Constitution- Part 3

The role of the High Court in interpreting the Constitution

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: 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.

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

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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

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.

Question Time   Complete questions 1-10 page 116 and 117 from your Legal

Studies book.

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.

CASE 1=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???

CASE 1=The Tasmanian Dam Case Otherwise know as the Franklin Dam Case.  The High Court was asked to INTERPRET the words ‘external affairs’ in

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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.

CASE 1=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.

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.

Impact of the Tasmanian Dam 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 has the power to legislate in areas of an international treaty such as human rights.

Koowarta Case  The Aboriginal Land Fund Commission entered into a contract to buy a pastoral lease in

Queensland.  The Queensland Minister for Lands refused to give his consent to the transfer of the lease because the Queensland Government policy was opposed to the acquisition of large parts of the state by Indigenous Australians.  Mr Koowarta brought an action against the Premier of Queensland, Mr Bjelke-Petersen.  Mr Koowarta claimed that the Premier had breached Sections 9 and 12 of the Racial Discrimination Act 1975 (Cth).The Queensland Government responded by challenging the Commonwealth Parliament’s power to make a law about racial discrimination.  The High Court decided that the Commonwealth racial discrimination law related to 1) 2) 3) 4)

external affairs because it: gives effect to an obligation is imposed on Australia by an international convention or treaty to which Australia is a party. concerns a matter of that convention or treaty which is an international concern concerns the relationship between Australia and other countries.

Question Time   Complete questions 1-4 on page 120 of your text book on the

Franklin Dam case.