The structure and power of the High Court (SACE Stage 2 Legal Studies)
“Explain the structure, jurisdiction and appointment of the High Court, and evaluate whether it has too much power.”
The High Court of Australia is the highest court in the country, established by Chapter III of the Constitution. It is made up of seven justices appointed by the Governor-General on the advice of the government, who serve until the age of seventy. It has original jurisdiction over constitutional and federal matters and appellate jurisdiction over all other Australian courts. Because it is the final interpreter of the Constitution and its decisions cannot be appealed, debate continues over whether it holds too much power.
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What this dot point is asking
You must explain how the High Court is structured, its jurisdiction and appointment, and evaluate whether its power is too great. This focuses on the Court as an institution rather than on its methods of interpretation.
Structure and appointment
The High Court is established by section 71 of the Constitution as the highest federal court.
- It consists of a Chief Justice and six other justices, making seven in total.
- Justices are appointed by the Governor-General acting on the advice of the government of the day.
- They have security of tenure until a fixed retirement age of seventy, which protects their independence by ensuring they cannot be removed for unpopular decisions.
Security of tenure means a judge cannot be removed from office except in extreme circumstances, such as proven misbehaviour or incapacity, and holds office until a fixed retirement age. It protects judicial independence by insulating judges from political pressure.
Jurisdiction of the High Court
The High Court has two kinds of jurisdiction.
- Original jurisdiction is the power to hear certain matters for the first time, set out in sections 75 and 76. This includes disputes about the interpretation of the Constitution, matters where the Commonwealth is a party, and disputes between states.
- Appellate jurisdiction is the power to hear appeals from all other Australian courts, including state supreme courts, under section 73. Most appeals require special leave, meaning the Court chooses which cases raise important enough issues to hear.
The High Court is the final court of appeal for the entire Australian legal system. Since appeals to the Privy Council in London were abolished, no court stands above it, so its decisions on the meaning of the Constitution are final and bind every other Australian court.
The power of the High Court
The High Court's most significant power is constitutional review: it can declare a law passed by the Commonwealth or a state invalid if the law breaches the Constitution. Because it is the final interpreter of the Constitution, its decisions shape the division of powers between the Commonwealth and the states and the limits on government power.
Do not say the High Court can strike down any law it dislikes or that it makes policy. The Court can only declare a law invalid if the law is inconsistent with the Constitution, and only when a real case is brought before it. It interprets the Constitution; it cannot rewrite it or veto laws on policy grounds.
Does it have too much power?
This is the evaluative big question for the option area.
Arguments that it has too much power include that unelected judges can invalidate laws made by an elected parliament, that it has expanded Commonwealth power through broad interpretation, and that it cannot be appealed or easily checked. Arguments that its power is appropriate include that someone must be the final interpreter of the Constitution, that the Court can only act when a case is brought and only on constitutional grounds, that parliament can respond by referendum, and that judicial independence and constitutional review are essential to the rule of law.
Keep this answer about the institution: structure, appointment, jurisdiction and the power of constitutional review. Save interpretation methods such as literal and progressive approaches for the interpretation dot point. To evaluate, weigh the democratic objection that judges are unelected against the need for a final, independent guardian of the Constitution.
A SACE extended response rewards a balanced, evaluative argument grounded in the Court's role.
Step 1: State a contention
Argue that the High Court's power is significant but legitimate and constrained.
Step 2: Set out the power
Explain judicial review, the final interpretation of the Constitution, and original and appellate jurisdiction under Chapter III.
Step 3: Argue it has too much power
Show that an unelected court shapes the federal balance and effectively expands or limits power through interpretation.
Step 4: Argue the power is legitimate
Show that judicial review upholds the rule of law, that the Court cannot rewrite the text, and that judges are appointed and bound by precedent.
Step 5: Reach a judgement
Conclude that the power is substantial but appropriate, given the difficulty of amendment and the need for a final interpreter.
Connection to the rest of the course
This dot point connects to the separation of powers, the division of powers, constitutional interpretation and rights protection. It is central to the option area on the Australian Constitution and a strong basis for an inquiry into whether the High Court has too much power.
Exam-style questions
Questions in the style of SACE Board exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
2018 SACE Stage 2-style1 markIdentify two types of dispute that might be resolved by the High Court of Australia.Show worked answer →
Any two of the following are correct:
Disputes about the interpretation or validity of the Constitution, including the division of powers between the Commonwealth and the states (its original jurisdiction).
Appeals from the Federal Court, the Family Court and the supreme courts of the states and territories on questions of law (its appellate jurisdiction, by special leave).
Other acceptable answers: matters in which the Commonwealth is a party, disputes between states, or matters affecting consuls or arising under treaties (all part of the section 75 original jurisdiction).
2018 SACE Stage 2-style20 marks'The High Court of Australia is too powerful.' Using examples, evaluate this statement.Show worked answer →
A 20-mark "evaluate" needs a clear contention, balanced argument with real examples, and a sustained judgement.
- Arguments that it is too powerful
- As the final interpreter of the Constitution, the High Court can strike down legislation and effectively reshape the federal balance. Through broad interpretation of powers such as external affairs (Tasmanian Dam case) and corporations (Work Choices case), it has expanded Commonwealth power at the expense of the states. By recognising implied rights (implied freedom of political communication in ACTV) and overturning settled doctrine (terra nullius in Mabo), unelected judges have made decisions with major social and political effect, with no appeal from their rulings.
- Arguments that it is not too powerful
- The Court only decides cases brought to it and is bound to apply the law and the Constitution, not its own preferences. Its power is checked: Parliament and the people can amend the Constitution by referendum, the executive appoints justices, and the doctrine of precedent and published reasons constrain it. Judicial review is essential to the rule of law and the separation of powers, ensuring government acts within legal limits.
- Judgement
- A strong response concludes that, while the Court's interpretive power is great and largely unchecked between referendums, this power is a necessary and legitimate part of upholding the Constitution rather than evidence of overreach - though particular decisions can fairly be debated.
Practise this
Sources & how we know this
- Stage 2 Legal Studies subject outline (2025 onwards) — SACE Board
- Stage 2 Legal Studies: external assessment — SACE Board