High Court of Australia - History

History

The genesis of the court can be traced back to the middle of the 19th century. Before the establishment of the High Court, appeals from the state Supreme Courts could be made only to the Judicial Committee of the Privy Council, which involved the great expense of physically travelling to London. For this reason some politicians in the colonies wanted a new court that could travel between the colonies hearing appeals.

Following Earl Grey's 1846 proposal for federation of the Australian colonies, an 1849 report from the Privy Council of the United Kingdom suggested that a national court be created. In 1856, the then Governor of South Australia, Richard Graves MacDonnell, suggested to the Government of South Australia that they and the other colonies should consider establishing a court of appeal that would hear appeals from the Supreme Courts in each colony, and in 1860 the Parliament of South Australia passed legislation encouraging MacDonnell to put forward the idea to his colleagues in the other colonies. However, only the Government of Victoria seriously considered this proposal.

At an inter-colonial conference in 1870 in Melbourne, Victoria, the idea of an inter-colonial court was again raised, and subsequently a Royal Commission was established in Victoria to investigate options for establishing a court of appeal and for unifying extradition laws between the colonies and other similar matters. A draft bill establishing a court was put forward by the Commission, but it completely excluded appeals to the Privy Council, which reacted critically and prevented any serious attempts to implement the bill in London (before federation, any laws affecting all the colonies would have to be passed by the British Imperial Parliament in London).

In 1880 another inter-colonial conference was convened, which proposed the establishment of an Australasian Court of Appeal. This conference was more firmly focussed on having an Australian court. Another draft bill was produced, providing that judges from the colonial Supreme Courts would serve one-year terms on the new court, with one judge from each colony at a given time. New Zealand, which was at the time also considering joining the Australian colonies in federation, was also to be a participant in the new court. However, the proposal retained appeals from colonial Supreme Courts to the Privy Council, which some of the colonies disputed, and the bill was eventually abandoned.