Peter Francis Hughes© Legal Studies 2012

Unit 3

CHAPTER THREE

PART E The Constitution

Roadmap to Holidays

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

Creates a division of law making powers with case law.

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)

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

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

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

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

Let the Franklin flow,

Let the wild lands be.

The wilderness,

Should be strong and free.

Deakin University School of Law, Waurn Ponds, Geelong.

1977 © PF Hughes

From the song ‘Let the Franklin Flow’ by Shane Howard 1983

(ex Deakin Grad 1979)

Referral of Law Making Powers

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

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

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

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

Can the powers referred to the Commonwealth be revoked?

Has not been tested in court. Would it require a referndum to return the

powers to the state?

Uncertainty with the Referral of Powers

Is the referral of powers exclusive?

After the referral of power by the states, can they still legislate in that area?

Has not been tested in court either.

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.