Circuit system. ‘The circuit system’ refers to the Court’s practice of undertaking regular sittings in the various states. Since 1903, High Court Justices have travelled not only as single Justices, but also as a Full Court. Over the years, supporters of this system have drawn attention to the public’s enhanced perception of the Court, and the benefits for litigants and the legal profession. Opponents have also focused on public perceptions, and on the inconvenience and expense of the practice. Examining the history of the circuit system clarifies these arguments and highlights the conflicting, sometimes passionate, views of former Justices and Attorneys-General on how the Court should operate.
The circuit system was strongly supported by Commonwealth Attorney-General Alfred Deakin, and was facilitated by legislation in 1903. The Judiciary Act 1903 (Cth) provided that the Court should sit not only at the principal seat of the Court, but wherever there was a District Registry. The Act enabled the Court to hear a case at one place, and pronounce judgment at another. On the introduction of the Judiciary Bill 1902, Deakin eloquently described his vision for the Court, including his desire that the Court be ‘a reality to every State … and not merely a name’. While the idea of an itinerant Court attracted strong criticism from other members of Parliament, mainly on the grounds of inconvenience and alleged inefficiency, the Judiciary Act was eventually passed, helping give effect to Deakin’s vision. Together with the High Court Rules, the Act enabled the Court to begin its practice of sitting regularly in each of the state capitals.
In 1905, the circuit system was one of the major issues in a bitter and personal dispute between Commonwealth Attorney-General Josiah Symon and the foundation Justices. Symon argued that circuits were unnecessary, too expensive, and never envisaged by Parliament or the Constitution. Symon also questioned the extent of public support for circuits. The Justices, in response, strongly defended circuits on a variety of grounds. They argued that while circuits were inconvenient and costly, they gave the Justices knowledge of local conditions, enhanced national unity, and enabled litigants to employ their own state’s counsel without the expense of sending them to the principal seat of the Court. These arguments proved unacceptable to Symon, who threatened severe curtailment of the Justices’ travelling allowances. As a result, the Court, for the only time in its history, went on ‘strike’.
The view of the Justices prevailed with the end of Symon’s term as Attorney-General. The attitude of the Justices was supported by new Attorney-General Isaacs, who maintained that the intention of Parliament was to enable the Court to undertake circuits to the states ‘as may be required’. In a series of published opinions (see ‘The Home of the High Court and a High Court Bar’ (1905) 3 Commonwealth LR 49), leading lawyers representing all the states supported circuits, for similar reasons to those of the foundation Justices. In November 1905, Symon introduced from Opposition the Judiciary Act Amendment Bill 1905 to phase out circuits, but the Bill was never passed. Early attempts to give the Court a permanent, fixed location thus failed. Except for a period during the Depression of the 1930s and World War II, when circuits were restricted as an austerity measure, circuits were not reviewed again until the establishment of the Court’s seat in Canberra.
Not all Justices in the interim supported circuits. Starke was notorious for his opposition. At various times, he argued that circuits did not affect the public’s perception of the Court, that they caused too much personal inconvenience to the Justices, that there was often insufficient business in the smaller state capitals to warrant circuits, and that the accommodation provided—in Queensland, Tasmania, and WA, state Supreme Court judges offered their chambers; but in SA, the Justices had to squat in the associates’ rooms—detracted from the Court’s prestige. On one occasion, Starke described the Court’s sitting schedule as ‘preposterous’ and stated that the Justices ‘are like and are treated like Carpet Baggers roaming the country’. As a result, Starke often refused to sit beyond Sydney or Melbourne, offering a variety of excuses for his unwillingness to travel. In 1936, for example, Starke offered the following justifications to Chief Justice Latham for why the Court, and Starke in particular, should not travel to Perth: the small amount of business in Perth; the possibility that travel might affect Latham’s health; Starke’s need to attend to other Court business in Melbourne; and because, in Starke’s words, ‘my boy would be alone in the house and I am not prepared … to leave him for so long a time’. Starke’s ‘boy’, who was almost 23 years of age, once sold the family wood-heap while Starke was on circuit, to obtain extra pocket money.
