Today, disputes of this kind rarely come before the High Court. This is due to the court itself, which has handed down decisions which so greatly favour the Commonwealth that there are few legal limits to its ability to intervene in state affairs. The court more often decides cases involving limits on the power or spending of governments. These can arise because parliaments have granted extraordinary new powers to ministers, and can put the court in direct conflict with a government.

The laws in question often relate to terrorism or asylum seekers. They permit citizens to be detained without charge or trial, the collection of data about every member of the community and the transfer of asylum seekers to offshore detention centres at the discretion of a minister. Some powers can be exercised in secret, and carry jail terms even for journalists reporting on government wrongdoing.

The High Court can be called upon to ensure politicians stay within the bounds of the law in exercising these powers. Many matters of this kind will be heard by the Kiefel court. Foreshadowed cases include a challenge to the Border Force Act imposing a two-year jail term on workers within the immigration detention system who make an unauthorised disclosure about conditions. Another possible case is a law permitting dual nationals to have their Australian citizenship stripped because of suspected, but unproved, involvement with terrorism.

Challenges involving asylum seekers and national security can touch a raw political nerve. Where a government suffers a loss, it may lash out at the court, and indeed the rise of populist pressures make it more likely to do so. There are many examples of this in Australia and overseas, suggesting a growing intolerance for the work of judges by politicians and the media.

Donald Trump has not been shy in seeking to gain public favour by attacking members of the judiciary. Nor has the UK media. In response to a High Court decision that Parliament must vote for the UK to leave Europe, the Daily Mail responded with a front-page splashed with the photos of the three judges involved. Its headline declared them to be 'Enemies of the People'.