ATAR Notes: Forum
VCE Stuff => VCE Business Studies => VCE Subjects + Help => VCE Legal Studies => Topic started by: costargh on November 11, 2007, 08:44:14 pm
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Hey
I was wondering if anyone knew a High Court case where the Constitution was interpreted and the result was a greater level of power for the states?
I only know examples for when the Commonwealth gained more law making powers through the interpretation of the Constitution.
Oh and btw while studying tonight I realised that I was calling express (also known as entrenched rights) , express (also known as ENUMERATED rights). Stupid teacher didnt even pick it up in my trial exams that she corrected. GRRR
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hrm that is a tough one
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State Banking Case (1947)
edit: although I don't think the states gained more power, it was just that the clth upheld the rights of the states to be free of political interference by the clth
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The Constitution predicates the separate organisation of the Commonwealth and State governments, ?their continued existence as independent entities?,[16] and that Commonwealth legislation cannot impose a ?special burden? on a State which would have the effect of curtailing the State?s capacity to carry out essential governmental functions.[17]
[16] Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82 per Dixon J. See, also, Victoria v Commonwealth (1971) 122 CLR 353, per Barwick CJ at 372, per Gibbs J at 424; Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, per Gibbs CJ at 206, per Mason J at 217, per Deane J at 247.
[17] Austin v Commonwealth (2003) 215 CLR 185.
Extracted from my Workchoices paper.
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"The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities.": Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82 per Dixon J
In the joint judgment of six members of the Court in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, after discussing the judgment of Dixon J in Melbourne Corporation, their Honours said (at 227): "Although the comments of Dixon J were couched principally in terms of discrimination against States and the imposition of a particular disability or burden upon an operation or activity of a State or the execution of its constitutional powers, his Honour clearly had in mind, as did Latham CJ, Rich and Starke JJ, that the legislative powers of the Commonwealth cannot be exercised to destroy or curtail the existence of the States or their continuing to function as such[1]."
"The question presented by the doctrine in any given case requires assessment of the impact of particular laws by such criteria as "special burden" and "curtailment" of "capacity" of the States "to function as governments". These criteria are to be applied by consideration not only of the form but also "the substance and actual operation"[2] of the federal law": Austin v Commonwealth 215 CLR 185 per Gaudron, Gummow and Hayne JJ.
[1] Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 56, 60 per Latham CJ, 66 per Rich J, 74 per Starke J, 82 per Dixon J; see also Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 337-338 per Dixon J.
[2] Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 240; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 249-250; Victoria v The Commonwealth (1996) 187 CLR 416 at 500.
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Just use one that gives more powers to the Commonwealth, the exam is certainly not going to ask you to give an example that gives powers to the states, so why bother?
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The good old R v. Brislan (1935) case.