The High Court And The Constitution

Question 1

High court interpretation

Answer 1

As per s.76 of the Constitution the High Court is the only court with the power to interpret the wording of the Constitution. When the High Court interprets the constitution this establishes a precedent that is binding on all Australian courts. High court interpretation does not alter the actual wording of the Constitution but rather ascribes meaning to it in applying it to test cases.

Question 2

Implications of high court interpretation

Answer 2

Can crystalize the meaning of the words in the Constitution. In effect, this clarifies the connotations of certain words over time so that it can remain adaptable to society. CLARIFY

Ensures relevance to society as the High Court interprets existing cases, thus enabling them to ensure that the meaning of the Constitution is applied in line with the public interest, views and values. RELEVANCE

Question 3

Compare and contrast high court interpretation with referendums

Answer 3

Despite that a challenge in the High Court is very expensive it is relatively easier and cheaper than conducting a referendum. COST

A successful referendum will result in a change to the actual wording of the Constitution with the insertion or deletion of certain words, phrases and/or sections in their entirety. However, high court interpretation will not change the actual wording but rather ascribe meaning to them in order to give practical effect to the Constitution when relevant cases come before the high court. EFFECT

Referendums can effectively be held at any time (provided it is within 2 – 6 months of the proposal being passed by Parliament) whereas the High Court can only interpret the Constitution when an appropriate case comes before them. TIMING

Question 4

Impact of high court interpretation on the division of law making power

Answer 4

Historically, High Court decisions involving Constitutional interpretation have tended to favour the extension of the Commonwealth parliament’s law-making power. Two of the most popular cases that have impacted the division of power between Commonwealth and State are the Brislan case and the Hammond case.

Question 5

Name of case 1

Answer 5

R V Brislan (1935)

Question 6

‘Brislan case’ - Impact on division of law-making powers

Answer 6

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 Constitution. If a state passed a law in this area, and there was a conflict between the state law and the Commonwealth law, the Commonwealth law would prevail (according to S109).

Question 7

The role of the high court in interpreting the constitution

Answer 7

They give meaning to the words in the Constitution and apply the Constitution to everyday situations. When a case is brought to the High Court they need,to give meaning to the words in the Constitution and apply the words to the case. They must listen to the facts of the case and decide whether an Act that has been passed is unconstitutional. That is, they will either confirm the right of the law-maker to make the law or deny that right. If the High Court confirms the right of the Commonwealth Parliament to make a law, and it conflicts with a state law on the same issue, then according to S109 etc

Question 8

Effect of high court interpretation

Answer 8

The high court cannot change the wording of the constitution but it can change the way in which 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.

Question 9

The role of the high court 3

Answer 9

GUARDIAN 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.

UPDATED 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 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. In this way the high court can ensure that individuals and groups are acting in line with the constitution and not abusing power or being unjust. However, this can only be done when a case is brought to their attention which is very expensive.

Question 10

3 strengths of high court Interpretation

Answer 10

EXPERTS
CHECKS
RELEVANCE

Question 11

Experts

Answer 11

The High Court justices are experts in constitutional law and are therefore very suited to interpreting the words in the Constitution and applying the Constitution to the case before the court.

Question 12

Checks

Answer 12

The High Court can act as a check against any abuse of power by the states or the Commonwealth Parliament.

Question 13

Relevance

Answer 13

The High Court can keep the Constitution relevant and up to date by interpreting the words in the Constitution.

Question 14

3 weaknesses of high court interpretation

Answer 14

INABILITY
REQUIREMENTS
EXPENSIVE

Question 15

Inability

Answer 15

The High Court cannot change the words in the Constitution.

Question 16

Requirements

Answer 16

The High Court must wait for a relevant case to be brought before the courts before it can interpret the words in the Constitution.

Question 17

Expensive

Answer 17

It is expensive to bring a case to the High Court.

Question 18

Brislan case high court decision

Answer 18

S51v - s.51 (v) of the Constitution gave the Commonwealth Parliament the power to make laws about ‘postal, telegraphic and other like services’

Question 19

Name of case 2

Answer 19

Ha and another v the state of NSW; Walter Hammond and associates Pty Ltd v the state of nsw and others (1977)

Question 20

Hammond case summary of facts

Answer 20

The plaintiffs, two NSW tobacco wholesalers were charged with evading $22 million in state franchise fees under the business franchise licences (tobacco) act 1987. The plaintiffs argued that the fees were unconstitutional as they amounted to excise duties, over which the commonwealth parliament had exclusive powers, so the NSW parliament was unable to levy these fees.

Question 21

Hammond case section of constitution to be interpreted

Answer 21

S.90 the commonwealth parliament is to have exclusive power over customs, excise and bounties.

Question 22

Hammond case high court decision

Answer 22

A 4:3 majority of the High Court ruled that the franchise fees being charged in NSW were excise duties, the power for levying such duties is exclusive to the commonwealth parliament. Thus these fees were unable to be levied by the NSW parliament. The Franchise fees in this case were now interpreted as excise duties which are exclusive powers to the the commonwealth.

Question 23

Hammond case impact on the division of law making powers

Answer 23

This case moved the division of law-making powers to the Commonwealth by extending the Commonwealth Parliament’s power to legislate regarding excise duties to include franchise fees. This meant that the Commonwealth had moved into an area of law-making that was a residual power as franchise fees were not mentioned in the Constitution. If a state passed a law in this area, and there was a conflict between the state law and the Commonwealth law, the Commonwealth law would prevail (according to S109).

Question 24

Brislan case section of constitution to be interpreted

Answer 24

S51v - s.51 (v) of the Constitution gave the Commonwealth Parliament the power to make laws about ‘postal, telegraphic and other like services’

Question 25

Brislan case summary of facts

Answer 25

Mrs Brislan was charged under the commonwealth wireless telegraphy act 1905 with having a wireless without holding a licence for it, as was required by the act. She challenged the validity of the act claiming that the constitution did not give the commonwealth power to make Laws about wireless.