Welcome to SCOTUSblog’s recurring series in which we interview experts on different supreme courts around the world and how they compare with our own. Today’s column focuses on the High Court of Australia. To help me understand this institution, I corresponded with professor Cheryl Saunders of Melbourne Law School.
When was the High Court of Australia established?
The HCA was established in 1903, two years after Australia’s Constitution came into effect. Chapter III of the Constitution effectively requires there to be a high court, and regulates aspects of it (although implementing legislation was required).
Is the HCA an appellate body? Does it hear matters of original jurisdiction?
The HCA hears appeals from federal and state courts. The HCA also has original jurisdiction: see sections 75 and 76 of the [Australian] Constitution. The subjects of original jurisdiction in section 75 are conferred directly by the [Australian] Constitution. The subjects of original jurisdiction in section 76 may be conferred on the HCA by legislation (and some have been). All the subjects of jurisdiction in sections 75 and 76 may also be conferred on other federal courts or on state courts.
Does the HCA have the power of judicial review?
Yes, in the sense of review of legislative or executive action for consistency with the Constitution.
Let’s get a bit to the nuts and bolts. How many justices are on the HCA?
There are presently seven justices on the HCA.
How are these justices selected?
The Constitution describes justices of the HCA as “appointed by the Governor-General in Council” (section 72). In practice the attorney-general takes the lead in identifying candidates and deciding which one to appoint. Consultation might take place with the chief justice of the HCA and other judges, major law organizations, senior lawyers, etc. There is also a statutory requirement for the attorney-general to consult with attorneys-general of the [six federated] states before making an appointment (High Court of Australia Act 1978 (Cth) section 6). Once the government has made a decision, the governor-general is then “advised” to appoint that person.
Do the justices serve terms – and if so, of what length?
Justices hold office from the date or their appointment until the age of 70 (subject to early retirement or removal).
Are cases decided by a simple majority?
Cases are decided by a simple majority. If the court is evenly divided on an appeal (which sometimes, although rarely happens), the decision of the court below is affirmed. This may be due to such things as recusal, illness, or travel, or the recent retirement or death of a justice and a new one not being appointed yet. If it is evenly divided in the exercise of original jurisdiction the view of the chief justice prevails.
How is the opinion writer assigned?
There is no “opinion writer.” Each justice writes her/his own judgment, although there is some coordination through informal consultations of various kinds.
If each justice writes, how do the litigants determine what the majority holding is?
If there is no single majority set of reasons, readers need to compile the majority view from multiple judgments.
Is there a tradition of concurrences or dissents on the court?
Both are familiar (although the terminology of “concurrence” is less likely to be used). There are some cases in which all justices join in a single set of reasons, but it is more usual for some to agree (with reasons of their own) and some to dissent. The judgments are published in order of seniority on the court, beginning with that of the chief justice.
What were some major issues recently decided by the HCA?
Issues of possible comparative interest decided by the HCA within the last year or so include:
- The rejection of a novel common law defense to commonwealth officer liability for false imprisonment in unlawful immigration detention where officers were acting consistently with what then had been held to be the law: Abdel-Hady v Commonwealth [2026] HCA 17;
- Invalidity of a regulation that authorized monitoring and curfew conditions to be imposed on categories of unlawful non-citizens without judicial process, inconsistently with the constitutional separation of judicial power: EGH19 v Commonwealth [2026] HCA 7;
- Invalidity of State electoral funding provisions on the ground of inconsistency with the implied constitutional freedom of political communication: Hopper v State of Victoria [2026] HCA 11; and
- Invalidity of a Northern Territory determination prescribing housing rents in remote communities without according procedural fairness to tenants: Badari v Minister for Territory Families and Urban Housing [2025] HCA 47.
What have been some particularly controversial issues decided by the HCA?
[By date order:]
- Invalidity of Commonwealth legislation outlawing the Communist Party of Australia: Australian Communist Party v The Commonwealth (1951) 83 CLR 1;
- Holding that there is a strict separation of federal judicial power under the Australian Constitution: R v Kirby and Others; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254;
- Holding that the Commonwealth’s legislative power with respect to “external affairs” extends to implementing any bona fide treaty to which Australia is a party: Commonwealth v Tasmania (1983) 158 CLR 1 (“Tasmanian Dams Case”);
- Holding that the common law of Australia can recognize continuing Indigenous rights and interests in land that existed at the time of colonization, effectively repudiating the doctrine of “terra nullius”: Mabo v Queensland (No.2) [1992] HCA 23;
- A decision that a freedom of political communication is implied in the Australian Constitution: Australian Capital Television v Commonwealth (1992) 177 CLR 106; and
- Invalidation of a state-road user charge on low-emission vehicles on the grounds that it was a “duty of excise” and so fell within Commonwealth’s exclusive power: Vanderstock v Victoria [2023] HCA 30.
The United States Supreme Court is often seen as partisan. Does the HCA have a partisan reputation?
The HCA does not have a reputation as partisan. Occasionally particular appointments have been viewed as partisan. After one HCA decision (in Wik Peoples v Queensland (1996)) the then-deputy prime minister threatened to appoint conservative justices when the occasion arose. (The next appointment, of Justice [Ian] Callinan in 1997 arguably carried that threat through.) But for the most part the court is viewed as politically neutral and acts accordingly.
Would you say this court is considered a particularly powerful institution – say, compared to the Australian Parliament or the prime minister?
It is powerful in the sense that it has the last word on the constitutional validity of legislation and the legality of executive action if a competent challenge is raised before the court. In other words, it is powerful within its sphere of responsibility. It is not meaningful to compare it to the Parliament or the prime minister, however, both of which derive their authority, directly or indirectly, from democratic election, and both of which have broad power to proactively make or change law and policy.
What aspect of this court do you see as superior to that of the Supreme Court of the United States?
The fact that the HCA is not viewed as politically partisan is and has been very important in the Australian context.
What aspect of the Supreme Court of the United States do you see as superior to that of the High Court?
[As noted above, while] the majority reasons are readily ascertainable under U.S. practice, in Australia that is not necessarily the case. The more structured presentation of the opinion of the court may then be one example here, subject to any unexpected consequences that might follow if the practice were adopted.
