Activity 8g

1. Arguments in support of the High Court interpretation of the division of powers include:

• Broad readings given by the High Court enable the Australian Constitution to endure over time and stay relevant to a changing society.
• Narrow readings of federal powers reassure the public that the members of the Court aren’t trying to change the meaning of the Constitution to suit their own political agenda.
• The High Court makes decisions on what the Constitution means – not what it should mean. Whether the outcome of the case expands a power or narrows it is therefore a byproduct of legal reasoning and not something the Court is trying to manipulate. This is a fair system, operating according to the separation of powers and the rule of law, and it protects us from biased judges trying to pursue their own ideology in their judgments.
• History has shown interpretation of the Constitution to be the easiest method to achieve change, and therefore it is the most powerful and effective. Other methods such as referenda have such a low success rate it hampers their ability to update and evolve the most important law in the country.

Arguments against the High Court interpretation of the division of powers include:

• A broad reading by the High Court is a progressive political act that ignores the intentions of the founders and upsets the federal balance.
• A narrow reading by the Court is a regressive political act that hides behind an argument about what the founders intended in order to achieve conservative goals and stop social change.
• The High Court makes decisions on what the Constitution means – not what it should mean. Decisions can therefore give a broad power to the Commonwealth and, over time, reduce the ability of the states to function; or, they can read the power narrowly and prevent the Commonwealth from enacting nationwide reform.
• The federal parliament can legislate outside its powers in many ways, and only those laws that are successfully challenged will be struck out. Other laws, that are perhaps not challenged because no-one realises there are grounds for a challenge or has the time and money to do so, will stay in operation.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the High Court’s interpretation of the division of constitutional law-making powers requires students to write about relevant strengths and weaknesses of the Court’s interpretation of the division of constitutional law-making powers. Responses will vary according to the arguments selected.

3. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that there is support for the High Court’s interpretation of the division of constitutional law-making powers. In this case, ‘evaluating’ the Court’s interpretation of the division of constitutional law-making powers requires students to write about relevant strengths and weaknesses.

This question asks for an evaluation by feature – this means that students should point out strengths and weaknesses by feature. One such feature isbroad readings.Broad readings given by the High Court enable the Australian Constitution to endure over time and stay relevant to a changing society. For example, when the Constitution was drafted, only the United Kingdom could enter into international agreements – the Australian federal government was not intended to have this power. The number and variety of international agreements that exist today had also not been foreseen. Decisions such as Burgess, Koowarta and Tasmanian Dams have empowered the Commonwealth to act for Australia on the international stage, forge diplomatic relations with other countries, and ensure that legislation implements promises we have made other countries. However, a broad reading by the Court changes the meaning of the Australian Constitution in a way that is undemocratic: the people have rejected changes at referendum that have subsequently been implemented through High Court interpretation, and the will of the elected parliament has been overridden. For example, in 1937 the people rejected a proposal to give the Commonwealth power over aircraft and intrastate aviation. In Airlines of NSW v NSW (1965) the Court held that intrastate aviation was connected to interstate trade and commerce enough to be included in the s51 commerce power.. Overall, while the High Court’s broad reading of the Constitution might be considered to be undemocratic, it does ensure that the Constitution endures over time and stays relevant to a changing society.