High Court and the division of law making

High Court and the division of law making

Multiple Choice

What facts do you need to know about the each high court case?

• fact, issue, decision, impact

• fact, issue, decision, outcome

• fact, significance, outcome, decision

• fact, issue, outcome, decision, significance, impact

Multiple Choice

Which section of the constitution is the following: 'when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid'

• Section 7

• Section 24

• section 109

• Section 128

Open Ended

'other like services' is a broad term. What other developments in communication technologies do you think might be covered by this today.

Below is an example of a summary of the Tasmanian Dam case

The Tasmanian Dam Case (1983) resulted from legislation by the Commonwealth to prevent the building of a dam for hydro-electric power in a world heritage area in south-west Tasmania. The Tasmanian Government claimed that because the provision of electricity is a state responsibility, the Commonwealth could not intervene, but the Commonwealth relied on the external affairs power in s. 51(xxix) of the Constitution, in that it had signed an international treaty guaranteeing the integrity of world heritage values. The High Court found that the Commonwealth had the power to enact the relevant legislation which increased the law making power of the Commonwealth parliament and decrease the law making powers of the State parliament.

Open Ended

Summarise in one paragraph the Brislan case.

(hint: refer to summary page in your google classroom)

Interpretation of the External affairs powers

Key words

International treaty - a legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws (also know as international convention)eg. World Cultural and Natural Heritage/Convention on the Rights of the Child

International declaration - a non-binding agreement between countries that sets out aspiration (hopes) of the parties to the agreement. eg Universal Declaration of Human Rights

Open Ended

Explain the difference between an international treaty and an international declaration (3 marks)

Multiple Choice

What section of the constitution covers external affairs

• section 51 (xxvi)

• section 51 (xvix)

• Section 51 (xv)

• Section 51 (xxix)

External Affairs

Under section 51(xxix) of the Australian Constitution, the Commonwealth Parliament has the power to create laws in relation to 'external affairs'. This means that the Commonwealth parliament can create laws that reflect international agreements that Australia has entered.

Multiple Choice

The Tasmanian Dam case is an example of a Australia's obligations to support an international declaration

• True

• False

How was external affairs used in Tasmanian Dam case

The High Court interpretation of S51(xxix). External Affairs meant that the Commonwealth Parliament is able to legislate in areas that were previously residual law-making powers, provided the external affairs agreement is legitimate and is an international treaty. The Commonwealth parliament did this by placing the dam under the world heritage list. Then the Commonwealth parliament created the World Heritage Properties Conservation Act 1983 which prohibited the Tasmanian government from building a dam. As a result this law was inconsistent with the Gordon River Hydro-Electric Power Development Act and it was up to the High Court to use S109 to determine if the Commonwealth law fell in the jurisdiction of external affairs.

Task: Read chapter 12.5 (new book)

Answer questions 1,2,3