Role of the court High Court of Australia

1 role of court

1.1 original jurisdiction
1.2 appellate jurisdiction
1.3 appeals privy council
1.4 appellate jurisdiction nauru

role of court

the high court exercises both original jurisdiction (cases originate in high court) , appellate jurisdiction (appeals made high court other courts). high court court of final appeal ability interpret common law whole of australia, not state or territory in matter arose. high court s broad jurisdiction similar of supreme court of canada , unlike supreme court of united states has more limited jurisdiction. such, court able develop common law consistently across states , territories. role, alongside role in constitutional interpretation, 1 of court s significant. sir owen dixon said on swearing in chief justice of australia:

high court s jurisdiction divided in exercise between constitutional , federal cases loom largely in public eye, , great body of litigation between man , man, or man , government, has nothing constitution, , principal preoccupation of court.

this broad array of jurisdiction enables high court take leading role in australian law , contributes consistency , uniformity among laws of different states.

original jurisdiction

the original jurisdiction of high court refers matters heard in high court. constitution confers actual (section 75) , potential (section 76) original jurisdiction.

section 75 of constitution confers original jurisdiction in regard matters :

the conferral of original jurisdiction creates problems high court. example, challenges against immigration-related decisions brought against officer of commonwealth within original jurisdiction of high court.

section 76 provides parliament may confer original jurisdiction in relation matters:

constitutional matters, referred in section 76(i), have been conferred high court section 30 of judiciary act 1903. however, inclusion of constitutional matters in section 76, rather section 75, means high court s original jurisdiction regarding constitutional matters removed. in practice, section 75(iii) (suing commonwealth) , section 75(iv) (conflicts between states) broad enough many constitutional matters still within jurisdiction. original constitutional jurisdiction of high court established: australian law reform commission has described inclusion of constitutional matters in section 76 rather section 75 odd fact of history. 1998 constitutional convention recommended amendment constitution prevent possibility of jurisdiction being removed parliament. failure proceed on issue suggests considered highly unlikely parliament ever take step.

the requirement of matter in section 75 , section 76 of constitution means concrete issue must need resolved , high court cannot give advisory opinion.

appellate jurisdiction

the high court s appellate jurisdiction defined under section 73 of constitution. high court can hear appeals supreme courts of states , territories, federal court or court exercising federal jurisdiction (such federal court of australia, federal circuit court of australia, or other federal courts), , decisions made 1 or more justices exercising original jurisdiction of court.

however, section 73 allows appellate jurisdiction limited such exceptions , subject such regulations parliament prescribes . parliament has prescribed large limitation in section 35a of judiciary act 1903. requires special leave appeal. special leave granted question of law raised of public importance; or involves conflict between courts; or in interests of administration of justice . therefore, while high court final court of appeal, cannot considered general court of appeal. decision whether grant special leave appeal determined 1 or more justices of high court (in practice, panel of 2 or 3 judges). is, court exercises power decide appeal cases consider.

appeals privy council

high court building

the issue of appeals high court united kingdom s judicial committee of privy council significant 1 during drafting of constitution , continued significant in years after court s creation. wording of section 74 of constitution put voters in various colonies there no appeal privy council in matter involving interpretation of constitution or of constitution of state, unless involved interests of other dominion.

section 74 of constitution, enacted imperial parliament, prohibited appeals on constitutional matters involving disputes limits inter se of commonwealth or state powers, except high court certified appropriate appeal determined privy council. did once: in 1912 case of colonial sugar refining co ltd v attorney-general (cth) when court equally divided. after case, in privy council refused answer constitutional questions put it, high court never certified inter se appeal. indeed, in case of kirmani v captain cook cruises pty ltd (1985), court said never again grant certificate of appeal.

in general matters, however, section 74 did not prevent privy council granting leave appeal against high court s wishes , council did often. in cases council acknowledged australian common law had developed differently english law , did not apply own principles (for example, in australian consolidated press ltd v uren (1967), or in viro v queen (1978)), using legal fiction stated different common law can apply different circumstances. however, in other cases, privy council enforced english decisions, over-ruling decisions high court. in parker v queen (1963), chief justice sir owen dixon led unanimous judgment rejected precedent of house of lords in dpp v smith saying, shall not depart law on matter have long since laid down in court , think smith s case should not used in australia authority @ ; following year privy council upheld appeal, applying house of lords precedent.

section 74 did provide parliament make laws prevent appeals privy council , did so, beginning in 1968, privy council (limitation of appeals) act 1968, closed off appeals privy council in matters involving federal legislation. in 1975, privy council (appeals high court) act 1975 passed, had effect of closing routes of appeal high court. appeals high court privy council theoretically possible in inter se matters if high court grants certificate of appeal under section 74 of constitution. noted above, high court indicated in 1985 not grant such certificate in future , practically future high courts maintain policy. in 1986, passing of australia act both uk parliament , parliament of australia (with request , consent of australian states), appeals privy council state supreme courts closed off, leaving high court avenue of appeal.

thirteen high court judges have heard cases part of privy council. sir isaac isaacs judge have sat on appeal high court, in 1936 after retirement governor-general. sir garfield barwick insisted on amendment privy council procedure allow dissent, exercised once. appeals related decisions other commonwealth countries, although included appeals state supreme court.

appellate jurisdiction nauru

as per agreement between nauru , australia in 1976, in application of article 57 of constitution of nauru, high court of australia ultimate court of appeal sovereign republic of nauru, formerly australian league of nations mandate. high court may hear appeals supreme court of nauru in both criminal , civil cases, exceptions; in particular, no case pertaining constitution of nauru may decided australian court.