The High Court is the ultimate court of appeal in the Australian judicial system. The High Court has seven judges: a single Chief Justice and six justices. The current Chief Justice is Robert French AC, and the current justices (in order of seniority) are Kenneth Hayne AC, Susan Crennan AC, Susan Kiefel AC, Virginia Bell AC, Stephen Gageler and Patrick Keane. Each justice is appointed by the Governor-General in Council on the advice of the Commonwealth Attorney-General and the federal cabinet. Justices are typically highly accomplished barristers that have also held judicial office in another superior court. Justices are usually appointed at the prime of their legal careers, and are required by the Constitution to retire at the age of 70. A discussion with retired Justice Michael Kirby on what being a High Court justice is ‘really like’ can be found here.
The Court has the final word on the interpretation and application of all Australian laws, including state and federal laws, and the common law. It may hear appeals from decisions of state or territory Supreme Courts, and from federal courts. The High Court hands down many decisions each that are important to the lives of all Australians. High Court decisions establish the law on matters as diverse as recognition of Aboriginal native title (Mabo, 1992), Australia’s refugee law (M70, 2011), the ability of charities to advocate for change (Aidwatch, 2011), and the right of young people to vote (Rowe, 2010). The High Court’s caseload can be divided approximately into one third criminal law, one third civil/private law, and one third public/government law. The court has great influence over each of these three broad areas of law.
The High Court simultaneously fulfils several important roles. As the final court of appeal in Australia, it is charged with deciding the correct interpretation and application of Australia’s laws. To this end, the Court also has a law-making role. When the Court interprets a provision of the Constitution or a statute, considers a common law rule or principle, or applies ‘settled’ law to new fact scenarios, the Court is engaged in law-making. This activity is constrained by various legal doctrines, including the doctrines of precedent and the separation of powers, as well as the need for Australia’s laws to remain predictable and certain.
The High Court is often referred to as the ‘guardian’ of both the Constitution and the rule of law in Australia. Former Chief Justice Murray Gleeson succinctly described the complex relationship between the law, the government, the judiciary, and the public, when he said:
The importance of the rule of law lies partly in the power it denies to people and to governments, and in the discipline to which it subjects all authority. That denial, and that discipline, are conditions of the exercise of power, which in a democracy, comes from the community which all government serves. Judicial prestige and authority are at their greatest when the judiciary is seen by the community, and the other branches of government, to conform to the discipline of the law which it administers. The rule of law is not enforced by an army. It depends upon public confidence in lawfully constituted authority. The judiciary claims the ultimate capacity to decide what the law is. Public confidence demands that the rule of law be respected, above all, by the judiciary.
More on the High Court’s Importance
We would encourage readers who are interested to learn more about the High Court’s role and significance to read speeches by current and former justices available on the Court’s website, as well as journal articles and conference papers. Notable examples include:
- Susan Kiefel, ‘On Being a Judge’ (15 January 2013).
- Robert French, ‘The Courts and the Parliament’ (4 August 2012).
- Robert French, ‘Appellate Advocacy in the High Court of Australia’ (29 June 2012).
- Susan Crennan, ‘Statutes and the Contemporary Search for Meaning’ (1 February 2010).
- Murray Gleeson, ‘The Judicial Method: Essentials and Inessentials’ (25 June 2009).
- Murray Gleeson, ‘The Purpose of Litigation’ (12 August 2008).
- Susan Kiefel, ‘Judicial Independence’ (30 May 2008).
- Stephen Gageler, ‘Judicial Appointments’ (2008) 30 Sydney Law Review 159.
- Michael McHugh, ‘The Strengths of the Weakest Arm’ (2 July 2004).
- Murray Gleeson, ‘The Centenary of the High Court: Lessons from History’ (3 October 2003).
- Sir Anthony Mason, ‘The High Court of Australia: A Personal Impression of Its First 100 Years’ (2003) 27 Melbourne University Law Review 864.
- Kenneth Hayne, ‘Australian Law in the Twentieth Century’ (13 November 1999).