1. The role of the High Court and 3 High Court cases involving the interpretation of the Constitution

2. The Role of the High Court

3. Although the Constitution contains clear rules about law-making power, conflicts still arise between the Commonwealth and State parliaments
When the Constitution was drafted, the High court was established as arbiter (person who settles dispute or has authority in a matter) of disputes involving law-making power and jurisdiction
The High Court’s role is to read, interpret and apply the words of the Constitution to reach decisions in cases as they arise and obtains its jurisdiction (powers)to do so from sections 75 and 76 of the Constitution.

4. These cases may arise when a party (individual, group organisation or government) challenges the constitutional validity of a statute made by parliament, arguing that it ahs been made ultra vires or outside of that parliament’s constitutional lawmaking power.
The High Court then needs to interpret the Constitution to determine the powers of that parliament
Ultra vires – beyond the legal power or authority – to make invalid

5. The high court in Canberra

6. Since its first case in 1903, the High Court has played a significant role in affecting the balance of power between Commonwealth and the States

7. The High Court has a much greater impact than referenda in regards to altering law-making capacity of parliaments
The High Court does not do this via amending the actual words of the Constitution
It reads, interprets and applies the Constitution and, in reaching decisions, it creates laws that then affect the powers of Parliaments

8. The types of Constitutional cases the High Court is called upon to resolve:

9. A second way in which the division of powers between State and Commonwealth Parliaments can be altered is through the High Court Interpreting the Commonwealth Constitution
According to section 76 of the Constitution, the High Court is the only court with the jurisdiction (power) to interpret the wording of the Constitution, and it can only do this when a dispute or case regarding the Constitution comes before it
Cases involving Constitutional disputes are heard by the Full Bench of the High Court
The interpretation of the Constitution that is undertaken by the High Court creates precedent that is then binding on all courts in Australia
High Court interpretation NEVER changes the actual wording of the Constitution – only referendum can do this
High Court interpretations have altered the division of powers between State and Commonwealth Parliaments at a much higher rate than referendum

10. You must know 2 cases involving the interpretation of the Constitution by the High Court that altered the division of law making powers

11. External Affairs: Commonwealth v
  External Affairs: Commonwealth v. Tasmania – Tasmanian Dam Case OR Franklin Dam Case
The term External Affairs refers to a country’s interaction with another country e.g. foreign policy, international treaties – eg Human Rights and the environment
Under section 51 of the Constitution, the Commonwealth Parliament has the power to make laws relating to external affairs
This has been interpreted to mean that the Commonwealth has the power to enter into international treaties with other nations
When the Commonwealth signs a treaty with another nation, this does not automatically mean that a new law is created in Australia
To do so they must pass legislation
Sometimes laws passed to enable international treaties means that the Commonwealth encroaches upon the residual power of the states

12. The case Commonwealth v. Tasmania – Franklin Dam Case
This involved a challenge to the World Heritage Properties Conservation Act 1983 (Cwlth)
Legislation was passed by Commonwealth parliament to prevent work on a hydro-electric dam planned for the Gordon River in Tasmania
It was claimed that this area that was unique in terms of flora and fauna and that Aboriginal artifacts in the region would have been destroyed by the dam if constructed
Using the terms of an international treaty, the Commonwealth nominated for World Heritage listing for the specific areas tat the Tasmanian government planned to dam
This ensured protection of the wilderness regions of Tasmania

13. The impact of the Tasmanian Dam Case
This has re-shaped the law-making relationship between Commonwealth and the States
Through its external affairs power, the Commonwealth now has the authority to make broad-ranging legislation that makes invalid (or ultra vires) many State legislations inconsistent with Commonwealth law
The Tasmanian Dam case was used as precedent in the Human Rights (Sexual Conduct) Act 1994 (Cwlth)

