Peter Francis Hughes
© Legal Studies 2012
Unit 3
CHAPTER THREE
PART E The Constitution
Roadmap to Holidays
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SAC Monday 16 April (bring it on!)
Case Study done over lesson 4 & 6
Covering all aspects of the Constitution.
This week – today finish PPT on the
Constitution
Unpack Minister Matthew Guy’s visit
Revison and SAC preparation
High Court Interpretations of
the Constitution
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Creates a division of law making powers with
case law.
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Know the following 2 cases
R v Brislan (Brislan Case)
Facts
 S51(v) gave the Commonwealth powers to
legislate in the are of post and telegraph.
 Technological changes brought radios into
homes after the 1901 enactment
 In 1905 the Commonwealth created an act to
collect licence fees from people who owned
radios.
R v Brislan (Brislan Case)
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Brislan refused to buy a licence
Brislan challenged the wording of the
Constitution regarding the Commonwealth’s
ability to legislate for radio fees.
= State vs Commonwealth
R v Brislan (Brislan Case)
Result
 High court ruled that the Commonwealth can
legislate in this area
 Wording – other like services = radios
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The ruling increased the residual powers of
the Commonwealth
Commonwealth of Australia v
The State of Tasmania
The Tasmanian Dam case 1983
Facts:
•Tasmania passed a law that would
create a dam to produce electricity.
•The Tasmanian State had residual
power that enabled it to create that law.
•Protests occurred by from various
groups to ensure the Commonwealth
intervened.
Commonwealth of Australia v
The State of Tasmania
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Commonwealth passed the World Heritage
Properties Conservation Act 1983
The act preserved the area that the
Tasmania government needed to create a
dam (Lower Franklin and Gordon Rivers)
This area had received listing as world
heritage under an international treaty along
with places like the Great Barrier Reef.
Commonwealth of Australia v
The State of Tasmania p119
Commonwealth’s argument
 S51(xxix) Gives it power to create laws
relating to external affairs.
 The Lower Franklin and Gordon dam was an
external affair because it was covered by
World Heritage Listing (International Treaty)
Commonwealth of Australia v
The State of Tasmania
Decision (High Court)
 All aspects of Australia’s relationships with
other countries are ‘external affairs’.
 The Franklin Dam was to be created in an
area covered by an International Treaty.
 Therefore this area was included in ‘external
affairs’ of Australia.
Commonwealth of Australia v
The State of Tasmania
Inconsistency between the Commonwealth
Act and the Tasmanian State’s dam
legislation.
Ruling: State was in conflict with
Commonwealth
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Commonwealth of Australia v
The State of Tasmania
Tasmanian Dam case ‘final wash up ’
 Commonwealth powers increased in the
residual area.
 Commonwealth can move into state areas
where international treaties are applicable.
Commonwealth of Australia v
The State of Tasmania
Deakin University School of Law, Waurn Ponds, Geelong.
1977 © PF Hughes
Let the Franklin
flow,
Let the wild lands
be.
The wilderness,
Should be strong
and free.
From the song ‘Let the Franklin
Flow’ by Shane Howard 1983
(ex Deakin Grad 1979)
Referral of Law Making Powers
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States can refer law making power to the
Commonwealth in matters concerning
residual law.
Creates uniform laws where required.
Doesn’t happen often.
S51(xxxvii) The power referred to the
Commonwealth by the states can only
operate in the states where that power has
been referred from.
Referral of Law Making Powers
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Changes the division of powers between the
states and the Commonwealth.
The states involved give more power to the
Commonwealth.
Example: terrorist acts
Referral of Law Making Powers
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2003
The expansion of the defence of Australia to
include internal security (Homeland)
S51(v)
All states referred their power to make laws
regarding terrorism to the Commonwealth.
Referral of Law Making Powers
Consequence
 Commonwealth expanded Federal Police and
their powers
 Hold suspects for extended periods.
 Monitor suspects
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Offenders have been caught and prosecuted
for planning attacks on various facilities in
NSW and Victoria
Referral of Law Making Powers
Page 124
Various examples of the states referring
powers to the Commonwealth.
Know them (at least one) and be able to apply
this knowledge.
 Murray Darling Basin = The Water
(Commonwealth Powers) Act 2008 (ViC)
Uncertainty with the Referral of
Powers
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Can the powers referred to the
Commonwealth be revoked?
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Has not been tested in court.
Would it require a referndum to return the
powers to the state?
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Uncertainty with the Referral of
Powers
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Is the referral of powers exclusive?
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After the referral of power by the states, can
they still legislate in that area?
Has not been tested in court either.
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Questions
Page 127
1a,b,c
2a,b,c,
Question (6 marks)
The Tasmanian dam case has taken power
away from the states. It was caused by
pressure groups. Do you agree or disagree?
Explain your response.