In defence of the High Court: its role as an agent of constitutional change

Abstract

This article addresses how far change should be brought about by the High Court. It examines: first whether the High Court has exceeded the limits imposed by constitutional texts on the expansion of Commonwealth legislative power by judicial interpretation; secondly Windeyer 1's remarks in the Payroll Tax Case (reI ied on in Work Choices) which suggest that the Engineers' Case was a consequence of developments which occurred outside the courts; and finally the High Court's rejection of an implied bill of rights. The article seeks to explain and justify the comparatively low level of judicially protected federalism by reference to both legal and non legal considerations, including the acquiescence of the people. Likewise this article explains that the rejection of an implied bill of rights, as distinct from rights implied from the text and structure of the Constitution, such as the freedom of political communication, can also be explained by reference to legal and non legal considerations.