Factors outside the High Court's control influence the cases it hears and thereby the direction and pace of legal change in Australia.
Special Leave to Appeal applications (SLA’s) to the High Court of Australia - those the court refuses and those which are successful - tell an important story about the rule of law and how it works at this level.
The High Court is the final avenue of appeal in the legal process but there is no automatic right to be heard as in many lower courts.
Instead, the High Court controls the cases before it through SLA’s which must meet the points of law and public interest tests set out in Section 35A of the Judiciary Act 1903. The vast majority of applications are refused and the Court is not required to give reasons for its decisions.
We wanted to determine who is using the High Court, whether there are identifiable barriers to access and, if so, for whom, and whether particular parties enjoyed any discernible advantage.
They found one of the key barriers is financial. During the period of the study, almost half the applicants were self-represented and not one of these progressed to hearing.
By contrast, governments and public authorities and well-resourced applicants who could afford senior counsel succeeded in a significant percentage of their SLA’s.
Only 5 percent of special leave applications had legal aid:
The data indicates that High Court appeals are, in the main, confined to a particular class of advantaged litigant. The more finances and resources a party has, the greater likelihood of success when it comes to being heard.
The matters of law which the High Court chooses to consider have a powerful influence over the direction and pace of legal change in Australia.
Professor Stuhmcke and Pam Stewart’s research highlights potential flaws in the administrative process used to make these choices:
The availability of legal aid, the diversity of litigants and counsel, and the advantages enjoyed by well-resourced and seasoned litigants are all factors outside the control of the Court, yet they influence the Court’s assessment of special leave applications and selection of cases for appellate hearing.
Open Justice, Efficient Justice and the Rule of Law: The Increasing Invisibility of Special Leave to Appeal Applications in the High Court of Australia - Pam Stewart, Anita Stuhmcke, Federal Law Review, Vol 48, Issue 2020