Melbourne-based readers of the blog may be interested to know that the Victorian Supreme Court will be opening the Melbourne Old High Court building on 30 July from 10am to 4pm as part of the Open House Melbourne Festival. In addition from 2 – 2:30pm, there will be a talk on the architecture and history of the building by Robin Grow, an expert in Art Deco architecture, and Joanne Boyd, the Supreme Court Archives and Records Manager. This post outlines some of the significance of the building, with a quick dip into significant constitutional cases for those who have an interest in such matters. [Update: for a fascinating personal insight into his role in ensuring the Supreme Court made use of the Old High Court and the decision-making process with regard to the crossover between the Supreme Court and the Old High Court see Hon. Philip Mandie’s comment on the post.]
Image taken by Heather Turk
Until the Old High Court building was completed in 1928, the High Court was peripatetic, and did not have its own dedicated building. Instead it used various State court buildings. Then-Chief Justice Sir Adrian Knox reportedly complained that, “Until we get another court of our own it will be impossible to arrange the work to the best advantage.”
The architect of the new building was John Smith Murdoch, the Commonwealth’s Chief architect at the time, who followed the Beaux-Arts style of architecture. As an interesting aside, the Australian Dictionary of Biography reports that Murdoch was a ‘dour Scot’ who had ‘no particular enthusiasm’ for the establishment of Canberra, describing it as ‘a sort of mythical thing’ on which public funds should not be expended.
The Old High Court building held the chambers of six former Chief Justices of the High Court, Sir Adrian Knox (1928 – 1930), Sir Isaac Isaacs (1930 -1931), Sir Frank Gavan Duffy (1931 – 1935), Sir John Latham (1935 -1952), Sir Owen Dixon (1952 – 1964) and Sir Garfield Barwick (1964 – 1980).
Important Constitutional cases in the Old High Court Building
The first sitting of the High Court in Melbourne was on 20 February 1928. RG Menzies KC, future Prime Minister of Australia, appeared for the appellant in Corporation of the City of Adelaide v Australiasian Performing Right Association Ltd (1928) 40 CLR 481.
A number of significant constitutional cases were heard in the Old High Court Building, including:
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- The Uniform Taxation Cases: South Australia v Commonwealth (Uniform Tax Case No 1) (1942) 65 CLR 373 and Victoria v Commonwealth (Uniform Tax Case No 2) (1957) 99 CLR 575: In these cases, the High Court upheld Commonwealth income taxation schemes, which led to a increase in Federal power to levy taxes, and a concomitant inability on the part of the States to levy income taxes. Kenneth Bailey said that the Uniform Tax Case No. 1 was ‘probably the most far-reaching judgment ever handed down by the High Court’ because it gave such power to the Federal government (quoted in HP Lee and G Winterton, Australian Constitutional Landmarks (CUP, 2003) pg 452).
- Melbourne Corporation v Commonwealth (1947) 74 CLR 273: The Chifley government sought to nationalise banks by prohibiting banks other than the Commonwealth Bank to conduct banking business on behalf of the States or their authorities. This law was not valid.The Court said there was an implied limitation on the Commonwealth Parliament’s power to legislate with respect to the States, derived from the federal system of government, which requires separate governments exercising independent functions (see Anne Twomey’s discussion here).
- Bank of New South Wales v Commonwealth (‘Nationalisation Case’) (1948) 67 CLR 1 (HC); (1949) 79 CLR 497 (PC): The Chifley Labor government then sought to effect nationalisation via the Banking Act 1947 (Cth), which provided that shares in private banks would be owned by the Commonwealth Bank, which would in turn be owned by the Federal government. This case ran before the High Court for a record 39 days, 36 in Melbourne and the last three days in Sydney. Herbert Evatt, formerly a High Court judge and now Attorney-General, represented the Commonwealth, while Garfield Barwick, a future High Court Chief Justice, represented the banks. A majority of the High Court ruled that the legislation was invalid, among other things because it contravened s 92 of the Constitution (which provided that “trade, commerce, and intercourse among the States … shall be absolutely free”) and because it was not acquisition of property on just terms pursuant to s 51(xxxi) of the Constitution. The Privy Council affirmed that decision after a hearing which lasted 37 days, during which time Lord Uthwatt and Lord Du Parcq died. [The interpretation of s 92 of the Constitution expressed in the Nationalisation Case has since been overruled by Cole v Whitfield (1988) 165 CLR 360 in favour of an approach which prevents protectionism by the States.]
