Jurisdiction refers to a court’s power to hear and determine legal disputes. The High Court’s jurisdiction can only be invoked under particular circumstances, as laid out primarily in the Constitution. The requirements for jurisdiction raise a central question for all potential High Court matters: ‘will the Court hear the case’?

What is a ‘matter’?
The first requirement is that the High Court may only hear ‘matters’. A ‘matter’ is wider than just a legal dispute between two parties. Rather, it specifically means a real, ongoing dispute about an immediate legal right, duty or liability that the High Court is capable of determining finally. This requirement means the Court cannot rule on merely hypothetical cases, or a case which it is incapable of resolving.

One relatively recent, high-profile example of the Court refusing to exercise its jurisdiction because a matter had become hypothetical and incapable of resolution by the Court occurred in 2001. The High Court refused special leave in an appeal from the Full Federal Court in Ruddock v Vadarlis [2001] FCA 1329, the case concerning the detention of asylum seekers on the MV Tampa, and commonly known as the Tampa Case (see here). The High Court rejected Mr Vadarlis’ application for special leave against the Federal Court ruling because the asylum seekers had been relocated to Nauru. Because they were no longer being held by the Australian Government, the High Court could not grant Mr Vadarlis’ application for a writ of habeas corpus (a court order requiring that the government release a person it has illegally detained). In contrast, certain other supreme courts, such as the Supreme Court of Canada, are empowered to issue ‘advisory opinions’ in response to a government request for an opinion on a hypothetical issue.

Leave to appeal to the High Court
As with all Australian courts, the High Court can only decide cases that are brought before it. Unlike other courts, however, the High Court has an additional procedure for selecting the cases it will hear. No person has an automatic right to have the Court hear and determine a case. Instead, the Court must first grant ‘leave to appeal’.

In most matters, this involves a procedure called a ‘special leave application’. Usually, a special leave hearing occurs before one or two Justices of the Court, and generally each party has a maximum of 20 minutes for oral submissions. Special leave applications may also be dealt with ‘on the papers’, that is, without the Justices needing to hear further arguments before the Bench. The Court rejects most of these applications. The High Court may agree to hear the case, or it may send it to a lower court (for example, to determine the facts of the case, if they have not been stipulated by the parties), or it may reject the application and refuse to hear the matter.

When the Court does grant special leave, it is generally because the case involves an important legal issue or disagreement between the lower courts that the Court should rule on, or because there has been a significant irregularity in the lower court proceedings (usually, in a criminal trial). These form the more substantive hurdles that a potential matter must pass. The transcript of a recent example of a typical special leave hearing — Patel v The Queen — can be read here.

Original and appellate jurisdiction
The Court has ‘original’ and ‘appellate’ jurisdiction. Appellate (from ‘appeal’) relates to the Court’s power to review decisions made by lower courts, including State Supreme Courts and the Federal Court of Australia. Original jurisdiction refers to cases that have come directly to the High Court, without any prior judicial decision. (However note that the Federal Court also has original jurisdiction over some matters.) The Constitution lays out several circumstances in which original jurisdiction may be invoked, including:

  • Where the Commonwealth is a party;
  • Where a writ (a formal written court order) is sought against an officer of the Commonwealth (for example, the Minister for Immigration);
  • Matters arising between different states, or the residents of different states; and
  • Matters arising under international treaties or relating to the representatives of foreign countries.

Original jurisdiction means the High Court will be the first to court to hear the matter. The Court can also send proceedings back to lower courts via remittal; and may receive requests for rulings on particular issues (usually constitutional issues) arising in lower court proceedings via removal procedures.

Readers interested in jurisdiction may wish to read the following:

This entry partly draws on material contained in Michael Coper, Tony Blackshield and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001).