Chapter 10.7 Flashcards
The high court and the division of law making powers
The high courts jurisdiction
The High Court has jurisdiction under section 75 of the Australian Constitution to hear and determine
cases involving disputes:
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party
- between states, or between residents of different states, or between a state and a resident of
another state.
purpose of section 75 of the aus constitution
The purpose of Section 75 of the Australian Constitution is to establish the original jurisdiction of the High Court of Australia. This means it defines specific types of cases that the High Court has the authority to hear directly, without the need for those cases to be first heard by lower courts.
The brislan case
Section 51(v) of the Australian Constitution: Grants the Commonwealth power to legislate on postal, telegraphic, telephonic, and other similar services.
Wireless Telegraphy Act 1905 (Cth): Required all owners of wireless sets (radios) to hold a license.
Case Details: Defendant Dulcie Williams was convicted and fined for owning a wireless set without a license.
Defendant’s Challenge: Argued the Wireless Telegraphy Act was invalid because the Constitution did not grant the Commonwealth power to legislate on radio broadcasting.
Main Argument: Broadcasting to a wireless set was not considered a “service” under Section 51(v) of the Constitution.
Implications: If the Act was found invalid, the Commonwealth would be acting beyond its law-making powers, leaving it to the states to legislate in this area.
decision of the high court on the brislan case
High Court’s Majority Decision: Broadcasting to a wireless set was deemed a form of telephonic service and fell within the scope of section 51(v) of the
Australian Constitution.
Impact of Judgment: Extended the Commonwealth Parliament’s power to include broadcasting to a wireless set as an additional form of communication service.
Justice Dixon’s Dissent: Argued that section 51(v) did not extend to radio broadcasting as it did not involve intercommunication like other services in section 51(v).
Chief Justice Latham’s Judgment: Considered broadcasting to a wireless set as a communication service similar to postal, telegraphic, and telephonic services, thus a “like service” under section 51(v). Suggested that new forms of communication could also fall under this section.
Justices Rich and Evatt’s Perspective: Emphasized a wide operation should be given to section 51(v) to cover unknown and unforeseen developments, particularly referencing electrical means of signal and speech transmission.
the significance of the brislan case
Shift in Law-Making Powers: The High Court’s interpretation of section 51(v) shifted law-making powers from the states to the Commonwealth regarding broadcasting to wireless sets.
Commonwealth Authority: The Commonwealth Parliament gained the power to legislate on broadcasting to wireless sets. If there is a conflict between state and Commonwealth law, the Commonwealth law prevails under section 109 of the Australian Constitution.
Concurrent Power: Broadcasting became an area of concurrent power, reducing the states’ exclusive power.
Jones v Commonwealth (No 2) (1965): The High Court held that the Commonwealth also had the power to legislate on television broadcasts, which, like wireless sets, were considered within the scope of section 51(v).
Future Implications: The interpretation of section 51(v) may extend to future types of communications and technological advances, including the internet.
Interactive Gambling Act 2001 (Cth): Regulates online gambling activities and likely relies on section 51(v) for its authority.
Potential Regulation of Internet: The Commonwealth may have the power to regulate various internet activities, though the High Court has not yet decided on more recent technological advancements.
Need for Legal Clarification: Rapid technological changes may necessitate High Court cases to clarify the Commonwealth’s authority over new technologies.
summary of the brislan case
- The key issue was the High Court’s interpretation of section 51(v), which gives power to the
Commonwealth to legislate on ‘postal, telegraphic, telephonic and other like services’. - In this case, Williams was charged with owning a wireless set without holding a
licence, an offence under Commonwealth law. She argued section 51(v) did not give the
Commonwealth the power to make laws in relation to radio broadcasting. - The majority of the High Court held that broadcasting to a wireless set was a form of
telephonic service, and therefore fell within the scope of section 51(v). This therefore
broadened the Commonwealth’s power at the expense of the states. - Chief Justice Latham also noted it could fall within the scope of ‘other like services’, and
that each of the services in section 51(v) is a communication service. He noted that if a new
form of communication should be discovered, it too might be the subject of legislation as a
‘like service’. - New technology or forms of communication could be captured by section 51(v). Since
the Brislan case, the High Court has extended the interpretation of section 51(v) to
television broadcasting. - The Brislan case, although itself limited, could have significance for future types of
communications and technological advances. For example, the internet and activities that
occur using the internet could fall under section 51(v). - Given the rapid development of communications technology, this power could potentially be
a significant one within which the Commonwealth could make laws.
the impact of the decision on law making powers
- By this decision being made it broadened the interpretation of section 51v allowing the commonwealth to regulate new forms of communication and technology to this law. (positive)
- It reduced state powers: because the commonwealth had the authority to regulate wireless sets, the decision effectively reduced the states ability to legislate
- Became a precedent for future cases
