3. The Constitution - High court interpretation

The role of the High Court in
interpreting the Constitution
The role of the High Court in
interpreting the Constitution
 The High Court was established under s71 of the Commonwealth
of Australia Constitution Act.
 The Constitution gives the High Court the power to decide
disputes about the meaning of the Constitution.
 Under section 76 the High Court has the power to determine
1) arising under the Constitution, or involving matters relating
to interpretation
2) arising under any laws made by the Commonwealth
3) relating to the same subject matter claimed under laws of
different states.
The role of the High Court in
interpreting the Constitution
 The High Court cannot change the working of the Constitution but it can change the
way in which the words are interpreted.
 The interpretation adds meaning to the Constitution and can change the division of
law-making powers between the state and Commonwealth Parliaments.
 The role of the High Court is;
Act as a guardian to the Constitution- Ensuring the Constitution remains
relevant to the Australian People. The High Court interprets the words and gives
meaning to them.
Keeps the Constitution up to date- The needs for the High Court to
interpret words within the Constitution arises from changes that occur in society,
such as changes in attitude, changes in technology and community standards.
Checks and Balances- Individuals and groups can bring a matter to the high
court if they want to challenge a new law on whether it is constitutional. This is
very expensive.
Read CROOME V. Tasmania (1997) HCA 5 pg 115
Strengths and Weaknesses of High
Court Interpretation
 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.
 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.
Question Time 
 Complete questions 1-10 page 116 and 117 from your Legal
Studies book.
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.
CASE 1=The Brislan Case
 S51(v) of the Constitution gave the Commonwealth power to legislate on postal,
telephonic, telegraphic and other like services.
 The Commonwealth parliament passed the Wireless Telegraphy Act 1905 (Cth) within
which required all owners of wireless sets (radios) to hold a licence. The defendant
(Brislan) was charged with having a wireless set without holding a licence.
 Brislan challenged the validity of the Wireless Telegraphy
Act 1905 (Cth) in the High Court and she claimed that
the Constitution did not give the Commonwealth
Parliament the power to make laws about wirelesses
because wireless sets were not mentioned in s51(v) of
the constitution and therefore were residual powers
held by the states.
 To resolve the dispute, the High Court had to interpret
the words ‘like services’ in section 51(v).
 The high court decided that a wireless was a ‘like
service’ and therefore the Wireless Telegraphy Act 1905
was valid.
CASE 1= Impact of the Brislan Case
 This case This case moved the division of law-making powers to the Commonwealth
by extending the Commonwealth Parliament’s power to legislate regarding postal,
telegraphic, telephonic and other like services to include broadcasting to wireless
sets. This meant that the Commonwealth had moved into an area of law-making that
was a residual power as broadcasting to wireless sets was not mentioned in the
 The impact of this case was that there was
a shift in the division of law-making
powers from the states to the
Commonwealth. From the time of the
High Court decision, the Commonwealth
Parliament would have the power to make
laws with respect to broadcasting to
wireless sets. If a state passed a law in this
area, and there was a confl ict between
the state law and the Commonwealth law,
the Commonwealth law would prevail
(according to S109).
CASE 2=The Tasmanian Dam Case Imagine beautiful bush land, with a magical river flowing through
it. There are many native animals living in this lush, green
bushland where they call their home.
 This area was so beautiful and rare to Australia that it was
nominated by the Commonwealth Government to be included in
the World Heritage list. This list aimed to protect the world’s
cultural and natural heritage.
 How would you feel if they were going to abolish it???
CASE 2=The Tasmanian Dam Case Otherwise know as the Franklin Dam Case.
 The High Court was asked to INTERPRET the words ‘external affairs’ in
s51(xxix) of the Constitution.
The Tasmanian Government intended to dam the Franklin River to create
a source of hydro-electricity for the state’s power needs. It was within
Tasmania’s law making powers (residual powers).
The Tasmanian Parliament passed the Gordan River Hydro-Electric
Power Development Act 1982 (Tas) to set up the hydro-electric power
scheme and the Franklin River Dam.
The Franklin Rivers run through large areas of untouched wilderness.
These wilderness areas contain many unique features.
The area was nominated by the Commonwealth Government to be
included in the World Heritage list. The World Heritage list designed to
protect the world’s cultural and natural heritage.
CASE 2=The Tasmanian Dam Case Australian-wide protests occurred as a result of the Tasmanian
Government’s intention to build a dam, causing the Commonwealth
Government to seek to intervene in an area of state power.
 The state of Tasmania maintained that it had the right to make laws
on how to run state, and Commonwealth Parliament had no right to
legislate in that area.
CASE 1=The Tasmanian Dam Case The Commonwealth Parliament maintained that it had a duty to protect the
national heritage land.
 In the High Court the Commonwealth Parliament argued that it as within their
power to intervene under the ‘external affairs’ head of power s51(xxix). This
section stated that dam was an external affair because it was covered by the
World Heritage Listing (an international treaty).
 The High Court decided that the Franklin Dam was covered by an
international treaty which came under the external affairs power. This decision
interpreted the words of ‘external affairs; to include an area covered by an
international treaty.
 Under s109 the Commonwealth Act prevailed and the Hydro-Electricity
Power Development Act was made in operational.
Case 2 = Impact of the case
 Throughout the High Court’s interpretation of s51(xxix) of the
Constitution, the Commonwealth Parliament was able to move
into a law-making area previously left with the states and stop the
damming of the Franklin River.
 This increased the law-making power of the Commonwealth
 This interpretation of the Constitution means that the
Commonwealth Parliament now has the power to legislate in areas
of an international treaty such as human rights.
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
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
Question Time 
 Complete question 1-4 on page 118 of your text book on hte
Brislan case.
 Complete questions 1-4 on page 120 of your text book on the
Franklin Dam case.
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