Law-Making Powers (VCE SSCE Legal Studies): Revision Notes
The High Court and the division of law-making powers
Understanding the High Court's role in law-making powers
The High Court of Australia plays a crucial role in interpreting the Constitution and determining disputes about law-making powers between the Commonwealth and state parliaments. Through its decisions, the High Court can effectively change the division of powers by interpreting constitutional provisions broadly or narrowly.
The High Court's jurisdiction
Under section 75 of the Australian Constitution, the High Court has jurisdiction (the lawful authority to decide legal cases) to hear disputes involving:
- Cases where the Commonwealth, or someone acting on behalf of the Commonwealth, is a party
- Disputes between states, or between residents of different states, or between a state and a resident of another state
The High Court has heard significant cases involving disputes over law-making powers between Commonwealth and state parliaments. Since 1920, High Court judgments have increasingly granted additional powers to the Commonwealth, reducing the law-making powers available to the states.
How the High Court changes the division of powers
The High Court can change the division of law-making powers through broad interpretation of constitutional provisions. This means reading words in the Constitution in a way that expands the range of issues on which the Commonwealth can legislate. Two landmark cases demonstrate this approach: the Brislan case and the Tasmanian Dam case.
The Brislan case: expanding Commonwealth control over communications
Background and context
The Brislan case (R v Brislan; Ex parte Williams, 1935) involved a dispute about whether the Commonwealth had power to regulate wireless sets (early radios). This case demonstrates how the High Court's interpretation can extend Commonwealth powers to new technologies not mentioned in the Constitution.
Constitutional provision in question
Section 51(v) of the Australian Constitution gives the Commonwealth power to make laws about:
- Postal services
- Telegraphic services
- Telephonic services
- Other like services
The Commonwealth Parliament had passed the Wireless Telegraphy Act 1905 (Cth), which required all owners of wireless sets to hold a licence.
The facts of the case
Case Facts: R v Brislan (1935)
Dulcie Williams was convicted and fined for owning a wireless set without holding a licence as required by the Wireless Telegraphy Act. Williams challenged the validity of this Act in the High Court, arguing that:
- The Constitution gave no power to the Commonwealth to make laws about radio broadcasting
- Broadcasting to a wireless set was NOT a "service" as meant in section 51(v)
- Therefore, the requirement to hold a licence was invalid because the Commonwealth was acting beyond its law-making powers
- If successful, this would mean regulating wireless sets remained a state power
The High Court's decision
The majority of High Court judges held that broadcasting to a wireless set was a form of telephonic service, and therefore fell within section 51(v) of the Constitution. This interpretation changed the division of law-making powers by extending the Commonwealth Parliament's power to include broadcasting to wireless sets.
Justice Dixon dissented (disagreed), arguing that section 51(v) did not extend to radio broadcasting because it did not provide for inter-communication like the other services mentioned in that section.
Chief Justice Latham's Key Reasoning:
The common characteristic of postal, telegraphic, and telephonic services is that they all perform a communication function:
- Broadcasting is also a communication service
- Therefore, broadcasting is a "like service" within section 51(v)
- If new forms of communication are discovered in the future, they too could be covered as "like services"
Justices Rich and Evatt noted that section 51(v) should be given a "wide operation" because:
- It is a constitutional power intended to provide for the future
- It attempts to cover unknown and unforeseen developments
- The terms "telegraphic and telephonic" refer to electrical means of transmitting signals and speech
Significance of the Brislan case
The Brislan case had several important impacts on the division of law-making powers:
Shift in power from states to Commonwealth: After this decision, the Commonwealth gained power to make laws about broadcasting to wireless sets. Previously, this was an area of state power. Broadcasting became a concurrent power (shared between Commonwealth and states) rather than exclusively a state power.
Operation of section 109: If a state parliament passed a law about broadcasting that conflicted with Commonwealth law, the Commonwealth law would prevail under section 109 of the Constitution. This effectively reduced the states' power in this area.
Extension to television: In a later case, Jones v Commonwealth (No 2) (1965), the High Court held that the Commonwealth also had power to make laws about television broadcasts. Like wireless sets, television was not mentioned in the Constitution, but the Court held it fell within section 51(v) based on the principles established in Brislan.