Even those Justices who generally favoured the practice were sometimes reluctant to go on circuit. Travel to Sydney or Melbourne was arduous enough; and travel to the outlying capitals was worse. The Justices did not have to ride on horseback as their US counterparts had done or cope with a murder attempt by an angry litigant while on circuit (as US Supreme Court Justice Stephen Field had), but the Justices did have to endure long voyages to Perth (by train as far as Adelaide and from Adelaide to Perth and back by boat), rough trips on small steamers across Bass Strait to Hobart, and uncomfortable train trips to other states, often late at night. Arriving in Melbourne at 2.00 am, having been delayed because of floods, Rich noted sourly to Latham: ‘Water everywhere, but no drinks on train.’ Dixon, who clearly possessed a strong sense of duty, on one occasion considered it as a ‘piece of luck’ if sitting in WA proved unnecessary. Even McTiernan, who was normally extremely cooperative with circuit scheduling, on one occasion raised an objection to sitting in WA. McTiernan stated that he ‘would not be sorry’ if he was not required to travel to WA, and described the Court’s sitting schedule as ‘too revolutionary’. Despite these occasional misgivings, the general view was that the circuit system was valuable and should not be replaced despite the personal inconvenience caused.
Barwick, however, took a very different view. In 1968, he had emphasised to the government that establishing a permanent location for the Court at the seat of government in Canberra would advance public awareness of the Court as one of Australia’s most important institutions. In accordance with this belief, in 1979 Barwick proposed that all state registries be closed, that Justices be obliged to live in Canberra, and that circuits be abolished altogether.
The mooted abolition of circuits provoked strong resistance. Various members of Parliament expressed the desire that the circuit system be maintained, primarily for the sake of saving litigants expense. Newspapers pressed for the maintenance of circuits on a variety of grounds. They claimed that the Court would take an increasingly centralist position; that it would be perceived as more remote; and that a specialised Bar would emerge. The legal profession was similarly concerned. Members raised the prospect of a specialist Bar, increased litigation costs, and inconvenience to counsel. Perhaps most importantly, the Commonwealth Attorney-General and some of his state colleagues were strongly opposed to abolishing circuits. In deference to such views, in late 1979 the government announced that the Court would be able to continue sitting in the states as the Court saw fit (see section 15 of the High Court of Australia Act 1979 (Cth)).
The Court no longer hears appeals and other cases before the Full Court in Sydney and Melbourne, though it conducts sittings for special leave applications there. It has full sittings in Hobart, Brisbane, Adelaide, and Perth, if business warrants it.
The long term future of the circuit system is unclear. Although members of the legal profession and the Bench value circuits as a way of maintaining the Court’s links with the outlying states, many of the arguments for circuits have less cogency today. Travel from the state capitals is quicker and cheaper than in previous years; the amount of business done in the outlying states is small; and cases from all around Australia are commonly heard in Canberra, which suggests that litigants find it inconvenient to wait for the annual sittings. The potential for greater use of video links may further reduce demand. The concern that having a Court based permanently in Canberra could ‘centralise’ its decisions appears overstated: a century of circuits has not prevented the federal balance from shifting steadily in favour of the Commonwealth. This suggests that there are more important factors affecting the Court’s propensity to take a centralist stance than where it sits.
If the future of the circuit system is unclear, its historical impact is otherwise. Circuits reduced the cost of litigation, contributed to professional acceptance of the Court, and probably advanced national unity. Whether or not the circuit system, or some modified version of it, is out of place in the twenty-first century, for many years it served its function well.
Gim Del Villar
JM Bennett, Keystone of the Federal Arch (1980) 99–105
Commonwealth, Correspondence Between the Attorneys-General and the Justices of the High Court Re Sittings Places and Expenses of the Court, Parliamentary Paper No 26 (1905) 1119
Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10962 (Alfred Deakin, Attorney-General)
Commonwealth, Parliamentary Debates, Senate, 2 November 1905, 4471 (Josiah Symon)
Alfred Deakin, Judiciary Bill Second Reading Speech (18 March 1902), House of Representatives, vol 8, 10962
WG McMinn, ‘The High Court Imbroglio and the Fall of the Reid–McLean Government’ (1978) 64 Journal of the Royal Australian Historical Society 14