High Court interpretation of the Constitution

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:

  • Claims by states that the Commonwealth has interfered with a residual (state-only) law-making power
  • Claims by individuals that the Commonwealth has gone beyond its law-making power
  • Claims by the Commonwealth that a state has interfered with an exclusive area

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

See also:

Constitution of Australia 

Division of Law-Making Powers

High Court 

High Court cases affecting the division of 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