The role of the High Court in interpreting the Constitution
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- Slide 1
- The role of the High Court in interpreting the
Constitution
- Slide 2
- 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:
1) arising under the Constitution, or involving matters relating to
interpretation 2) arising under any laws made by the Commonwealth
3) relating to the same subject matter claimed under laws of
different states.
- Slide 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; 1) 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. 2) 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. 3) 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. 4) Read CROOME V. Tasmania
(1997) HCA 5 pg 115
- Slide 4
- Strengths and Weaknesses of High Court Interpretation STRENGTHS
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.
- Slide 5
- Question Time Complete questions 1-10 page 116 and 117 from
your Legal Studies book.
- Slide 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.
- Slide 7
- 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.
CASE 1=The Brislan Case 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 1905 was valid.
- Slide 8
- This case This case moved the division of law-making powers to
the Commonwealth by extending the Commonwealth Parliaments 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. CASE 1= Impact of the Brislan Case 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).
- Slide 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 worlds cultural
and natural heritage. How would you feel if they were going to
abolish it???
- Slide 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 states power needs. It was within
Tasmanias 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 worlds cultural and natural heritage.
- Slide 11
- CASE 2=The Tasmanian Dam Case- Australian-wide protests
occurred as a result of the Tasmanian Governments 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.
- Slide 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.
- Slide 13
- Case 2 = Impact of the case Throughout the High Courts
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.
- Slide 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.
- Slide 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................
- Slide 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.