Ch. 3 - Franklin Dam Case, and Brislan Case

Question 1

What are the facts of the Brislan case? (2)

Answer 1

• brislan was charged under a Commonwealth Act with having a wireless without holding a license for it, as was required by the Act
• She challanged validity of Act, claiming the constitution did not give the CP power to make laws about wirelesses

Question 2

What section of the constitution had to be interpreted in the Brislan case?

Answer 2

section 51(v) of the constitution: postal, telegraphic, telephonic and other like services

Question 3

what was the high court decision in the Brislan case?

Answer 3

‘other like services’ in section 51(v) included wireless, as they were a communication device like the other devices in the section. Therefore the Commonwealth Act was valid

Question 4

What was the impact of the Brislan case?

Answer 4

• extended meaning of S51, increasing the CP’s law making power to cover technology that didn’t exist at the time the constitution was written, and bringing the section up to date with current needs. Any state laws could not be inconsistent with Commonwealth laws, or s109 would apply.
• decreased the states law-making power

Question 5

What are the facts of the Tasmanian Dam Case? (4)

Answer 5

• Tas Parl intended to dam river to create source of hydroelectricity for the states power needs
• CP passed Commonwealth Act & the area to be dammed had been included in the World H listing to honour an international agreement
• Tas gov. argued that the CP had passed a law in an area of state responsibility
• C maintained it was obliged to protect the areas under its ‘external affairs power’

Question 6

What was the area of the constitution for the Dam case?

Answer 6

C argued it had power to intervene because S51(xxix) gave it power to make laws relating to external affairs and the proposed dam was an external affair because it was covered by a world H listing

Question 7

What was the HC decision in the Tas dam case?

Answer 7

HC held that the external affairs pwr enabled the CW parliament to legislate in areas of residual powers when enacting obligations under an international treaty

Question 8

What was the impact of the HC decision in the Tas dam case?

Answer 8

• The CP could legislate to prevent the building of the dam
• extended the pwrs of the CP into areas of treaties or other international obligations and move into an area which was previously considered a residual power (electricity) or concurrent (environment)