The role of the High Court and 3 - PowerPoint Presentation

Slide1

The role of the High Court and 3 High Court cases involving the interpretation of the Constitution Slide2

The Role of the High CourtSlide3

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

a

nd obtains

its jurisdiction (powers

)to do so

from sections 75 and 76 of the Constitution. Slide4

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 Slide5

The high court in Canberra Slide6

Since its first case in 1903, the High Court has played a significant role in affecting the balance of power between Commonwealth and the StatesSlide7

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 ParliamentsSlide8

The types of Constitutional cases the High Court is called upon to resolve:Slide9

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

B

ench 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 Slide10

You must know 2 cases involving the interpretation of the Constitution by the High Court that altered the division of law making powers Slide11

 External Affairs: Commonwealth v.

Tasmania – Tasmanian Dam Case OR Franklin Dam Case

https://www.youtube.com/watch?v=sl9svlGvXj8&feature=related

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 Slide12

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 Slide13

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

) Slide14

R v. Brislan (1935) Regulating Mass Communication technologies Slide15

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

Mr

s

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 viresSlide16
Slide17

Section interpreted Section 51 (v) of the Constitution gives the Commonwealth the power to legislate on ‘postal, telegraphic, telephonic, and other like services’ Slide18

Decision of the High CourtThe 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 Slide19

Broadened to include internet Slide20

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 livesSlide21

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 Slide22

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

H

as taken power away from the states and

broadened the Commonwea

lth’s powers

,

therefore altering the division of powers Slide23

Financial Relations: State of Victoria v. Commonwealth (the Roads Case) facts of the caseSlide24

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

wa

s

ultra viresSlide25
Slide26

Section Interpreted Under section 96 of the constitution –

‘allows the Commonwealth to make grants “on terms and conditions as the parliament sees fit”.Slide27

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. Slide28

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.

T

his has therefore again broadened the scope of the Commonwealth’s lawmaking ability and taken power away from the states, altering the division of

lawmaking powersSlide29

Strengths and weaknesses of Interpretation by the High Court of the Constitution Slide30

“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 75-76 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….Slide31

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 75-76 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. Slide32

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. Slide33

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 1905 (

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. Slide34

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 75-76. 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. Slide35

Sample answer Tasmanian DamThe High Court is the only court able to interpret the constitution and it gets its ability to do so in sections 75-76. 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. Slide36

High Court decisions can change the wording of the Commonwealth Constitution. Explain why this statement is incorrect. 2 marks Slide37

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?Slide38

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