The High Court and Our Constitutional Rights

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The High Court is the highest judicial court in Australia, and is called upon to decide some of the most important and challenging legal issues that affect our nation.

The Justices of the High Court may be called upon to decide questions about a range of legal fields: from taxation law to property, copyright, family, migration and, of course, criminal law. From curtailing the power of investigatory bodies like ICAC, to defining just what your rights are in relation to legal representation, the High Court has been instrumental in defining and implying valuable rights and protections.

How Many Cases Does the Court Hear?

Some cases start in the High Court, which is known as its ‘original jurisdiction’. This, however, is only available in a handful of situations set out in section 75 of our Constitution. Most cases, including criminal cases, come to the court by way of appeal.

Either the defence or prosecution can request leave (permission) to appeal a case to the High Court.

Normally, only the cases of the greatest importance make it to the High Court; although the court receives about 800 applications for special leave to appeal each year (20% of which are criminal cases), only a handful are allowed. The High Court typically delivers 80 written judgments each year.

Rights Implied by the High Court

High Court Justices are often called upon to interpret laws that are unclear or ambiguous, and this can lead to the development of legal rules, rights and principles.

Our Constitution guarantees very few rights, so it has often been up to the courts to protect Australians from overreaching politicians or government bodies. Here are some of the important protections that the High Court has instilled into our criminal justice system over the years:

  • The right to a fair trial, although it is not an absolute right to be provided with legal representation (Dietrich v The Queen)
  • Protection against indefinite imprisonment (Kable v DPP)
  • Freedom of communication on political matters (Lange v ABC)
  • Prison inmates cannot be automatically excluded from voting in elections (Roach v Electoral Commissioner)
  • Double jeopardy, protection from being tried twice for the same offence (R v Carroll)

High Court Judgments

On some occasions, all of the High Court Justices will agree on a decision and reasoning, and give a unanimous judgment. But even if all the Justices agree on the same result, they may have different reasons for reaching that outcome, and give separate judgments which can contain invaluable principles of law.

There are seven justices on the High Court, which prevents a tie if the full court is called upon to decide a case. But sometimes, only six of the Justices will sit. If this happens and there is a 3:3 split, the court from which the case came will have the deciding vote. Or, if the matter is of original jurisdiction, the Chief Justice will have the deciding vote. Other than that, the role of Chief Justice is similar to that of the other six justices.

Who are the current High Court Justices?

The current Justice of the High Court are:

  1. Chief Justice Robert French
  2. Susan Kiefel
  3. Virginia Bell
  4. Stephen Gageler
  5. Patrick Keane
  6. Geoffrey Nettle
  7. Michelle Gordon

There have been 52 High Court Justices appointed throughout our history, with Justice Gordon being the most recently appointed, in June this year.

Finding Judgments

There are many online databases which will publish important Australian judgments. Some of these require an expensive subscription, but some, such as AustLII are free to the public. Paper copies are also available for purchase.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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