10.7 The High Court and the Division of Powers

international treaty

a legally binding agreement between countries or intergovernmetnal organisations, in which they undertake to follow the obligations set out in the agreement and incude them in their own laws

express rights

rights that are states in the Australian Constitution. These rights are entrenched meaning they can only be changed by referendum

High Court Jurisdiction

Has jurisidiction under section 75 of the constitution to hear and determine cases where

• the Commonwealth, or a person suing or being sued on behalf of the commonwealth, is a party

• betwen states, or between residents of differnet states, or between a state and the resident of another state

Overview of Brislan Case

defendant challenged the validity of the Wireless Telegraphy Act in the High Court

• argued that the constitution did not give the Commonwealth Parliament the power to make laws in relation to radio broadcasting

High Court determined the broadcasting to a wireless set was a form of telephonic service (in s51(v)) and therefore the commonwealth had the power to make laws in this area

significance of the brislan case

• this case changed the division of law making powers by extending the Commonwealth Parliament’s power to include broadcasting to a wireless set

• resulted in a shift in the division of law-making powers from the states to the commonwealth

• hold significance for future types of communications and technological advances

  • since comments made by the judges in this case such as “other like services” was designed to cover new developments, it is arguable that the Commonwealth has the power to regulate the use of the Internet

Tasmania Dams Case

• Commonwealth stopped Tasmania building a dam under “external affairs”

  • used World Heritage Convention to justify intervention

• High Court found Commonwealth law overrode Tasmanian law (s109)

signficance of Tasmanian Dams Case

• expanded meaning of external affairs —> can legislate on international treaties

• displayed increased Commonwealth power over states

• set precedent for using international agreements to regulate domestic issues