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The Commonwealth of Australia is a federation of six states, whose constitution was enacted by the United Kingdom Parliament in 1900, when Australia was part of the British Empire. The six states had previously been separate British colonies, each with its own constitution that continued in force after 1900, although subject to the new federal constitution. The authority of the United Kingdom Parliament to change Australian law was not formally terminated until 1986, when the Australia Act was passed by both the United Kingdom and the Commonwealth Parliaments. The fundamental documents of Australian constitutional law therefore comprise the federal constitution, the Australia Act, and the six state constitutions. This chapter looks at Australia's constitution and its origins and structure, judicial interpretation of the federal constitution, judicial review, High Court and its judges, problems and methods of constitutional interpretation, causes of interpretive difficulties, sources of interpretive principles, current interpretive methodology, extrinsic evidence of framers' intentions and purposes, ‘structural’ principles and implications, separation of powers, balance between legitimate and illegitimate creativity, and institutional and cultural factors underlying constitutional interpretation.

The issue of judicial salaries, especially before the passage of the Administration of Justice Act, 1973 — which provided an extra-parliamentary method of raising High Court salaries — highlighted the relationship between legislature, executive, and judiciary. To the judges, fiscal independence was an integral part of judicial independence. High Court salaries had been set at £5,000 in 1832, while the County Court salaries had been raised to £2,000 in 1937. During the Second World War, Viscount Simon, Churchill's Lord Chancellor, suggested an increase in High Court salaries to £7,000. The issue was raised in November 1944; and by February 1945, Simon was pressing Sir John Anderson, Chancellor of the Exchequer, for an answer before everyone's energy was absorbed by the Yalta Conference.

The decision to grant a divorce was regarded as so important that only the High Court had the power to do so. But while this not only made the process very expensive, increasing demand (especially in war-time) led to the High Court being over-loaded. At the end of World War II, the Denning Committee insisted that it would be wrong to allow ‘inferior courts’ (such as the county court) to have the power to deal with divorce, but recommended that country court judges should be appointed as ‘Commissioners’s itting in divorce cases as if they were in the High Court. At the same time, there was compelling evidence that orders made by Magistrates’ Courts led to great hardship, and measures were taken to introduce what was described as conciliation into those proceedings.

This chapter describes the Pathak Court of 1986–9. Twenty-four years after becoming a judge of the Allahabad High Court and after nearly nine years of experience on the SCI, the government announced that the sixty-two-year-old R.S. Pathak would become the nation’s eighteenth CJI on 21 December 1986. Philosophically, he was a man of the middle and several of his colleagues would later volunteer the compliment that he brought relative peace to the SCI. His appointees include Madhukar Hiralal Kania, Kalmanje Jagannatha Shetty, Lalit Mohan Sharma, Manepalle Narayana Rao Venkatachaliah, Srinivasachari Ranganathan, Narain Dutt Ojha, Subbiah Ratnavel Pandian, Thamarappallil Kochu Thommen, Aziz Mushabber Ahmadi, Khagendra Nath Saikia, Kuldip Singh, and Jagdish Sharan Verma. The fact that a dozen judges were appointed during his two and a half years as CJI was a significant accomplishment. Five of them — Kania, Sharma, Venkatachaliah, Ahmadi, and Verma — would serve as CJIs during the 1991–8 years.

This chapter describes the judges’ arrival to the high court. Appointment to the high court came at an average age of 46.4. There was some variation among the high courts concerning the age for appointment. Those who came to the SCI from the Bombay High Court averaged forty-five years when appointed, while the average age at the time of high court appointment of those from the Madras High Court, who came to the SCI, was fifty-one. Those who were promoted to the SCI arrived with an average of 12.4 years of high court experience. The generational differences are significant — 10.9 years for the first and 13.6 for the second. S. Fazl Ali’s 19.2 years of service on the Patna High Court was the lengthiest, and T.L. Venkatarama Ayyar, with only 2.4 years, the least.

Robert Edgar Megarry (1910–2006), a Fellow of the British Academy, had a career in the law unmatched in its distinction, breadth, and diversity. He not only achieved an outstanding reputation as a practising barrister and then, for nearly twenty years, as a High Court judge, but also made what has rightly been described as an ‘immeasurable’ contribution to the law as scholar, teacher, and author. Megarry was born in Croydon, the elder son of Robert Lindsay Megarry and Irene Clark. He entered Trinity Hall at Cambridge University in 1929. It was A. L. Goodhart, editor of the prestigious Law Quarterly Review since 1926 and latterly Professor of Jurisprudence at Oxford, who had been one of those who encouraged Megarry to seek call to the Bar. Writing and teaching were among the traditional ways in which newly called barristers supplemented earnings from meagre practices, and Megarry was exceptionally well qualified for both these activities. His attitude of judicial restraint is now often regarded as dated.

