Jurisprudence High Court of Australia

1 jurisprudence

1.1 griffith court
1.2 knox, isaacs , gavan duffy courts
1.3 latham court
1.4 dixon court
1.5 barwick court
1.6 gibbs court
1.7 mason court
1.8 brennan court
1.9 gleeson court
1.10 french court
1.11 kiefel court

jurisprudence

the legal history of court commonly summarised reference chief justice of time. while convenient way of breaking history of court periods, tends overstate importance of chief justice , ignores influence , tenure of other members of court. example, isaacs j primary force in knox court, while time of own appointment chief justice saw emergence of dixon j new intellectual leader of court.

griffith court

sir isaac isaacs, justice 1906 , chief justice 1930–1931

as first high court, court under chief justice sir samuel griffith had establish position new court of appeal whole of australia , had develop new body of principle interpreting constitution of australia , federal legislation. griffith himself dominant influence on court in years, after appointment of sir isaac isaacs , h. b. higgins in 1906, , death of foundation justice richard o connor, griffith s influence began decline.

the court keen establish position @ top of australian court hierarchy. in deakin v webb (1904) griffith criticised supreme court of victoria following privy council decision constitution of canada, rather following high court s own decision on australian constitution.

in australian constitutional law, decisions of court influenced united states constitutional law. in case of d emden v pedder (1904), involved application of tasmanian stamp duty federal official s salary, court adopted doctrine of implied immunity of instrumentalities had been established in united states supreme court case of mcculloch v. maryland (1803). doctrine established attempt federal government interfere legislative or executive power of australian states invalid, , vice versa. accompanying doctrine doctrine of reserved state powers, based on principle powers of australian parliament should interpreted narrowly, avoid intruding on areas of power traditionally exercised state parliaments. concept developed in such cases peterswald v bartley (1904), r v barger (1908) , union label case (1908).

together 2 doctrines helped smooth transition federal system of government , preserving balance between constituent elements of australian federation, conformed community sentiment, @ stage no means adjusted exercise of central power. court had conservative view of constitution, taking narrow interpretations of section 116 (which guarantees religious freedom) , section 117 (which prevents discrimination on basis of s state of origin), interpretations last 1980s.

two of original judges of court, griffith , sir edmund barton, consulted governors-general, including on exercise of reserve powers. practice of consultation has continued time time since.

knox, isaacs , gavan duffy courts

adrian knox became chief justice on 18 october 1919 , less 3 months later, foundation justice sir edmund barton died, leaving no original members. significant case of era engineers case (1920), decided @ beginning of knox s term. in case, doctrines of reserved state powers , implied immunity of instrumentalities both overturned, , court entered new era of constitutional interpretation in focus fall exclusively on text of constitution, , in powers of australian parliament gain increasing importance.

knox knighted in 1921, chief justice knighted during term. of knox court s work related aftermath of world war i. in roche v kronheimer (1921), court upheld federal legislation allowed making of regulations implement australia s obligations under treaty of versailles. majority decided case on defence power, higgins decided on external affairs power, first case decide external affairs power used implement international treaty in australia.

sir isaac isaacs chief justice forty-two weeks, before leaving court appointed governor-general of australia. isaacs ill of term chief justice , few significant cases decided under formal leadership; rather, best years under knox, senior justice , led court in many decisions.

sir frank gavan duffy chief justice 4 years beginning in 1931, although 78 when appointed position , did not exert influence, given (excluding single-justice cases) participated in 40 per cent of cases in time, , regularly gave short judgments or joint judgments other justices. in context of great depression, court reduced 6 justices, resulting in many tied decisions have no lasting value precedent.

during time, court did decide several important cases, including attorney-general (new south wales) v trethowan (1932), considered premier of new south wales jack lang s attempt abolish new south wales legislative council, , first state garnishee case (1932), upheld federal legislation compelling lang government repay loans. of court s other work related legislation passed in response depression.

latham court

john latham, before appointment court, deputy prime minister , minister external affairs in lyons government.

the court under chief justice sir john latham, came office in 1935, punctuated world war ii. although dealt cases in other areas, important , lasting work related wartime legislation, , transition peace following war.

the court upheld legislation under defence power, interpreting broadly wherever there connection defence purposes, in cases such andrews v howell (1941) , de mestre v chisholm (1944). in general, curtin labor government challenged, court recognising necessity defence power permit federal government govern strongly. court allowed federal government institute national income tax scheme in first uniform tax case (1942), , upheld legislation allowing proclamation of pacifist jehovah s witnesses religion subversive organisation, in jehovah s witnesses case (1943).

