High Court cases affecting the division of law-making powers

When interpreting the Constitution, the High Court has had a major impact on two major areas of law-making:

External Affairs

Under section 51(xxix) of the Constitution, the Commonwealth has the power to enter into treaties and international agreements with other nation-states, and therefore to make laws relating to these treaties. When the Commonwealth signs a treaty, it does not automatically create domestic law. To put a treaty in effect, the Commonwealth has to pass legislation. These treaties deal with issues such as human rights and the environment. However, controversy surrounds the fact that some international treaties deal with issues that, constitutionally, have been residual law-making areas. The following cases address this issue:

Koowarta v Bjelke-Petersen (1988) 92 FLR 104

This case related to John Koowarta, an Aboriginal Australian man, and his attempt to purchase the Archer River cattle station, which covered much of the Wik nation’s traditional land. The Queensland Government, headed by Joh Bjelke-Petersen, blocked the sale on the grounds that Aboriginal people should not be allowed to buy large areas of land. Koowarta argued that the Queensland Government could not do this under the Racial Discrimination Act, a Commonwealth Act which ratified an international treaty. In response, Queensland took the Australian Government to the High Court, arguing that it did not have the power to pass the Racial Discrimination Act.

The High Court ruled that the Act was valid as it was made to fulfill the terms of an international treaty. It showed that “external affairs” power extended to treaties which did not directly relate to other countries.

Commonwealth v Tasmania (1983) 158 CLR 1 (“Tasmanian Dam Case” or “Franklin Dam Case”)

The Commonwealth had signed a United Nations treaty putting the Franklin River and its surroundings (in Tasmania) on the World Heritage List. The Hawke Government ratified this treaty by passing the World Heritage Properties Conservation Act (1983), which provided formal protection of this area.1 However, the Tasmanian Government wanted to build a dam in the area, which was prohibited by the World Heritage List.2 Consequently, the Tasmanian Government brought action against the Commonwealth in the High Court. They believed that the Commonwealth had acted ultra vires (beyond its power) by legislating on the environment, which was a residual area of power.

Therefore, the issue at hand was whether the Commonwealth’s power over external affairs under the Constitution allowed it to pass legislation which overrode the states’ residual power.

The High Court decided that the “external affairs” power (an exclusive power) allowed the Commonwealth to legislate in any area of a treaty that Australia was a signatory to. It could encroach on residual power. As such, the Commonwealth’s power was formally expanded at the expense of the states.

Financial Relationships

Some High Court decisions have led to the Commonwealth having a distinct financial advantage over the states.

Victoria v Commonwealth (1926) 38 CLP 399 (“Roads Case”)

This case involved the Commonwealth’s power to make “conditional grants” of financial assistance to the states, as outlined in section 96. This section gives the Commonwealth the power to make grants “on such terms and conditions as it sees fit”.3 The High Court ruled that the Commonwealth can dictate how the grant money was to be spent, even if the particular area was not part of a particular Commonwealth responsibility. If a state refuses to accept these conditions, it will not receive the grant.4

This clarified that the Commonwealth’s power relating to financial matters is extensive, and has the potential to diminish the states’ law-making power.

South Australia v Commonwealth (1942) 65 CLR 373 (“First Uniform Taxation Case”)

Commonwealth legislation stated that states would only receive financial grants if they did not impose their own income tax. The states that still imposed income tax on their citizens would be reimbursed. The states questioned the Commonwealth’s power to do this.

However, the High Court ruled that the Commonwealth legislation was valid. This reduced state power and increased those of the Commonwealth.


Brislan’s case (1935)

In the 1930s, Australians had to pay a license fee to own and listen to a radio. Brislan faced criminal charges because she didn’t have a wireless radio license. Instead of paying the fine, she challenged the Commonwealth’s ability to impose the tax in the High Court.

Section 51(5) of the Constitution gives the Commonwealth the power to make law relating to “postal, telegraphic and other like services”. The issue at hand was whether a wireless radio was a “like service” – was it similar enough to the post and to telegraphs that it could fit within that section?

The High Court decided that a wireless radio was a “like service” because, like the post and telegraphs, the radio was a form of communication.

This interpretation of the Constitution by the High Court means that the Commonwealth automatically has law-making power over any new technology that serves as a form of communication – for example, televisions, the internet. The High Court greatly expended the Commonwealth’s power here at the states’ expense.


See also:

Constitution of Australia

Division of Law-Making Powers

High Court 

High Court interpretation of the Constitution 

  1. World Heritage Properties Conservation Act 1983 (Clth), http://www.austlii.edu.au/au/legis/cth/num_act/whpca1983427/  

  2. World Heritage List, “Tasmanian Wilderness”, http://whc.unesco.org/en/list/181  

  3. Commonwealth of Australia Constitution Act 1900 (UK), http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/  

  4. Parliament of Australia, “Australia’s Constitutional Milestones”, http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/online/Milestones