Interpret the Constitution
Discover how the High Court of Australia rules on constitutional disputes by role-playing the hypothetical case of Lee v Electoral Commissioner.
Before you begin
- Use the Australian Constitution infocus paper to review the purpose and structure of the Australian Constitution, and the role of the High Court of Australia in interpreting the Constitution.
- Use the Law at a glance worksheet to familiarise students with High Court cases related to voting in federal elections.
- Print copies of the High Court script for your students.
Key terms to know
Applicant – a person who makes an application to the court. Our applicant is Alex Lee.
Respondent – a person against whom an application is made. Our respondent is the Australian Electoral Commissioner.
When reading the name of a civil or constitutional court case aloud, the ‘v’ is pronounced ‘and’. For criminal cases the ‘v’ is pronounced ‘against’.
- Set the scene for students with the following hypothetical scenario: South Australia has lowered the voting age for state and local elections to 16. Alex Lee, a 16-year-old from Adelaide, attempted to vote in the most recent federal election. Although enrolled to vote, Alex was not allowed to vote on polling day for the federal election. Alex has decided to challenge the Australian Electoral Commissioner in the High Court and argue that they should have been allowed to vote. Alex argues section 41 of the Australian Constitution—which states that any adult person who has the right to vote in state elections cannot be prevented from voting federally—gives them the right to vote in federal elections.
- Organise the class into groups using the Group organisation table. There are 7 High Court justices and constitutional cases are heard by all the justices. However, this activity will work best if everyone in the class has a role.
- Ask each legal team to select their lead counsel and the justices to choose a Chief Justice. These people have speaking roles in the hearing.
- Give all students time to research and prepare. The Law at a glance worksheet is a great place to start. Students should consider the meaning of section 41 of the Constitution and how it applies to this case. Is Alex Lee an ‘adult person’ according to the Australian Constitution? And if Alex Lee is an adult, does section 41 guarantee their right to vote federally?
- Justices should familiarise themselves with the case law and prepare a list of questions to ask the legal teams.
- Legal teams should prepare their argument to present to the court. They will also need to provide a written summary of their key arguments to the justices prior to the hearing. The table on the Law at a glance worksheet can be used to summarise the key points.
- Conduct the hearing according to the High Court script.
- Give the justices time to prepare their judgements. They can discuss their ideas with each other and can present their judgements individually or in groups.
- Justices then explain to the court who they find in favour of and why. The party that has the support of the majority of the justices wins the case.
- High Court of Australia judges prepare highly detailed explanations justifying who they have decided to rule in favour of. These written judgements – including dissenting judgements – are available to read online. What is the value in keeping written records of judgements and making them publicly accessible?
- Sometimes, the Australian Parliament will make a new law in response to a High Court judgement. For example, the Australian Parliament passed legislation to create a process for recognising Native Title after the Mabo judgement. Do you think the Australian Parliament should take action in response to today’s judgement? Why/why not?
- ‘Judicial activism’ is used to describe judgements that appear to be influenced by personal opinion on public policy, rather than a strict interpretation of existing law. Some experts see judicial activism as a threat to the separation of powers in Australia; others believe this approach helps ensure the law is interpreted in light of current societal expectations.
- Do you think any of the judges in today’s case practiced judicial activism? In other words, did it appear that their opinion on what the voting age should be in Australia influenced their interpretation of the Constitution? Do you think they should have allowed these opinions to influence their decision?