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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 of Australia was established by passage of the Judiciary Act 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.  They were:

  • 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 which led 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 1906, the Justices made representations to Parliament for an increase in their number to five, and 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 , John Toohey and Robert French.  Only one, Robert French, became Chief Justice.

From its beginnings in 1903, the High Court played a crucial role in determining the balance of powers between the Commonwealth and the States.  Up to 1920 the Court interpreted Commonwealth powers narrowly, seeing the Commonwealth and the States as separate and equal.  This view was overturned by The Engineers’ Case, which is seen as a turning point in Australian federalism. It produced an opinion by the High Court giving the widest interpretation of Commonwealth powers and setting a precedent for cases that have followed.

During the Second World War, the High Court was called upon to determine many issues related to the extent of the Commonwealth’s defence powers as prescribed in the Constitution.  The results generally widened the Commonwealth’s powers, in time of war or immediate threat of war, at the expense of the States.  The situation was found to be different, however, during peace-time.  In the famous Communist Part Case of 1951, for instance, the Court ruled invalid an attempt by the Parliament to invoke its defence powers (in light of the Korean conflict then in progress) to declare the Australian Communist Party an unlawful association.