Future technological developments: The Brislan case established principles that could apply to future communications technologies. The phrase "other like services" was designed to cover new developments, suggesting that:
- Internet communications could arguably be covered by section 51(v)
- The Commonwealth may have power to regulate online activities
- Examples include the Interactive Gambling Act 2001 (Cth), which regulates online gambling activities
Limitations and questions: While the Brislan principles suggest broad Commonwealth power, the High Court has not yet decided definitively whether all forms of internet communication fall within section 51(v). Technology develops faster than the legal system, so cases may need to be brought to the High Court to clarify the Commonwealth's authority over new technologies.
The Tasmanian Dam case: expanding the external affairs power
Understanding international treaties
Before examining the Tasmanian Dam case, it is important to understand international treaties and their relationship to Australian law.
An international treaty (or convention) is a legally binding agreement between countries, governed by international law. Australia has signed many international treaties covering areas such as:
- Trade
- Human rights
- Environment
In our globalised world, countries recognise the need for international cooperation on matters affecting all nations. Treaties are an important way to ensure that cooperation.
Critical point: An international treaty is NOT automatically Australian law. It can only apply in Australia if Parliament passes a statute that includes the treaty's provisions.
The 'external affairs' power
Section 51(xxix) of the Constitution gives the Commonwealth power to make laws about "external affairs". This power has generally been used to make laws about:
- Matters "external" to Australia
- Matters of "international concern"
- Giving effect to international treaties
The High Court has held that "external affairs" includes the power to pass laws to fulfil obligations under international treaties, even if the subject matter of the treaty would otherwise be outside Commonwealth power.
Background and context of the case
The Tasmanian Dam case (Commonwealth v Tasmania, 1983) arose from a dispute about whether the Commonwealth could prevent Tasmania from building a dam in an area of environmental significance.
The facts of the case
Case Facts: Commonwealth v Tasmania (1983)
Tasmania's plan: The Tasmanian Government intended to build a dam on the Gordon River to create hydroelectricity for the state's power needs. This was a domestic issue for Tasmania within its residual law-making power (areas not specifically given to the Commonwealth).
Tasmanian legislation: The Tasmanian Parliament passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas) to establish the hydroelectric power scheme and the Franklin Dam.
Public opposition: Australia-wide protests occurred against the dam project. The area proposed for flooding had environmental and cultural significance.
World Heritage listing: The area was nominated for the World Heritage List in 1981, and UNESCO included it on the List in 1982. However, Tasmania maintained its right to make laws concerning the dam.
Commonwealth intervention: The Commonwealth Parliament passed the World Heritage Properties Conservation Act 1983 (Cth) to prohibit construction of the proposed dam. This legislation was based on the World Heritage Convention, an international treaty that sought to protect World Heritage areas and imposed obligations on countries to conserve and protect their national heritage.
The dispute: Tasmania argued that:
- The Commonwealth had passed law in an area of state responsibility
- The Commonwealth law was unconstitutional
The Commonwealth claimed that:
- Its "external affairs" power under the Constitution allowed it to implement obligations under international treaties
- In this case, the relevant treaty was the World Heritage Convention
- Because the area was declared World Heritage, the Commonwealth could legislate to protect it
The High Court's decision
The majority of judges (4:3) held that:
- The Commonwealth Parliament could create laws to fulfil its obligations under an international treaty
- Because the legislation gave effect to obligations under the World Heritage Convention, and the area in Tasmania was declared as World Heritage, the law was valid
- This decision interpreted "external affairs" to include any area covered by an international treaty
Application of section 109: The decision created an inconsistency between:
- The World Heritage Properties Conservation Act (Commonwealth law)
- The Gordon River Hydro-Electric Power Development Act (Tasmanian law)
Under section 109 of the Constitution, the Commonwealth Act prevailed, and the Tasmanian Act became inoperable regarding the dam's construction because it conflicted with Commonwealth law.
Significance of the Tasmanian Dam case
The Tasmanian Dam case had profound implications for the division of law-making powers:
Expansion into residual powers: Through interpreting section 51(xxix), the Commonwealth gained ability to move into law-making areas previously considered residual powers (state responsibilities). The Commonwealth could intervene in state matters even when it otherwise had no express constitutional power over the subject.
Practical Application of the External Affairs Power:
Environment is a residual power (state responsibility). However, the Commonwealth can legislate about environment if doing so gives effect to international treaty obligations.
