The Crown and the High Court – Celebrating the 100th birthday of the High Court of Australia

Anyone who reads the Constitution will notice that the Queen is given a prominent mention in relation to the legislative and executive powers of government, but receives no mention in relation to the judicial power.( 1) .

There is a good reason for this. Justice will not be done unless the judges are completely independent and free from all external influences, including that of the Crown. We have seen in the recent past, in countries like Germany and the USSR, and see today in some other countries, how tyranny flourishes if judges bow to the wishes of the executive. No one suggests that the Queen herself would seek to exert any influence on a judge, but it is not beyond imagination that some executive officials might seek to do so. It is true that the crown has traditionally been regarded as the fount of justice and that in taking the Coronation oath, the Queen swore to cause law and justice in mercy to be executed in her judgments. Since medieval times, the Crown has caused justice to be done by means of the judges. About 400 years ago King James I claimed the right to interfere directly with the legal process, and asserted that it was treason to deny him that right, but was told by a courageous Chief Justice that “the King ought to be under no man but under God and the law.” (2) The strength of the monarchy is due to the fact that it has adapted to changes in social conditions and it has been established for many centuries that the Crown plays no part in the judicial process except to appoint the judges. Indeed, the framers of our Constitution accepted the view that the separation of the judicial power from the legislative and executive powers is “one of the main preservatives of the nation’s liberty”(3). They incorporated this principle into the Constitution. The principle has been strictly applied, so that the Constitution has been held to prevent any institution which is not a court from exercising judicial power, (4) and conversely to prevent a judge from being given functions which are not judicial (5).

The High Court is the final court of appeal from all Australian cases. That has not always been the case. At the time when the Constitution was being drafted, opinion in Australia was divided on the question whether appeals should continue to be brought to the Privy Council, which had been the final court of appeal from the Australian colonies. However, the view that prevailed, and was given effect in the Constitution as finally drafted and approved by the people of the Australian colonies, was that the High Court should be the final court of appeal. The draft Constitution had to be approved by the British Parliament, and the British Government and particularly its influential Secretary for the Colonies, Joseph Chamberlain, was determined to retain appeals to the Privy Council from all British dominions. The disagreement on this point nearly wrecked Federation but in the end, a compromise was reached. Appeals to the Privy Council were retained but in certain constitutional cases – particularly those involving Federal questions – the certificate of the High Court was made necessary before an appeal could be brought (6). However, the Constitution did not prevent subsequent action being taken to abolish those appeals, and legislation in 1975 (7) prevented appeals from being taken to the Privy Council from the High Court. Since 1986 no appeal to the Privy Council can be brought from any Australian Court (8). The High Court now has the last word on all questions of law in Australia.

The High Court differs in important respects from the highest courts of the United Kingdom and the United States of America. In the United Kingdom, the Constitution is not contained in a single document, but in statutes, cases and conventions, all of which can be altered by an ordinary act of parliament. Accordingly, in the United Kingdom, judges have no authority to hold that an act of parliament is invalid. In Australia, as in the United States, the Constitution, which cannot be altered by a simple act of parliament, distributes power between the Commonwealth and the States, and in some cases prohibits the exercise of power. Under a constitution of that kind it is necessary for a court to decide controversies which raise the question whether a statute is beyond constitutional power. The result is that in Australia, as in the United States, the courts can and frequently do declare statutes to be invalid. It is no doubt undemocratic that an unelected court can over-rule statutes passed by an elected legislature. However, the power to do so is necessary to uphold the law of the Constitution. It is a great power and casts on the court a great responsibility.

In the United States, the Supreme Court, cannot decide matters of purely State law because it cannot take appeals from the State Courts, except on matters of federal law. The result is that in the United States, the common law of one State may differ from that of another. In Australia, on the other hand, the High Court does hear appeals from the State courts so that the common law is uniform throughout Australia.

The High Court hears appeals from the Supreme Courts of the States, the Federal Court and the Family Court. Until 1984, there was a right of appeal in many cases. However, the burden of work on the Court has become so heavy that in all cases litigants are now required to obtain special leave to appeal from the High Court, or, in the case of the Family Court, a certificate from the full court of that court that an important question of law or public interest is involved.(9) The Court now hears only those appeals that it considers raise questions significant enough to be considered by a final court of appeal. There was some opposition to the abolition of appeals as of right but it seems consistent with efficiency that a litigant should have one right of appeal and that the final court of appeal should consider only those matters that raise important questions of law or in the case of criminal appeals where there has been a miscarriage of justice.