14. R v. Brislan (1935) Regulating Mass Communication technologies

15. R v. Brislan (1935) facts of the case
One of the challenges which our Constitution faces is to stay up to date in an ever changing world
Particularly in the area of technology
Commonwealth Parliament passed Wireless Telegraphy Act (1905) required all people who owned a wireless set to be licensed, and therefore pay a fee
Mrs Brislan challenged the law on basis that Commonwealth did not have power under the Constitution to impose the requirement of a license, this was a state law and therefore the commonwealth was ultra vires

17. Section interpreted
Section 51 (v) of the Constitution gives the Commonwealth the power to legislate on ‘postal, telegraphic, telephonic, and other like services’

18. Decision of the High Court
The High Court’s decided in favour of the Commonwealth which meant that they decided that section 51 (v) included the power to regulate radio broadcasting and on this basis, the law was valid, Mrs Brislan had to pay her fee
It was clear through this case that the High Court considered “other like services’ to encompass developments in technology not anticipated when the Constitution was created
Further cases have interpreted “other like services” to include television and internet

19. Broadened to include internet

20. Jones v. Commonwealth
R v. Brislan was expanded and used in this case when High Court found that television broadcasting also came within section 51 (v) allowing Commonwealth control over this rapidly developing part of our lives

21. Interactive Gambling Act (2001)
More recently, “other like services” was also expanded to regulate online gambling in Australia and online advertising of gambling
This is also being expanded to include the National Broadband Network in 2020, which is the most ambitious Commonwealth legislation in this area

22. Impact of Brislan case on division of lawmaking powers
High Court interpretation of term “other like services” allows Commonwealth to regulate radio, television, internet, satellite, cable and optic fibre technologies and has encroached on Residual powers of the states
Has taken power away from the states and broadened the Commonwealth’s powers, therefore altering the division of powers

23. Financial Relations: State of Victoria v
Financial Relations: State of Victoria v. Commonwealth (the Roads Case) facts of the case

24. Facts of the Case
The Commonwealth gave Victoria a specific (tied) grant to be used on roads
Roads were a residual power of the states, so by telling them what they had to spend their grant on the Commonwealth was inadvertently encroaching on a residual power
The Vic. Government challenged the Commonwealth’s power to make conditional or tied grants claiming the Cwlth was ultra vires

26. Section Interpreted
Under section 96 of the constitution – ‘allows the Commonwealth to make grants “on terms and conditions as the parliament sees fit”.

27. High Court Decision
The High Court ruled in favour of the Commonwealth and stated that the Commonwealth did have the right to dictate exactly how the grant money was to be spent, even if this area being funded was not part of a specific power given to the Commonwealth at Federation, do to its broad interpretation of section 96
In this way, the Commonwealth can now impose itself and make in areas that were once residual powers of the States.

28. Impact of the Roads Case on the division of lawmaking powers
The Commonwealth has been able to direct precisely how money should be spent on a whole range of areas such as roads, primary and secondary education, which were once considered residual powers.
This has therefore again broadened the scope of the Commonwealth’s lawmaking ability and taken power away from the states, altering the division of lawmaking powers

29. Strengths and weaknesses of Interpretation by the High Court of the Constitution

30. “Using at least one illustrative example, explain how the High Court interpretation of the Commonwealth Constitution occurs and the impact of this interpretation on the division of powers”
6 marks
The High Court is the only court with the ability to interpret the Constitution, and is given this via sections of the constitution. These cases may arise when a party or government claims a parliament has made a law that is ultra vires. One such case involving the interpretation of the High Court is….

31. The High Court is the only court that has been given the power to hear cases relating to the interpretation of the Commonwealth Constitution. They receive their ability to do this through sections of the constitution. These cases may arise when a party challenges the constitutional validity of a statute made by parliament, arguing that it has been made ultra vires, or outside of that parliament’s law making ability. The High Court then interprets the Constitution to determine the powers of that parliament. The Commonwealth parliament has the ability to legislate in areas of Specific and exclusive power, specific being those areas that are specifically mentioned and entrenched within the Constitution, and exclusive being those that are only able to be legislated on by the Commonwealth parliament (they can be exclusive by nature or exclusive because the states are prohibited). Residual powers are those that were left to the states at the time of federation and are not mentioned within the constitution.

