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Student book answers11.1 High Court cases and Sections 7 and 24 of the ConstitutionPages 360–367

11.1 Check your learning

Define and explain

1 Explain the purpose of Sections 7 and 24 of the Australian Constitution. In particular, explain in your own words what the term ‘directly chosen by the people’ means.

The purpose of Sections 7 and 24 is to set out the matters relating to the Senate and House of Representatives respectively. Section 7 sets out to specify that the composition of the Senate should be directly chosen by the people whereby each original state is equally represented in the Senate (by six senators) and that senators shall be elected for a six-year term. Section 24 has the purpose of specifying the composition of the House of Representatives (which shall be determined directly by the people), how the electorates will be divided and the provision of proportional representation of the people in the lower house. In doing this, these two sections uphold the principle of representative government by requiring that the members of the two houses are directly chosen by the people.

[Student answers will vary in regard to explaining in their own words the term ‘directly chosen by the people’ but they should make reference to the people casting a vote for their preference of parliamentary members.]

2 In which legal case was the requirement that members of the Commonwealth Parliament be ‘directly chosen by the public’ said to be a ‘constitutional bedrock’?

Student answers will vary.

3 Outline the two-stage test that is used to determine whether a law infringes the implied freedom of political communication.

The test set down in Lange has two steps:

• Does the law restrict the freedom of political communication about government or political matters?

• If the answer to the question above is ‘yes’, is the law reasonably appropriate and adapted to serve a legitimate end that is compatible with the maintenance of representative and responsible government?

4 Provide two circumstances where it may be considered reasonable for the law to restrict freedom of political communication.

Student answers will vary but may include the following circumstances:

• restricting the freedom to prevent offensive material being sent to individuals at home, such as in Monis

• restricting the freedom so that offenders do not engage in the type of behaviour that caused their offending, such as in Wotton

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• restricting the freedom to ensure the accuracy of the electoral roll, such as in Murphy.

Synthesise and apply

5 Read the legal case Wotton v Queensland.

a Explain the central facts of the case.

Wotton served a term of imprisonment for rioting causing destruction over the death of another Aboriginal man in custody. He sought parole after serving his minimum term. The parole board placed conditions on the parole, which included prohibiting him from attending public meetings without approval of an officer, having any interaction with the media or receiving payment (directly or indirectly) from the media. He was also subject to a law that made it illegal for a person to interview or obtain a statement from a prisoner, including parolees.

b Do you agree with the decision that the legislation was a reasonable interference with the plaintiff’s freedom to express his views on political matters? Give reasons.

Student answers will vary based on their individual opinion.

6 Read the legal case Roach v Electoral Commissioner.

a Outline the key facts of the case.

Roach was serving a six-year prison sentence. The Commonwealth Parliament passed laws in 2004 that banned all prisoners serving a sentence longer than three years from voting, and further amendments in 2006 extended this ban to all prisoners. Roach challenged the validity of both the laws.

b Explain the significance of the decision that was reached by the High Court in this case. In your answer, refer to Sections 7 and 24 of the Australian Constitution.

The case upheld the requirements in Sections 7 and 24 that the members of the Commonwealth Parliament had to be directly chosen by the people. By denying prisoners who were not involved in serious criminal misconduct (i.e. less than three years imprisonment) the ability to vote, the Commonwealth had acted beyond its power.

c ‘In referring to the principles from the Roach case, the Court held that the Commonwealth law in the Murphy case was valid because it did not exclude or restrict particular individuals from enrolling to vote and there was a “substantial reason” for having a process that was designed to ensure the accuracy of the electoral roll.’ Explain this statement. In your answer, refer to the differences between the Roach case and the Murphy case.

The principles set out by the Roach case highlighted the structurally protected limited right to vote under Sections 7 and 24 of the Australian Constitution in order to uphold the principle of representative government. This resulted in the Commonwealth Parliament being restricted from legislating to exclude, or restrict the ability of, specific individuals or groups from voting. However, the High Court ruled that in order to preserve representative government, the Commonwealth Parliament could put in place certain restrictions on an individual’s right to vote where there was substantial reason to do so. This could therefore result in a specific subset of the population being prevented from voting (such as prisoners serving a sentenced of three years or more).

In the Murphy case, however, the court found that placing restrictions on the time period a person had to enrol to vote (limited to up to seven days after writs for an election were issued) did not place restrictions on a particular person or subset of people and therefore there was no breach to the principle of © Oxford University Press 2018 2Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

representative government. As long as individuals adhered to the time frames legislated, the legislation did not prevent anyone from voting. Additionally, these timeframes fell within the required ‘substantial reason’, which ensured the accuracy of the electoral roll prior to an election.

Analyse and evaluate

7 Read the legal case Monis v The Queen.

a Describe the purpose of Section 471.12 of the Australian Criminal Code.

