The Early Years

Coordinate Federalism

When the Commonwealth of Australia Constitution Act 1900 (UK) took effect on 1 January 1901, it provided for "a Federal Supreme Court, to be called the High Court of Australia".¹ It did not sit, however, until the passage of the Judiciary Act 1903 (Cwlth) and the announcement of the first Bench of three judges: Sir Samuel Griffith CJ, Sir Edmund Barton and Richard Edward O'Connor JJ. The first sitting took place on 6 October 1903 in the Supreme Court building in Melbourne.

It is worth noting that the original Bench was comprised of prominent Federalists. Their views informed the High Court's early interpretation of the Constitution, and they were distinctly in favour of a coordinate federation. As Craven argues:

"The critical function of the Court in relation to federalism was to maintain the Commonwealth and the States within their respective spheres, and in particular to ensure that the Commonwealth kept within the ambit of its powers, and did not invade the realms of the States."²

This federalism was notable in early cases heard by the Court. D'Emden v Pedder (1904) 1 CLR 91 and Deakin v Webb (1904) 1 CLR 585 found that the States could not hinder Commonwealth officers in carrying out their duties, and the Railway Servants' case³ of 1906 similarly protected the States from Commonwealth legislation. Through this series of cases, the High Court ensured

"each was to be free to perform its functions and exercise its powers without interference, burden or hindrance from the other government. And so was created and developed the Australian doctrine of the immunity of instrumentalities..."⁴

Running alongside this was the doctrine of reserved powers, whose intention was to maintain the exclusive power of the States to manage their domestic concerns. Peterswald v Bartley (1904) 1 CLR 497, the Union Label case,⁵R v Barger (1908) 6 CLR 41 and Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 all found in favour of the States and suggested that the narrower definition of a Commonwealth power should be adopted where possible. Incidentally, R v Barger was significant because it struck down the 'New Protection' policy of the Federal Government, "causing Labor to go on its own, and succeed in getting into power in its own right in 1910."⁶

The workload of the Court increased greatly in the early years as it established for itself a wide appellate jurisdiction. In 1906 two further Justices were appointed, Sir Isaac Isaacs and Henry Bournes Higgins, who were to have a major impact on the constitutional interpretation of the Court due to their differing views on federalism. "Mr Justice Isaacs was renowned in his day for supporting pro-Commonwealth constitutional doctrines because he expressly preferred a strong national government."⁷

The newcomers' views remained in a minority, however, until some changes to the composition of the Bench had been made. Justice O'Connor died in office in 1912, and the Bench was subsequently expanded to seven Justices. Gavan Duffy, Powers and Rich JJ were appointed in early 1913, amid some controversy. The original federal ideals of Griffith CJ were defended until his replacement by Knox CJ in 1919.

The Engineers' Legacy

Centralising Legalism

With the originalist sentiment of the Court all but gone, Isaacs and Higgins JJ "eventually carried with them all the court of 1920 with the exception of Gavan Duffy J".⁸ The Engineers' case⁹ rejected the openly federalist principles of the early court in favour of a legalist interpretation of the constitution that would ultimately lead to a strong centralising trend. Morgan argues that

"The new post-World War I generation of High Court Justices ... began a process of reducing the effective sovereignty of the States. Some Justices adopted a literalist approach... ... The doctrine of literal interpretation has enjoyed enormous standing within the legal profession for many generations... ...[T]he High Court, for over 70 years (in fact since the retirement of Sir Samuel Griffith), has been engaged in this process of reducing the effectiveness of the States."¹⁰

Indeed, the years immediately following the Engineers' decision seem to reflect the idea that the doctrines of reserved powers and the immunity of instrumentalities had been buried. Roche v Kronheimer (1921) 29 CLR 239, Dignan's case¹¹ and Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 established the Commonwealth Parliament's ability to delegate legislation; the Roads case¹²

"confirmed that specific purpose payments from the Commonwealth to the States could be directed to areas of government responsibility that were not included in formal Constitutional responsibilities."¹³

Around this time, in 1929, Australia was gripped by the Great Depression. The resulting lower workload meant that the resignations of Powers J in 1929 and Knox CJ in early 1930 were not offset by appointments, though Sir Isaac Isaacs was promoted to Chief Justice. In December 1930 the vacancies were filled by Evatt and McTiernan JJ, but the retirement of Isaacs CJ to take up the position of Governor General was again left unattended. In 1933 the Judiciary Act formalised this reduction to six Justices.

