Politics One

Fourth edition

by Ian Ward and Randal G. Stewart

The High Court of Australia

Quick e-introduction to Australia's court system:

Further reading suggestions

Michael Coper has written a succinct account of the High Court and its politics which is published in Galligan, B. and W. Roberts (eds) 2007 The Oxford Companion to Australian Politics. (South Melbourne: Oxford University Press). Here are some ewxwnraccounts of the High Court written by political scientists.
  • Miragliotta, N. And Errington, W. 2009 The Australian Political System in Action. (Melbourne: Oxford University Press). Chapter 7. ‘The High Court’.
  • Patapan, H. 2009. ‘The High Court’ in D. Woodward, A. Parkin, and J. Summers (eds) Government, Politics, Power and Policy in Australia. 9th edn. (Frenchs Forest NSW: Pearson.) This chapter argues that its ‘new politics’ have seen the Court engage with fundamental democratic issues.
  • Hall, R. (2000) ‘The New Politics of the High Court: breaking with constitutional tradition or securing a political future?’ In P. Boreham, G. Stokes and R. hall (eds) The Politics of Australian Society. (Frenchs Forrest: Longman). Hall traces the Court’s adoption of realism as a reconstruction of its own role.
  • Patapan, H. (2000) ‘Governance and the High Court’ in M. Keating, J. Wanna and P. Weller (eds) Institutions on the Edge? (St Leonards: Allen and Unwin). This chapter begins with the argument that the Court is a political institution.

Useful links

The High Court has a useful website with pages on its role, history and operation. You can also take a ‘virtual tour’

A further note on the High Court as a legal institution

In Politics One our interest in the High Court is in its role as a political actor and its place in Australia’s system of government. But as an institution it has been widely studied from a chiefly legal perspective. Two such books written about the Court which you may still find useful are:
  • Hull, C. 2003. The High Court of Australia: Celebrating the Centenary 1903-2003. (Pyrmont: Lawbooks Co).
  • Blackshield, A., M. Coper and G. Williams 2001. The Oxford Companion to the High Court of Australia. (Melbourne: Oxford University Press).
Discussion point 
One of the ‘prizes’ Labor obtained on winning the 2007 election is the opportunity to appoint two new justices and a chief justice during its first term. The temptation would be to appoint judges to reshape a conservative High Court fashioned by the Howard Government which made little secret of its desire to appoint ‘capital C’ conservatives. In the US appointments to the US Supreme Court are made via an expressly political process—nominees are proposed by the President and then approved by the Senate. Members of the High Court of Australia are formally appointed upon the recommendation of the Attorney-General and Cabinet. The process is political but not overtly so. Is there a better model? In other Westminster-style jurisdictions appointments to the bench are made by agencies at arms’ length from the government of the day. Britain has recently established a Judicial Appointments Commission. New Zealand has had a Judicial Appointments Unit since 1997. Although it has adopted a more consultative approach than the Howard Government before it, the Rudd Government has expressly rejected this British model. 

Should Australia follow the British and remove politics from the appointment of judges to the High Court? Or should it adopt a US-style appointment process which is openly political?