 of the colonies, and the bill was abandoned.
Constitutional conventions.
The idea of a federal Supreme Court was raised during the Constitutional Conventions of the 1890s. A proposal for a Supreme Court of Australia was included in an 1891 draft. It was proposed to enable the court to hear appeals from the State Supreme courts, with appeals to the Privy Council only occurring on assent from the British monarch. It was proposed that the Privy Council be prevented from hearing appeals on constitutional matters.
This draft was largely the work of Sir Samuel Griffith, 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.
The draft was later amended at various conventions. 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. Others argued that Australian judges were of a poorer quality than those of the English, and than the inevitable divergence in law that would occur without the oversight of the Privy Council; would put the legal system at risk.
Some politicians (e.g. George Dibbs) supported a retention of Privy Council supervision; whereas others, including Alfred Deakin, supported the design of the court as it was. Inglis Clark took the view that the possibility of divergence was a good thing, for the law could adapt appropriately to Australian circumstances. Despite this debate, the draft's judicial sections remained largely unchanged.
After the draft had been approved by the electors of the colonies, it was taken to London in 1899 for the assent of the British Imperial Parliament. The issue of Privy Council appeals remained a sticking point however; with objections made by Secretary of State for the Colonies, Joseph Chamberlain, the Chief Justice of South Australia, Sir Samuel Way, and Samuel Griffith, among others. In October 1899, Griffith made representations to Chamberlain soliciting suggestions from British ministers for alterations to the draft, and offered alterations of his own. Indeed, such was the effect of these and other representations that Chamberlain called for delegates from the colonies to come to London to assist with the approval process, with a view to their approving any alterations that the British government might see fit to make; delegates were sent, including Deakin, Barton and Charles Kingston, although they were under instructions that they would never agree to changes.
After intense lobbying both in Australia and in the United Kingdom, the Imperial Parliament finally approved the draft constitution. The draft as passed included an alteration to section 74, in a compromise between the two sides. It allowed for a general right of appeal from the High Court to the Privy Council, but the Parliament of Australia could make laws restricting this avenue. In addition, appeals in "inter se" matters were not as of right, but had to be certified by the High Court.
Formation of the court.
The High Court was not immediately established after Australia came into being. Some members of the First Parliament, including Sir John Quick, then one of the leading legal experts in Australia, opposed legislation to set up the court. Even H. B. Higgins, who was himself later appointed to the court, objected to setting it up, on the grounds that it would be impotent while Privy Council appeals remained, and that in any event there was not enough work for a federal court to make it viable.
The then Attorney-General Alfred Deakin introduced the "Judiciary Bill" to the House of Representatives in 1902. Prior efforts had been continually delayed by opponents in the parliament, and the success of the bill is generally attributed to Deakin's passion and persistence. Deakin proposed that the court be composed of five judges, specially selected to the court. Opponents instead proposed that the court should be made up of state Supreme Court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before. 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. In his three and a half hour second reading speech to the House of Representatives, Deakin said: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 Judiciary Act 1903 was finally passed on 25 August 1903, and the first three justices, Chief Justice Sir Samuel Griffith and Justices Sir Edmund Barton and Richard O'Connor, were appointed on 5 October of that year. On 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria.
Early years.
On 12 October 1906, the size of the High Court was increased to five justices, and Deakin appointed H. B. Higgins and Isaac Isaacs to the High Court. Following a court-packing attempt by the Labor Prime Minister Andrew Fisher In February 1913, the bench was increased again to a total to seven. Charles Powers and Albert Bathurst Piddington were appointed. These appointments generated an outcry, however, and Piddington resigned on 5 April 1913 after serving only one month as High Court justice.
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.
Post-war period.
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. Sir Garfield Barwick, who was Attorney-General from 1958 to 1964, and from then until 1981 Chief Justice, proposed that more federal courts be established, as permitted under the Constitution. In 1976 the Federal Court of Australia was established, with a general federal jurisdiction, and in more recent years the Family Court and Federal Magistrates Court have been set up to reduce the court's workload in specific areas.
In 1968, appeals to the Privy Council in matters involving federal legislation were barred. In 1986, with the passage of the "Australia Acts" direct appeals to the Privy Council from state Supreme Courts were also closed off.
The life tenure of High Court Justices was ended in 1977. A national referendum in May 1977 approved the "Constitution Alteration (Retirement of Judges) Act" (Cth), which upon its commencement on 29 July 1977 amended section 72 of the Constitution so as require that all Justices appointed from then on must retire on attaining the age of 70 years.
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.
Legal history.
Historical periods of the High Court are commonly denoted by reference to the Chief Justice of the time. It ought be noted however, that the Chief Justice is not always the most influential figure on the Court.
Griffith court: 1903–1919.
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