Medallion in 1980 and the award for Enduring Architecture in 2007. The High Court was added to the Commonwealth Heritage List in 2004. Judgment alerts, available on the Court's website and by email with free subscription, provide subscribers with notice of upcoming judgments (normally a week beforehand) and, almost immediately after the delivery of a major judgment, with a brief summary of it (normally not more than one page). All of the court's judgments, as well as transcripts of its hearings since 2009 and other materials, are made available, free of charge, through the Australasian Legal Information Institute. The court has recently established on its website an "eresources" page, containing for each case its name, keywords, mentions of relevant legislation and a link to the full judgment; these links go to the original text from 2000 onward, scanned texts from 1948 to 1999 and facsimiles from the Commonwealth Law Reports for their first 100 volumes (1903 to 1959); there are also facsimiles of some unreported judgments (1906–2002). Since October 2013, audio visual recordings of full court hearings held in Canberra have been available on its website.