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AOS 2: The Constitution and the Protection of Rights
BOOKLET SEVEN
* Two High Court interpretations of the Commonwealth Constitution that changed the division of law making powers
between the state and the Commonwealth.
* Referral of law making powers from state to Commonwealth
JO pages 117 to 126 .
Two High Court intepretations of the Commonwealth Constitution that changed the division of law
making powers between the State and Commonwealth.
You need to know the SIGNIFICANCE of TWO High Court cases involving the interpretation of the
Commonwealth Constitution and their IMPACT on the division of law-making power between state and
Commonwealth parliaments.
The first case is: R V. Brislan; Ex Parte Williams (1935) HCA 78
R= Regina (Queen)
V = and
Brislan = the defendant
Ex Parte= from one party (in this case, Williams)
HCA = High Court of Australia
You just need to know it as the Brislan case – if you were able to remember the full citation you would
IMPRESS the examiner.
Explain the provisions in S51 (v) of the Commonwealth Constitution.
What is the major provision in Wireless Telegraphy Act 1905 (Cth)?
Explain the background to the Brislan case. What happened in the Court of Petty Sessions in 1938?
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What action did the defendant claim?
What act did the defendant claim was invalid?
If the defendant was successful in its action, the charges against the defendant would have been
dropped and it would be up to the states to legislate in the area because……………………………………
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
What comments did the High Court make in Brislan’s case? Reference the relevant section of the
Commonwealth Constitution in your answer.
IMPORTANT: The Brislan case ultimately extended the Commonwealth Parliament’s power to legislate
regarding postal, telegraphic, telephonic and other like services to INCLUDE broadcasting to wireless
sets. This meant that……………………………………………………………………………………………..
………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………
Explain the impact of Brislan’s case on the division of law-making powers between the state and
Commonwealth parliament.
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Draw a mind map to demonstrate the main aspects of the Brislan case and the IMPACT on the division
of powers. Remember… impact is not simply strength… it’s about the changes that occurred as a result
of the case.
The second case is: Commonwealth of Australia & Anor v. the State of Tasmania & Ors (1983) 46
ALR 625 (The Tasmanian Dam Case).
Read the entire case first – pages 119-120 – get your head around it!
Annotate the case…. I’ve already given you one annotation – you need to work out what each of these
elements mean…
You are to refer to this case as The Tasmanian Dam case.
In this case, the High Court was called upon to…………………………………………………………….
What was the role of the Tasmanian Government in this case? Cite the relevant legislation.
Did the case involve residual powers? Explain.
Australia-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.
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The Commonwealth Parliament maintained that is had a duty to prohibit work likely to damage or
destroy our national heritage. The area covered by the proposed dam had been placed on the World
Heritage Listing by the Liberal Government. What act was passed? What was the impact of this act?
What did the Tasmanian government argue?
What did the Commonwealth argue?
What did the High Court decide?
Explain how the Tasmanian dam case allowed the Commonwealth to move into law-making that was a
residual power.
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Describe the impact of the Tasmanian dam case on the law-making powers of the state and
Commonwealth parliaments.
Draw a flow chart that explains the Tasmanian dam case and it’s impact on the division of law making
powers.
The referral of law-making powers
The states can refer any of their residual law-making powers to the Commonwealth.
Why would the states refer any of their powers to the Commonwealth?
HOWEVER, the states have generally been reluctant to hand over any of their powers to the
Commonwealth Parlaiment. Why?
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What section of the Constitution gives the Commonwealth Parliament power over any matters referred
to it by the states?
What does the process of referring law making powers involve? Use an example to support your
interpretation.
Explain the IMPACT of the referral of law-making powers.
Read the examples of recent referrals of law making powers on pages 123 and 124.
Choose one and explain it’s impact on the division of powers. Cite the relevant provisions in your
answer.
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Explain the two areas of uncertainly with the referral of powers.
Do you think these uncertainties are likely to arise? Why? Why not?
Evaluate the referral of power as a means of changing law-making powers.
What are the three ways in which Constitutional powers can be changed?
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Explain, using examples, the distinction between the exclusive powers of the Commonwealth, the
concurrent powers of the Commonwealth and the states and the residual powers of the states.
6 marks
In Australia, methods and processes exist to enable a change in the division of law-making powers
between the State and Commonwealth Parliaments.
Identify one method of changing Constitutional power and the impact on the division of law-making
powers.
5 marks
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Explain the method of changing the words in the Commonwealth Constitution. Use an example in your
interpretation.
Analyse the impact of High Court interpretations of the Commonwealth Constitution n the law-making
powers of both the state and Commonwealth parliament. Illustrate your answer using an example.
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8 marks
Analyse the impact of referral of powers on the law-making powers of both the state and
Commonwealth parliament. Illustrate your answer using an example.
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8 marks