First Five History of the Court

Griffith court

As the first High Court, the court under Chief Justice Sir Samuel Griffith had to establish its position as a new court of appeal for the whole of Australia, and had to develop a new body of principle for interpreting the Constitution of Australia and federal legislation. Griffith himself was very much the dominant influence on the court in its early years, but after the appointment of Sir Isaac Isaacs and H. B. Higgins in 1906, and the death of foundation Justice Richard O'Connor, Griffith's influence began to decline.

The court was keen to establish its position at the top of the Australian court hierarchy. In Deakin v Webb (1904) Griffith criticised the Supreme Court of Victoria for following a Privy Council decision about the Constitution of Canada, rather than following the High Court's own decision on the Australian Constitution.

In Australian constitutional law, the early decisions of the court were influenced by United States constitutional law. In the case of D'Emden v Pedder (1904), which involved the application of Tasmanian stamp duty to a federal official's salary, the court adopted the doctrine of implied immunity of instrumentalities which had been established in the United States Supreme Court case of McCulloch v. Maryland (1803).That doctrine established that any attempt by the federal government to interfere with the legislative or executive power of the Australian states was invalid, and vice versa. Accompanying that doctrine was the doctrine of reserved State powers, which was based on the principle that the powers of the Australian parliament should be interpreted narrowly, to avoid intruding on areas of power traditionally exercise by the state parliaments. The concept was developed in such cases as Peterswald v Bartley (1904), R v Barger (1908) and the Union Label case (1908).

Together the two doctrines helped smooth the transition to a federal system of government, and "by preserving a balance between the constituent elements of the Australian federation, probably conformed to community sentiment, which at that stage was by no means adjusted to the exercise of central power." The court had a generally conservative view of the Constitution, taking narrow interpretations of section 116 (which guarantees religious freedom) and section 117 (which prevents discrimination on the basis of someone's state of origin), interpretations that were to last well into the 1980s.

Two of the original judges of the Court, Griffith and Sir Edmund Barton, were frequently consulted by governors-general, including on the exercise of the reserve powers. This practice of consultation has continued from time to time since.

Knox, Isaacs and Gavan Duffy courts

Adrian Knox became Chief Justice on 18 October 1919, and less than three months later, foundation Justice Sir Edmund Barton died, leaving no original members. The most significant case of the era was the Engineers case (1920), decided at the beginning of Knox's term. In that case, the doctrines of reserved State powers and implied immunity of instrumentalities were both overturned, and the court entered a new era of constitutional interpretation in which the focus would fall almost exclusively on the text of the Constitution, and in which the powers of the Australian parliament would gain increasing importance.

Knox was knighted in 1921, the only Chief Justice to be first knighted during his term. Some of the Knox court's early work related to the aftermath of World War I. In Roche v Kronheimer (1921), the Court upheld federal legislation which allowed for the making of regulations to implement Australia's obligations under the Treaty of Versailles. The majority decided the case on the defence power, but Higgins decided it on the external affairs power, the first case to decide that the external affairs power could be used to implement an international treaty in Australia.

Latham court

The court under Chief Justice Sir John Latham, who came to the office in 1935, was punctuated by World War II. Although it dealt with cases in other areas, its most important and lasting work related to wartime legislation, and the transition back to peace following the war.

The court upheld much legislation under the defence power, interpreting it broadly wherever there was a connection to defence purposes, in cases such as Andrews v Howell (1941) and de Mestre v Chisholm (1944). In general, the Curtin Labor government was rarely successfully challenged, the court recognising the necessity that the defence power permit the federal government to govern strongly. The court also allowed the federal government to institute a national income tax scheme in the First Uniform Tax case (1942), and upheld legislation allowing the proclamation of the pacifist Jehovah's Witnesses religion as a subversive organisation, in the Jehovah's Witnesses case (1943).

The court reined in the wide scope of the defence power after the war, allowing for a transitional period. It struck down several key planks of the Chifley Labor government's reconstruction program, notably an attempt to nationalise the banks in the Bank Nationalisation case (1948), and an attempt to establish a comprehensive medical benefits scheme in the First Pharmaceutical Benefits case (1945). However the court also famously struck down Menzies Liberal government legislation banning the Communist Party of Australia in the Communist Party case (1951), Latham's last major case.

Dixon court

Under Chief Justice Sir Owen Dixon, who was elevated to that role in 1952 after 23 years as a puisne Justice, the court enjoyed its most successful period, with British judge, Master of the Rolls Lord Denning, describing the time as the court's "Golden Age".[50] Dixon, widely regarded as Australia's greatest judge, had a commanding personal and legal influence over the court in this time, measurable in the rise in joint judgments (many of which were led by Dixon) and good relations between the Justices.

While there were fewer cases which tested the limits of federal power, which was probably due to the Menzies government which was firmly entrenched in its conservative phase throughout Dixon's tenure, the court did decide several important constitutional cases. Dixon led the court in firmly establishing the separation of powers for the judiciary in the Boilermakers' case (1956), and the court also upheld the continuing existence of the federal government's income tax scheme in the Second Uniform Tax case (1957).

During Dixon's time as Chief Justice, the court came to adopt several of the views that Dixon had advanced in minority opinions in years prior. In several cases, the court upheld Dixon's interpretation of Section 92 (one of the most troublesome sections of the Constitution), which he regarded as guaranteeing a constitutional right to engage in interstate trade, subject to reasonable regulation. It also followed Dixon's interpretation of Section 90 (which prohibits the states from exacting duties of excise), although both these interpretations were ultimately abandoned many years later.

Barwick court

Sir Garfield Barwick came to the court as Chief Justice in 1964. A significant decision of the Barwick court marked the beginning of the modern interpretation of the corporations power, which had been interpreted narrowly since 1909. The Concrete Pipes case (1971) established that the federal parliament could exercise the power to regulate at least the trading activities of corporations, whereas earlier interpretations had allowed only the regulation of conduct or transactions with the public.

The court decided many other significant constitutional cases, including the Seas and Submerged Lands case (1975), upholding legislation asserting sovereignty over the territorial sea; the First (1975) and Second (1977) Territory Senators cases, which concerned whether legislation allowing for the mainland territories to be represented in the Parliament of Australia was valid; and Russell v Russell (1976), which concerned the validity of the Family Law Act 1975. The court also decided several cases relating to the historic 1974 joint sitting of the Parliament of Australia, including Cormack v Cope (1974) and the Petroleum and Minerals Authority case (1975).

The Barwick court decided several infamous cases on tax avoidance and tax evasion, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the court distinguished between avoidance (legitimately minimising one's tax obligations) and evasion (illegally evading obligations). The decisions effectively nullified the anti-avoidance legislation, and led to the proliferation of avoidance schemes in the 1970s, a result which drew much criticism upon the court.