Academic journal article Melbourne University Law Review

Federal Courts and Australian National Identity

Academic journal article Melbourne University Law Review

Federal Courts and Australian National Identity

Article excerpt

The history of Australian federal courts, from the creation of the Commonwealth Court of Conciliation and Arbitration in 1904 until now, is part of the broader history of how Australians have come to see themselves and their relationship to courts as institutions of an evolving Australian government. Although unremarked in current historical studies about Australian national identity, significant changes in the conception of the Australian court system occurred in parallel with fundamental shifts in the creation, formulation and discernment of national identity. This article considers the history of the Australian federal courts alongside the processes of the formation of Australian national identity, as explored by Curran and Ward. This approach reveals much about the strengths and weaknesses of the federal court system today.

CONTENTS

   I Introduction
  II The Curran and Ward Analysis
 III The Courts at Federation
  IV Constitutional and Post-Constitutional Federal Arrangements for
     Courts
   V Developing a Framework for Federal Jurisdiction after 1918
  VI The Postwar Harbingers of Change
 VII Emerging Nationalism and the Federal Courts
VIII Federal Courts as Integral to the Federal Polity
  IX Three Tiers of Federal Justice
   X Conclusion: Federal Courts and Federal Identity

I INTRODUCTION

In an article published in the Law Quarterly Review in 1935, the Hon Owen Dixon, then a Justice of the High Court of Australia, wrote:

   But neither from the point of view of juristic principle nor from
   that of the practical and efficient administration of justice can
   the division of the Courts into state and federal be regarded as
   sound. (1)

In 1963, less than 30 years later, Mr E G Whitlam QC, then Deputy Leader of the Opposition, declared:

   Judges who are called on to interpret and apply statutes should be
   appointed by governments responsible to the parliaments which
   passed those statutes. On this basic principle alone one should
   agree ... that federal laws should be applied and interpreted by
   judges appointed by the federal government. (2)

It would be a mistake to conceive of the creation of the Federal Court of Australia as merely a pragmatic solution to rationalise the jurisdiction of the existing federal courts, although proponents commonly cited functional considerations in favour of its establishment. Instead, the history of this and the other federal Australian courts is part of a broader history of how Australians have come to see themselves and their relationship to courts as institutions of an evolving Australian government. In other words, the history of Australian federal courts is part of the history of Australian national identity. Their twin development throughout the later 20th and 21st centuries reveals points of shared interaction and influence which deserve attention.

In the post-imperial age, societies, once expressly defined by their membership of the British Empire, have undeniably created new and sometimes distinct identities. At the same time, fading imperialism has required reform, sometimes significant, of the structures and institutions of government inherited from and previously overseen by the Empire. Australian historians have debated when, where, why and how Australian national identity was created, formulated or discerned; and the debate continues. (3) The fundamental and parallel changes that have occurred in the conception of the Australian court system have, however, gone unremarked in current historical studies of Australian national identity. This omission should be redressed. This article examines the history of the creation of Australian federal courts in relation to Curran and Wards analysis of Australian national identity as an as yet unresolved response to the receding ties to the British Empire. (4) It is not the purpose of the article to defend their analysis as an accurate description of Australian social, cultural and political life. …

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