At this year’s national conference of the Australian Bar Association, Victorian Chief Justice Marilyn Warren, after outlining the success of Victoria’s Court of Appeal in finalising civil appeals, provocatively added:
Now taking the local level of excellence, of course it extends across the national superior courts. So what opportunities arise to market that collective excellence? An opportunity that lies before all of us as the collective superior courts of Australia is to contemplate a national appellate court.
Of course, Australia already has a national appellate court, the High Court of Australia, which, unlike the Supreme Court of the United States, can hear appeals from any Australian court on any subject. Why, therefore, call for a second national appellate court? Warren CJ gives three related reasons.
First, ‘such a court… would enable the development of national precedents and a national jurisprudence’. At present, only federal courts (including the High Court) make precedents that bind the nation. Warren CJ notes that the position for state courts is murkier:
[T]he High Court in Farah v Saydee required each of the intermediate appellate courts to acknowledge and follow other intermediate appellate courts absent clear error. Whether the High Court’s statement was a statement of legal principle or a statement of legal policy, the latter probably more likely, is yet to be resolved.
Warren CJ’s implicit point, that this system is not ideal, is backed up by a series of recent disagreements between the NSW and Victorian appeals courts on the meaning of federal or shared legislative provisions. Presently, the only court that can resolve these disputes is the High Court.
Second, a national appeal court ‘would enable the hearing of many issues that the High Court declines to deal with because it must inevitably be selective’. Warren CJ explains:
[O]n average, well over 2000 intermediate appellate court judgments are delivered annually across the nation. From that proportion there are around 60 High Court appeals and around 500 special leave applications. When the raw numbers are looked at this way it throws up a phenomenon of a gulf between the intermediate appellate courts and the High Court.
Her figures understate the problem. The ‘around 500 special leave applications’ include (p. 23) several hundred generally hopeless self-represented or immigration appeals. And, last year, the High Court issued only 48 full court judgments, the lowest in decades, and just 37 of those were appeals.
Finally, ‘[a] Court of Appeal of Australia would be reflective of Australia’s international standing in a globalized world.’ Warren CJ explains:
Alternative dispute resolution and arbitration cross international boundaries. When international conventions and agreements are brought into the picture, all Australian jurisdictions need to consider how we position ourselves to be the forum of choice internationally.
Her implicit suggestion is that a nation with a single apex court overseeing almost a dozen distinct intermediate ones is unappealing to potential commercial litigators.
These compelling arguments must, of course, be weighed against the legal, practical and political barriers to changing the current system. Remarking that ‘I am not suggesting that the High Court be confined to a constitutional role’ – indeed, doing so would require a constitutional amendment – Warren CJ implicitly raises the intriguing question of whether the status quo and, in particular, the High Court’s diminished role in adjudicating and making non-constitutional law, is defensible.