This chapter examines the general powers of the High Court in the Malaysian Arbitration Act to ascertain similarities and differences that exist between the UNCITRAL Model Law of 1985 and the Arbitration Act of Malaysia of 1952 9“the Act”), respectively. It also investigates some of the linguistic features found in the relevant sections of the Act. The chapter includes references to related cases to illustrate the judicial interpretation of the language in the Act in the different sections involving powers of the High Court and the implications of the language used. The analysis reveals the extent of the general powers of the High Court and the important role of language in the Act. The influence of the High Court was seen to be detrimental to foreign parties and this led to an amendment in the Act in 1980, with the insertion of section 34.

This chapter offers some reflections, from an Australian perspective, on the importance which English commercial law places upon certainty and predictability, and it relates it to some recent decisions of the High Court of Australia.

This chapter describes the Sinha Court of 1959–64. P.B. Sinha became CJI on 1 October 1959. In personnel terms, the Sinha years were the most stable the SCI has ever experienced. He had nothing to do with this for most of the judges he inherited were relatively young men. Sinha was the first retiring CJI who did not leave a replacement for himself. In 1960, the Court’s strength was increased from eleven to fourteen judges. These new judgeships were filled quickly in 1960. Raghubar Dayal, sworn in on 27 July 1960, was the most senior associate judge on the Allahabad High Court. Narisimha Rajagopala Ayyangar had reached retirement age from the Madras High Court eight months before he became an SCI judge on the same day as Dayal. Janardhan Raghunath Mudholkar, sworn in on 3 October 1960, was fifty-eight and the seniormost judge of the Bombay High Court.

This chapter examines the states of birth of the judges. The ninety-three judges were born in sixteen of the twenty-five states which existed in the 1980s. Uttar Pradesh and Maharashtra are underrepresented. This is largely because three of the eleven judges who served on the Allahabad High Court were not born in Uttar Pradesh, and four of the Bombay High Court judges were born in today’s Gujarat and a fifth in Karnataka. Punjab is overrepresented, largely because its ten include three who were born in today’s Pakistan and another in Burma. The most notably underrepresented state is Rajasthan. There is no evidence that states controlled by a party different from the party that controlled the Centre received fewer judgeships. In most instances, the judge was first appointed to the high court of his state of birth, and seventy-two came to the SCI directly from his home or parent high court.

This chapter discusses the ‘seniority’ criterion in appointing judges to the Supreme Court of India. It is demonstrated that only ‘senior’ High Court judges (and increasingly, only High Court Chief Justices) are appointed to the court. Over a period of time, the seniority criterion has undergone a change: initially, only 50 per cent of the court’s judges were High Court Chief Justices (the rest were usually senior judges), but now the court is overwhelmingly composed of High Court Chief Justices. This chapter discusses several possible reasons why the seniority criterion has been adopted in India, for example, it works to limit discretion in judicial appointments and ensures that the court’s judges have adequate prior judicial experience. Finally, this chapter also discusses certain negative implications of the seniority criterion, for example, that it works to reduce lengths of tenure on the court and creates career homogeneity.

This chapter examines Jews in the English judiciary from 1945 to 1990. Until the late 1960s, no Jew could become a High Court judge unless he belonged to the Anglo-Jewish elite, which differed little in educational attainments and lifestyle from the rest of the English upper class, even if he was exceptionally able. Starting in 1968, during the last years of Harold Wilson's Labour administration, Lord Chancellor Gerald Gardiner began to appoint Jewish barristers from middle-class backgrounds and of east European family origin to the High Court bench. These men had for the most part been educated in local grammar schools and redbrick universities. This policy was continued both by the Conservative Heath government and by Labour administrations in the 1970s. The chapter then assesses how Jewish these High Court judges were in their personal affiliation.

Palestinian officials initiated an impracticable situation and only made it worse for those constrained by diplomatic concerns, and who have kept the sharpest of judgments. The current Palestinian system of civil courts had its origin in the late Ottoman period and the British mandate. The remnants of that system were continued under the Egyptian administration of Gaza and the Jordanian government in the West Bank. The Palestinian court system had several levels: single-judge magistrate courts (mahakim al-sulh) stood as courts of original jurisdiction for smaller cases; multijudge district courts (al-mahakim al markaziyya or mahakim al-bidaya) were the first to hear larger cases. An appeals court heard cases from both of the lower-level courts. This court could also form a High Court that adjudicated administrative cases, chiefly those for which a state body was a party.