The purpose of Section 471.12 is to protect individuals from intrusion into their personal homes through unsolicited offensive material.

b Explain how this section was breached by Monis.

Monis breached this section by sending letters to the families of soldiers killed during service in Afghanistan, criticising Australia’s involvement in the conflict.

c Explain the significance of the Lange case in the legal reasoning used by the High Court in the Monis case.

In Monis, the High Court adopted the approach set out in Lange, specifically applying the two-stage test to determine if Section 471.12 of the Commonwealth Criminal Code infringed on the implied right of freedom of political communication. Lange was therefore significant in this case because it provided a framework for the way in which the High Court examined the law in light of the two-stage test, with the second limb of the test set down in Lange directly influencing the outcome of the case in Monis.

The High Court justices considered whether the restriction was compatible with a system of representative and responsible government, because the freedom can only be restricted when reasonable. Three justices found that, due to the intention of the legislation being aimed at protecting an individual’s privacy, this was a reasonable and proportionate restriction to place on communications with others, especially considering the important role privacy will continue to play in modern society.

d Discuss whether the ruling in the Monis case was a reasonable outcome.

Student answers will vary, but should include one or more of the following points:

• Student answers will vary All justices agreed that the Commonwealth Criminal Code placed a restriction on the right to freedom of political communication.

• Whether or not the material Monis was sending could be considered menacing, harassing or offensive to a reasonable person.

• Whether this material would interfere with the ability to uphold and preserve a representative and responsible government.

8 Conduct some research on the case of Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (27 February 2013). You may wish to look at the High Court’s summary of the case, or articles about the case.

a Outline the main facts of the case.



• The Adelaide City Council fined Caleb and Samuel Corneloup for breaching a council by-law (instigated by complaints from local traders) in 2009.

• The council by-law banned individuals and groups from ‘preaching, canvassing or haranguing’ in a public place without a permit.

• The brothers regularly preached the Gospel and voiced their personal views on religious, social and political topics in public places. Local traders felt that some of the views preached were disruptive, racist, homophobic and offensive.

• In 2010, the brothers challenged the council by-law in the South Australia District Court on the basis that it restricted their right to free speech.

• In 2011, the council appealed, and the Full Court of the Supreme Court of South Australia dismissed the appeal, upholding the decision that the by-law breached the constitutional implied right to freedom of political communication.

• In 2013, the High Court reversed the Supreme Court’s decision and held that the by-law did not breach the implied right to freedom of political communication and was not ultra vires.

b Discuss the significance of the Lange case in light of this case.

Student answers will vary, but should include a discussion of one or more of the following points:

• The Lange case confirmed and extended the implied right to freedom of political communication under Sections 7 and 24 of the Australian Constitution.

• This implied right is not limited to an election period and is an ongoing freedom.

• However, there are limits to the implied right, and parliament can legislate to restrict this right if the two-stage test determines it is appropriate. The limitation must not infringe on the principles of representative and responsible government.


11.2 ReferendumsPages 368–375


Define and explain

1 Outline the requirements of the double majority set out in Section 128 of the Australian Constitution.

Section 128 requires that there should be a majority among voters nationally and a majority of voters in a majority of states – that is, the majority of voters in four out of the six states vote for the change. Both requirements must be satisfied to bring about a change to the Constitution.

2 In what ways does the double majority requirement enable the Australian people to protect the Australian Constitution?

First, the double majority requirement enables the Australian people to say ‘no’ to changing the Australian Constitution when voting in a referendum. By voting ‘no’, the Australian people are preserving the Constitution in its current form, which could be seen as protecting it.

Second, the double majority requirement protects smaller states in being able to have an equal say as their larger neighbours, thus allowing the smaller states to be able to protect the Constitution through voting.

3 Explain how the double majority requirement allows for the people in the smaller states to protect the Constitution in spite of the support for change in the larger states.

The double majority allows the people in smaller states to protect the Constitution because the majority of voters in the smaller states can vote ‘no’, and their vote is important in satisfying the second part of the majority requirement – that is, the majority of voters in a majority of states. For example, in 1946 there were three referendums. One of these – in relation to marketing of primary products – received 50.57% of ‘yes’ votes, and three of the states (New South Wales, Victoria and Western Australia) approved of it. However, the smaller states of Tasmania and South Australia did not, so the referendum was rejected.


4 Explain two concerns that may arise if the Commonwealth Parliament were able to change the wording of the Constitution without first presenting the proposals for change to the people.

One concern would be that the Commonwealth Parliament could potentially change the wording of the Constitution to grant it additional law-making powers at the expense of the states. The people may be concerned about this because it would mean the Commonwealth would increase its powers, which may not be for the better good of the people.

Another concern may be that the Commonwealth Parliament could potentially make any change it likes and without any public consultation, including changes that may, for example, restrict people’s right to vote or right to religion. While this is unlikely to occur, it is a concern that people might have regardless of whether it is likely or not to happen.


