3.2.6 Significance of High Court cases Flashcards
Case 1:
Tasmanian Dams Case (1983)
Tasmanian Government:
Brought the Commonwealth to court for passing legislation that prohibited Tasmania from constructing a dam in the Franklin River, a World Heritage site. Tasmania claimed the dam was being built for electrical/power purposes, a Residual power.
Commonwealth claimed the legislation was valid (Tas Dams):
Under their ‘external affairs’ in S.51 (xxix) power, as it enacted Australia’s obligations under an international treaty.
High Court decision
(Tas Dams):
Found that the Commonwealth legislation was valid.
High Court decision 2 (Tas Dams):
Australia’s relations with other countries under an international treaty was an ‘external affairs’ power, and thus a Specific power.
Impact on the Division of Powers (Tas Dams):
Increased Commonwealth power.
Decreased State power.
Case 2:
Brislan’s Case (1935)
Brislan Case Act:
Federal Parliament’s Wireless Telegraphy Act 1905
Brislan’s issues:
Challenged the validy of the Wireless Telegraphy Act 1905 (Commonwealth) after receiving a fine for owning a wireless set without a license.
Brislans issues (2) :
Argued that law-making power on wireless sets was a Residual power, as the word ‘wireless’ was not in the Constitution.
High Court decision:
High Court interpreted S.51 (v) which gave the Commonwealth power to make laws with respect to ‘postal, telegraphic, telephonic and other like services’ and ruled in favour of the Commonwealth, as wireless radios had a function consistent with postal, telegraphic and telephonic services, and was thus a ‘like service’.
Impact on the Division of powers (Brislan):
Increase in Commonwealth power, now a concurrent power
Case 3:
The Croome v Tasmania Case
Under the Tasmanian Criminal Code:
During the 1990’s, homosexual activity was illegal. Commonwealth passed Human Rights (Sexual Conduct) Act 1994. Tasmania maintained Commonwealth did not have the authority to pass such an Act because it was a Residual Power.
High Court decision:
High Court interpreted the words ‘external affairs’ of S.51 (xxix) to include any matter covered by an international treaty, i.e Article 17 of the International Covenant of Civil and Political Rights.
