need assessor :P to assess this question in an assessive way :S.

[hard]

can someone check this answer out? This is worth 6 marks, although i wanted to write more, the prac exam doesn't have enough lines. Anyway this took me roughly 3 mins. Although i thought this question should have been worth only 4 marks or so. Anyway according to the (leading edge) answers, i obtained full marks but i want to know a real persons opinion. thanx

Q: explain how the legislative powers of the commonwealth parliament can be altered by HC interpretation of the constitution.
Using an example, comment on the impact of this process in changing the balance of power between the commonwealth and states.

A: According to s76 of the constitution, the High court has the power to resolve disputes between commonwealth and state parliaments arising under dispute of the constitution and international treaties. Essentially, the High court can interpret the constitution to alter the balance of power between state and commonwealth parliaments without actually changing the wording of the constitution which can only occur with the successful completion of s128. However under s109 of the constitution, when commonwealth parliament is in dispute with the states under legislative jurisdiction, commonwealth parliament will prevail the the extent of the inconsistencies.

This could be seen in the Franklin Dams case (1983) when Tasmania wanted to build a dam in Franklin river, which is a national heritage site. Federal parliament challenged Tasmania stating that according to s51(xxix) of the constitution, it was within their(federal parliaments) power to make sure international agreements are met to avoid embarrassment a nation, thus this was a national issue. The high court concurred with what federal parliament had said and that it was within the interest of Australia and not only Tasmania to safeguard a national heritage site .

This allowed federal parliament to act i nan area(environmental issues) which was previously held by the states and ultimately increasing Federal parliaments legislative jurisdiction.

[vce08]

For Franklin Dams I would mention "external affairs"

[xox.happy1.xox]

Also, something about 'residual powers' and how this had in turn converted into 'concurrent powers', as the Commonwealth Parliament had interfered with powers, which were supposedly exclusively available to Tasmania.

Maybe, also talk about the fact that High Court interpretation has acts of 'ultra vires', and mention what section 128 is (referendum). Also, mention what section 109 states (that 'peace, law, and good government' should be prevalent throughout the states and territories in Australia).

If you wanted to mention another case, try the Brislan's case (1935), where the words 'postal, telegraphic and other like services' were interpreted to include radios, and later, televisions, after Ms Brislan was supposedly committing an illegal act after having possession of a radio, without a license.

But well done! I would love to be able to write like this under exam pressure.

[hard]

thanx for the feedback

[vce08]

Also finish with a statement like "This High Court interpretation effectively increased the powers of the Commonwealth, hence shifting the balance of power towards the Commonwealth and away from the states".
Its always good to fully address the question

[Athomas]

Also finish with a statement like "This High Court interpretation effectively increased the powers of the Commonwealth, hence shifting the balance of power towards the Commonwealth and away from the states".
Its always good to fully address the question

Agree 100%. Always finish off summing up the answer to the question.

[sick muzza]

id also mention the fact that they ruled that the Commonwealth Parliament may legislate in an area of residual power, if it is to satisfy an international treaty, rather than just 'environmental.' maybe even mention Koowarta v Bjelke Peterson that acted as persuasive precedent

[xox.happy1.xox]

id also mention the fact that they ruled that the Commonwealth Parliament may legislate in an area of residual power, if it is to satisfy an international treaty, rather than just 'environmental.' maybe even mention Koowarta v Bjelke Peterson that acted as persuasive precedent

Yay! That's like, my favourite case ever! Totally going to mention that under 'implied rights', if it appears on the exam. Here's hoping...

[vce08]

I'm pretty sure thats NOT the implied rights decision, as there is only one implied right which was found by the High Court in the Australian Capital Television case (1992) regarding "right to freedom of political communication".

[xox.happy1.xox]

I'm pretty sure thats NOT the implied rights decision, as there is only one implied right which was found by the High Court in the Australian Capital Television case (1992) regarding "right to freedom of political communication".

Isn't the 'Theophanous Case (1993)' also under implied rights? It is easier to understand than the 'Television' case, and is more interesting in my opinion.

[vce08]

Yeah that's another one, except the Australian Capital Television case was the first one to recognize that implied right.

[hard]

I'm pretty sure thats NOT the implied rights decision, as there is only one implied right which was found by the High Court in the Australian Capital Television case (1992) regarding "right to freedom of political communication".

Isn't the 'Theophanous Case (1993)' also under implied rights? It is easier to understand than the 'Television' case, and is more interesting in my opinion.

it's theophanous case 1994 lol.

And there are like 4 cases relating to the implied right of freedom of political communication.