5 In 1946, the referendum on social services was successful. It is one of only eight referenda to succeed since Federation.

a Explain how the social services referendum in 1946 gave more power to the Commonwealth.

The 1946 referendum gave more power to the Commonwealth as it extended its ability to pass laws in relation to welfare benefits. Rather than relying on the spending power to make laws granting welfare benefits, the changes to the Constitution gave the Commonwealth law-making power through a new head of power.

b Suggest why this referendum proposal was so successful. In your answer, refer to the nature of this proposal compared to one or two others that were rejected by the people.

One reason why this referendum was so successful is because it involved giving Australians greater financial support from the Commonwealth and given the timing (after the Second World War), the people were receptive to this.

In addition, the proposal would have directly benefited a large proportion of the population who would have voted, and so there would have been widespread support. Compared with the 1999 referendum, which would have changed our government structure and which would have had no direct impact or benefit to the people, the 1946 referendum did.

6 The 1967 referendum represented a major shift in the capacity of the Commonwealth to recognise Indigenous Australians in the Constitution.

a Relating to Indigenous people what propositions for reform were put to the Australian people in the 1967 referendum?

The propositions for reform were to:

• remove any ground for the belief that the Constitution discriminated against people of the Aboriginal race

• make it possible for the Commonwealth Parliament to enact special laws for these people

• allow Aboriginal people to be counted in the Census.

b What percentage of people accepted the 1967 referendum about Indigenous people? Why do you think this was the case?

The 1967 referendum about Indigenous people was accepted by 90.77% of people. This reflected the views that it was time to make amends to Aboriginal and Torres Strait Islander peoples.

c How did this referendum change the division of law-making powers between the states and the Commonwealth?

The change meant that the power was no longer a residual power, where only the states could legislate, but became a concurrent power, where the states and the Commonwealth could make laws.

d Conduct some research to find out when Indigenous people become Australian citizens. In your explanation refer to the 1967 referendum.

Student answers may vary, depending on how they view the idea of ‘citizenship’. One argument is that all Australians, including Indigenous people, became Australian citizens in 1949 following the passing of the


National and Citizenship Act 1948 (Cth), and that the 1967 referendum was about conferring power on the Commonwealth to enact laws in relation to Aboriginal people.

e Explain the significance of this referendum with reference to major legislation that has been passed by the Commonwealth Parliament since 1967.

The success of the 1967 referendum meant that the Commonwealth could now make laws in relation to Aboriginal people. This was significant because it removed the previous restrictions placed on the Commonwealth with regard to legislating for Indigenous people and allowed for special laws to be enacted. This has resulted in legislation being passed that gives Aboriginal people more rights, including land rights under the Native Title Act 1993 (Cth). The Native Title Act could be passed because the 1967 referendum allowed the Commonwealth to enact special laws. The government can now implement major reforms that address the needs of the Indigenous community.


7 ‘The 1999 republic referendum serves as a clear example of the ways in which the referendum process protects the Australian Constitution from arbitrary interference by government.’

a Comment on the statement above. In your answer, identify the proposals that were presented to voters in the 1999 republic referendum.

Student answers will vary, but should include the following proposals:

• remove the Queen’s representative as head of state and instead make a president the head of state

• specify the process for selecting a president including establishing a committee to receive and consider nominations

• establish the powers of the president

• establish the terms of office for the president

• specify the power for removal of the president

• change the Constitution to remove any references to a monarch

• insert a new preamble into the Constitution.

b Explain two reasons why this referendum failed. In your answer, refer specifically to the statements made by then prime minister John Howard regarding the forthcoming referendum.

Student answers will vary but may include:

• The changes proposed were unfamiliar and Australians are traditionally cautious of change.

• Monarchists, such as John Howard, claimed that the constitutional monarchy provides stable government. Without evidence to the contrary, many chose to keep the status quo.

• Many people did not like the proposal on how the president was to be elected – by the parliament rather than by the people. This was supported by the comments by John Howard that a republic would not make the government better or more effective.


• John Howard’s comments weeks before the referendum were influential, particularly his comments that ties with England had stood the test of time so far.

c To what extent does the outcome of the 1999 referendum demonstrate the ability of the Australian public to protect the Constitution? Give reasons.


• The double majority provision was not met for either proposed change and this allowed the people to preserve the Constitution. This was evident from overwhelming support demonstrated through the majority voting ‘no’ as well as no state voting in favour of the changes.

• The people were able to protect the Constitution from being changed, thereby retaining the traditional ties held with the United Kingdom.

• The people were able to protect the Constitution by rejecting a proposal that could have given ordinary Australians a choice in electing their president. This was due to the model put forward in the referendum.

• However, the majority ‘no’ vote was not purely a rejection of the idea of a republic. The vote was also impacted by the suggested manner in which a president would be elected.