the court reined in wide scope of defence power after war, allowing transitional period. struck down several key planks of chifley labor government s reconstruction program, notably attempt nationalise banks in bank nationalisation case (1948), , attempt establish comprehensive medical benefits scheme in first pharmaceutical benefits case (1945). court famously struck down menzies liberal government legislation banning communist party of australia in communist party case (1951), latham s last major case.

apart wartime cases, latham court developed criminal defence of honest , reasonable mistake of fact, example in proudman v dayman (1941). paved way development of external affairs power upholding implementation of air navigation treaty in r v burgess; ex parte henry (1936).

dixon court

the bench in 1952, shortly before chief justice latham s retirement. back, left right, fullagar, webb, williams & kitto. front, left right, dixon, latham & mctiernan.

under chief justice sir owen dixon, elevated role in 1952 after 23 years justice, court enjoyed successful period, british judge, master of rolls lord denning, describing time court s golden age . dixon, regarded australia s greatest judge, had commanding personal , legal influence on court in time, measurable in rise in joint judgments (many of led dixon) , relations between justices.

while there fewer cases tested limits of federal power, due menzies government firmly entrenched in conservative phase throughout dixon s tenure, court did decide several important constitutional cases. dixon led court in firmly establishing separation of powers judiciary in boilermakers case (1956), , court upheld continuing existence of federal government s income tax scheme in second uniform tax case (1957).

during dixon s time chief justice, court came adopt several of views dixon had advanced in minority opinions in years prior. in several cases, court upheld dixon s interpretation of section 92 (one of troublesome sections of constitution), regarded guaranteeing constitutional right engage in interstate trade, subject reasonable regulation. followed dixon s interpretation of section 90 (which prohibits states exacting duties of excise), although both these interpretations abandoned many years later.

barwick court

sir garfield barwick came court chief justice in 1964. significant decision of barwick court marked beginning of modern interpretation of corporations power, had been interpreted narrowly since 1909. concrete pipes case (1971) established federal parliament exercise power regulate @ least trading activities of corporations, whereas earlier interpretations had allowed regulation of conduct or transactions public.

the court decided many other significant constitutional cases, including seas , submerged lands case (1975), upholding legislation asserting sovereignty on territorial sea; first (1975) , second (1977) territory senators cases, concerned whether legislation allowing mainland territories represented in parliament of australia valid; , russell v russell (1976), concerned validity of family law act 1975. court decided several cases relating historic 1974 joint sitting of parliament of australia, including cormack v cope (1974) , petroleum , minerals authority case (1975).

the barwick court decided several infamous cases on tax avoidance , tax evasion, deciding against taxation office. led barwick himself in judgments, court distinguished between avoidance (legitimately minimising 1 s tax obligations) , evasion (illegally evading obligations). decisions nullified anti-avoidance legislation , led proliferation of avoidance schemes in 1970s, result drew criticism upon court.

gibbs court

sir harry gibbs appointed chief justice in 1981. under leadership, court moved away legalism , conservative traditions had characterised dixon , barwick courts.

the gibbs court made several important decisions in australian constitutional law. allowed federal parliament make wide use of external affairs power, holding power used implement treaties domestic law few justiciable limits. in koowarta v bjelke-petersen (1982) 4 judges 3 upheld validity of racial discrimination act 1975, although no single view had majority support. however, in tasmanian dams case (1983), majority of court upheld federal environmental legislation under power.

the court adopted more expansive interpretation of corporations power. in actors equity case (1982), court upheld regulations which, although did not directly regulate corporations, indirectly protected corporations. in tasmanian dams case, court indicated interpret power uphold legislation regulating non-trading activities of corporations, although did not decide case on basis. external affairs power , corporations power have both been increasingly relied on federal government extend authority in recent years.

in administrative law, court expanded on doctrines of natural justice , procedural fairness in kioa v west (1985). although gibbs himself dissented on points, did decide executive decision makers obliged take humanitarian principles consideration. outside of specific areas of law, court involved in several cases of public significance, including chamberlain case (1984), concerning lindy chamberlain, , v hayden (1984), concerning botched asis exercise @ sheraton hotel in melbourne.

mason court

sir anthony mason became chief justice in 1987. mason court stable, 1 change in bench in 8 years, appointment of michael mchugh after sir ronald wilson s retirement. court under mason regarded liberal bench in court s history.