Applications for special leave to appeal are heard by two justices. When I was on the Court, the rules provided that those applications could be made only by a barrister. Subsequently, solicitors were allowed to appear. This was understandable, but a further step has been taken and litigants themselves may now appear on these applications. Perhaps this step may be defended in theory, but it has had unfortunate consequences in practice. Most litigants who appear in person simply cannot understand what legal principles, if any, are involved in their cases and in addition their emotion tends to over-ride their reason. In consequence, they simply waste the time of a busy court. On applications for special leave, the High Court receives written submissions and limits the time for oral argument.

If special leave is granted, the appeal is usually heard by five justices but if the matter is one of particular importance or difficulty, it may be heard by the whole Court of seven justices. Paradoxically, although cases at first instance in the Supreme Court and the Federal Court now take very much longer to hear than was previously the case, appeals in the High Court are heard much more quickly than before.

Matters may also be brought to the Court directly in what is called its original jurisdiction. Such cases are heard by a justice sitting alone who may, if necessary, refer the case to the full court.

The original jurisdiction of the Court can arise in two different ways. First, the Constitution itself confers original jurisdiction on the Court in certain cases.(10) They include cases in which the Commonwealth is a party or in which a writ of mandamus, or prohibition or an injunction is sought against an officer of the Commonwealth. Many constitutional cases are brought before the court under these provisions. Original jurisdiction is also conferred on the court in matters between residents of different states and under this provision, many cases were formerly brought that were inappropriate to be heard by the High Court – ordinary collision cases and custody cases for instance.

Since 1984, the court has had a wide power to remit cases to the Federal Court or the Supreme Court of a State that has jurisdiction in the matter (11). Any cases brought in what is called the diversity jurisdiction – actions between residents of different States – would normally be remitted to another Court; I expect that nowadays few litigants would be unwise enough to commence ordinary negligence or family law cases (not involving a constitutional question) in the High Court. The same fate might be expected for migration cases, seeking mandamus, prohibition or an injunction against an officer of the Commonwealth, when the only question is whether the officer erred in the procedure or in the result. However, because of an apparent mistrust of the Federal Court in migration matters, the Parliament has not only deprived the Federal Court of jurisdiction in some migration cases, but has forbidden the High Court to remit such cases to the Federal Court.(12) This would have had the unfortunate result that the High Court would be burdened with many cases that would have been more appropriately heard in a lower court, if the Court had not been able to circumvent this unfortunate restriction on constitutional grounds.

The Constitution allows the parliament to confer original jurisdiction on the High Court in some cases. (13) The Parliament formerly conferred on the Court power to hear taxation, patent, copyright and trademark cases in its original jurisdiction but now such cases are heard at first instance in the Federal Court or the Supreme Courts of the States.

The sole relic of the original jurisdiction conferred on the court by the parliament is provided by the Electoral Act which makes the High Court a Court of disputed returns in electoral cases.

For the first ten years on which I sat on the court, my main chambers were in the old Criminal Court at Darlinghurst and I also had chambers in a building in the Law Courts Place in Melbourne. We then sat regularly in all the State capitals. This had some inconvenience, particularly because we had to rely on the generosity of the State judges to use their chambers when we were sitting in States other than NSW and Victoria. Occasionally we had to share chambers with a State judge, which was obviously undesirable from the point of view of public perception. However, our peripatetic sittings had some advantages; it brought the court to the people concerned in the litigation and it enabled us to get to know some of the Supreme Court judges and most leading counsel in Australia. Since 1980 the Court has sat mostly in Canberra, but it still usually makes token visits to the State capitals. Applications for special leave to appeal can be made by video conference so that counsel do not have the expense of coming from a State capital to Canberra.

There has been considerable debate and controversy as to the manner in which the Justices should be appointed. The Constitution provides that the Justices should be appointed by the Governor General in Council (14). As I have indicated, one role of the High Court is to decide controversies between the Commonwealth and the States and it has been argued that the Commonwealth should not have the sole right to appoint members of the Court. As a result of this argument, the law was amended in 1979 to require the Attorney General of the Commonwealth to consult with the Attorneys General of the States before making an appointment (15). This provision does not require the Commonwealth Attorney General to act in accordance with the views expressed by the States in the course of the consultation and it entirely depends on the Commonwealth whether or not it will give effect to the opinions of the States. Having regard to the national importance of the Court, it seems obvious that only the best qualified persons should be appointed and that irrelevant matters such as the sex, race, politics or state of origin of a particular candidate, should be disregarded. The fear that bad appointments might be made, has led some persons to suggest that appointments to the Court should be made in accordance with the recommendations of a judicial commission. The answer made to that suggestion is that a government determined to make a bad appointment could first stack the judicial commission. Another suggestion is that a check on the powers of the Commonwealth would be to allow a majority of States to veto an appointment proposed to be made by the Commonwealth. There is a further suggestion, that persons proposed to be appointed should first be publicly questioned by the Senate, as happens in America. Those inquisitions, in the United States, extend to the political and ideological opinions of the candidate, and to his or her private life. They inevitably bring politics into the making of an appointment which should be politically free and cause some persons well qualified for appointment to refuse an offer of appointment rather than undergo the ordeal of a public inquisition. I hope that this procedure is never adopted in Australia. At present one must rely on the sense of responsibility of Commonwealth Governments to make satisfactory appointments. Mostly, of course, they have done so.

