The unexpressed third role of the High Court is becoming more important. Justice Michael Kirby’s appointment can only reinforce it. The text books and the words of the Constitution tell us that the High Court has two roles: to interpret the Constitution and to be the highest court of appeal in the land.
The former usually requires arbitration between the Commonwealth and the states; the latter between citizens of Australia.
In the first 25 years of federation, the court gave the states supremacy, arguing that they had reserve rights to which the Commonwealth must bow. This was the states rights phase of the High Court.
Then came the Engineers case. It said that the list of Commonwealth powers were plenary. That is, they had to be interpreted broadly to their fullest extent and any state law had to give way to them. This was the court’s period of centralism when the corporations and foreign affairs power gave the Commonwealth much wider power. Its zenith was the Tasmanian Dams case in 1983.
In its other role, the court has ruled upon conflicting decisions of state supreme courts on matters of general law and has ruled on major newly arising matters of general law. In doing so it has advanced the common law and been cited as authority in other common-law countries. It has also developed some uniquely Australian common law … a concept not articulated until Justice William Deane laid it down in 1982.
This common law has excelled in administrative law and in cutting through arcane rules on people’s liability to those they come in contact with to state a general law on liability for negligent conduct.
Now a third role is being carved out by the court: arbitration between and defining the limits of the three elements of government: the executive, the legislature and the judiciary itself. The most significant part of that is the development of individual rights.
This development comes out of the other two roles. With respect to the general law, Kirby in the NSW Court of Appeal has taken a similar view to many other judges, like Lionel Murphy, Anthony Mason, William Deane, in ensuring the common law and statutory interpretation gives greater weight to individual rights. Mabo and the right to legal representation were good examples. Even the so-called conservative judges, like Daryl Dawson take this view with respect to the criminal law.
With respect to constitutional matters, all the High Court judges to a greater or lesser degree are extracting individual rights out of the constitution at the expense of legislative and executive power. The most notable example is the freedom of political communication.
In doing this the court also reinforced an exclusive judicial power out of the words of the Constitution that cut executive power to interfere with people’s rights. This is the court’s new phase. You might call it the individual-rights phase.
Its champions have been Mason, Deane, John Toohey and Gerard Brennan. The addition of Kirby is likely to give this new phase impetus and numerical and intellectual strength.