I wrote way too much for this four mark question: Use one example to explain and illustrate how the law-making powers of the commonwealth parliament and the state parliaments have been changed by high court interpretation of the commonwealth constitution (4 marks) {2005}
Answer: Sections 73, 75 and 76 of the constitution set-out the high court’s ability to settle disputes over conflictions between commonwealth and state law and disputes involving the meaning of words and phrases in the constitution.
The high court has the power to change the constitution by interpreting words and phrases to apply the original intentions of the constitution’s authors to the case at hand. This keeps the constitution relevant and up-to-date, without changing the words themselves but by giving meaning to them.
An interpretation which established new areas of law under the commonwealth parliament would change the balance of law making powers in favour of the commonwealth, with interpretations which restrict the commonwealth’s law-making power changing the balance in favour of the states.
An example is the Franklin Dam Case, in which the state of Tasmania argued that the commonwealth’s laws which prevented construction at the Franklin River to uphold the UNESCO convention (an international treaty) was beyond their law-making power. The High Court interpreted the external affairs power (S51xxix) of the constitution and decided the commonwealth was able to make laws on otherwise residual matters in order to uphold international treaties. This largely increased the commonwealth’s power over the states, with the external affairs interpretation being used many times since when the commonwealth passes law on fundamentally residual matters.
What can I do to reduce this?
I love the final paragraph. You don't actually need the first three, though! The question asks for the example as the focus, not the method itself, and that example's great.
I would cut the first three paragraphs, perhaps putting "Using their power under s76" down before "The High Court interpreted...", and then incorporating some of paragraph three into a final sentence elaborating on the impact right at the end. You've said the impact in terms of the Cwlth gaining power, but not really explained the corresponding decrease for the states.
Note: Saying 'an interpretation that gives a broader interpretation to existing specific powers', thereby encompassing more areas within the power (eg radio and TV within "like services" to telegraphs and telephones), would be slightly more correct than saying the interpretation establishes *new* areas.