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Roach

Discuss the significance of one High Court case in its interpretation of s7 and
s24 of the Constitution.
One case which involved the interpretation of s7 and s24 the constitution is the
Roach Case. Vicky Lee Roach was an indigenous prisoner serving more than 3
years in prison for multiple offences. Roach challenged commonwealth
amendments to the “Electoral Act” which were made in 2004 and 2006. The
2004 legislation removed the right to vote for all convicted and sentenced
prisoners serving a sentence of 3 years or more. The 2006 legislation removed
the right to vote for all convicted and serving prisoners.
Roach challenged both of these pieces of legislation believing that they were
breaching sections 7 and 24 of the Constitution. Sections 7 and 24 stated that the
representatives of the Senate and House of Representatives are to be “directly
chosen by the people.” The High Court agreed that the 2006 legislation was
invalid because it undermined the principle of a representative government
therefore, declaring it ultra vires. However the High Court decided that the 2004
legislation was valid as a parliament has the ability to remove the right to vote
for serious misconduct.
This case was significant as it protected the right to a representative government
and also acted as a check on parliament, declaring the blanket removal of all
prisoners voting rights ultra vires. This therefore protects the integrity of the
constitution, particularly sections 7 and 24.
Franklin Dam
Referring to one case, discuss the impact of international declarations and
treaties on the interpretation of the external affairs power outlined on the
Australian Constitution.

One case which increased the law making power of the commonwealth due to
Australia becoming a signatory of an international treaty was the Franklin Dam
case. The commonwealth had entered into an environmental preservation treaty
that protected the Franklin River on the world heritage list. The Tasmanian
Government wanted to build a dam on the Franklin River but was prevented by
the commonwealth which passed the World Heritage Properties Conservation
Act 1983 using its external affairs power under s51 of the Constitution. The
Tasmanian Government challenged this law stating that the commonwealth had
acted outside of its law making power and interfered in the states residual
power.
The High Court the commonwealth law was valid as it interpreted the words
“external affairs” (a commonwealth power) broadly to include international
treaties. This means that the commonwealth has the ability to legislate in areas
of residual law making if it is legislating to fulfill a treaty obligation.
This is significant as it increased the commonwealth’s law making power as it
allowed the commonwealth to legislate in areas of residual law making if it were
fulfilling treaty obligations. Therefore this decreases state law making power as
the commonwealth can now overrule state legislation due to s109, which states
where this is a conflict between a state and commonwealth law, the
commonwealth law always prevails.
Brislan

Explain the significance of one High Court case that has had an impact on the
division of constitutional law making powers.

One High Court case that impacted on the division of law making powers was R v
Brislan. Brislan was the owner of a wireless set and when the Commonwealth
passed the Wireless Telegraphy Act 1905, owners of wirelesses were required to
own a license. This Act was passed under the commonwealth’s law making
power in section 51(v), which states the commonwealth can legislate in areas of
“postal, telegraphic and other like services.” Brislan believed that since there was
no mention of wirelesses in that section of the constitution that the
commonwealth had acted outside its jurisdiction and challenged the validity of
the law to the High Court. The High Court ruled that the term “like services”
included communication devices and included wireless sets. Therefore the
“Wireless Telegraphy Act 1905” was valid.

This decision is significant as it confirmed that commonwealth parliament could


legislate in areas of communication devices therefore increasing the
commonwealth’s law making power. As a result the states law making power
was also decreased due to s109, which states that when there is conflict between
a state and commonwealth law, the commonwealth always prevails.

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