32. One such example is the Tasmania Dam Case where the Tasmanian government challenged the power of the Commonwealth parliament to pass laws to overrule the damming of the franklin river, seeking that the High Court declare the legislation ultra vires. The Commonwealth government passed the World Heritage Properties Conservation Act in order to prevent the building of a hydro electric dam, stating it would destroy flora and fauna as well as Aboriginal artifacts. The High Court’s decision was to find the Commonwealth law valid, as it came under “external affairs”, therefore the significance was that the High Court extended the meaning of external affairs under section 51of the Constitution to include law-making necessary to uphold obligations made under international treaties. This was a broad interpretation, and increased the ability of the Commonwealth to legislate in areas that were previously residual.

33. Student response
The high court reads, interprets and applies the words of the Constitution to reach decisions.  The High Court obtains its jurisdiction to do this (powers) from sections 75 and 76 of the Constitution. Under section 75 the High Court has the power to hear and to determine cases arising under any treaty.  A High Court case involving interpretation of the Constitution is the R v. Brislan case where Mrs. Brislan was charged under the Wireless Telegraphy Act (Cwlth) with having a wireless without holding a license for it, as was required by the act. She challenged the validity of the Act, claiming that the constitution did not give the commonwealth parliament power to make laws about wirelesses. The section of the constitution that was interpreted was the postal, telegraphic, and other like services in s.51(v) . The High Courts decision in this was case was to decide whether “Other like services” included wirelesses, as they were a communication device like the other devices in the section. The impact of this case was the extension of the meaning of s. 51(v) as it extended ‘other like services’ to include wireless technology, including all wireless technology including television and the internet. Therefore, giving more legislative powers to the Commonwealth Parliament, and bringing the section up to date with current needs. Any state laws could not be inconsistent with Commonwealth laws or s. 109 would apply. Therefore, the Brislan case is an illustrative example of how the high court interprets the Commonwealth constitution on legal matters. 

34. Sample response Roads Case
The High Court is the only court able to interpret the constitution and it gets its ability to do so in sections The High Court then reads, interprets and applies the words of the constitution to a case brought before it, and in doing so sometimes alters the division of lawmaking power. An example of such a case is the Victoria v Commonwealth (Roads case), where Victoria challenged the validity of the law passed by the Commonwealth giving tied grants to build a road. The High Court interpreted section 96 “the parliament can give grants on terms as they see fit” to mean that the commonwealth law was valid, not ultra vires, and hence the commonwealth won. This greatly explanded the ability of the commonwealth to make law in once residual areas, altering the division of lawmaking powers.

35. Sample answer Tasmanian Dam
The High Court is the only court able to interpret the constitution and it gets its ability to do so in sections The High Court then reads, interprets and applies the words of the constitution to a case brought before it, and in doing so sometimes alters the division of lawmaking power. One such case is the Tasmanian Dam Case, where Tasmania government challenged the validity of the commonwealth’s law preventing them from building a hydro electric dam. The commonwealth argued that this law was not ultra vires as they had nominated the area of the Gordon river for World Heritage Listing, which was an international treaty, and hence fell under “external affairs” in section 51. The High Court interpreted section 51 “external affairs” and found that the commonwealth was able to legislate in areas that involved the whole nation, which included internation treaties. This allowed the commonwealth to legislate in an area once residual, and therefore altered the division of powers.

36. High Court decisions can change the wording of the Commonwealth Constitution. Explain why this statement is incorrect. 2 marks

37. Test your understanding
1.) Outline the jurisdiction of the High Court in relation to the hearing of cases involving the Constitution.
2.) In your own words, explain the reserved powers doctrine.
3.) What type of constitutional cases is the High Court frequently called upon to solve?

38. Questions from book Franklin Dam – 2.8 questions 1-4
R V. Brislan – 2.9 questions 1-2
The Roads Case – 2.10 questions 1-4