The High Court And The Constitution Flashcards Preview

Legal Studies Units 3 & 4 > The High Court And The Constitution > Flashcards

Flashcards in The High Court And The Constitution Deck (25):
1

High court interpretation

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.

2

Implications of high court interpretation

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

3

Compare and contrast high court interpretation with referendums

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

4

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

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.

5

Name of case 1

R V Brislan (1935)

6

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

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).

7

The role of the high court in interpreting the constitution

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

8

Effect of high court interpretation

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.

9

The role of the high court 3

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.

10

3 strengths of high court Interpretation

EXPERTS
CHECKS
RELEVANCE

11

Experts

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.

12

Checks

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

13

Relevance

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

14

3 weaknesses of high court interpretation

INABILITY
REQUIREMENTS
EXPENSIVE

15

Inability

The High Court cannot change the words in the Constitution.

16

Requirements

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

17

Expensive

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

18

Brislan case high court decision

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

19

Name of case 2

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

20

Hammond case summary of facts

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.

21

Hammond case section of constitution to be interpreted

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

22

Hammond case high court decision

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.

23

Hammond case impact on the division of law making powers

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).

24

Brislan case section of constitution to be interpreted

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

25

Brislan case summary of facts

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.

Decks in Legal Studies Units 3 & 4 Class (67):