12.4 The High Court and The Division of Law-Making Powers

Question 1

What relevance does the Brislan Case have?

Answer 1

Had a shift on the division of law-making power in favour of the Cth

Question 2

What sections relate to the R v Brislan?

Answer 2

Section 51 as the Cth has power to legislation over ‘postal, telegraphic, telephonic and “other like services”

Section 109, to the extent of any inconsistency the Cth legislation will prevail

Question 3

What are the facts of the R v Brislan?

Answer 3

Mrs Brislan was charged under the Wireless Telegraphy Act1905 with having a wireless set without holding a licence for it as required under the Commonwealth legislation.

Brislan, referring to section 51 of the Constitution challenged the Act’s validity

Question 4

What was the issue in the R v Brislan?

Answer 4

Whether the Australian Constitution specifically gave the Cth power to legislation with regard to wireless sets.

More specifically, whether Section 51(v) which gave the Cth power to legislation over ‘postal, telegraphic, telephonic and other like services’ included ‘wireless sets’

Question 5

What was held in R v Brislan?

Answer 5

In favour of the Cth, interpreted the phrase ‘other like services’ broadly to include broadcasting to wireless sets. Because wireless sets fulfilled the same communicative purpose as other devices listed in s51(v).

Therefore, the HC found that the Cth was legislating within its power when passing the Wireless Telegraphy Act.

Question 6

What was the significance of R v Brislan?

Answer 6

• resulted in the shift in the division of law-making powers from the state to the Commonwealth (as it extended the meaning of “other like services”
• set a precedent for “other like services” to apply to new technologies as they advanced