• The issue being voted on did not receive bipartisan support and this made it harder for it to pass because people who were unsure may have deferred to their preferred political party for guidance when making their decision.

• The voting public is cautious of significant changes to the Constitution and, as a result, is more likely to vote ‘no’ out of fear of the unfamiliar.

8 In your view, is it necessarily a good thing that the people have the power to protect the Constitution by voting no in a referendum? Discuss.



11.3 The High Court and the division of law-making powersPages 376–380


Define and explain

1 Explain the purpose of Section 75 of the Australian Constitution.

The purpose of Section 75 of the Australian Constitution is to set out the original jurisdiction of the High Court. Section 75 makes it clear what matters the High Court has the power to hear. These include matters arising under a treaty, matters where the Commonwealth (or a person acting on behalf of the Commonwealth) is a party, and matters that arise between states, between residents of different states or between one state and a resident of another state. Without the original jurisdiction of the High Court as specified in the Australian Constitution, it would not hold any authority to hear and determine these disputes.

2 Outline one reason why the laws of the Commonwealth might come into conflict with laws made by the states.

Student answers will vary but may include:

• One law may prohibit action while the other allows it.

• Fees and duties can be different across state and Commonwealth laws.

• The extent to which the laws reach (i.e. who is covered by the law) can mean that the state law is invalid.


3 Read the legal case Ha v New South Wales.

a Explain the key facts of the case.

The New South Wales legislation required tobacco sellers to hold a licence and pay licensing fees. The plaintiff operated a store but did not have the relevant licences, and was therefore charged with evading state franchise fees.

b Outline the impact that the High Court judgment in this case had on the revenue stream earned by state governments through the charging of licence fees on the sale of tobacco products.

The outcome in the case meant that the states lost revenue streams that came from tobacco licence and licensing fees. It meant that the states became more reliant on the Commonwealth for funding and therefore contributed to the increasing control over the national economy by the Commonwealth.

c Outline one impact that this decision is likely to have on the states’ capacity to manage their economies.


The decision placed limitations on states to pass laws to raise money, and caused them to lose a high proportion of their revenue. This in turn meant that states became more reliant on the Commonwealth Parliament to provide funding to manage their economies.


4 In the case New South Wales v Commonwealth, the High Court made some important decisions regarding the corporations power of the Commonwealth.

a Explain the significance of this case in terms of the control of industrial relations law in Australia.

The decision meant that 85% of the Australian workforce was covered under the federal system, leaving only 15% governed by the state system. This shifted the control of industrial relations laws from the states to the Commonwealth.

b Describe the ways in which Section 109 could be used to impact on the laws previously made by the states in the area of industrial relations.

Section 109 stipulates that when a conflict arises in an area of concurrent power, the Commonwealth shall prevail to the extent of the inconsistency. Therefore, one way in which Section 109 can impact on existing state industrial relations legislation is that the Commonwealth can successfully challenge the state law on the basis of any inconsistencies with the federal law and this can subsequently result in the inconsistent sections of the state legislation being declared invalid.

A second way in which Section 109 can impact is that it may force the state to repeal those laws (or a section within them) that are inconsistent with the Commonwealth legislation and prevent a case being pursued through the courts, thereby ensuring they are not continuing to enforce conflicting legislation.

c Do you think it is appropriate that the Commonwealth controls workplace law for the vast majority of all Australians? In your answer, address the issue of the potential problems that may exist had the states retained control over industrial relations.

Student answers will vary based on their individual opinion.

5 A significant power of the Commonwealth involves its ability to regulate communication services, including advertising.

a Outline the key facts of the case of R v. Brislan; Ex parte Williams (the Brislan case).

Federal legislation existed that meant all owners of a wireless set had to hold a licence. The defendant did not have a licence, and argued that the law was constitutionally invalid as the head of power did not include wireless sets and therefore it was a state power.

b In relation to the case, discuss the impact that the High Court can have on the law-making powers of the states.

Through interpreting the Australian Constitution, the High Court can shift the division of law-making powers between the states and the Commonwealth. This can affect the ability of the states to pass laws in certain areas.

In Brislan the High Court’s decision resulted in a presumed residual power of the states being shifted to a specific power, allowing the Commonwealth Parliament to pass laws regarding wireless sets. Prior to this, wireless sets were considered to be an area of residual law-making power because they were not specifically mentioned in the Australian Constitution. © Oxford University Press 2018 10Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

However, the High Court was only able to have this impact because a relevant case came before them by a party with standing, which required interpretation of Section 51(v) of the Constitution.

The High Court extended the powers of the Commonwealth Parliament through a broad interpretation of the term ‘other like services’ to include all forms of communication and this opened up the possibility that future communication technologies would also fall under the Commonwealth’s jurisdiction. This restricted the law-making powers of the states because, as it was now deemed an area of concurrent law-making power, under Section 109 if a conflict arose between state and Commonwealth legislation, the Commonwealth would prevail to the extent of any inconsistency. This would deem the state legislation (or inconsistent sections) invalid.

