the role of the High Court in interpreting the Constitution, protecting rights and checking the division of powers

What this dot point is asking

VCAA wants you to explain what the High Court does in relation to the Constitution: how it interprets the words, how it protects rights, and how its interpretation shifts the balance of the division of powers between the Commonwealth and the states. Expect a 5-8 mark medium or extended response, usually requiring named cases.

The answer

The High Court as guardian of the Constitution

The High Court of Australia is established by s 71 of the Constitution. It is the final court of appeal for all Australian courts and the ultimate interpreter of the Constitution. It is often called the guardian of the Constitution because it has the authority to decide what the words of the Constitution mean and to declare a law invalid if it is beyond the power granted by the Constitution (ultra vires).

The High Court does not make the law of the Constitution or change its words. Only a referendum under s 128 can change the text. The High Court interprets the existing words.

Two limits on the role

• The Court can only act when a case is brought before it. It does not give advisory opinions or review laws on its own initiative. A party with standing must bring a genuine dispute.
• The Court is bound by the words. It interprets the Constitution; it cannot rewrite it. Where it considers the words inadequate, change must come through a referendum.

How interpretation affects the division of powers

The Constitution divides legislative power: the states have plenary (broad, general) power, while the Commonwealth has specific enumerated powers, mainly under s 51. Many s 51 powers are concurrent. How the High Court reads those powers determines the balance between the Commonwealth and the states.

• Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (the Engineers Case). The High Court rejected the doctrine of reserved state powers and held that Commonwealth heads of power should be read according to their natural meaning. This opened the way to a broad reading of Commonwealth power.
• Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case). The Court read the external affairs power (s 51(xxix)) broadly, allowing the Commonwealth to legislate to implement an international treaty (the World Heritage Convention) even on a subject otherwise within state control. This significantly expanded Commonwealth power.
• New South Wales v Commonwealth (2006) 229 CLR 1 (the WorkChoices case). The Court read the corporations power (s 51(xx)) broadly to uphold a national industrial relations system, further expanding Commonwealth power at the expense of the states.

The cumulative effect of these interpretations has been a steady expansion of Commonwealth legislative power relative to the states, even though the words of the Constitution have not changed.

How the High Court protects rights

The High Court protects rights in two ways:

• Interpreting express rights. For example, in Roach v Electoral Commissioner (2007) 233 CLR 162 the Court held that a blanket ban on all prisoners voting was invalid because the requirement in ss 7 and 24 that members be "directly chosen by the people" protects the franchise. (See also the express rights dot point.)
• Recognising implied rights and freedoms. The Court has found an implied freedom of political communication derived from ss 7 and 24 (Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520). This is a limitation on legislative power, not a personal right.

The High Court also enforces the separation of powers (the separation of legislative, executive and judicial power under Chapters I, II and III of the Constitution), which protects rights by ensuring that only courts exercise judicial power. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 (the Boilermakers' case) established that Commonwealth judicial power can only be vested in Chapter III courts.

Strengths and limitations of the High Court's role

Strengths.

• Provides an independent, expert and final interpretation of the Constitution.
• Acts as a check on both Commonwealth and state parliaments, declaring invalid laws made beyond power.
• Can recognise implied protections (such as the implied freedom) that the text does not state expressly.

Limitations.

• Can only act when a case is brought; it cannot initiate review.
• Bound by the words of the Constitution; cannot create new express rights.
• Judges are appointed, not elected, so there are concerns about democratic legitimacy when the Court strikes down laws made by elected parliaments.

Examples in context

Example 1. Expanding Commonwealth power without changing the words. In the Tasmanian Dam case (1983) the High Court upheld Commonwealth legislation stopping a dam on the basis of the external affairs power, because the law implemented an international treaty. The words of s 51(xxix) had not changed, yet the Court's broad reading let the Commonwealth legislate on a matter previously regarded as a state concern. This shows how interpretation, not textual change, shifts the division of powers.

Example 2. Protecting the right to vote. In Roach v Electoral Commissioner (2007) the High Court struck down a law disqualifying all prisoners from voting, holding that the constitutional requirement that members be "directly chosen by the people" protects the franchise from arbitrary removal. This shows the Court protecting a right by interpreting the existing constitutional text.

Try this

Q1. State the section of the Constitution that establishes the High Court and explain why it is called the guardian of the Constitution. [3 marks]

• Cue. Section 71. It is the guardian because it has the final authority to interpret the Constitution and to declare laws invalid where they exceed the power granted by the Constitution.

Q2. Explain how the High Court's interpretation of s 51 powers has affected the division of powers. [4 marks]

• Cue. Broad readings of heads of power (the Engineers Case, the external affairs power in the Tasmanian Dam case, the corporations power in WorkChoices) have expanded Commonwealth power relative to the states without any change to the words.

Q3. Discuss one strength and one limitation of relying on the High Court to protect rights. [4 marks]

• Cue. Strength: independent and expert, can recognise implied protections such as the implied freedom of political communication. Limitation: can only act when a case is brought and is bound by the words, so cannot create new express rights.