The Case against a National Court of Appeal

Abstract

There have been recurrent proposals for the creation of a national court of appeal. These proposals have not, thus far, been acted upon. The idea of a national court of appeal recently resurfaced in a speech given by the Chief Justice of Victoria, Marilyn Warren. In this article, I contend that a national court of appeal should not be established. That is so because the creation of a national court of appeal would upset the present appellate hierarchy, which, unlike the system that would exist if a national court of appeal were established, reflects a subtle balance between the requirements of consistency and comity, and the principle of federalism. Further, the extant system affords proper respect for the High Court’s role as Australia’s ultimate appellate court and its consequent position as conclusive arbiter of the single common law of Australia.