History High Court of Australia

1 history

1.1 constitutional conventions
1.2 formation of court
1.3 first years of court
1.4 post-war period

history

the genesis of court can traced middle of 19th century. before establishment of high court, appeals state supreme courts made judicial committee of privy council, involved great expense of travelling london. reason politicians in colonies wanted new court travel between colonies hearing appeals.

following earl grey s 1846 proposal federation of australian colonies, 1849 report privy council of united kingdom suggested national court created. in 1856, governor of south australia, richard graves macdonnell, suggested government of south australia , other colonies should consider establishing court of appeal hear appeals supreme courts in each colony, , in 1860 parliament of south australia passed legislation encouraging macdonnell put forward idea colleagues in other colonies. however, government of victoria considered proposal.

at inter-colonial conference in 1870 in melbourne, idea of inter-colonial court again raised , subsequently royal commission established in victoria investigate options establishing court of appeal , unifying extradition laws between colonies , other similar matters. draft bill establishing court put forward commission, excluded appeals privy council, reacted critically , prevented serious attempts implement bill in london (before federation, laws affecting colonies have passed british imperial parliament in london).

in 1880 inter-colonial conference convened, proposed establishment of australasian court of appeal. conference more firmly focussed on having australian court. draft bill produced, providing judges colonial supreme courts serve one-year terms on new court, 1 judge each colony @ given time. new zealand, @ time considering joining australian colonies in federation, participant in new court. however, proposal retained appeals colonial supreme courts privy council, of colonies disputed, , bill abandoned.

constitutional conventions

sir samuel griffith, first chief justice of australia

the constitutional conventions of 1890s, met draft australian constitution, raised idea of federal supreme court. initial proposals @ conference in melbourne in february 1890 led convention in sydney in march , april 1891, produced draft constitution. draft included creation of supreme court of australia, not interpret constitution, united states supreme court, court of appeal state supreme courts. draft removed appeals privy council, allowing them if british monarch gave leave appeal , not allowing appeals @ in constitutional matters.

this draft largely work of sir samuel griffith, premier of queensland, later chief justice of queensland , first chief justice of australia. other significant contributors judicial clauses in draft included attorney-general of tasmania andrew inglis clark, had prepared own constitution prior convention. inglis clark s significant contribution give court own constitutional authority, ensuring separation of powers; original formulation griffith, edmund barton , charles kingston provided parliament establish court.

andrew inglis clark, prominent contributor clauses high court in constitution of australia.

at later conventions, in adelaide in 1897, in sydney later same year , in melbourne in 1898, there changes earlier draft. in adelaide, name of court changed supreme court of australia high court of australia. many people opposed new court replacing privy council: many large businesses, particularly subsidiaries of british companies or regularly traded united kingdom, preferred business reasons keep colonies under unified jurisdiction of british courts, , petitioned conventions effect. other arguments posited against removing privy council appeals australian judges of poorer quality english ones, , without council s oversight, law in colonies risked becoming different english law. politicians, such sir george dibbs, supported petitioners, others, including alfred deakin, supported design of court was. inglis clark took view possibility of divergence thing, law adapt appropriately australian circumstances. despite debate, portions of draft dealing court remained largely unchanged, delegates focused on different matters.

after draft had been approved electors of colonies, taken london in 1899, assent of british imperial parliament. issue of privy council appeals remained sticking point number of australian , british politicians, including secretary of state colonies, joseph chamberlain, chief justice of south australia, sir samuel way, , chief justice of queensland, sir samuel griffith. indeed, in october 1899, griffith made representations chamberlain soliciting suggestions british ministers alterations draft, , offering alterations of own. indeed, such effect of these , other representations chamberlain called delegates colonies come london assist approval process, view approving alterations british government might see fit make; delegates sent, including deakin, barton , charles kingston, although under instructions never agree changes.

after intense lobbying both in australia , in united kingdom, imperial parliament approved draft constitution, albeit altered section 74, represented compromise between 2 sides: there general right of appeal high court privy council, except parliament of australia able make laws restricting avenue, , appeals in inter se matters (matters concerning boundary between , limits of powers of commonwealth , powers of states) not of right, had certified high court.

formation of court

the first chief justice of australia, sir samuel griffith, administered judicial oath @ first sitting of high court, in banco court of supreme court of victoria, 6 october 1903.

the constitution passed imperial parliament, , came effect on 1 january 1901. however, high court not established immediately; necessary new parliament of australia make laws structure , procedure of court. of members of first parliament, including sir john quick, 1 of leading legal experts in australia, opposed legislation set court. h. b. higgins, himself later appointed court, objected setting up, on grounds impotent while privy council appeals remained, , in event there not enough work federal court make viable.