World War II

Rapid Centralisation

The increasing international tension in the time leading up to and during World War II saw the High Court deal with many disputes over the Commonwealth's defence power. The centralising tendency produced in Engineers', coupled with the necessities of wartime, led to a continuation of the "expansion of federal power and concurrent downgrading of provincial status that have resulted from the High Court's approach to the Australian Constitution since 1920."¹⁴

Indeed, many important precedents were decided in this period, which would have massive consequences for the future Australian political and legal landscapes.

"No clearer illustration of this fact could be found than in the 1935 decision¹⁵ that the federal Parliament's legislative power in s51(v) of the Constitution with respect to 'postal, telegraphic, telephonic and other like services' extended to radio (later television) broadcasting - services which did not exist (and were not even known to) the framers of the Constitution in the 1890s."¹⁶

Other cases similarly expanded the Constitutional powers of the Commonwealth into areas not explicitly outlined. Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 allowed a Commonwealth clothing factory, whose primary concern was the production of military uniforms, to also manufacture civilian clothing, despite difficulties establishing a strong link between the activities. R v Burgess; Ex Parte Henry (1936) 55 CLR 608 allowed the Commonwealth the power to implement international treaties, establishing a precedent relied on in Koowarta v Bjelke-Peterson (1982) 158 CLR 168 and other major cases.

Galligan contends that

"...the two world wars were crucially significant in enhancing both the sense of nationhood and the centralisation of powers. You have a ratchet up of powers to meet the needs of war, and then they don't go down to what they were before the war. Many of the big initiatives, came out of war time - the Commonwealth getting into income tax and so on."¹⁷

The Commonwealth's entry into income tax in 1942 was indeed a major blow to the sovereignty of the States. Until this time, the Commonwealth and States had each levied their own income taxes without a great deal of fuss. "However, the financial exigencies of World War II convinced the Commonwealth that the collection of taxes in Australia should be concentrated solely in Commonwealth hands."¹⁸

The validity of legislation giving the Commonwealth priority over the States was upheld by the High Court in the First Uniform Tax case¹⁹ after a State challenge. The effect was that none of the States renewed their collection of income taxes, giving the Commonwealth a monopoly in that area. Thus the States came to rely even more on specific purpose grants, and even after the Second Uniform Tax case in 1957 in which Commonwealth taxation primacy was overturned, the validity of this form of funding was maintained.

The Post-War Period

Political Legalism

In 1946, with the financial strain of the war over, the Bench was returned to seven Justices. The Government cited an increased workload and problems with equally split decisions as its reasons for appointing Sir William Flood Webb in May of that year. This was not to be the only change to the Court due to the end of World War II: any seeming departure from legalism for policy reasons was to be quickly corrected.

In the years following, the Court was reluctant to favour the Commonwealth excessively. In fact, so regular were decisions against the Federal Government that many commentators see political overtones in that period. Howard, for instance:

"...[T]he period since the second World War yields some striking examples. There was the Bank Nationalisation Case in 1948, 76 CLR 1, in which the Court struck down an attempt by the government of the day to nationalise the banks. In 1951 there was the Communist Party case, 83 CLR 1, in which the Court struck down an attempt at the height of the cold war to outlaw the Australian Communist Party. Then there was the long series of cases in which the Court was widely perceived to be on the side of the big battalions when it came to tax avoidance."²⁰

If the centralist bias of Engineers' appeared to have been neglected, the legalist approach to constitutional interpretation was stronger than ever. The appointment of Sir Owen Dixon as Chief Justice in 1952 led to his famous praise of legalism: "There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism."²¹ This was to be the view of the Court for quite some time. Barwick CJ in 1975 appeared to paraphrase Dixon CJ's words: "The only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution ... and to find its meaning in legal reasoning."²²

Indeed, Sir Garfield Barwick's influence on the Court was significant, and mot merely in the judicial sense. His efforts in federal Parliament and later as Chief Justice of the High Court led the push to create a new federal superior court to ease the burden of both appellate and original cases. After the Privy Council (Limitation of Appeals) Act 1968 and the Privy Coucil (Appeals from the High Court) Act 1975 the High Court had effectively become "the single master for all Australian law."²³ This was not formalised until 1986 with the passing of the Australia Acts.²⁴

In 1976 Barwick CJ had his wish: the Federal Court of Australia was established. Soon afterwards, legislation was introduced to require the retirement of Justices at 70 years of age, and the High Court of Australia Act 1979 gave the Court the power to administer its own affairs. 1980 saw the opening of the High Court building in Canberra.