- Australian Communist Party v Commonwealth (1951) 88 CLR 1 (‘Communist Party Case’):The newly elected Menzies Government passed the Communist Party Dissolution Act 1950 (Cth), which provided in s 4 that the Australian Communist Party was an unlawful association, provided for it to be dissolved and appointed a receiver. Section 5(2) gave the Governor-General the power to declare any communist organisation unlawful, and s 9(2) provided that the Governor-General could declare anyone a communist. Evatt, who was now Deputy Leader of the Opposition, agreed to represent the communist Waterside Workers’ Federation and its leader James Healy, despite being an avowed anticommunist, and Barwick represented the Commonwealth. The Oxford Companion to the High Court notes in its entry on this case that on the first day of argument, Dixon J noted in his diary: ‘I had never heard him [Evatt] to more advantage & he made a considerable impression.’ Five days later, however, Dixon wrote: ‘Evatt continued. A dreary repetitious argument.’ In any case, Evatt eventually succeeded, and this case represented Barwick’s most significant loss. A majority of the High Court ruled that the legislation was invalid because it did not have a sufficient connection with a Commonwealth power, and the powers conferred on the Governor-General by ss 5(2) and 9(2) presumed certain facts. Fullagar J said, “The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity.” For more information on the case, see George Winterton here.
- R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; (1957) 95 CLR 529 (‘Boilermaker’s Case’): The Boilermaker’s Society of Australia challenged provisions in the Conciliation and Arbitration Act 1904 which, among other things, empowered the Commonwealth Court of Conciliation and Arbitration to issue orders for parties to comply with awards, and to punish disobedience of these orders as contempt of court. The Court of Conciliation and Arbitration had made an injunction-like order in favour of the Metal Trades Employers’ Association, and when the Boilermaker’s Society refused to comply, it had been fined. The High Court ruled that the Arbitration Court could not be invested with the judicial power of the Commonwealth pursuant to Chapter III of the Constitution if it also had a non-judicial power to arbitrate. In essence, only Chapter III courts could exercise Commonwealth judicial power, and conversely, Chapter III courts could not exercise any non-judicial power. It imposed a strict separation of powers, which as the Rule of Law Institute notes here, has now been watered down by the ‘persona designata‘ exception, among other things. The Privy Council upheld the High Court’s decision.
The end of the High Court in Melbourne
The High Court of Australia remained in the building until June 1980. The final High Court case to be heard in the Old High Court building was Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249. The case dealt with the question of damages flowing from a failed interlocutory injunction. For non-litigious readers, when a plaintiff seeks an interlocutory injunction, the court requires the plaintiff to undertake to compensate the defendant for any losses flowing from compliance with the injunction if the defendant is ultimately successful at trial. Air Express confirmed that only losses flowing from the interlocutory injunction itself sound in damages for the purposes of such an undertaking.
The Federal Court of Australia also occupied the Old High Court Building until its new premises were completed in 1999, after which the Old High Court building was taken over by the Victorian Supreme Court.
The building was under threat of demolition in 2005. However, in 2007, it was placed on the National Heritage List, in part because of its architecture, but also because of the significance of the constitutional cases heard within it, and the association of several very prominent judges with the building.
The High Court will be returning to Melbourne in September this year while its Canberra premises are refurbished and the air-conditioning is replaced. I suspect that the High Court will sit in the Federal Court complex, but I can’t help wishing in a nostalgic way that perhaps it might have just one sitting in Court No 1 in the Old High Court.
SOME UNOFFICIAL HISTORY..MY ROLE
I was a member of the cross-vesting Committee, a committee of representatives of the Supreme Courts of all of the States and the Federal Court that met annually to discuss and report on the operation of the Cross-vesting Act.
Michael Black CJ of the Federal Court was chair of the Committee and the meeting was held by telephone in his chambers, which were situated in the renovated third floor or attic of the Old High Court Building. As the only other Committee member in Melbourne, I used to attend in person in Black CJ’s chambers. Just the two of us!
At one such meeting, when the new Federal Court building in Melbourne was nearing completion, I ascertained that the Old High Court building would soon be vacated and that there were no plans for its future use by the Commonwealth.
I approached the then Chief Justice of Victoria, the late John Harber Phillips, and said that there was at hand a great opportunity for the State to re- acquire the property from the Commonwealth for the use of the Supreme Court of Victoria, which desperately needed more courtrooms and more judicial chambers. He agreed.
With the support of the Council of Judges, the Chief Justice approached the Victorian Attorney-General, Hon. Robert Maclellan, who enthusiastically adopted the idea. Negotiations with the Commonwealth ensued and the State acquired the property and in due course the Supreme Court took occupation.
Phillips CJ received an architectural design for a pedestrian crossover for Judges at first floor level over the lane that separated the Supreme Court from the Old High Court building. This was a design for a modern glass crossover that did not reflect the Victorian architecture of the Supreme Court or the Federation architecture of the Old High Court. This design received a degree of criticism and a number of objections at a meeting of the Council of Judges and the Chief Justice appeared concerned at the lack of consensus. I spoke, supporting the design, and suggested that it was an excellent architectural solution which did not pretend to reflect either building but projected itself as what it was, a new modern crossover. This appeared to carry the meeting and the design was approved, the Chief Justice later thanking me for my supporting argument. The crossover in that form was constructed.
Hon. Philip Mandie
Thanks, that’s fascinating. I always loved that crossover when I worked at the Court, and appreciated that it had glass walls – I liked to gaze on the various buildings. I didn’t realise you’d had a role in choosing it! Katy