ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 404-407

THE OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA by Tony Blackshield, Michael Coper, and George Williams (Editors). New York and Melbourne: Oxford University Press, 2001. 804 pp. Cloth $95.00. ISBN: 0-19-554022-0.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University.

Legal systems are made up of so many pieces that it is knotty puzzle trying to figure out how they fit together. Guides and introductory texts are only partial solutions as they lack sufficient detail to be entirely satisfactory. Treatises though more comprehensive suffer from a different form of partiality as their authors usually pick a vantage point to make sense of the pieces they have collected. A reference book that includes all or almost all of the pieces but does not press them into particular patterns avoids these problems and offers many benefits to readers regardless of whether they know a lot or little about the law, courts, and legal institutions of a specific country. The editors of the OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA are eminent legal scholars. They
have assembled a reference work that because of its scope, the lucidity of its essays, and bibliographic references makes it the first place to go to learn anything about the Court. It is indispensable to anyone hoping to understand the many facets of this Court.

You'll have great fun with this weighty and thorough reference book. Pick a topic at random or one of special interest to you; with 435 entries, you have plenty of choices to make. In no time at all, because of either the cross-references the editors have provided or because you begin to wonder about something and want to see what the COMPANION has to say about it, you will be flipping from one end of the book to the other to check other entries, with a thumb squeezed between the pages here, an index finger there, a little finger there so you won't lose your places. (Post-its are clearly the superior alternative and mark the trail of the entries
you've visited.) The topics are arranged alphabetically so there is minimal interference to your meanderings through the book. If you prefer a more organized approach, the editors have included a case index, a name index, and subject index to get you started.

Once I got the chronology right with the assistance of a table listing appointments to the bench, I settled in and began reading about the High Court under its various chief justices, beginning with the Griffith Court (the first court after the High Court's founding) through subsequent Courts to the current Gleeson Court. These brief histories pointed out the important cases decided by the Courts, described their political contexts and controversies, outlined the relationships between the justices and how they led to institutional changes or shifts in how the Courts made their decisions as well as other matters. As I went along, I dropped by the individual biographies of the justices for more details about the personalities on the bench. Then I discovered there were procedural questions that needed answers or that I wanted to know more about particular

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cases. And on it went, from one thing to the next, from one cross-reference to another. There are other ways of working your way through the COMPANION though most readers may simply want to consult individual entries as the need arises.

There is, of course, a thumbnail sketch of the establishment of the High Court that hits the historical high points. This can then be supplemented with related topics dealing with: (1) the Judiciary Act and High Court Procedure Act of 1903 that established the Court, (2) the High Court of Australia Act of 1979 that altered the Court's relations with the government, and with the cross references to the Court's institutional development including the role of Judicial Committee of Great Britain's
Privy Council, which until 1986 in effect was Australia's final court of appeal, (3) different reform efforts, (4) appointments to the bench and "appointments that might have been," (5) the evolution of the Court's relations with the lower courts, (6) the creation of the Federal Court of Australia and its effect on the High Court's business, and (7) the Court's move to Canberra with discussions of the non-traditional architecture of the High Court building and its symbolism. Other entries touch on how the Court is funded and administered and on the roles of the attorney-general and solicitor-general in the High Court. The COMPANION includes tables
listing the names of both of these officials, their periods in office, and the governments of the day under which they served.

Although to this point, I have emphasized the organizational side of the Court, there are many other entries that explain the Court's special leave to appeal process, its justiciability and standing doctrines, its constitutional decisions and approaches to interpreting Australia's constitution, the emergence of implied constitutional ights, and so on. As I noted earlier, there are 435 entries, and the COMPANION needs nearly 740 pages of text (excluding the indices) to accommodate the information
their 225 authors packed into them. This short review can do more than scratch the surface of what the editors have provided us. At the risk of saying too little about too much and of catering to my own interests once more, there are some specific and tantalizing bits of information I think I should pass on to whet the appetite.

