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The Role of the High Court

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The interpretation of the Constitution through the decisions of the High Court is one of the main means by which important changes can be made to the way the Constitution operates.

The High Court was established in 1903.  The first sitting of the High Court took place in Melbourne on 6 October 1903.  It was a distinguished Bench, comprising three people who had been prominent in the Federal movement:

  • The Chief Justice, Sir Samuel Griffith, former Premier and former Chief Justice of Queensland
  • Sir Edmund Barton, the first Prime Minister of Australia and Leader of the Constitutional Conventions that lead to Australia becoming a Federation in 1901.
  • Richard Edward O’Connor, a former Minister of Justice and Solicitor General of New South Wales, and the first Leader of the Government in the Senate.

In 1912, the High Court Bench was further increased to seven Justices.  In its history, only three West Australians have been appointed to the High Court Bench.  They are Sir Ronald Wilson and John Toohey and the current Chief Justice Robert French.

Up until 1920, the Court interpreted Commonwealth powers narrowly, seeing the Commonwealth and States as separate and equal.  This view was overturned by the Engineer’s Case in 1920, which is seen as a turning point in Australian federalism.  The High Court gave a much broader interpretation to Commonwealth industrial powers under section 51 of the Constitution by ruling that Commonwealth industrial law could apply to Western Australian State agencies.

Not all High Court decisions have expanded the power of the Commonwealth.  Two examples of cases where the High Court ruled against the Commonwealth are:

1948 The Bank Nationalisation Case

During the war, using the defence power of Section 51(vi), the Chifley Labor government legislated to allow the Commonwealth Bank to purchase or nationalise the private banks. After the war, it sought to continue control over the private banking system. This prompted the High Court challenge that found that Chifley’s Act was invalid.

The 1951 Communist Party

In 1950, the Menzies government passed a Bill to outlaw the Communist Party.  The Communist Party immediately challenged this in the High Court.  The High Court ruled against the Commonwealth.  Menzies then held a referendum seeking to give the Commonwealth powers to make laws in respect of communists and Communism.  The proposal was not successful.