Flat White

100 years on, it’s well past time to rethink the court case that remade federation

3 September 2020

7:41 PM

3 September 2020

7:41 PM

The goings-on of the nation’s highest court rarely attract significant mainstream public attention. Yet the power of seven largely unknown judges to reshape the everyday lives of countless Australians through their decisions on the High Court is undeniable. 

Outside law schools, its even rarer to hear public discussion of historical cases. Yet, while they may seem relics of a far distant past, the judgments and opinions of long-departed High Court Justices continue to exert significant influence on Australian life. 

Monday marked the hundred-year anniversary of one of the most consequential legal rulings in Australian history. I am, of course, referring to the controversial Engineers decision handed down on 31 August 1920. 

Engineers marked a monumental change in Australian jurisprudence when it swept away the established doctrines of intergovernmental immunities and reserved state powers. This brought about a lasting shift in the balance of power under the Constitution, handing over immense power to the Commonwealth at the expense of the states in a way never intended by our nations’ founders.

Despite Engineers, the clear intention of the framers of the Commonwealth Constitution is not a matter of speculation. The Constitution’s primary author, the highly respected lawyer, judge and Queensland Premier Sir Samuel Griffith, led the High Court from its inception in 1903 until 1919. He was joined on the inaugural Court by our first Prime Minister Sir Edmund Barton and first leader of the government in the Senate Richard O’Connor.

All three had played leading roles at the Australian Convention Debates of the 1890s. Griffith was primarily responsible for the first draft of the Constitution produced in 1891, while Barton had led the referendum campaign and the Australian delegation to the UK that secured the passage of the federation bill in 1900.

In the early years of the High Court, Griffith, Barton and O’Connor laid out a clear approach to the interpretation of state and federal powers under the Constitution. In the nation’s first case on the interpretation of the Constitution, D’Emden v Pedder, they held that the respective governments of the Commonwealth and states were each ‘sovereign’ and entitled ‘to exercise [their respective] legislative and executive powers in absolute freedom.’

This decision was reaffirmed in the Railway Servants case, when the Court held that the Commonwealth could not ‘fetter, control, or interfere with, the free exercise’ of state powers. With such clear insights into the intentions of the framers of the Constitution, it’s a wonder that there is any debate about the meaning of the Constitution at all.

Yet this stable line of authority was not to survive the transition from the inaugural Court to its subsequent iterations. In 1906 Victorians Sir Isaac Isaacs and Henry Higgins, both prominent proponents of a strong central government during the Convention Debates, joined the Court. Then, after its proposed amendments to Commonwealth power were rejected at the 1911 referendum, the Fisher Labor Government controversially expanded the Court with appointees seen as being more sympathetic to a broad reading of Commonwealth powers.

This effort to reshape the nation’s highest court and the course of Australian history was met with immediate resistance. The Victorian and NSW Bars publicly opposed the move and the press was critical of Labor’s attempt to stack the Court. The strength of this rebuke was so great that one of Fisher’s nominees, Albert Piddington, sensationally resigned his commission prior to taking up his seat on the Court -– the only justice to do so in our nation’s history.

Yet this history is largely forgotten, and the warnings of 1913 Australia have been ignored. Although Labor’s nomination of Piddington resulted in failure, the government’s efforts to rewrite the Constitution ultimately succeeded when, after the death of the final remaining inaugural Justice Sir Edmund Barton in 1920, Labor’s newly appointed Justices joined with Isaacs and Higgins to strike down the previous two decades of precedent.

The author of the majority judgment in Engineers is largely understood to have been Sir Isaac Isaacs. Although undeniably a great Australian in his own right, Isaacs and Higgins never fully accepted the compromise on Commonwealth conciliation and arbitration of industrial disputes reached at the Conventions in 1897-98. Sir Isaac was also reportedly incensed that he had not been elected to the committee drafting the Constitution, nor selected for the inaugural Court, and these personal slights undoubtedly influenced his disposition towards the rulings of the Griffith Court.

Simply by outliving their three federalist contemporaries on the early Court, Isaacs and Higgins were able to do what they could not at the Convention Debates – shift the Constitution in favour of a strong, centralised national government. In doing so they started an ongoing trend towards centralisation of power and laid the foundations for many of the most consequential decisions in our history from Tasmanian Dam to WorkChoices.

We can see the ripples of the Engineers decision in a whole host of contemporary political debates facing the nation. Staggering vertical fiscal imbalance between the Commonwealth and the states is a direct result of the Uniform Tax cases of the 1940s and 50s. Significant bureaucratic duplication and inefficiency is the result of muddied responsibilities caused by ever-expanding Commonwealth power.

These problems may seem academic, but one need look no further than the confused response to COVID-19 to see their significant impact on our nation’s prosperity and wellbeing. A century after Engineers, it’s high time we heeded the advice of our nation’s founders and rebalanced federal-state relations for the good of the nation.

Xavier Boffa is the Executive Director of the Samuel Griffith Society. The foregoing is an edited extract of a forthcoming paper, in his private capacity, on the jurisprudence of the early High Court. 

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