Crispin Hull

At the time of construction the High Court building seemed monumental in size. For its first eight years – until Parliament House was opened it stood out of proportion in the National Triangle.

The building – constructed by PDC Constructions (ACT) Pty Ltd — is 40 metres high with 18,515 square metres of internal floor area. The building itself covers 0.32 hectares (0.8 acres) and is surrounded by nearly 1 hectare (2.5 acres) of quarry tiles. It has a vast public hall 24 metres high extending in height through eight of the building’s 10 levels.

Parliament House with 287,780 square metres (including verandah and carparks) dwarfs the High Court.

The High Court building was designed with the public in mind.

With use of ramps and stairs the public hall gives easy access to the three courtrooms, the registry and the cafeteria. Two sides of the hall are enormous trussed glass walls giving an interaction with the exterior.

The building has 4000 square metres of glazed area and 30,000 cubic metres of concrete were used in construction. Most of the external and internal walls have been textured with a process known as “bush hammering”. It exposes the off-white hue of the granite aggregate. The internal concrete walls are softened and contrasted by the use of warm timbers as wall linings in parts of the courtrooms and public hall. Timber was used in the courtrooms because, aside from its aesthetic qualities, it is a sound absorbing material and helps courtroom acoustics. Seven Australian timbers were used in the building: coachwood, blackwood, blackbean, jarrah, Tasmanian myrtle, red tulip oak and red cedar.
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Justices of the High Court are appointed by the Government of the day.

Both the process of appointing them and some of the appointments themselves have drawn criticism.

Appointments that have drawn criticism have usually been on the ground that the Government of the day is trying to get Justices sympathetic to its political viewpoint appointed. The appointment process has been criticised most frequently for its failure to deliver a Court which is “representative” and because it is not an “open” process.

On the question of representativeness, criticism has been based on several grounds: that too many of its judges come from New South Wales, Victoria and Queensland (42 of 44); that there has been only one woman on the High Court Bench in its 100-year history; and that the Justices do not reflect the diverse backgrounds of Australian society as a whole.

Political leaders in the smaller States have long complained that they have been under-represented, despite the enactment in 1979 of the High Court of Australia Act which provided:

“Where there is a vacancy in an office of Justice, the Attorney- General shall, before an appointment is made to the vacant office, consult with the Attorneys-General of the States in relation to the appointment.”
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High Court supplement
Articles:

Lead on High Court and the Constitution

Building architecture and art

Building competition

Building controversy

Big cases

Appointments

Jabot

Workload

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Today we are marking the centenary of the High Court of Australia almost three years after the centenary of federation itself.

Why the delay?

The Australian Constitution which came into force on January 1, 1901, provided that, “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia’’, but the new Federal Parliament did not get around to passing legislation to provide for the detail – such as the number of judges and the procedural rules — until August 25, 1903, with the passing of the Judiciary Act.

The Act was steered through Parliament by Attorney-General Alfred Deakin, who referred to the High Court as “the keystone of the federal arch”. Opponents decried it as too expensive and said it would not have enough work to do. The state courts could easily hear matters arising under federal law. But Deakin prevailed.

It was a couple of more months until the justices were appointed and the court was ready to sit on October 6. On that occasion in dealt with a few procedural matters. It heard its first its first case in November.
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As plans for the High Court building in Canberra emerged, it became know as the “Gar Mahal” – a reference to Chief Justice Sir Garfield Barwick the driving force behind the building and the magnificent Taj Mahal in India.

At the time of opening the building was described as “an obscene waste of public money”.

The project had its critics from the start, but Barwick and others overcame them.

Barwick’s determination went back a long way. He had been appointed Attorney-General by Prime Minister Robert Menzies after the 1958 election. From that position he became a leading advocate of a building for the High Court in Canberra. But the then Chief Justice, Sir Owen Dixon, was opposed to it. Dixon thought the court had a duty travel to the state capitals to help litigants avoid the expense of either taking their counsel to the permanent court or of engaging new counsel just for the High Court appeal. Dixon retired in 1964 and Barwick succeeded him.

Barwick, the leading advocate at the Bar, continued his advocacy of the cause for the move to Canberra. He thought also that the court’s accommodation was unsatisfactory when it travelled. He said in 1976, “We never manage to get a room for every judge. They share chambers, sometimes three to a room, and in one state in particular their staff are out in the corridors, and that’s been going on for a long time and why our forefathers, or my predecessors, tolerated it I don’t know.” Barwick thought that the court should be in the capital close to, but separate, from the Parliament.
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The major constitutional cases of the century have generally swung the balance of power from the states to the Commonwealth. Or they have defined no-go areas where neither the Commonwealth nor the states can tread.

Selecting the major cases invites contention, but most constitutional historians would agree on a core of up to a dozen cases out of the 10,000 cases decided.

I have selected seven. The first, the Engineers case in 1920, is perhaps the High Court’s most important decision.