the mason court made many important decisions in areas of australian law. 1 of first major cases cole v whitfield (1988), concerning troublesome section 92, had been interpreted inconsistently , confusingly since beginning of court. first time, court referred historical materials such debates of constitutional conventions ascertain purpose of section, , unanimous decision indicated willingness overturn established doctrines , precedents perceived no longer working , trend typified mason court.

the popularly significant case decided mason court mabo case (1992), in court found common law capable of recognising native title. decision 1 of high court s controversial of time , represented tendency of mason court receive high praise , stringent criticism in equal measure. other controversial cases included war crimes act case (1991), regarding validity of war crimes act 1945; dietrich v queen (1992), in court found lack of legal representation in serious criminal case can result in unfair trial; sykes v cleary (1992), regarding disputed election of phil cleary; , teoh s case (1995), in court held ratification of treaty executive create legitimate expectation members of executive act in accordance treaty.

the court developed concept of implied human rights in constitution in cases such australian capital television pty ltd v commonwealth (1992), nationwide news v wills (1992) , theophanous v herald , weekly times (1994), in court recognised implied freedom of political communication arising nature of constitution in laying out system of representative government.

in other areas of law, court developed doctrines of equity in relation commercial law , contract law, in cases such waltons stores v maher (1988) , trident general insurance v mcniece (1988), , made significant developments in tort law, in cases such rogers v whitaker (1992) , burnie port authority v general jones (1994).

brennan court

sir gerald brennan succeeded mason in 1995. in contrast previous court, brennan court had many changes in membership despite being 3 years long. court decided many significant cases.

in ha v new south wales (1997) court invalidated new south wales tobacco licensing scheme, reining in licensing scheme exception prohibition states levying excise duties, contained in section 90 of australian constitution. while did not overturn previous cases in schemes had been upheld, did emphasise states not stray far constitutional framework.

the brennan court made number of significant decisions in relation judiciary of australia. in grollo v palmer (1995) , wilson v minister aboriginal , torres strait islander affairs (1998), court developed persona designata doctrine, , in kable v dpp (1997), court rejected attempts parliament of new south wales establish system of preventative detention , found states not have unlimited ability regulate courts, given place of courts in australian court hierarchy.

the court decided several cases relating implied freedom of political communication developed mason court, notably lange v australian broadcasting corporation (1997) , levy v victoria (1997). decided several native title cases, including controversial wik case (1996).

gleeson court

murray gleeson appointed chief justice in 1998. court under gleeson s leadership regarded more conservative under mason or brennan, favouring legalism in tradition of dixon , barwick courts. in cross-vesting case (1999), court struck down legislation vesting areas of federal jurisdiction in supreme courts of states. in al-kateb v godwin (2004) majority of court applied narrow interpretation of migration act 1958, finding permitted executively-imposed indefinite detention of stateless persons. however, court did not entirely shy away principle , public policy in decisions.

in egan v willis (1998), court supported new south wales legislative council s ability suspend treasurer when failed produce documents before council, emphasising purpose of ability in facilitating responsible government. in sue v hill (1999), court recognised australia s emergence sovereign independent nation, finding united kingdom foreign power .

the gleeson court decided number of important native title cases, including yanner v eaton (1999), western australia v ward (2002) , yorta yorta case (2002). in tort law, court s significant decisions include perre v apand pty ltd (1999), concerning negligence actions there pure economic loss opposed physical or mental injury, dow jones v gutnick (2002), regarding defamation on internet, , cattanach v melchior (2003), wrongful life case involving healthy child. in criminal law, court in r v tang (2008) upheld slavery convictions against owner of brothel had held several women in debt bondage after had been trafficked australia.

perhaps gleeson court s significant case among later ones. in workchoices case (2006), court explicitly accepted wide reading of corporations power, after years of gradual expansion following concrete pipes case (1971).

french court

robert french appointed chief justice in september 2008. first decision handed down french court lujans v yarrabee coal company pty ltd (2008), case dealing motor vehicle accident. 1 of notable judgments handed down french court pape v commissioner of taxation (2009), constitutional law case concerning existence of commonwealth s so-called appropriation power , scope of executive , taxation powers.

kiefel court

susan kiefel appointed chief justice in january 2017. kiefel court has decided 2 important constitutional cases: in brown v tasmania, members adopted conflicting variety of approaches implied freedom of political communication; while in re canavan, attracted huge public interest, court s unanimous decision adhered interpretation of section 44 of constitution according ordinary , natural meaning . in wilkie v commonwealth court held expenditure australian marriage law postal survey had been approved parliament , collection of statistical information conducted australian bureau of statistics.