A New Era

Human Rights Protection

During this time the composition of the Bench changed significantly. Owen, Walsh, Menzies and Windeyer JJ replaced Fullagar, Taylor, Webb and Williams JJ respectively. The attitudes of the court changed accordingly, and even through a legalistic mindset they supported legislative protection of human rights within Australia.

"...[K]ey constitutional landmarks for women included the introduction of the equal pay for equal work principle by the first Equal Pay case in 1969. The Equal Pay case of 1972 followed. This case enshrined the principle of equal pay for work of equal value. These cases were possible at a national level because of the conciliation and arbitration power (Section 51(xxxv)) in the Commonwealth Constitution."²⁵

Other cases in this period established the ability of the Commonwealth to legislate various rights for all Australians. Russell v Russell (1976) 134 CLR 495 upheld the Family Law Act 1975 (Cwlth). The Nuclear Test case saw Australia successful in its litigation of France over environmental issues.

Perhaps the most important subsequent development was the Commonwealth use of its external affairs power to increase its sovereignty over the States. Picking up where the 1936 Burgess case left off, Koowarta v Bjelke-Peterson (1982) 153 CLR 168 allowed the Commonwealth to legislate nationally for the implementation of international treaties. The Racial Discrimination Act 1975 (Cwlth) was upheld as carrying out obligations under the Racial Discrimination Convention. The Tasmanian Dam case²⁶ and Richardson v Forestry Commission (1988) 164 CLR 261 both found in a similar way.

The Court did not limit the power to the implementation of treaties, however. In the Seas and Submerged Lands case,²⁷ "Sovereign rights over territorial seas and the continental shelf was (sic) vested in the Commonwealth,"²⁸ and Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 gave the Commonwealth power over trade conducted by corporations.

The Modern Court

Legal Realism or Judicial Activism?

The legalistic approach to the Constitution seems to have been retired by the court along with Barwick CJ in 1981:

"The rejection of access to the constitutional debates lasted many generations. As recently as the time of Chief Justice Barwick, the self-denying ordinance was reiterated by a decision of the High Court. But then in Cole v Whitfield,²⁹ in an unanimous opinion of the entire Court in 1988, led by Chief Justice Mason, the old legal rule was reversed. The books of the Convention debate were read in open court."³⁰

Sir Anthony Mason did indeed lead the move away from Dixon's "strict and complete legalism". Since his appointment as Chief Justice in 1987, and with Dawson, Toohey, Brennan, Deane and Gaudron JJ, he has been outspoken in his advocacy of legal realism. "The formulation of legal principle is, and always has been, undertaken in the light of policy considerations."³¹

The High Court's more recent decisions have indeed been more liberal with - or at least more honest about - their reliance on policy. The landmark common law decision in Mabo³² overturned

"the validity of fundamental propositions which have been endorsed by long-established authority and which have been accepted as the basis of the ... law of the country for more than 150 years."³³

In constitutional law the Court has returned to a wider reading of the Constitution, including the possibility of implied rights. Craven criticises

"the line of cases purporting to discern within the Australian Constitution an implied freedom of political communication, from Australian Capital Television,³⁴ through Nationwide News³⁵ and Theophanous,³⁶ to Lange and Levy."³⁷

These cases read the right of freedom of political communication into the Constitution as necessary for its operation. Many commentators see this development as a precedent for the "process of inventing appropriate rights"³⁸ regardless of whether they exist in the Constitution.

The focus on implied rights has not, however, turned the Court away from its Engineers' legacy completely: the sovereignty of the Commonwealth has continued to increase. In Sue v Hill (1999) 73 ALJR 1016 the High Court decided that "the United Kingdom was, for the purposes of s44 of the Constitution, a foreign power."³⁹Re The Governor, Goulburn Corrections Centre; Ex Parte Eastman [1999] HCA 44 at [87] held that the Territories are not to be treated as States, but are disjoined from Federation.

Where the High Court goes from here is not clear. A significant proportion of lawyers and legal academics are not content with the current trend of 'judicial activism'.⁴⁰ Having seen the major shifts in judicial reasoning over the life of the court, from originalism, through legalism, to realism, one can only speculate on what the future holds for the Australian Constitution. One thing is certain, however. The Commonwealth will gain power at the expense of the States. To borrow from Morgan, "the High Court has become a one-way stop valve."⁴¹