THE ROLE OF THE HIGH COURT IN INTERPRETING THE CONSTITUTION AND REFERRAL OF POWERS

Role of the High Court in interpreting the Constitution The High Court was established under S71 – Judicial Power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. S76 gives the Commonwealth Parliament the power to establish a High Court with the jurisdiction to hear disputes arising under the constitution or involving its interpretations. The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different States Justice & Outcomes 13e ISBN © Oxford University Press Australia, 20152

Role of the High Court in interpreting the Constitution Only the High Court can hear disputes involving the interpretation of the Constitution Cannot change the words but can change their meaning In most instances, the interpretation by the High Court has resulted in a shift of law-making powers from the states to the Commonwealth Justice & Outcomes 13e ISBN © Oxford University Press Australia, 20153

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.

High Court case 1: R v. Brislan Section 51(v) gives Commonwealth power to legislate on postal, telegraphic, telephonic and other like services Commonwealth Parliament passed a law requiring all owners of wireless sets (radios) to hold a licence Defendant charged with not holding a licence. Argued that the law was not within s51(v) power Commonwealth argued it was an ‘other like service’ High Court found a wireless set was a communication service and was an ‘other like service’ and therefore the Commonwealth could legislate in this area Impact: increased Commonwealth powers by declaring that a wireless set was within the meaning of s51(v) Justice & Outcomes 13e ISBN © Oxford University Press Australia, 20155

High Court case 2: Tasmanian Dam caseTasmanian Dam case Tasmanian Government intended to dam the Franklin River pursuant to its residual powers (dam building) Passed an Act which set up a hydroelectric power scheme and established the Franklin River dam Area covered by the proposed dam placed on World Heritage List Commonwealth Parliament passed a law prohibiting construction of the dam Tasmanian Government argued in High Court that Commonwealth Parliament had passed law in area of state power and was unconstitutional Justice & Outcomes 13e ISBN © Oxford University Press Australia, 20156

High Court case 2: Tasmanian Dam case High Court decided all aspects of Australia’s relationships with other countries are included under the external affairs power High Court interpreted ‘external affairs’ to include any area covered by an international treaty Franklin River area covered by international treaty, and therefore came under that power Impact: Inconsistency between Commonwealth law (which was valid) and state law – under s109, Commonwealth law prevailed Commonwealth Parliament could legislate in areas of residual power where there was an international treaty in issue Increased Commonwealth powers Justice & Outcomes 13e ISBN © Oxford University Press Australia, 20157

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.

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

Role of the High Court in interpreting the Constitution: acts as a guardian of the Constitution keeps it up to date acts as a check and balance on any abuse of power or injustices (party with standing) gives meaning to the words of the Constitution Justice & Outcomes 13e ISBN © Oxford University Press Australia,

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.

Referral of powers States can refer any of their residual powers to the Commonwealth Impact is a change in division of powers and an increase in powers of the Commonwealth Reasons: when it is better for the Commonwealth to make a law for the whole country, when there is need for uniformity Examples: ex-nuptial children, terrorism, property and financial matters of de facto couples, workplace relations Justice & Outcomes 13e ISBN © Oxford University Press Australia,

Evaluation: referral of powers Justice & Outcomes 13e ISBN © Oxford University Press Australia,