However, the states are still permitted to legislate in these areas if they do not conflict with Commonwealth legislation.

c To what extent is the decision in the Brislan case made even more significant given that it relates to electronic communications? In your answer, anticipate some developments in communications technologies over the next decade that may be covered by laws made by the Commonwealth Parliament.


• This potentially gives the Commonwealth Parliament law-making authority over future communication devices if justices of the High Court follow their previous reasoning.

• Electronic communication is a fast-evolving area of technological development that will require laws to be made to ensure the protection of the community in how these services are used. Through determining this to be a concurrent area of power it provides for uniformity on laws across the states when legislating.

• New forms of communication may fall under this category but they would still need to be heard before the High Court for a definitive ruling to be made.


11.4 Interpretation of the external affairs powerPages 381–389


Define and explain

1 Using an example, define the following terms:

a treaty

A treaty is a written agreement between countries or organisations, which is governed by international law. An example is the Convention Concerning the Protection of the World Cultural and Natural Heritage.

b declaration.

A declaration is a non-binding agreement between countries that sets out aspirations, such as those found in the Declaration of the Rights of Disabled Persons, which can be incorporated into domestic law, such as in the Disability Discrimination Act 1992 (Cth).

2 Provide two reasons why it is important for Australia to enter into international treaties.

It is important for Australia to enter into treaties in areas that require international cooperation, otherwise little is achieved when one country acts alone.

It is important to enter into treaties as the terms of the treaty can influence domestic law and policy, and bring about change and enforce an international standard.

3 Explain two limitations that are imposed on the Commonwealth Parliament when legislating to give effect to an international treaty.

One limitation is that the Commonwealth Parliament cannot ignore the express rights that are contained in the Constitution. That is, the express right to a trial by jury for Commonwealth indictable offences, for example, needs to be recognised or acknowledged when the Commonwealth gives effect to a treaty.

Another limitation is that the Commonwealth must not extend ‘beyond the treaty’. The High Court has found that the Commonwealth has the power to give effect to a treaty obligation, but it cannot expand far beyond what is in the treaty (see Mason J’s comments in the Tasmanian Dam case).


4 Read the legal case Commonwealth v Tasmania.

a Explain the arguments made by the Tasmanian Government as to why it should be permitted to build the dam on the Franklin River.

The Tasmanian Government argued that it had a right to make laws concerning the dam as it was a state issue and not a Commonwealth area of power.


b Why did the Commonwealth oppose the building of the dam?

The Commonwealth opposed the building of the dam as the area covered by the dam was included on the UNESCO World Heritage List.

c What was the international treaty that formed the basis of this case?

The Convention Concerning the Protection of World Cultural and Natural Heritage

d Explain the relationship between the external affairs power of the Commonwealth and the right of the Commonwealth to legislate to prevent the construction of the dam.

The Commonwealth has the power to make laws relating to an issue covered by an international treaty. In this case, Australia has signed an international treaty that protected areas of World Heritage listed on the World Heritage List. As such, the Commonwealth had the power to make laws in relation to the dam as it was on the World Heritage List.

e Outline the decision of the High Court in this case.

The High Court decided that the words ‘external affairs’ included any area covered by an international treaty and as the Franklin River was covered by the treaty, the law was valid. This meant there was an inconsistency between state and federal laws, of which the federal law prevailed (per Section 109).

f Describe the impact of this case on the law-making powers of the state and Commonwealth parliaments.

The case severely curtailed the law-making powers of the states in regard to any area under international treaty. This means that the Commonwealth can make laws in areas that are generally a residual power for the states, such as the environment, if the Commonwealth was legislating to give effect to a treaty.

g Explain how the decision in the case of Richardson v Forestry Commission of Tasmania reflected the principles set out in the Tasmanian Dam case with respect to the external affairs power.

The decision in Richardson v Forestry Commission of Tasmania confirmed the view that the external powers extended to making laws on areas under an international treaty. It found that the Tasmanian Dam case established that when making laws to discharge obligations under an international treaty, the Commonwealth can do this so long as it is appropriate and adapted to attain that objective.

5 Read the legal case New South Wales v Commonwealth.

a Outline the material facts of this case.

The Commonwealth passed legislation that provided the Commonwealth with sovereign rights over the continental shelf for the purpose of exploring and exploiting the natural resources there. The legislation gave effect to two Conventions that were ratified in Australian law. The states challenged the legislation and claimed it was invalid.

b With reference to the judgment in this case, explain the link between United Nations agreements and the ability of the Commonwealth to legislate in regard to its external affairs power.

The decision found that the Commonwealth had to have the power to give effect to the international treaties it signs; otherwise it could not adequately perform its obligations under the treaties. To this effect, the laws were valid as the sovereignty rights were available under the international agreement.


