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The role of the High Court in interpreting the Constitution

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1 The role of the High Court in interpreting the Constitution

2 The role of the High Court in interpreting the Constitution
The High Court was established under s71 of the Commonwealth of Australia Constitution Act. The Constitution gives the High Court the power to decide disputes about the meaning of the Constitution. Under section 76 the High Court has the power to determine matters: arising under the Constitution, or involving matters relating to interpretation arising under any laws made by the Commonwealth relating to the same subject matter claimed under laws of different states.

3 The role of the High Court in interpreting the Constitution
The High Court cannot change the working of the Constitution but it can change the way in which the words are interpreted. The interpretation adds meaning to the Constitution and can change the division of law-making powers between the state and Commonwealth Parliaments. The role of the High Court is; Act as a guardian to the Constitution- Ensuring the Constitution remains relevant to the Australian People. The High Court interprets the words and gives meaning to them. Keeps the Constitution up to date- The needs for the High Court to interpret words within the Constitution arises from changes that occur in society, such as changes in attitude, changes in technology and community standards. Checks and Balances- Individuals and groups can bring a matter to the high court if they want to challenge a new law on whether it is constitutional. This is very expensive. Read CROOME V. Tasmania (1997) HCA 5 pg 115

4 Strengths and Weaknesses of High Court Interpretation
The High Court judges are experts in the Constitution, and are therefore sorted to interpret words. The High Court can act as a check against any abuse of power by the states or the Commonwealth Parliament. High Court can keep the Constitution relevant and up to date to interpret words. WEAKNESSES The High Court cannot change the words in the Constitution It is expensive to bring a case to the court The High Court must wait for a relevant case to be bought before the courts before it can interpret the words.

5 Question Time  Complete questions 1-10 page 116 and 117 from your Legal Studies book.

6 Case Study- High Court Interpretation of the Constitution.
High Court interpretations of the Constitution can have a significant impact on the division of power between the Commonwealth and the states. According to the Study Design- you need to know two high court cases.

7 CASE 1=The Brislan Case S51(v) of the Constitution gave the Commonwealth power to legislate on postal, telephonic, telegraphic and other like services. The Commonwealth parliament passed the Wireless Telegraphy Act 1905 (Cth) within which required all owners of wireless sets (radios) to hold a licence. The defendant (Brislan) was charged with having a wireless set without holding a licence. Brislan challenged the validity of the Wireless Telegraphy Act 1905 (Cth) in the High Court and she claimed that the Constitution did not give the Commonwealth Parliament the power to make laws about wirelesses because wireless sets were not mentioned in s51(v) of the constitution and therefore were residual powers held by the states. To resolve the dispute, the High Court had to interpret the words ‘like services’ in section 51(v). The high court decided that a wireless was a ‘like service’ and therefore the Wireless Telegraphy Act was valid.

8 CASE 1= Impact of the Brislan Case
This case This case moved the division of law-making powers to the Commonwealth by extending the Commonwealth Parliament’s power to legislate regarding postal, telegraphic, telephonic and other like services to include broadcasting to wireless sets. This meant that the Commonwealth had moved into an area of law-making that was a residual power as broadcasting to wireless sets was not mentioned in the Constitution. The impact of this case was that there was a shift in the division of law-making powers from the states to the Commonwealth. From the time of the High Court decision, the Commonwealth Parliament would have the power to make laws with respect to broadcasting to wireless sets. If a state passed a law in this area, and there was a confl ict between the state law and the Commonwealth law, the Commonwealth law would prevail (according to S109).

9 CASE 2=The Tasmanian Dam Case-
Imagine beautiful bush land, with a magical river flowing through it. There are many native animals living in this lush, green bushland where they call their home. This area was so beautiful and rare to Australia that it was nominated by the Commonwealth Government to be included in the World Heritage list. This list aimed to protect the world’s cultural and natural heritage. How would you feel if they were going to abolish it???

10 CASE 2=The Tasmanian Dam Case-
Otherwise know as the Franklin Dam Case. The High Court was asked to INTERPRET the words ‘external affairs’ in s51(xxix) of the Constitution. The Tasmanian Government intended to dam the Franklin River to create a source of hydro-electricity for the state’s power needs. It was within Tasmania’s law making powers (residual powers). The Tasmanian Parliament passed the Gordan River Hydro-Electric Power Development Act 1982 (Tas) to set up the hydro-electric power scheme and the Franklin River Dam. The Franklin Rivers run through large areas of untouched wilderness. These wilderness areas contain many unique features. The area was nominated by the Commonwealth Government to be included in the World Heritage list. The World Heritage list designed to protect the world’s cultural and natural heritage.

11 CASE 2=The Tasmanian Dam Case-
Australian-wide protests occurred as a result of the Tasmanian Government’s intention to build a dam, causing the Commonwealth Government to seek to intervene in an area of state power. The state of Tasmania maintained that it had the right to make laws on how to run state, and Commonwealth Parliament had no right to legislate in that area.

12 CASE 1=The Tasmanian Dam Case-
The Commonwealth Parliament maintained that it had a duty to protect the national heritage land. In the High Court the Commonwealth Parliament argued that it as within their power to intervene under the ‘external affairs’ head of power s51(xxix). This section stated that dam was an external affair because it was covered by the World Heritage Listing (an international treaty). The High Court decided that the Franklin Dam was covered by an international treaty which came under the external affairs power. This decision interpreted the words of ‘external affairs; to include an area covered by an international treaty. Under s109 the Commonwealth Act prevailed and the Hydro-Electricity Power Development Act was made in operational.

13 Case 2 = Impact of the case
Throughout the High Court’s interpretation of s51(xxix) of the Constitution, the Commonwealth Parliament was able to move into a law-making area previously left with the states and stop the damming of the Franklin River. This increased the law-making power of the Commonwealth parliament. This interpretation of the Constitution means that the Commonwealth Parliament now has the power to legislate in areas of an international treaty such as human rights.

14 Exam Question: One of the roles of the High Court is to interpret the Constitution. Discuss the significance of two High Court cases that have interpreted the constitution. Explain the impact these two cases have had on the division of law making powers between the States and Commonwealth.

15 Possible answer: Section 71 of the Constitution established the High Court. When the Constitution was passed it was recognised that there was a need to keep the Constitution relevant to the Australian people. The High Court can do this by interpreting the words of the Constitution and giving meaning to them. The High Court is unable to change the wording of the Constitution but whenever it is called upon to interpret any section or word, the interpretation adds meaning to the Constitution and can change the balance of power between Commonwealth and States. Two cases that highlight this are

16 Question Time  Complete question 1-4 on page 118 of your text book on hte Brislan case. Complete questions 1-4 on page 120 of your text book on the Franklin Dam case.

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