The High Court of Australia

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The High Court of Australia Michael Hudson McHugh Introduction The High Court of Australia, like the Supreme Court of the United States, is the guardian of the Constitution that creates it. Each court is the creation of a federal Constitution that gives effect to the political doctrine of the separation of legislative, executive andjudicialpower. Each Constitution vests specific heads of power in a federal legislature consisting of a Senate and a House of Representatives and leaves each state free to legislate within its own domain except in cases where the Constitution has withdrawn legislative power from the states. Each Constitution contains a Supremacy Clause that ensures that, in the case of conflict between federal and state legislative enactments, the federal enactmentwill prevail. Each Constitution contains an Establishment Clause, which are similarlyworded. Giventhese similarities and the remarkable similarities between the legislative powers specifically granted to the federal legislatures of each country, one would expect the roles of the two courts in their respective legal systems to be similar. Two factors have combined, however, to make the roles ofthe Courts essentially different. The first is the existence ofthe Bill ofRights in the Constitution of the United States and the absence of a counterpart in the Australian Constitution. The second is thatthe High Court is, but the Supreme Court is not, part of the legal system of the states that constitute the federation. As a result, the nature ofthe cases that come before the two courts is on the whole quite different. Unlike the Supreme Court, whose “docket” appears to be dominated by issues concerning the Bill of Rights and the interpretation of federal enactments, the High Court’s “docket” is dominated by appeals in HIGHCOURTOFAUSTRALIA 3 The author, Michael McHugh (pictured), is a Justice of the Australian High Court. In provid­ ing for the establishment of the High Court and other federal courts, the Australian Constitution follows the plan of Article III, section 1 of the Constitution of the United States. However, the two courts have different practices: for example, oral arguments before the Australian court may take as many as five days. civil and criminal matters. The nature of the High Court’s work as an appellate court and the absence ofa Bill ofRights in the Australian Constitution have also influenced that Court’s approach to the judicial process. Until recently, the High Court had gener­ ally decided cases in accordance with the theory of legal positivism that asserts that answers to legal issues are to be found by working out the logical implications of relevant legal rules, principles, and concepts. The Court’s method of deciding cases involved a strict legalism that generally ignored the social and economic dimensions ofits decisions. Upon his swearing-in as Chief Justice of the High Court in 1952, Sir Owen Dixon, widely re­ garded as the greatest lawyer that Australia has produced, said the following:1 [Cjlose adherence to legal reasoning is the only way to maintain the confidence ofall parties in Federal conflicts. It may be that the court is thought to be exces­ sively legalistic. I should be sorry to think that it is anything else. There is no other safe guide tojudicial decisions in great conflicts than a strict and com­ plete legalism. To understand the role of the High Court and its place in the Australian legal land­ scape, some familiarity with the development of Australia as an independent nation and the creation of its Constitution is helpful, if 4 JOURNAL 1997,VOL. Il not necessary. Background History Immediately prior to the federation of the CommonwealthofAustralia in 1901, Australia comprised six British colonies: New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania. As British colonies, each received the English common law upon settlement. In time, the Parliamentof the United Kingdom gave each colony its own Constitution, which created a legislature and allowedfor self-governmentwithin each colony. The political institutions of the colonies re­ flected their English roots by adopting the po­ litical concepts of parliamentary sovereignty and responsible government under which ex­ ecutive power was exercised by Ministers of the Crown, who were members ofand answerable to the parliament. None ofthe Constitu­ tions ofthe colonies contained a formal...