6 Read the legal case Polyukhovich v Commonwealth.

a Outline the key facts of this case.

Polyukhovich collaborated with the German army during the Second World War and allegedly participated in the execution of Jewish people in a Polish ghetto. He immigrated to Australia and became an Australian citizen after the war. Years later, he was charged with murder and complicity to murder during the war. Polyukhovich challenged the validity of Commonwealth legislation that enabled the Commonwealth to prosecute people for war crimes committed during the Second World War in another country.

b What did the High Court have to decide?

The High Court had to decide whether the external affairs power enabled the Commonwealth to enact laws allowing for the prosecution of war crimes that occurred overseas.

c Outline the decision of the High Court, and explain its relevance to the interpretation of the external affairs power.

In this case the High Court decided that the external affairs power provided for under Section 51(xxix) of the Australian Constitution did provide power to the Commonwealth to enact laws for the prosecution of war crimes that occurred overseas, and that the War Crimes Amendment Act 1988 was constitutional because it was consistent with Article 15 of the International Covenant on Civil and Political Rights (ICCPR). This case was relevant to the interpretation of the external affairs power because it was found that ‘mere geographical externality’ was included under this power, providing the Commonwealth Parliament with the power to investigate and prosecute the deaths as they occurred outside of Australia.


7 To what extent could it be argued that the decision in the Tasmanian Dam case resulted in a significant increase in the law-making powers of the Commonwealth Parliament, to the detriment of the states? Give reasons.


• The Tasmanian Dam case gave the Commonwealth Parliament the power to legislate in areas of residual power to the extent that fulfils an international obligation. This significantly increases the law-making powers of the Commonwealth and could result in its unprecedented ability to legislate in state-held law-making powers.

• Under Section 109, in such a situation the Commonwealth Parliament would prevail over state laws and any state law that conflicts will be deemed invalid to the extent of any inconsistency. This means the states are no longer in control of the laws made in their residual areas of power.

• This increase only applies so far as the Commonwealth can show that the issue relates to the external affairs power.

• The increase does not necessarily apply to the entire residual law-making power. For example, in the Tasmanina Dam case, it only applies so far as the damming of the Franklin River and not in respect to other statutes in that area of law-making.

8 ‘If Australia ratifies an international agreement such as the 1951 Convention Relating to the Status of Refugees, then any law that the Commonwealth Parliament passes which gives effect to that convention will be valid.’ Discuss whether you agree with this statement.



• The external affairs power provides the Commonwealth Parliament with the authority to enact legislation that gives effect to an international obligation.

• The Commonwealth is restricted in that it does not have the power to enact legislation that extends beyond what is in the agreement.

• Furthermore, the agreement must be bona fide.

• Additionally, the Commonwealth is restricted from giving effect to obligations in the agreement if this would infringe on express rights contained in the Australian Constitution.

• For this legislation to be deemed invalid, the case would need to be taken to the High Court for determination.


Student book answersChapter 11 ReviewPages 390–391

Revision questions1 Describe the role of the High Court when hearing cases involving the Australian Constitution.

[3 marks]

The High Court acts as a guardian of the Australian Constitution by considering the text and interpreting the wording to decide the cases before it. The High Court is called on to determine the meaning of different sections of the Constitution to determine the rights enshrined in the Constitution and the law-making power of the federal and state parliaments.

2 Provide one similarity and one difference between an international treaty and an international declaration.

[4 marks]

An international treaty is a binding agreement between countries and is governed by international law, whereas an international declaration is a non-binding agreement.

A declaration sets out certain aspirations of the parties to the agreement, and these can be similar to the obligations that exist when a country signs a treaty. Both a treaty and declaration aim to set standards and improve the behaviour of countries in relation to a specific area.

3 In your own words, explain what you believe were the intentions of the original writers of the Australian Constitution when drafting Sections 7 and 24.

[4 marks]

Student answers will vary but should include one or more of the following points:

• description of what Sections 7 and 24 refer to in the Australian Constitution

• explanation of the purpose of Sections 7 and 24 in the Australian Constitution.

4 With reference to one case that you have studied this year, discuss the impact of international instruments on the interpretation of the external affairs power.

[8 marks]

The High Court has adopted a broad interpretation of the external affairs power, and held that it enables the Parliament to enact legislation, which has the objective to give effect to obligations under international law and international instruments.

In regard to the Tasmanian Dams case, the High Court gave the federal parliament power to legislate on the environment, which was a residual power resting with the state. This was due to the obligations under an international treaty that required protection of certain environmental areas. This gave the federal parliament the ability to legislate on areas that they do not have an express right to legislate on under the Australian Constitution.


5 ‘Decisions of the High Court have played a significant role in shifting the balance of power between parliaments in Australia.’ With reference to one case that you have studied this year, explain the above statement.

[5 marks]


• Under Section 76 of the Australian Constitution, the High Court has the power to hear cases involving the Constitution and its interpretation.

