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High Court Interpretation

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The High Court has the power to interpret the meaning of the Constitution (S.75). A case involving the interpretation of the Constitution may arise in a conflict between a state and the C'th Parliament and a dispute between individuals or groups or an individual (or group) and the state or the federal government. Interpretation of 'external affairs' as used in S.51 (xxix) of the Constitution concerning the power to pass laws to implement international agreements and has extended the C'th Parliament's power to make laws on matters traditionally seen as the residual powers of the states.

This means any laws dealing with other countries and, with what is now, the United Nations. When Australia signs an international treaty, there may be laws that have to be made to fulfill the requirements of the treaty. The High Court has held to the principle that the C'th has the power to make laws to implement the treaty even if they may affect the authority of the states.

An example of this is the Koowarta Case 1982. The aboriginal land fund commission entered into a contract to buy a pastoral lease in Qld. The Qld minister for Lands refused to give his consent to the transfer of the lease because the Qld Gov. policy was opposed to the acquisition of large parts of the state by Indigenous Australians. Mr. Koowarta claimed that the Premier had breached S.9 and S.12 of the 'Racial Discrimination Act 1975' (C'th). The Qld Gov. responded by challenging the C'th Parliament's power to make a law about racial discrimination. The High Court decided that the C'th racial discrimination laws relate to external affairs.

Another example of this would be the 'Franklin Dam Dispute 1983'. Australia ratified the 'Conservation for the Protection of the World Cultural and National Heritage' in August 1974. The Tasmanian Gov. asked that an area of Tasmania be listed for protection. A subsequent Tas Gov. authorized the construction of a dam on the Franklin River within this area. In 1982 the area was accepted by the 'World Heritage List'. In 1983, the C'th passed the 'World Heritage Properties Conservation Act' and prohibited the Construction of a dam in the heritage area. The Tas Gov. questioned the ability of the C'th Parliament to make a law to stop construction activity in a world heritage area in Tasmania. The High Court decided the act was valid on a variety of constitutional grounds, one of which was the external affairs power. Once a bona fide treaty has been entered into, the C'th has the power to legislate to implement the treaty obligations, subject to implied and express constitutional prohibitations.



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