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Legal Outcome


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One High Court case that interp reted the Constitution in a way that impacted the law-making powers of the State and Commonwealth Part A 1. The article, feather’s fly over wind farm ban, is based on 52 wind turbines in the Gippsland area being banned due to the chance they may have an affect on a rare parrot species survival hopes. 2. This case is a sate area of law making it a residual power, as it lies in section 107 which says, any power not mentioned in the Constitution is automatically considered to be law-making areas of the state which relates to this issue. 3. The commonwealth may be able to stop the construction of the wind turbines as they have signed a treaty under the environment protection and biodiversity conservation act, which enables them to do so.

4. Senator Campbell stated he had decided to use the environment protection and biodiversity conservation act to block the wind farm because of the small possibility that it could cause up to one bird death per year and at this stage everything should be done to protect every bird.

5. Personally I think state parliament would win if this were taken to state parliament due to the simple fact that it is a residual area of law in which the commonwealth has no power over. But I do believe all precautions should be taken and that a ban should be placed.

6. In any case of conflict regarding state and commonwealth parliament on the basis of cyber bullying, stalking, and online gambling being things not mentioned in the constitution, the commonwealth parliament will always override the state law regarding this area.
Part B 1. The commonwealth cannot simply take this area of law making from the state as they have been stated in the constitution as powers of the state. 2. Tie grants or a referral of power must take place in the case that commonwealth parliament are able influence residual powers. 3. A: A referendum is a nation wide yes/no vote asking the people if they want to change the words of the constitution.
B: In order for it to be successful a double majority must occur which would be that 4 out of 6 states have the majority voting for the change due to this strict formula for change only 8 out of 44 referendums have been successful having a 18% success rate. Exam 2007- QUESTION 8
One High Court case that involved interpreting the Constitution in a way that impacted the law-making powers of the State and Commonwealth Parliaments is the Tasmanian Dam case. This case resulted in the Commonwealth now having the authority, through its external affair power to, to create broad-ranging legislation that has made invalid many pieces of state legislation that were inconsistent

Exam 2008- question 11
Changing the division of law-making powers between the Commonwealth and the States is difficult in some cases and sometimes can take a long period of time. There are 3 ways that the division of powers can be changed; referenda, high court decisions and referrals of power.

The division of law-making power outlined in the Constitution can be changed through amending the wording of the Constitution according to S.128, which requires holding a referendum. For a referendum to be successful not only must it be passed by a majority in both houses, it must also obtain a double majority, which means that a majority of voters in a majority of States must vote ‘YES’ and a majority of voters in all of Australia must also vote ‘YES’. Only 8 of 44 referendum proposals have been successful and it is because of this strict formula and because of the complexity of the proposal itself which unless understood by the public doesn’t usually get voted on.

High court decisions also have a great impact on the division of law-making powers between the States and the Commonwealth and have been the most successful way that this has occurred. When the Commonwealth was drafted, the High Court was established as the arbiter of disputes involving law-making power and jurisdiction, this means that they provide checks and balances on regarding the use of the Commonwealths power and they interpret the Constitution. The High Court usually hears cases involving claims that the Commonwealth has interfered with the residual powers of the States, disagreements between two or more States over law-making powers and claims that the States have exceeded their authority by creating law on a matter reserved exclusively for the Commonwealth. t.

Referrals of law-making power are the third way that the division of law-making powers can be changed between the Commonwealth and the States. An individual State can refer some of their law-making powers to the Commonwealth, not all States need to agree on a referral. This occurs under S.51 (xxxvii) of the Constitution and the Commonwealth is able to legislate on matters that have been referred to the Commonwealth by any State. The process is very simple, the states pass an Act giving the Commonwealth the law-making power and the Commonwealth passes an Act accepting the power that has been referred. The States have shown a willingness to refer some key areas of law-making power to the Commonwealth because they believe that the Commonwealth would do a better job, such as De facto relationships and Terrorism.

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