• High Court interpretation of the Constitution can result in a shift in the division of law-making powers between the Commonwealth and state parliaments.

• Traditionally, High Court interpretations have resulted in an increase in law-making powers of the Commonwealth at the expense of the states (meaning it has reduced the law-making powers of the states).

• This only occurs when an interpretation alters the current application of a law-making power.

• Cases that may be referenced include (but are not limited to) Brislan, Ha, WorkChoices, Tasmanian Dam.

6 To what extent could it be argued that the existence of an independent High Court allows for protection of our constitutional rights? In your answer, refer to one case that you have studied in this chapter.

[5 marks]


• The High Court has the power to declare laws that infringe on constitutional rights as invalid.

• It is contingent upon a case coming before the High Court for it to ensure constitutional rights are protected.

• The independence of the judiciary ensures that political agendas do not influence their interpretations of the Constitution or the way they apply these to the legislation being contested.

• Discussion of the impact of a conservative or activist judiciary in interpreting the Constitution.

• Discussion of factors that may limit a case coming before the High Court to allow it to protect constitutional rights, including the need to have standing as well as the time and costs involved in pursuing a claim in the High Court.

• Cases that may be referenced include (but are not limited to) Roach, Lange.

7 ‘While the implied freedom of political communication remains an important means of allowing Australians to engage freely in debate, the limits imposed on the freedom in both the Lange and Monis cases cause concern. While the Commonwealth Parliament can limit the implied freedom in circumstances that the High Court deems appropriate, we are at risk of losing our freedom in this important area altogether.’ Discuss this comment. In your answer, refer to two cases that you have studied in this chapter.


[8 marks]

Student answers will vary, but should consider one or more of the following discussion points:

• two-stage test developed by the High Court in ruling on the Lange case

• interpretation of what constitutes reasonable restrictions to ensure the maintenance of a representative and responsible government

• nature of an implied right (that it is based on the interpretation of the High Court and therefore can be altered by subsequent interpretations by the High Court)

• High Court previously commenting that this freedom is fundamental to Australia’s system of representative government and therefore is unlikely to rule to lose this freedom

• decisions of the Lange and Monis cases explored in light of the points discussed.


Practice assessment task questions1 a Define the words ‘treaty’ and declaration’.

[2 marks]

An international treaty is a voluntary agreement between two or more countries to be bound, under international law, to follow a range of requirements and conditions. Once a country has signed a treaty and promised to uphold the agreement, it must ratify the treaty by the passing of specific legislation to ensure its requirements and conditions are adopted and implemented into their country’s law.

An international declaration is a non-binding agreement between countries, which sets out certain ‘aspirations’ or ‘intentions’ of the parties to the agreement. Declarations contain agreed-on standards and can be in influential in the development of government policy. For example, the Declaration on the Rights of Disabled Persons was adopted by Australia and influenced some of the key features in our Disability Discrimination Act 1992 (Cth).

b Describe one reason why the Commonwealth Government may enter into a treaty.

[3 marks]

The Commonwealth Government may enter into international treaties to demonstrate that it is an active member of the international community that promotes and supports initiatives of global importance, such as the promotion of free and fair trade, the protection of the global environment and basic human rights. For example, Australia signed and ratified the World Heritage Convention (treaty) to demonstrate its commitment to protecting and conserving areas of environmental significance and the High Court of Australia has made several rulings (such as in the Tasmanian Dam and Lemonthyme Forest cases) to ensure the Commonwealth Parliament honours its international obligations under this Convention.

2 Explain the role of the High Court in relation to the division of constitutional law-making powers in Australia.

[3 marks]

The High Court has an important role in relation to the division of constitutional law-making powers in Australia because, while not being able to change the actual wording of the Australian Constitution, it can alter the division of law-making powers between the state and Commonwealth parliaments through its ability to interpret the Constitution.

The High Court is the only court with the power, under Section 76 of the Constitution, to interpret the Constitution to resolve disputes that may occur between individuals, groups and state, territory and Commonwealth bodies over its meaning. Through interpretation, the High Court can expand or limit the Commonwealth Parliament’s law-making powers, although historically the High Court’s interpretation of the Constitution has tended to increase in the Commonwealth Parliament’s law-making power.

3 Discuss the significance of one High Court case that has interpreted Sections 7 and 24 of the Constitution.

[5 marks]


4 Using one referendum that you have studied this year, explain how the Australian people can change or protect the Australian Constitution.


[6 marks]

The sample response below examines the 1967 Indigenous Commonwealth Powers referendum. Students may examine one of a range of other referenda, both successful and unsuccessful, including:

• the 1951 Banning Communism referendum

• the 1946 Social security referendum

• the 1999 Republic referendum.

A list of all Australian referenda (including their date and outcome) is available on the Australian Electoral Commission website.

