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The High Court of Australia

The High Court is the highest court in Australia and its decisions are final. The High Court of Australia has original jurisdiction to hear matters of federal significance including constitutional challenges and appellate jurisdiction to hear appeals from the federal, state and territory courts across all areas of law.

The current Chief Justice of the High Court is Chief Justice Susan Mary Kiefel AC.

The High Court is governed by the High Court of Australia Act 1979. It is located in Canberra but also sits in all the capital cities, with registries in Melbourne and Sydney.

History of the High Court

The High Court of Australia was established in 1901 by the Constitution of Australia.  It was initially comprised of only three Justices but soon expanded to include another three as it developed a wide-ranging appellate jurisdiction. During the 1960s and 70s the High Court’s jurisdiction grew to the point that it became necessary to establish the Federal Court of Australia as a separate jurisdiction.

A right to appeal against the decisions of Australian state courts to the Privy Council remained until the Australia Act was passed in 1986, making constitutional arrangements consistent with country’s status as a sovereign independent and federal nation.

Until 1977, High Court Justices had life tenure. In 1977, legislation was passed requiring them to retire upon turning 70.

Constitutional matters

A constitutional challenge occurs when a party argues that a piece of legislation, or part of a piece of legislation, is not constitutionally valid. This may be because the law seeks to impose restrictions that parliament does not have the power to impose or traverses an area that parliament does not have the power to legislate in.

One example of a successful constitutional challenge is the 2013 decision of the High Court that the ACT’s Marriage Equality (Same Sex) Act 2013, which purported to legalise same-sex marriage in the ACT, was invalid as the ACT parliament had no power to legislate with respect to marriage (as that power belongs to the federal government).

Matters involving the interpretation of the constitution are generally decided by the full bench of all seven Justices of the High Court.

HIgh Court Appeals

The High Court is the final avenue of appeal against decisions of the courts of the states and territories and the federal court in all areas of law. The High Court also heard appeals against decisions by one or more Justices of the High Court.

Leave (permission) is required from the High Court before a party can pursue an appeal. This issue is determined in a preliminary proceeding. To be granted leave to appeal, an appellant must usually demonstrate that the appeal raises new points of law, is of high public importance, is likely to affect many future cases or involves legal issues that have been decided inconsistently in the lower courts.

Original jurisdiction of the High Court

The High Court of Australia has original jurisdiction in relation to all matters:

  • arising under a treaty;
  • affecting representatives of other countries;
  • between states, or between residents of different states or between a state and a resident of another state; and
  • where a write of mandamus, or prohibition or an injunction is sought against an officer of the Commonwealth (Constitution, Section 75).

Original jurisdiction means that the proceedings begin in the High Court.

Electronic filing

In 2020 the High Court of Australia started requiring court documents to be filed electronically. This is done in a three-step process of email verification, registration and approval.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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