The High Court

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    A simple majority might be the only practical way of deciding for or against something in the normal course of events.
    However, to decide on issues of major importance to the nation, surely a simple majority is not enough?
    It means, effectively, that just one person out of seven can have the final say on any matter.
    Though unaware of it in advance, just one person has the deciding vote.
    Is this right and proper when decisions affect the entire nation for a long time?
    High Court decisions cannot simply be changed at the next election.
    So we should be thinking in terms of a distinction rather than a simple pass?
    A minimum of seventy percent, rounded to the next highest number, should be in agreement?
    This would make a 5:2 split in the present situation.
    Much more realistic.
    If any law produces so much difference in opinion that such a result cannot be achieved, surely the law is badly written, and should be reworded?
    Time to rewrite laws?
    Time to change the constitution?


    Interesting history of the “law” in Australia, including the first court in 1788 and the High Court much later.

    1788 – The first criminal court session is held in the penal colony of New South Wales.

    In April 1787, the British parliament passed the New South Wales Courts Act, which created a court of criminal judicature in the soon-to-be founded penal colony on the eastern coast of NSW. The Act provided that the court was for “the trial and punishment” of “outrages and misbehaviours” deemed “to be treason or misprision thereof felony or misdemeanour.” The court consisted of an appointed Deputy Judge Advocate and “six officers of his majesty’s forces.”

    There were between 1,000 and 1,500 convicts, guards and officials on board the eleven ships of the First Fleet who arrived in January 1788. Governor Arthur Phillip was given absolute power of authority over everyone in the colony. Initially the penal colony “was run as a military base”. The military government enforced the law with public punishment, such as floggings and hangings.

    The first court was presided over by the Deputy Judge Advocate, who was a military officer without any formal training in law. The court had virtually unlimited powers to deal with criminal offences and was constituted by the colony’s Deputy Judge Advocate, or as the office came to be more commonly called, Judge Advocate. The first Deputy Judge Advocate was Colonel David Collins.

    Sydney Cove 1788. Inset: Colonel David Collins.

    The court heard both criminal and civil cases, and the first hearing was in Sydney Cove on 11 February 1788. The first court assembled in full military regalia with a full military guard. Governor Phillip wished the first sittings to be an example to the convicts and to impress upon them the authority of the court and the rule of law. Collins reflected later in his memoirs that the first court was a failure, as the sentences imposed were not sufficiently strong to deter crimes in the colony.

    According to UNSW professor of law Prue Vines, the court of criminal jurisdiction consisted of the Judge-Advocate and the six military officers, who served as the jury, “and the governor could exercise mercy”. The criminal court ran until 1823. The court of civil jurisdiction had “two justices appointed by the governor who sat” with the judge and governor. This civil court continued on until 1814.

    A week after the initial court proceedings, the first bench of magistrates, consisting of three men, was convened aboard the HMS Sirius. Most of the work the magistrates initially conducted consisted of allocating work to convicts, and disciplining them if the need arose.

    Early magistrates were from the high ranks of society, but they had no background in law. Nor were they paid for their services. “Ex-police were sometimes appointed because they at least knew something about law,” the professor explains. Some have described early magistrates as glorified justices of the peace. The Judge-Advocate was sent around to attend their sessions “in a sort of informal supervisory capacity.”

    1903 – The High Court of Australia opens in Melbourne.

    The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia.

    The Court was constituted by, and its first members were appointed under, the Judiciary Act 1903. It now operates under Constitution sections 71 to 75, the Judiciary Act, and the High Court of Australia Act 1979. It is composed of seven Justices: the Chief Justice of Australia and six other Justices. They are appointed by the Governor-General of Australia, on the advice of the federal government, and under the constitution must retire at age 70.

    The first Chief Justice of Australia, Sir Samuel Griffith, is administered the judicial oath at the first sitting of the High Court, in the Banco Court of the Supreme Court of Victoria, 6 October 1903.

    The Constitution was passed by the Imperial Parliament, and came into effect on 1 January 1901. However, the High Court was not established immediately; it was necessary for the new Parliament of Australia to make laws about the structure and procedure of the court.

    In 1902, the then Attorney-General Alfred Deakin introduced the Judiciary Bill 1902 in the House of Representatives. After a period of negotiations and amendments the Judiciary Act 1903 was finally passed on 25 August 1903, and the first three justices, Chief Justice Sir Samuel Griffith and Justices Sir Edmund Barton and Richard O’Connor were appointed on 5 October of that year.

    The first bench of the High Court: Justice Sir Edmund Barton, Chief Justice Sir Samuel Griffith and Justice Richard O’Connor seated, with court officials in the background. Photo taken at the first sitting of the court on 6 October 1903.

    On 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria. After the court’s first sitting in the Banco Court in Melbourne, the court continued to use that court until 1928, when a dedicated courtroom was built in Little Bourke Street, next to the Supreme Court of Victoria, which provided the court’s Melbourne sitting place and housed the court’s principal registry until 1980.


    Thank you Jen for that very interesting article.


    I think I can guess the case which has prompted your post William TB.

    The courts in this country are becoming  become pitiful, imo.


    Yes Salina. I cannot remember the names for sure, but it was the two ‘deportees’ in limbo.
    ‘Love’ was one?
    I think it was the chief justice himself who was reported as making some less than positive comments about the result.
    He was of the minority view as I remember.
    Changing the members of the court would be best.
    Changing the requirements for a ‘pass’ would also allow a more definite and robust decision to be reached?

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