THE HIGH COURT

The Bulletin

The Federal High Court, as constituted, commands respect for its high ability whilst imparting uneasiness at the fact that it is all, practically, of one colour as regards political convictions. The last thing a Supreme Court Judge should be is a politician; once he mounts the Bench his partizan [sic] views should vanish and all things be looked at in the sober and equable spirit of impartiality…Whilst Australians can confidently expect of the three judges appointed an honest effort to be strictly fair in all things, it is probable that in the decision of those high questions of constitutional law which move insensibly from law into politics, their minds will be biassed [sic] towards that Conservative and Imperialistic view which they have followed all their lives…GRIFFIN, BARTON and O'CONNOR will dispense good law, will administer even justice so far as they can, but they will not, it may be safely predicted, in laying down the early precedents which will make Australian Common Law, ever fail to stretch a little towards the Tory view in local affairs, towards the Chamberlain-Imperialist view in external affairs.

The Bulletin, Sydney, 1 October 1903, p. 9.

This is part of Alfred Deakin's speech which opens the debate for the Second Reading of the Judiciary Bill.

… We have had the courts of the States dealing with all the issues submitted to them by the people of their respective States, and the appeal from those courts to the judicial committee of the Privy Council. We shall still have all these under this measure, but the Privy Council on its side has made a surrender, and the courts of the States on their side have also made a surrender, and between the two we have interposed this third and intermediate body, the High Court, to which the judicial interests of Australia are committed, in the same way as their political interests are committed to this Parliament – that is, by the Constitution itself. This judiciary holds, therefore, in the sphere of law, precisely the same position, and exhibits precisely the same transformation as does the creation of the Commonwealth in the purely political world. This is the first consideration pointing to the power and quality of this court, which should give pause to those who think that its creation is a matter of such slight importance that it can well be postponed or disregarded. The High Court, in its sphere, and the Parliament, in its sphere, are both expressions of the union of the Australian people. That union cannot be completed on the judicial side without the establishment of this court, any more than on the political side it could have been completed, or even commenced, without this Parliament . But the point I am anxious to impress upon honorable members, before they take into consideration the particular criticisms that have been offered with regard to this measure, is that this court has a quite special and distinct and higher importance of its own. Owing to the federal Constitution introduced by the Commonwealth Act, a new state of affairs has been brought about, in which this court, in the exercise of its ordinary jurisdiction, is given a most potent voice. It will define and determine the powers of the Commonwealth itself, the powers of the States, which subsist within it, and the validity of the legislation flowing from them. All these have to be defined by this new court. Its first and highest functions as an Australian court – not its first in point of time, but its first in point of importance – will be exercised in unfolding the Constitution itself … Our Constitution must depend largely for the exact form and shape which it will hereafter take upon the interpretations accorded to its various provisions. This court is created to undertake that interpretation. In addition, the Constitution involves a series of compacts – compacts between the different States, studious of the interests of their own people, compacts which affect the present and future privileges of the people, compacts which affect the Treasuries of the States, and compacts which relate to the kinds of legislation to be undertaken by the Commonwealth. These compacts between State and State, and between the Commonwealth and its people as a whole, dealing with all classes and interests, are to be interpreted and safeguarded by this court …

Commonwealth Parliamentary Debates, House of Representatives, 18 March 1902, pp. 10964-10966.