The old High Court - a colourful character at 90

Mark Strizic Collection part of the Pictures Collection of the State Library of Victoria. Credit: 'Old High Court of Australia building, Little Bourke Street, Melbourne', from the Mark Strizic Collection part of the Pictures Collection of the State Library of Victoria.

The unassuming ivy-covered entrance on Little Bourke Street in Melbourne disguises a fascinating history that travels from bankers, to spies to prison breaks. This is the entrance to the old High Court Melbourne which is celebrating its 90th birthday. We spoke to the Supreme Court’s archives and records manager Joanne Boyd, and archives and records project officer Nicole Lithgow to find out more about the place that you may have walked past without thinking twice.

  • What is the historical significance of the old High Court building?

The old High Court building is historically significant, socially and politically. Constitutional questions have been raised and settled in it, particularly about personal freedoms and rights, and the power of the states and the Commonwealth.

  • Why was the High Court first situated in Melbourne?

Melbourne was the administrative capital of Australia from Federation in 1901 until the opening of Parliament House in Canberra in May 1927. The inaugural sitting of the High Court was in Banco Court of the Supreme Court of Victoria in 1903 and the High Court continued to use that building until 1928, when this one opened.

The High Court also sat in Sydney, sharing the Darlinghurst criminal courts, until the construction of a dedicated courtroom in 1923. As a federal jurisdiction, however, the High Court routinely sat in all state capital cities across the country, using that state’s Supreme Court facilities in each location. It sometimes still does sit in state capitals, but most sittings occur in its Canberra building.

  • Tell us some of the colourful history of this building

The very first case heard in this High Court Building was on 20 February 1928. It was a case regarding a lease agreement of a theatre in Brisbane. Five of the seven judges sat on the Bench, and a large crowd of barristers and solicitors attended to watch the occasion. No ceremony was held, and the case was adjourned due to the appeal book not being ready!

Up until the 1970s, when the High Court was not sitting, the courtrooms were used by the Supreme and County Courts. The Federal Court moved into the building in the 1970s and took it over completely in 1980. In 1998 it heard two important cases. The land title claim of the Yorta Yorta people, which was a test case of the Mabo legislation; and the Patricks Stevedore case against the Maritime Union. Both cases attracted a ‘full house’ in Court One.

Those in the know often use the High Court building to exit the Court complex. Recently, Rebel Wilson was seen on the news exiting the High Court after the end of each day’s sitting, although her case was being heard in the Trial building.

In 1951, when the laneway between the buildings was still open, a prisoner called Stanley Shaw slipped his guards and pelted along Little Bourke Street before the prison guards caught up with him. Shaw had been convicted of murdering his de facto wife and was sentenced to death. His appeal against his conviction was being heard in the High Court building. In the end, his appeal was allowed and he got a retrial.

In 1954, the Soviet Espionage Royal Commission (also known as the Petrov Royal Commission) saw people queuing to enter the building. There were cameras and crowds to catch a glimpse of witnesses leaving the building, particularly Mrs Petrov.

  • Tell us about three high-profile cases that have been heard within the building.
The Bank Nationalisation Case

In 1947, Labor Prime Minister Ben Chifley introduced legislation to nationalise Australia’s private banks. Chifley strongly believed that the government should control banking and credit to safeguard against depression and inflation, and was therefore very keen to continue banking controls enacted during World War Two. The legislation sought to create a government monopoly over banking and to compulsorily acquire the assets of the private banks.

Eleven private banks, together with three of the states, challenged the constitutional validity of the legislation in the High Court. The Court found that the legislation was indeed constitutionally invalid in a number of ways, including that the acquisition of the property of the private banks was not ‘on just terms’.

Australian Communist Party Case

In 1950, the newly elected Menzies government attempted to outlaw the Communist Party which had been increasingly active and influential in post war 1940’s Australia and was seen by many as a threat to democracy.

This resulted in the High Court action, Australian Communist Party v Commonwealth (1951), in which the Act was which challenged as being beyond the law-making power of the Parliament according to the Australian Constitution. The hearings occurred in Sydney but the decision was handed down in Melbourne in February 1951.

The Court struck down the legislation, the majority of the Court (6-1) found that the Communist Party Dissolution Act did exceed the power of the Parliament under the Australian Constitution. The sole dissenter was Chief Justice Latham.

O’Keefe & Calwell

This was a landmark case that signalled the end of the White Australia policy. In 1942, Indonesian Annie Jacob, her husband Samuel and their and children were evacuated to Australia from their home in the Aru Islands of Indonesia as the Japanese army approached. The family settled in Melbourne, however Samuel was killed in 1944.

After the War ended, Immigration Minister Arthur Calwell planned to repatriate Annie and her family, along with thousands of other Asian refugees who had been evacuated to Australia. In 1947, Jack O’Keefe, a retired postal worker and Annie’s landlord, married her in the hope that the marriage would prevent the impending deportation. It did not, and with an up swell of public support (and money), the O’Keefe’s fought the deportation order in the High Court.

In a 4-2 decision, the Court ruled that the Immigration Department did not have the power to deport Annie O’Keefe because she had not been declared a prohibited immigrant when she arrived in Australia. The decision was met with jubilation, and Annie O’Keefe celebrated with a party on the beach, where she served nasi goreng. This case is seen as the first step towards the ultimate dismantling of the White Australia policy in 1973.

Although these cases are all from the 1940s and 1950s, they are all significant in shaping modern Australian society, and in affirming society’s attitudes to freedom and democracy.​

  • Some facts: Tell us about the design of the old High Court building

The High Court of Australia building was designed by John Smith Murdoch, who was the Commonwealth architect at the time and responsible for many important civic buildings, most notably Old Parliament House and the Hotel Canberra. Like those buildings, it features Murdoch’s distinctive ‘stripped classical’ style, which uses recognisable elements of classicism but is largely devoid of decoration.

Murdoch himself called it ‘modern Renaissance’ and by repeating its design elements, he created recognisable continuity in Commonwealth government buildings across the country. Although the design is rather austere, the use of red brick and timber give the building an unpretentious warmth and elegance, and an art deco vibe.

The building opened in February 1928 and was almost immediately found to be too small. In 1935, a second storey was added to the building, designed by Horace Mackennal, Director of Works in Victoria. Mackennal’s second storey has more decorative features than the original building, but on the whole blends seamlessly with Murdoch’s design.

The building was already listed on the Victorian Heritage Register when it was placed on the National Heritage List in 2007. This occurred in response to plans to partially demolish the building and use the site to create a modern court facility.

  • What about the landscaping at the front?

The Boston ivy was planted at some point in the early 1940s and was certainly flourishing and covering much of the façade by the early 1950s when the iconic Strizic pictures of the man and his ute outside the building were taken. It is a striking feature and provides welcome greenery in the city. As far as we know, it is the oldest vine in the Melbourne CBD. There was also a privet hedge along the front façade too. That has been gone for some time, but we are looking at some landscape works and possibly reinstating a hedge there. [Mark Strizic was a renowned 20th century photographer well known for his architectural and industrial photography.]

  • How is the old High Court building used now?

The old High Court is now used as the Commercial Court of the Supreme Court of Victoria which provides for the just and efficient determination of commercial disputes. Commercial Court cases are heard in its three courtrooms and the Commercial Court Registry is on the ground floor. There are also judges' chambers, and the library is used for meetings. There is also a jurors’ lounge on the ground floor.

  • Can the public still visit or explore the old High Court building, and what might they find particularly interesting?

The public absolutely can visit the old High Court. It is open and the public are welcome to come in and watch proceedings in its courtrooms.

This page was last updated on March 27, 2018