What remains of the engineers case? A centenary appraisal

Abstract

The Engineers Case is widely considered the most important constitutional judgment of the High Court, but it is also one of its most severely criticised decisions. This article identifies the key propositions of the reasoning in Engineers and assesses them in the light of subsequent High Court decisions. It is concluded that very little of the propositions has survived scrutiny and what remains can be turned to good purposes. It is argued that the Court should recover the balanced interpretive approach advocated by O'Connor J. He proposed that when the Constitution confers a power in terms equally capable of a relatively wide and a relatively narrow meaning, that interpretation should be adopted which is most in harmony with the general scheme of the Constitution. The Commonwealth's powers should not be construed so expansively that it would render pointless the conferral of only particular carefully defined powers upon the Commonwealth.