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The Constitution and the High Court

Closer Look – The Australian Constitution [PDF 1.39Mb, 9 pages]

The Australian Constitution does not include a Bill of Rights. However, some human rights are mentioned, including the right to compensation if the government acquires your property (s 51(xxxi)), guaranteed trial by jury for federal offences (s 80) and freedom of religion (s 116).

People are allowed to test the meaning and application of the Australian Constitution. It is the principal function of the High Court of Australia to interpret the Constitution and to settle disputes about its meaning. The High Court, established in 1903, has the power to consider Commonwealth or state legislation and determine whether such legislation is within the powers granted in the Constitution to the relevant tier of government. The High Court can invalidate any legislation or parts of legislation that it finds to be unconstitutional.

Sometimes the High Court is asked to decide whether it is the Commonwealth Government or a state government which has the authority and responsibility to deal with a matter. At other times, because the Constitution provides specific limits to what the Commonwealth Government is empowered to do, the High Court may be asked to decide whether a law made by the Commonwealth Government is within that power.

Evolving interpretations of the Constitution by the High Court have resulted in stronger law-making powers for the Commonwealth, without any changes to the words of the Constitution. Important court cases have included the Engineers Case (The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129), the Tasmanian Dam Case (Commonwealth v Tasmania (1983) 158 CLR1) and Work Choices Case (New South Wales v Commonwealth (2006) 231 ALR 1).

Work Choices Case

The 'Work Choices' legislation, which came into effect in March 2006, made substantial changes to the regulation of employment conditions and industrial relations. The legislation used the 'corporations power' granted by s 51(xx) of the Constitution, rather than the conciliation and arbitration power in s 51(xxxv) that has historically been the foundation of Australia's industrial legislation, to make the changes.

The Commonwealth's use of the corporations power was challenged by the states and territories in the High Court, along with other aspects of the Work Choices reforms. However, the challenge was rejected by a majority of the Court and the legislation was upheld.