An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism

Abstract

The authors contend that Australia's High Court, in deciding federal distribution of powers cases over the last century, has created an end product that looks like one of A P Herbert's Uncommon Law mock hypothetical cases. These were sustained parodies of common law reasoning in which each step in the fictional judge's train of thought followed plausibly from what went before. And yet from such unexceptionable starting points the conclusions reached were ridiculous. The same general sort of analysis is here applied to the High Court's federalism jurisprudence, the fit being a surprisingly good one.

Keywords: federalism, federal powers, state powers, constitutional interpretation, Australia, High Court of Australia, Herbert, Engineers Case