The number of Justices was originally three, but by gradual increases it had become

seven in 1912. It was reduced to six during the Depression, but has remained seven since 1966. It is sometimes suggested that the number of Justices should be increased to nine to alleviate the present burden of work on the Court. However, it is very doubtful whether an increase would have the desired effect. In important cases all the Justices sit together and indeed the view has been taken that any Justice has a right to sit on any case in the full Court. The difficulty of producing judgements increases in proportion to the number of Justices who sat on the case and the benefits of increasing the number of Justices are very doubtful. Indeed, the true motivation for making an increase is likely to be purely political.

Originally, the Constitution provided that Justices of the High Court were appointed for life, subject of course to removal for proved misbehaviour or incapacity(16). By an amendment made in 1977, the Constitution required Justices to retire at the age of seventy. This amendment was in my opinion misconceived. Some Justices wish to retire at or before the age of seventy. Others, such as Sir Owen Dixon and Sir Garfield Barwick have done excellent work on the Court well past that age. In any case, the age now fixed for retirement of seventy is too low – in some States Judges sit past that age. However, this provision of the Constitution is unlikely to be altered.

I have gone into a little detail regarding the situation of the High Court but wish to speak briefly now as to the benefits which are afforded to us by our Constitution and in particular by the Crown and the Court. There has developed a philosophical theory, which I think is accepted only by a small minority, particularly of academics, but which has had a considerable and dangerous effect on policy, that one culture, constitution or legal system is as good as any other and that the publications by Mills and Boon make just as valuable a contribution to culture as the works of Shakespeare. In general, this theory flies against common sense and it is particularly absurd when it is applied to systems of law and constitutions. In our Constitution, and with the system of law that we have inherited from Great Britain and have developed ourselves, we have maintained in our society, a mixture of public order and private freedom that only a few countries in the world enjoy. This has not resulted by accident. It has happened because the Constitution as a whole operates to bring this situation about and because our laws are administered fairly and impartially by an independent judiciary. I do not suggest that our society is perfect, that our parliamentary system has no flaws, or that the judges always get the right answer. But by comparison with most other countries, we are indeed fortunate. Every part of the Constitution contributes to its success. It has enabled Australia to develop as a vigorous democracy, with the benefits of a modern monarchy and under the rule of law. The benefits of the monarchy include the steadying effect of the existence of the reserve powers, the depth of experience and wisdom of the Queen herself which is available to her Prime Ministers and the potent symbolism of a monarchy which rises above partisan politics and is concerned with the well being of all subjects equally of whatever race, creed or social condition.

We can rightly say that the system does not need change but we should go further – a change to a republic would not merely fail to reproduce the benefits of the present system, it would make things worse. Although it is unlikely that such a change would be approved at a referendum, we must not forget that institutions can be subverted without any alteration to their legal position. One way of doing this would be to appoint unsuitable persons as representatives of the Crown or as Justices of the Court. Another way is to attempt to demean the office – this is less likely to be done in the case of the Court but we have already seen it happen so far as the representatives of the Queen are concerned. Only recently a vicious public campaign drove from office a Governor General who was a perfectly decent man who had been guilty of no misconduct. In New South Wales, the Governor no longer inhabits Government House although it must be said that the recent gubernatorial appointments in NSW have been in all respects suitable. These events point for a need for great vigilance – we must do whatever can be done to inhibit unfriendly politicians from weakening the Court or the Monarchy.

We have good reason to respect our Constitution, and to be proud of the way in which the Crown and the Court contribute to the well being of the nation. Long may that situation continue.

(1) Constitution, ss.1, 61, 74
(2) Prohibitions Del Roy (1608) 12 Co.Rep.63, 65
(3) Blackstone, Commentaries, vol. 1
(4) The Boilermakers’ Case (1956) 94 C.L.R. 254; (1957) 95 C.L.R. 529
(5) Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 C.L.R. 1; Kable v Director of Public Prosecutions (1996) 189 C.L.R.51
(6) Constitution, s.74
(7) Privy Council (Appeals from the High Court) Act 1975
(8) Australia Act 1986, s.11
(9) Judiciary Act, s 21; Federal Court of Australia Act, s.53; Family Law Act, s.95
(10) Constitution, s.75
(11) Judiciary Act, s.44
(12) Migration Act 1958, s.476 (4)
(13) Constitution, s.76
(14) Constitution, s.72
(15) High Court of Australia Act 1979, s.6
(16) Constitution, s.74