In its first 17 years, the High Court developed two doctrines: the doctrine of reserved state powers and the doctrine of immunity of instrumentalities.

The first was that, at the time of federation, the states handed a list of powers to the Commonwealth. These were concurrent powers. That meant the states could still exercise any of those powers if the Commonwealth did not legislate in the area. The states, under the implied prohibitions doctrine, were entitled to exercise all the remaining powers to their full extent.

So Commonwealth powers had to be interpreted in a restrictive way that did not intrude upon the area of state power – the reserved state powers. The finite list of subjects assigned to the Commonwealth left a wide area of reserved authority for the states where the Commonwealth could not go.

The doctrine of the immunity of instrumentalities meant that the Commonwealth could not interfere with the ordinary exercise of state legislative or executive power and vice versa. So Commonwealth public servants did not have to pay state income taxes (which existed in those days). And state employees (like railway workers) did not have to submit to the Commonwealth industrial and arbitration system.

By 1920 the original Justices had gone and the court had been expanded to five, setting the stage for a major shift.

The national engineers union, the Amalgamated Society of Engineers, wanted the right to enter the premises of employers – including state departments and authorities — to check on the working conditions of apprentices.

The Constitution gives the Commonwealth Parliament power to make laws with respect to “the conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state’’. The Commonwealth Conciliation and Arbitration Act 1904 provided for a Commonwealth Court of Conciliation and Arbitration to deal with interstate industrial disputes such as the engineers’ dispute. But the states objected to having their departments and instrumentalities being subjected to that court’s rulings. They relied on the doctrine of reserved State powers and the doctrine of immunity of instrumentalities.

A majority of the Court — Chief Justice Knox and Justices Isaacs, Higgins, Rich and Starke, with Justice Gavan Duffy dissenting – held that the Commonwealth Parliament had power to make laws binding on state ministers, departments and instrumentalities as employers with respect to industrial disputes extending beyond the limits of one state.

The judges said the correct approach was to construe the meaning of the words of the Constitution like any other law to see what power had been given to the Commonwealth. Once that was done a prohibition against the exercise of that power could not be implied in the Constitution. If an Act of Parliament came within that power in the Constitution it would be valid.

This case in effect swept aside the notion that the states’ had some implied powers where the Commonwealth could not tread. The Commonwealth could exercise its listed powers within the ordinary meaning of the words. Over the years, the Commonwealth has done just that and as it has done so its legal footprint has grown larger.

2. The Uniform Tax case.

The first Uniform Tax Case, heard in 1942, saw the High Court hold in favour of the exercise of even wider central power. The Commonwealth enacted four laws, which together spelled a practical end to the States’ ability to levy income tax. One law imposed an income tax at a rate of up to 90 per cent, thereby leaving the States very little room to impose their own tax. A second law offered grants to those States which voluntarily refrained from imposing an income tax. A third law said the Commonwealth could take over any officers, offices and other physical means that the States used in any attempt to levy an income tax and the fourth law gave the Commonwealth’s taxes priority – forbidding people to pay the State tax until they had paid the Federal one.
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The English are experts at rigid queues and queuing.

I found myself earlier this week in a long queue at Brisbane Airport. It was so long that it snaked through all the available chrome pole and black tape queue controllers and had formed several more hairpin bends of its own to the very doors of the terminal.

It was 7.50am. The flight to Canberra was 8.30am. Ahead of me in the queue was a rather fretful English couple who were also on an 8.30am flight – to Alice Springs.

They were watch looking and asked me what time was my flight. Would we make it, they asked.

“No worries,” I said. “The queue moves pretty fast. They’ll clear this lot in no time.”

She replied, “Oh, I hope you’re right. It doesn’t look good to me. But at least we’re moving.”

More bag shuffling and anxious watch looking. We talked about protocols for reusing medical instruments – as you do when you meet a stranger in an airport queue.

Then an announcement. “Would passengers in the queue on the 8.10am Flight 3832 to Rockhampton please move with their luggage directly to Counter 28 and 29.”
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Is the property bubble about the burst, with a rippling effect across the economy?

Possibly, warns the Reserve Bank.

This week the Reserve held a seminar on what to do about the seemingly uncontrollable boom in property prices. It made the papers public.

The Reserve has been treading on eggshells over interest rates in the past few months. On one hand, it should lower them to cope with the poor international outlook. Other nations have lowered their interest rates so if Australia’s stay high, money rushes into Australia and our currency goes up quickly, hurting exporters. But if interest rates are lowered, it will add further fuel to the property boom. Indeed, some argue that the Reserve should raise interest rates to put an end to the boom.

But it cannot both raise and lower interest rates.

Monetary policy – adjusting interest rates – is exercised by the Reserve to keep inflation under control. And it is a moot point whether the Reserve should exercise monetary policy to prick property bubbles or any other sort of bubble. Some economists say that would be part of controlling inflation so fair enough. Others say that because interest rates affect the whole economy they should not be used to prick a bubble in one small part of it.
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