At the start of this month, the judges of Victoria’s Supreme Court all stopped wearing wigs. A similar (but broader) decision was made by the High Court in 1988:
As of today, Tuesday, 2 August, the Chief Justice and Justices of the High Court of Australia will wear black gowns when sitting in court instead of the traditional attire of a robe, jabot and wig.
While the Victorian decision was a statutory determination by the state’s Chief Justice, the High Court’s decision was not made under any statute and involved no new rules or practice directions; the Court’s seven judges simply all entered the courtroom wigless, as Murphy J and (for a time) Starke J had individually decided in the past. The Court’s press release was careful to disclaim any implications for other Australian courts:
This decision is not intended to establish a model for other courts. The fact that the High Court is a constitutional and appellate court and not a trial court has been significant in the decision to alter the dress. Different considerations may well apply to other courts. The nature of their work, particularly that of trial courts, differs from that of the High Court.
By contrast, in the case of barristers’ wigs, decisions by other Australian courts, including this week’s direction from Victoria’s common law division that barristers appearing there must do so without wigs, can directly affect what barristers wear in the High Court.
The High Court’s 1988 press release concluded:
This decision does not affect counsel. They will continue to wear their customary dress when appearing before the High Court.
But what is ‘their customary dress’? According to the then editor of the Australian Law Journal, Joe Starke QC:
The last paragraph of this Press Statement shows that the High Court will, in effect, be assimilated to the International Court of Justice, where counsel are expected to be attired in the same way as before the superior courts of their own country
So, the outfit barristers wear before the High Court (and the International Court of Justice) is whatever outfit they wear before the relevant state or territory Supreme Court. This is not a straightforward rule, for at least four reasons: first, matters in the High Court’s original jurisdiction don’t necessarily have a ‘home’ state or territory;the High Court also hears appeals from courts that are federal, rather than creatures of any particular state or territory; third, barristers from one state or territory may appear in appeals from a different state or territory court; and, fourth, some courts (for example, NSW) have different rules for how barristers’ attire for different types of proceedings (e.g. wigs in criminal appeals, but not civil ones.)
Examples of the resulting varying headwear can be seen in recent videos of the High Court’s hearings [EDIT: although the camera does not catch all counsel, see comment below] for example:
- Murphy and Day, both in the Court’s original jurisdiction, where no-one wore wigs
- Bell Group, a WA case in the Court’s original jurisdiction, where no-one [EDIT: other than the Qld and pre-May Vic Solicitors-General] wore wigs
- Miller, a SA criminal appeal where everyone wore wigs
- Crown Melbourne, a Vic civil appeal just after May 1, where no-one wore wigs
- Robinson Helicopter and Zaburoni, Qld civil and criminal appeals, where everyone wore wigs
- Betts and Nguyen, NSW criminal appeals, where everyone wore wigs
- Attwells, a NSW civil appeal, where no-one wore wigs
- Mok and Alqudsi, NSW criminal matters involving collateral civil claims, where no-one wore wigs
- IMM, a NT criminal appeal, where no-one (including NSW barrister Stephen Odgers) wore wigs. (Odgers will presumably have his wig back on in June’s Sio hearing, a NSW criminal appeal.)
- [EDIT:] GW, an ACT criminal appeal, where everyone (including NSW barrister Stephen Odgers) wore wigs.
- Paciocco, an appeal from the Federal Court’s Melbourne division, where the respondent’s (Victorian, pre-May 1) barristers wore wigs while the appellant’s (NSW) barristers didn’t!
- R, a Vic civil appeal before May 1, where everyone wore wigs.
So, the current debate in Victoria about whether Victorian barristers should continue to have the option of wearing wigs before the state’s now-bare-headed Supreme Court judges is also about what they should wear before the long-bare-headed High Court justices. We may see the outcome in June’s hearing in (Victorian civil appeal) Deal, but perhaps not right away; the Court’s audio-visual website advises that:
The service provider that the Court uses to host videos of its sittings will cease operations from Monday 30 May. Online video recordings will be temporarily unavailable until the Court can arrange an alternate provider.