This chapter begins by considering Cornelia Sorabji as she fights male bias in the legal profession. She became a victim of the reluctance of the Calcutta Bar to enlarge its membership, though in theory, it was a time when the Bar, hitherto based on the exclusive privileges of a few, was undergoing a crucial transformation. Her determination to undo the predominant gender discrimination in society and pave the way for the next generation of women, for a new professional life, encouraged her to keep her spirits high even in her most despondent moments. In the profession, Cornelia also had to fight the ‘old boys' network’ among British and Indian men, which largely determined success in the legal profession. Moreover, the issue of professional morality is explained. Furthermore, her sources of emotional sustenance in professional life are shown.

This chapter traces the development of judicial review in Australia, which was modeled on the U.S. system of judicial review. Australian judicial review evolved out of a need for an umpiring body in federalism and separation of powers cases. Indeed, the original purpose of the Australian High Court under the Australian Constitution was to umpire federalism disputes between the Commonwealth and the six Australian states, which predated the federal government of Australia; and to ensure that the traditionally guaranteed rights and freedoms of British subjects under the common law and responsible parliamentary government were respected regarding Australia’s citizens. The Australian Constitution does not have a Bill of Rights or an enumerated Judicial Review clause, but it does limit and enumerate the broad powers of the Australian federal government. The Framers of the Australian Constitution, like the Framers of the U.S. Constitution, assumed that the courts would have the power of judicial review. As a result, there is, in Australia, judicial review in federalism and separation of powers umpiring cases but not in Bill of Rights cases since there is essentially no Australian Bill of Rights.

The fourth chapter places the focus on the period 1884-1910, analysing the situation in Scotland at the turn of the century; by this time the statutory system had evolved into a net-widening diversionary mechanism under which thousands of children were detained in institutions of a penal character. An important aim of this chapter is to assess the impact the Children Act 1908 and the introduction of the juvenile court, which means looking beyond this timeframe to the 1920s and 1930s. Crucially, this chapter provides a detailed analysis of archival case studies revealing the way children were dealt with by the courts, including the High Court of Justiciary.

Defining limits of coercive interrogation is put to the test when an interrogator is sitting across from someone who is not cooperating and the interrogator knows is in possession of information purported to be urgent. It is exactly at that moment that the previously established lawful limits of interrogation must be implemented, no matter the circumstance. Otherwise, excess will be permitted, encouraged, and will inevitably occur. This chapter is divided into three subsections: 1) definitions of torture; 2) an analysis of interrogation methods based on an Israeli High Court of Justice holding, Ireland v. United Kingdom, and a 1984 Israeli Commission of Inquiry; and 3) an analysis of functional torture and sadistic torture.

This chapter discusses the reasons for the decline in the prestige of the judiciary since the introduction of the present system of judicial administration by the British. One of the big factors contributing to this decline is the process of appointing the judges. It gives the example of Mr. K. N. Srivastava's appointment as a judge of the Guwahati High Court, which was challenged by Mr. Padma Prasad on the grounds that Srivastava not only lacked the required qualifications but had also been charged with misusing public funds. The chapter also examines the provision of mandatory 'consultation', with the chief justice of India and, optionally, with such judges of the Supreme Court and the high courts as the president may deem necessary for the purpose. Unfortunately, this check has not acted as sufficient safeguard. The chapter ends by looking at the Constitution Sixty-seventh Amendment Bill introduced in Parliament on 18 May 1990 by Mr Dinesh Goswami. The bill sought to establish a National Judicial Commission and to curb the power of transferring high court judges.

The problem of how to judge individuals with cognitive or intellectual shortcomings illustrates one aspect of the ‘trouble’ with the reasonable person and thus raises a series of questions implicated in objective standards more generally. In stark contrast to the treatment of mentally disabled defendants, courts and commentators addressing the application of the objective standard to the child defendant insist that the basis of liability in negligence actually requires taking account of the limitations of childhood. The leading common law case on the standard of care to be applied in negligence cases against child defendants is the decision of the High Court of Australia in McHale v Watson. The most far-reaching question addressed by the courts in this case concerned the appropriate standard of care for child defendants. The McHale case also illustrates how judges, in giving content to the notion of reasonable care, may use judicial notice to draw on common sense notions of what is natural or normal behaviour of boys in particular.

This chapter begins with the Australian debates surrounding adoption of the Statute of Westminster, notably in the contributions by Owen Dixon. The Imperial Theory approach in Australia is illustrated primarily through the writings of W. Anstey Wynes; the Independence Theory principally through High Court judges such as Murphy J.