1. High Court Decisions And The Balance of Power

2. 1. Section 75 of the Constitution gives the Commonwealth the jurisdiction (power) to hear all cases which arise under the Constitution. This includes any matter arising under a treaty. Section 76 allows the Commonwealth to confer additional jurisdiction on the High Court. 2. The reserve powers doctrine provides that the High Court should interpret the Constitution in such a way as to preserve the rights of the states as existing at Federation. 3. The High Court is usually called upon to decide cases that involve conflict between the states and the Commonwealth as to which parliament has the right to create law in a particular area. These cases involve interpretation of the wording of the Constitution. 4. The Engineers Case (1920) gave the Commonwealth the right to make laws on industrial matters under section 51 (xxxv) of the Constitution. This gave the Commonwealth the right to make laws which regulated employment, training and industrial disputes across Australia. Similarly, the First Uniform Tax Case (1942) allowed the Commonwealth to be the sole collector of income tax. This has greatly increased the power of the Commonwealth to both collect tax revenue and then to grant the money back to the states and impose conditions on how that money was to be spent.

3.  Since Federation, the High Court's interpretation of the Constitution in relation to external affairs and financial relations between the states has increased the power of the Commonwealth. The decisions made by the High Court in important cases have allowed the Commonwealth Parliament to be far more interventionist in its approach to the law-making powers of the states.

4.  The term, external affairs, refers to a country's interaction with another country and includes such things as foreign policy and international treaties (a treaty is an international agreement and frequently relates to human rights and the environment). Under section 51(xxix) of the Constitution, the Commonwealth Parliament has the power to make laws with regard to external affairs. This has been interpreted to mean that the Commonwealth has the right to enter into international treaties with other nations. When the Commonwealth signs an international treaty, this does not automatically create new law in Australia. To do this, parliament must pass legislation based on the relevant treaty or convention, which then puts that treaty into effect. Sometimes law passed to give effect to an international treaty has meant that the Commonwealth has encroached upon the residual power of the states.

5.  Since Federation, the High Court's interpretation of the Constitution in relation to external affairs and financial relations between the states has increased the power of the Commonwealth. The decisions made by the High Court in important cases have allowed the Commonwealth Parliament to be far more interventionist in its approach to the law-making powers of the states.

7.  Summary of facts:  The Commonwealth Parliament passed the World Heritage Conservation Act (1983) to prevent the building of the dam on the Franklin and Gordon rivers as the area was included on the World Heritage List. The aim was to protect the cultural and natural heritage of the area as suggested by the UNESCO convention. Tasmania, wishing to dam the site for the hydro-electric scheme, claimed that the Commonwealth had no jurisdiction to pass such a law; however the Commonwealth argued that it could make laws of national concern

8.  The High Court needed to interpret s51(xxiv) – external affairs  The High court decided that the external affairs power gave the Commonwealth Parliament power to make laws to fulfil Australia’s obligations under international treaties – in this case the UNESCO treaty. Therefore the act was valid and the Tasmanian Government was stopped from building the dam.

9.  Impact of this decision:  Extended the meaning of external affairs powers to include law making necessary to uphold obligations under international treaty.  Greatly extended Commonwealth law-making powers as it was able to legislate on an area that was previously a residual power.