Legal

Front 1

The role of the High Court in interpreting the Commonwealth Constitution

Back 1

The High Court can alter the law-making powers between the Commonwealth and state parliaments by interpreting (i.e. giving meaning to the words and phases in) the Australian Constitution in order to resolve constitutional disputes that arise between individuals and the state and Commonwealth parliaments. By interpreting the Constitution the High Court can expand or limit the law-making powers of the Commonwealth (without changing the actual wording of the Constitution). [word perfect]
- By interpreting the Constitution the High Court can also ensure it remains relevant (up to date) and keeps pace with changes in technology and community values (e.g. Brislan case - expanded the Constitution to include 'radios').
- The High Court also acts as a checking system to ensure that the States or Commonwealth parliaments do not make laws that exceed their power (e.g. Roach Case declared Commonwealth law banning all prisoners from voting in Federal elections invalid).
[above points repeated in

Front 2

The significance of two High Court cases involving the interpretation of the Commonwealth Constitution in terms of their impact on the law-making power of the state and Commonwealth parliaments

Back 2

1. In the Brislan case in 1935, the High Court interpreted the Commonwealth specific power to make laws on s51 "postal telegraphic... and other like services" to include a wireless, extending the Commonwealth's law-making power to include radios. [in a later case, Jones V Cwealth (1965) Commonwealth powers were extended to include TVs]
2. In the Work Choices case in 2006, the state parliaments and various workers unions claimed that the Commonwealth government did not have the power to make laws relating to state industrial (workplace) relations. The Commonwealth government claimed that their laws were valid under their specific power to make laws with regards to 'corporations' s51. The HC rules in favour of the Commonwealth extending its power to make laws relating to the relationship between a corporation and its employees.

Front 3

Analyse the impact of High Court interpretation of the Constitution on the division of law-making powers [intro]

Back 3

The High Court can definately impact (i.e. alter) the division of law-making powers between the Commonwealth and states (by interpreting the meaning of the Constitution to resolve disputes). In fact, over the years, it has been the most effective way the Commonwealth has expanded its power.

Front 4

Analyse the impact of High Court interpretation of the Constitution on the division of law-making powers [s1w1]

Back 4

Strength & Weakness 1:
A strength in HC interpretation is that High Court justices and independent and experienced justices who have no political bias when interpreting and resolving cases. However, a weakness is that the High Court cannot change the actual wording of the Constitution.

Front 5

Analyse the impact of High Court interpretation of the Constitution on the division of law-making powers [s2w2]

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Strength & Weakness 2:
Another strength is that it can ensure the Constitution remains relevant and 'up to date' (e.g. in the Brislan Case the HC considered whether the Commonwealth had the power to make laws on radios - an unimagined area at the time the constitution was written).

Front 6

Analyse the impact of High Court interpretation of the Constitution on the division of law-making powers [s3w3]

Back 6

Strength & Weakness 3:
One more strength of HC interpretation is that the HC can check that the State or Commonwealth Parliaments do not make laws exceeding their power. However, a weakness is that the High Court may be conservative in its interpretation of the Constitution and therefore changes in interpretation may not be made.

Front 7

The capacity of the states to refer law-making power to the Commonwealth Parliament

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The states are able to refer or 'hand over' (give up) their law-making powers to the Commonwealth parliament so that the Commonwealth parliament can make laws in that area of power. The purpose of doing this might be so that the Commonwealth parliament can make uniform laws in an area that apply to the whole of Australia. For instance, in 2003 after the Bali Bombings, all states referred a limited area of their power to allow the Commonwealth to make anti-terrorism laws for the nation.

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Analyse the impact of the referral of powers on the division of law-making powers [s1w1]

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Strength & Weakness 1:
A strength in the referral of powers is that it is voluntary, that is, the states are not compelled to hand over any powers and therefore are able to discuss the issue thoroughly and decide which law-making powers are to be referred to the Commonwealth. However, a weakness is that generally the states have been reluctant to hand over their law making powers to the Commonwealth because they view it as another way of 'centralising' or increasing the Commonwealth parliament's law-making power and reducing their law-making power. Given this, the states may prefer to pass uniform laws (i.e. the same law in each state) rather than give up their law-making power.

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Analyse the impact of the referral of powers on the division of law-making powers [s2w2]

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Strength & Weakness 2:
The Commonwealth is able to make laws for the benefit of the whole country in areas not originally given to the states under the Constitution. (e.g. uniform, surrogacy or water laws might benefit the entire country). However, States fear that after referring a power to the Commonwealth, the Commonwealth may (over time) make laws in the referred area that they disagree with and/or negatively impact on their state, and so prefer to keep their areas of law-making power.

Front 10

Explain the role of the Commonwealth Constitution with respect to law-making powers and the protection of rights

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The role of the Australian Constitution with respect to law-making powers is to:
- Divide the law-making powers between the Commonwealth and the states by outlining the law-making powers of the Commonwealth parliament. Any areas of law-making not mentioned in the Constitution belong to the states.
- Provide a legal framework for the creation and structure of the Commonwealth parliament as a central law-making body for all Australians (and provide for the parliament to be elected by the people).
- Outline the role of and give the power to the High Court to interpret the Commonwealth Constitution and resolve Constitutional disputes.
- Protect some basic rights of the Australian people by placing restrictions on the law-making powers of the Commonwealth parliament which protect basic rights, for example, 'the Commonwealth cannot discriminate between the residents of the states').
- Provides structural protection of rights and contains a limited number of express and implied rights.