In accordance with Section 128 of the Australian Constitution, the only way the wording of the Constitution can be changed is through a referendum, which requires the proposed change to be passed by the Commonwealth Parliament, within two to six months of its preparation, and then be put to a vote of the Australian people. To be successful, the proposal must be passed by a double majority of eligible Australian voters – that is, a majority of voters nationally and a majority of voters in a majority of states (i.e. a majority of voters in at least four out of six states). This referendum process enables the Australia people to have the ultimate power over whether the wording of the Australian Constitution can be changed. It also allows the people to protect the Australian Constitution by voting ‘no’ to a referendum – that is, by preserving the Constitution in its current form and protecting it from changes that the public does not agree with.

Since Federation, the Australian people have been required to consider 44 proposals for changing the Australian Constitution and 8 of these changes have been accepted, with the highest level of support occurring in the 1967 referendum to recognise Indigenous Australians in the national Census and allow the Commonwealth Parliament to make laws for Indigenous Australians (which at the time was a residual power of the states). The ‘yes’ vote allowing for the constitutional change received overwhelming support in each state of Australia, as well as 97% of the national vote, and in doing so highlighted the ability of the Australian people to change and protect the relevance of the Constitution by reflecting their views and values at a referendum, especially with regard to social and human rights issues.

5 ‘The external affairs power of the Commonwealth has been used as a powerful means of creating legislation by the parliament.’ Referring to one case you have studied this year, discuss the impact of international treaties on the external affairs power.

[6 marks]

Students may examine a range of cases, including:

• the Lemonthyme Forest case (Richardson v Forestry Commission of Tasmania (1988) 164 CLR 261)

• the Seas and Submerged Lands case (New South Wales v Commonwealth (1975) 135 CLR 337).

Under Section 51(xxix) of the Australian Constitution, the Commonwealth Parliament has the power to create laws in relation to ‘external affairs’. Over the past three decades, the external affairs power has been relied on by the Commonwealth Parliament to pass legislation that reflects international agreements that Australia has entered into. In fact, the signing and ratification of international treaties by the Commonwealth and use of the ‘external affairs’ power have enabled the Commonwealth to pass legislation to protect and conserve areas of environmental significance in Australia, such as in the Tasmanian Dam case (Commonwealth v Tasmania (1983) 158 CLR 1).


The Tasmania Dam case clearly demonstrated the significance of international treaties and the use of the external affairs power by the Commonwealth Parliament to pass legislation in an area considered by the Tasmanian state government to be a residual area of power. In this case, the Commonwealth Parliament passed legislation to prevent the state government from building a dam in an area of environmental significance protected under international treaty (i.e. the World Heritage Listing) to create a hydroelectric scheme to enhance the state’s power supply.

In simple terms, the Commonwealth Government passed legislation, The World Heritage Properties Conservation Act 1983 (Cth), to prevent the Tasmania Government from building a dam on the Franklin River because the area of the proposed dam was included on the UNESCO World Heritage List (an international treaty) in 1982, which required signatory countries to protect their listed significant cultural properties and the environment. The Tasmanian Government argued that the Commonwealth Parliament had legislated in an area of residual power (which are held solely by the states) and as such had breached the division of law-making powers as outlined in the Australian Constitution. When the Commonwealth responded by claiming it had the power to intervene due to its external affairs power, which gave it the authority to make laws relating to an issue covered by World Heritage listing (an international treaty), ‘battle lines were drawn’ and the dispute headed to the High Court of Australia for resolution.

In deciding the case, the High Court ruled in favour of the Commonwealth by broadly interpreting the meaning of the external affairs power and confirming the right of the Commonwealth to make law on any matters covered by an international treaty, even if these areas related to a residual power. The immediate impact of the High Court decision was to validate the Commonwealth government’s legislation and prevent the Franklin Dam from being constructed to protect the heritage area and fulfil the government’s commitment under the World Heritage Convention. The longer-term impact of the decision has seen the Commonwealth Parliament pass significant legislation in other areas covered by international treaties, such as human rights, which comes under the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The decision in the Tasmanian Dam case has also been used as a precedent in other High Court cases, like Richardson v Forestry Commission of Tasmania (1988) 164 CLR 261, and has ultimately allowed the Commonwealth Parliament to continue passing laws to give effect to an international obligation and create law to address global concerns, such as those involving the protection of the environment.

Interestingly, however, despite the broad interpretation of the external affairs power in light of international agreements, the High Court has found that this power is not unlimited. For example, in the Tasmanian Dam case the court noted that the Commonwealth must ensure their legislation conforms to the requirements of a genuine (bona fide) treaty and cannot legislate far beyond this. Similarly, the Commonwealth Parliament does not have the freedom to pass legislation to give effect to obligations contained in international agreements that would result in a breach of the express rights contained in the Australian Constitution, such as the right to freedom of religion under Section 116.

Total: 25 marks


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