Sections 75 and 76 of the Constitution establish the High Court as the sole interpreter of the Constitution. The judgments delivered create common law, which applies to any future like cases. These sections make it the only body with the power to give meaning to the words of the Constitution.
High Court cases on Constitutional matters may come about through a variety of means:
When interpreting, the High Court will consider the intentions of the founding fathers, but will also attempt to make the Constitution relevant to modern societal needs.
High Court interpretation has had a greater impact on the divison of law-making powers than the referendum process. From the 1920 Engineers’ Case, the High Court shirked its conservative approach to Constitutional interpretation. It has taken on a more activist role, and has become less concerned with protecting states’ law-making powers.1
Sir Gerrard Brennan, “Three Cheers for Engineers, 31 August 1995, http://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_engineer.htm ↩
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