For many years the High Court did not have a single home or building of its own. It had buildings in Sydney and Melbourne where most of the Court's business was conducted but the justices also rode circuit to sit in other parts of the vast and sprawling island continent. Indeed, the Court's first crisis, the so-called "Strike of 1905," arose because of a dispute between the attorney-general and the three justices who comprised the High Court over their traveling expenses, accommodations, and the provision of staff. It began with Justice Griffith's request for additional bookshelves to accommodate his library, which he was moving
to Sydney, a request the attorney-general denied, and quickly spiraled into a constitutional crisis centering on the independence of the Court. There have also been "court packing" incidents. In 1945, the governing Labor Party against the wishes of its attorney-general tried unsuccessfully to increase the bench to nine justices so it could appoint justices more favorably disposed to the party. Four years later, two justices who had been appointed by conservative governments and intended to retire delayed their resignations to prevent the Labor Party's prime minister from appointing their successors.

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The COMPANION's editors are conscious of the impact of the Court on Australian politics and of how politics has affected the Court. For instance, one essay argues the Court's early decisions precipitated a change from a three-party system to a two-party system at the federal level. This same entry points to how the Court's actions led to the dissolution of Parliament in 1929 and the government's defeat at the polls when it turned over its authority regarding industrial relations to the states because it disagreed with the Court's decisions. After World War II, the High Court struck down Labor Party legislation that would have nationalized Australia's banks. Other essays show how relations between the Court and Parliament have fluctuated over time depending on the political party in power and the interests of the prime minister. Although the Labor Party has most often challenged the Court, the current neo-conservative Coalition government has criticized the Court for judicial activism. In general, however, the Court has over time, as one essay puts it, "tamed" the Labor Party and directed its policies away from
socialism as the party goal.

Another fascinating essay demands notice. It is written by Gough Whitlam, a former Labor prime minister, whose government was dismissed in 1975 by the Governor-General, the Queen's representative and Australia's titular head of state, after a hostile Senate refused to pass an appropriation bill approved by the House of Representatives. In his essay, Mr. Whitlam talks about his dealings with Chief Justice Garfield Barwick. Mr. Whitlam tells two related stories. First, he claims that when the opportunity arose to make an appointment to the bench, Barwick, who had opposed the government in court decisions, used his power over the scheduling of hearings and delivery of judgments to delay the resignation of the puisne justice who had informed Mr. Whitlam beforehand of his intention to retire.
Because of subsequent events, the delay meant Mr. Whitlam could not make this appointment. Second, Mr. Whitlam says that contrary to case law stating
that Australia's High Court does not give advisory opinions, Chief Justice Barwick offered advice to the Governor-General when he dismissed the Labor
government. Slightly different interpretations of these events are told in the essays focusing on Chief Justice Barwick and his years on the bench.

The editors state their aim was to make the COMPANION a genuine companion to which you could turn to for reliable information but which was still readable if not entertaining. I believe they hit the bull's eye. This COMPANION, unlike THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED
STATES, has a less legalistic tone to it (something of a pleasant surprise given the sterling legal credentials of the editors). It does not seem as dry as its American cousin while being just as comprehensive. There is an entry on "humour," for example. Another essay on "associates" or clerks to the justices, remarks with a touch of zing that as the associates' responsibilities have moved away from the administrative duties typical of earlier times to more legal matters that "The result has been more thoroughly footnoted judgments and more poorly maintained law reports." The writers of the essays include law professors, political scientists, lawyers, and current or former justices and judges. It was no simple feat to take these essays and make the 600,000 words that comprise them as much fun to read as they are. The editors are to be congratulated for the hard work and skill this manifestly challenging task must have

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taken. This book stands out as the essential starting point for anyone who wants to learn about the High Court of Australia. It certainly should be on the shelf in your university or college library.

A note on the availability of the COMPANION in the United States: I learned about the book while I was a visiting member of the law faculty at the Australian National University this spring. Instead of lugging this hefty tome back to Ottawa, where I was then living, I purchased a copy through an on-line bookseller in the U.S. I recently checked this website; the COMPANION is still available (at a discount, I should add) and can be shipped within twenty-four hours. An alternative is to purchase it from the publisher.


Copyright 2002 by the author, Roy B. Flemming.