News: Vic CJ proposes Australian Court of Appeal

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.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

9 thoughts on “News: Vic CJ proposes Australian Court of Appeal

  1. Whatever the merits of this proposal,it will never happen,as state governments will not give up their right of patronage in respect of judicial appointments.

    • True, but I’m not sure the proposal requires that. It may just involve a partial amalgamation of existing intermediate appeal courts, allowing, eg, the formation of mixed state benches to resolve multi-state issues in a way that creates binding national precedents. The political problems will include agreeing on the procedural and substantive rules (eg, how to organise the joint bench formations, and the applicable appeal powers).

      • The relevant provision is s73: “But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.” But note the other comments about whether or not the new court would be a ‘Supreme Court of a State’, etc.

  2. I think the constitutional validity of the proposed national court would depend on whether it would qualify as being the “Supreme Court of any State” in terms of section 73 of the Constitution. This begs the question of whether a national court can also be a State court. There is an argument that because its jurisdiction would be “national”, the proposed court would not be the “Supreme Court of any State”. I’m not suggesting this argument is correct or incorrect; rather, I’m raising it as a potential impediment to the proposal to establish a national court.

    • Yes, I think that’s a relevant issue. The main question is whether the court would fall within s73(ii) of the Constitution: i.e. is it either a ‘federal court’ (perhaps, but presumably not); a ‘court exercising federal jurisdiction’ (perhaps, if the Commonwealth legislated accordingly and, which is trickier, validly under s51 of the Constitution); a ‘Supreme Court of the State’ (which, arguably not as you say, though there’s clearly an alternative reading – for instance, the WA Supreme Court hears appeals from Cocos Islands without anyone questioning its classification); or ‘any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council’ (um?) A subsidiary question is whether or not s73 demands that every court fall within ones of these requirements and, in particular, whether agreements to share judges, etc are a problem.

      • A further problem is the High Court’s insistence (not with any textual basis in the constitution, but still) that Australia’s common law must be national and (apparently) cannot be developed by any non-national court, which will be a problem if not all the states sign up to the new appeal court. But that won’t prevent a semi-national court from developing statutory law for multiple jurisdictions (unless, I guess, the statute itself is read as barring such an approach.)

      • My understanding is that the Western Australian Supreme Court exercises federal jurisdiction when it sits in determination of matters under Cocos (and Christmas) Island law. The body of law that applies in those territories in Western Australia law, but it is applied by a federal statute. I could be wrong.

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