in 1902, attorney-general alfred deakin introduced judiciary bill 1902 in house of representatives. although deakin , griffith had produced draft bill february 1901, continually delayed opponents in parliament, , success of bill attributed deakin s passion , effort in pushing bill through parliament despite opposition. deakin had proposed court composed of 5 judges, specially selected court; opponents instead proposed court should made of state supreme court justices, taking turns sit on high court on rotation basis, had been mooted @ constitutional conventions decade before. deakin negotiated amendments opposition, reducing number of judges 5 three, , eliminating financial benefits such pensions.

at 1 point, deakin threatened resign attorney-general due difficulties faced. in famous speech, deakin gave second reading house of representatives, lasting 3 , half hours, in declared:

federation constituted distribution of powers, , court decides orbit , boundary of every power... termed keystone of federal arch... statute stands , stand on statute-book in hour in assented to. nation lives, grows , expands. circumstances change, needs alter, , problems present new faces. [the high court] enables constitution grow , adapted changeful necessities , circumstances of generation after generation high court operates.

deakin s friend, painter tom roberts, viewed speech public gallery, declared deakin s magnum opus . judiciary act 1903 passed on 25 august 1903, , first 3 justices, chief justice sir samuel griffith , justices sir edmund barton , richard o connor appointed on 5 october of year. on 6 october, court held first sitting in banco court in supreme court of victoria.

on 12 october 1906, size of high court increased 5 justices, , deakin appointed h. b. higgins , isaac isaacs high court. in february, 1913, high court increased again, addition of 2 justices, bringing total seven. charles powers , albert bathurst piddington appointed, however, outcry against appointments great justice piddington resigned on 5 april 1913, without having taken seat.

first years of court

the court s home between 1928 , 1980, purpose-built courtroom in little bourke street, melbourne.

after court s first sitting in banco court in melbourne, court continued use court until 1928, when dedicated courtroom built in little bourke street, next supreme court of victoria, provided court s melbourne sitting place , housed court s principal registry until 1980. court sat regularly in sydney, shared space in criminal courts in suburb of darlinghurst, before dedicated courtroom constructed next door in 1923.

the annexe criminal court in darlinghurst, court s home in sydney.

the court travelled other cities across country, did not have facilities of own used facilities of supreme court in each city. deakin had envisaged court sit in many different locations, federal court. shortly after court s creation, chief justice griffith established schedule sittings in state capitals: hobart, tasmania in february, brisbane, queensland in june, perth, western australia in september , adelaide, south australia in october; said griffith established schedule because times of year found weather pleasant in each city. tradition remains day, although of court s sittings conducted in canberra.

sittings dependent on caseload , day sittings in hobart occur once every few years. there annual sittings in perth, adelaide , brisbane week each. during great depression, sittings outside of melbourne , sydney suspended reduce costs.

during world war ii, court faced period of change. chief justice, sir john latham, served 1940 1941 australia s first ambassador japan, although activities in role limited mutual assistance pact japan had entered axis powers before arrive in tokyo, , curtailed commencement of pacific war. justice sir owen dixon absent several years, while served australia s minister united states in washington. sir george rich acting chief justice in latham s absence. there many difficult cases concerning federal government s use of defence power during war.

post-war period

from 1952, appointment of sir owen dixon chief justice, court entered period of stability. after world war ii, court s workload continued grow, particularly 1960s onwards, putting pressures on court. sir garfield barwick, attorney-general 1958 1964, , until 1981 chief justice, proposed more federal courts established, permitted under constitution. in 1976 federal court of australia established, general federal jurisdiction, , in more recent years family court , federal magistrates court have been set reduce court s workload in specific areas.

in 1968, appeals privy council in matters involving federal legislation barred privy council (limitation of appeals) act 1968. in 1975, privy council (appeals high court) act 1975 closed routes of appeal high court. in 1986, passing of australia act both uk parliament , parliament of australia (with request , consent of australian states), direct appeals privy council state supreme courts closed off, leaving high court avenue of appeal.

the life tenure of high court justices ended in 1977. national referendum in may 1977 approved constitution alteration (retirement of judges) act (cth), upon commencement on 29 july 1977 amended section 72 of constitution require justices appointed on must retire on attaining age of 70 years.

the high court of australia act 1979 (cth), commenced on 21 april 1980, gave high court power administer own affairs , prescribed qualifications for, , method of appointment of, justices.