This potentially broadens Commonwealth power into areas previously in the states' domain, demonstrating how treaty obligations can override traditional state powers.
Affirmation in subsequent cases: The decision has been affirmed in later cases, including:
- Richardson v Forestry Commission of Tasmania (1988) - the Lemonthyme Forest case, which upheld the Tasmanian Dam principles
- Human Rights (Sexual Conduct) Act 1994 (Cth) - Commonwealth law holding that consensual sexual conduct between adults in private should not be subject to interference, based on the International Covenant on Civil and Political Rights
The Human Rights case is particularly significant because it allowed the Commonwealth to effectively make laws about criminal conduct (generally a state power). The Act conflicted with Tasmanian law that criminalised consensual homosexual conduct between adults, and ultimately Tasmania changed its laws.
Concerns about scope of power: Some have expressed concerns that the external affairs power gives the Commonwealth almost unlimited power to make laws in any area, as long as the laws give effect to international treaties. Suggestions have been made to narrow or reduce this power through constitutional change.
Limitations on the external affairs power
Despite its broad reach, the external affairs power has important limitations:
Key Limitations on External Affairs Power:
Laws must conform to treaties: The High Court has held that Commonwealth cannot make laws that expand beyond what is in the treaty. The law must align with the treaty's provisions.
Cannot infringe express rights: The power does not enable the Commonwealth to make laws that infringe on express rights (rights stated in the Constitution that can only be changed by referendum). For example, if Commonwealth legislation infringed the limited right to freedom of religion, the legislation would likely be found invalid.
Treaties must be genuine: The treaty must be bona fide (genuine). However, it is very unlikely that an international treaty would not be genuine, so this limitation rarely arises in practice.
States retain their powers: The Commonwealth's ability to make laws about residual powers does not take those powers away from states entirely. States retain their law-making power (such as over environment), but their use will be limited where the Commonwealth legislates in that area to fulfil treaty obligations.
Comparing the two cases
Both the Brislan case and the Tasmanian Dam case demonstrate how the High Court can change the division of law-making powers through constitutional interpretation:
Key Comparisons Between Brislan and Tasmanian Dam Cases:
Common approach: In both cases, the High Court adopted a broad reading of constitutional provisions, interpreting words to expand the range of issues on which the Commonwealth can legislate.
Different sections:
- Brislan case involved section 51(v) - communications services
- Tasmanian Dam case involved section 51(xxix) - external affairs
Result: Both decisions granted additional powers to the Commonwealth at the expense of the states, reflecting a trend in High Court judgments since 1920.
Future implications: Both cases established principles that could apply to future situations not contemplated when the Constitution was drafted, demonstrating the Constitution's flexibility to adapt to changing circumstances.
Exam guidance
When discussing High Court cases that have impacted the division of law-making powers:
Focus on significance, not unnecessary facts: Avoid describing every detail of the case. Instead, concentrate on:
- The actual judgment and reasoning
- How the decision has impacted Commonwealth and state law-making powers
- The broader principles established
Structure your response clearly:
- Identify the constitutional provision being interpreted
- Explain the key facts briefly
- Describe the High Court's decision
- Analyse the significance for the division of powers
- Consider any limitations or subsequent developments
Use appropriate legal terminology: Demonstrate understanding by correctly using terms like:
- Jurisdiction
- Concurrent powers
- Residual powers
- Express rights
- Broad interpretation
- Section 109 inconsistency
Link to broader principles: Connect the case to the overall theme of how the division of law-making powers can change, and the role of the High Court in that process.
Remember!
Key Points to Remember:
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The High Court can change the division of law-making powers through its interpretation of constitutional provisions, particularly by adopting broad readings that expand Commonwealth power
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Brislan case (1935): Interpreted section 51(v) to include broadcasting as a communication service, extending Commonwealth power over wireless sets and establishing principles that could apply to future technologies like television and internet
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Tasmanian Dam case (1983): Interpreted section 51(xxix) to allow Commonwealth to make laws giving effect to international treaties, even in areas otherwise within state power, significantly expanding Commonwealth authority
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Section 109 provides that where Commonwealth and state laws conflict, Commonwealth law prevails, making these High Court interpretations particularly significant
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Both cases show a trend of Commonwealth gaining additional powers at the expense of states, though important limitations remain on Commonwealth power, including that laws must conform to treaties and cannot infringe express rights