How the High Court has changed Australia's constitutional balance

6 September 2012

New South Wales' Solicitor General will next week deliver a public address discussing the highest court of Australia's history as a decision maker that shifts power away from the states and towards the federal government.

Michael Sexton's address, part of the University of Sydney Law School's Distinguished Speakers' Program, will outline the ongoing concentration of legal and financial power in Canberra by the High Court.

In his address Mr Sexton will refer to notable cases demonstrating his view that the High Court has altered the constitutional balance of power. The Uniform Tax Case of 1942 "effectively made commonwealth income tax paramount and left the States largely dependent on federal funds," he says. In 1983, he says, the Tasmanian Dam Case underlined the powers of the commonwealth to limit state actions, in this case the implementation of a hydro-electric scheme. More recently, state governments in 2006 unsuccessfully tried to overturn the Howard government's Work Choices legislation in the High Court.

Mr Sexton says this trend may be the result of the High Court being a federal body and therefore identifying more with the national government. "Nevertheless, this is an interesting question that needs further exploration," he says.

Regardless of the reasons, he doesn't think the High Court is likely to reverse the imbalance. "On the other hand, there is no possibility under the constitution of substituting regional entities for the states," he says. "As it happens, the commonwealth needs the states to assist in administering many federal programs.

"There have been proposals to alter the financial imbalance by re-allocating the GST revenue that is collected by the commonwealth but the likelihood is that the present system - unsatisfactory as it is - will continue with minor modifications in the immediate future."

Mr Sexton has been the state's Solicitor General since 1998 and written several books on Australian politics and history. He is also a highly experienced public administrator who served as chairman of the NSW State Authority, and on the boards of numerous bodies including the NSW Public Transport Authority and the NSW Library.

Media contacts: Jocelyn Prasad, 02 91141382 or Sarah Stock, 0419 278 715

What: Distinguished Speakers Program: Michael Sexton SC

Time: 6-7pm followed by a cocktail reception (registrations from 5.30pm)

Location:Minter Ellison Room University of Sydney Law School, 173 Phillip St, Sydney

Cost: $25 full fee; $20 SLS alumni: $10 USyd students

Phone: 9351 0323