Could we have a Truly FEDERAL High Court?

Associate Professor John Gava takes us again into the debate on High Court appointments. His suggestion? Federalize the High Court! John argues that such a move would have an important symbolic effect, and potentionally practical effects that may manifest in the High Court’s reasoning. His comments are particularly timely as the Commonwealth Attorney-General, Nicola Roxon, calls for nominations for appointment to the High Court upon Justice Gummow’s retirement this year, and Justice Heydon’s in 2013.

Since the creation of the United States federalism has been seen as a means of avoiding centralized governmental power and thus protecting citizens. Australia adopted such a structure in 1901 for this and other reasons (the most important of which was the structural reality of the existing colonies and their governmental elites). Of course, since Federation the High Court has generally, if unevenly, granted ever more powers to the Commonwealth, at the expense of the States.

My suggestion is that it is time to create a truly FEDERAL High Court. Instead of the Commonwealth appointing all of the members of the Court, each State would be given, in effect, one seat with the Commonwealth responsible for appointing the Chief Justice.

Such a move would be important in symbolic terms because it would make public Australia’s commitment to federalism. It would also have practical effects because it is more likely that judges appointed by the various States would favour a federal rather than a centralizing interpretation of the Constitution. I don’t mean by this that such a court should or could engage in reverse engineering but, rather, that it might stop the seemingly inexorable shift of legislative power to the Commonwealth.

Such a policy could be carried through without any expense, would not require any legislation and would not need an amendment to the Constitution. Given that it appears that soon the overwhelming majority of States will be governed by Liberal or Coalition governments and that a Coalition government is likely to be in power from 2013 all governments could agree that while the Commonwealth would formally appoint judges to vacancies on the High Court (other than the Chief Justice) it would only do so on the advice of the responsible State governments. Of course, there is no reason why a Labor government in Canberra couldn’t do the same but historically the Labor Party has not promoted itself as a friend of federalism (although the Howard government was probably the most centralizing government we have ever seen)

So, for example, when the next vacancy to the High Court presents itself either South Australia or Tasmania (neither of whom have had one of their own on the High Court) would be given the task of finding a suitable nominee and the process would continue with each succeeding vacancy, with the positions allocated in an order which reflects the remaining States with the least number of representatives on the High Court to that one with the most (NSW). Each State would, in effect, be given its own position on the High Court which it would fill each time its nominee retired. If this practice were adopted I would hope that it would achieve the status of a constitutional convention (that is, binding in practice if not in law).

I would like to repeat that such a policy would have important symbolic and practical effects for federalism, would NOT cost money or require legislation or a constitutional amendment. It would only need the agreement of the various State governments and, of course, the Commonwealth.

John Gava is an Associate Professor at the Law School, University of Adelaide. He has previously mooted his ideas to federalize the High Court in 2008. You can read his earlier opinion piece here: 


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