Reflections on the Engineers’ decision, 100 years on

Earlier this month I was published in The Spectator to mark the 100-year anniversary of the Engineers‘ decision on 31 August 1920.

One of the most consequential High Court decisions in Australian history, the Engineerscase effectively re-wrote the core assumptions that had previously underpinned the interpretation of Commonwealth legislative power under the Constitution.

Here are a few extracts from my op-ed:

In the early years of the High Court, Griffith, Barton and O’Connor laid out a clear approach to the interpretation of state and federal powers under the Constitution. In the nation’s first case on the interpretation of the Constitution, D’Emden v Pedder, they held that the respective governments of the Commonwealth and states were each ‘sovereign’ and entitled ‘to exercise [their respective] legislative and executive powers in absolute freedom.’

Yet this stable line of authority was not to survive the transition from the inaugural Court to its subsequent iterations. In 1906 Victorians Sir Isaac Isaacs and Henry Higgins, both prominent proponents of a strong central government during the Convention Debates, joined the Court. Then, after its proposed amendments to Commonwealth power were rejected at the 1911 referendum, the Fisher Labor Government controversially expanded the Court with appointees seen as being more sympathetic to a broad reading of Commonwealth powers.

[Their] efforts to rewrite the Constitution ultimately succeeded when, after the death of the final remaining inaugural Justice Sir Edmund Barton in 1920, Labor’s newly appointed Justices joined with Isaacs and Higgins to strike down the previous two decades of precedent.

Although aspects of the decision have been somewhat revised over the past century, Engineers‘ lasting impact continues to be felt today.

You can read the full op-ed using the link below:

My other pieces in The Spectator can be accessed here: https://www.spectator.com.au/author/xavier-boffa/

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