Australian Federalism And The High Court

Australian Federalism And The High Court

Keahn Sardinha

The proposition that the High Court of Australia has allowed the Commonwealth Government to dominate the State Governments is one that is supported by historical and contemporary analysis of the High Court’s different stages of jurisprudential philosophy, with these stages discussed here.

The Australian Constitution was originally drafted by founding fathers who held pro-federalist views. Federalism is the political philosophy that power of governance is best divided and shared between a central Government and semi-autonomous State Governments. Indeed, the former South Australian premier and founding father Thomas Playford was quoted as saying “We do not require a leviathan central Government that relegates to States to mere Parish Vestries”. The system instead advocated and devised by the founding fathers was, in the words of Playford “A system like the United States of America’s, with a strictly defined role for central Government with all else being left to the States”. The founding fathers original intention therefore was a system comprised of narrow Exclusive powers for the Central Government, Concurrent powers for both the Federal and State governments that would be protected by a High Court under the precedent of “implied immunities”, and residual powers that would be exclusive to the State Government.

In order to protect this Federal balance, the founding fathers created institutions within the constitution designed to defend State right’s from Federal encroachment. The exact order of these institutions is as follows: The Constitution, the Senate as a House of review and State’s house, and finally a High Court that according to s.73 of the Constitution has original jurisdiction over inter-state disputes. This paper focuses on the failure of the High Court to fulfil its constitutional role as a protector of the Federal system.

The initial High Court of 1903 was comprised of Justices Barton, O’ Connor and...