DP4 Brislan Case Flashcards
High court case which has impacted law-making powers
What is the context behind the Brislan Case?
In 1935, Brislan was fined for having a wireless set without a license, and thus took the case to the High Court.
What are the pieces of legislation?
The Wireless Telegraphy Act 1905 (Cth) and section 51(v) of the Australian Constitution.
What did the Wireless Telegraphy Act state?
That a person could not own a wireless set without a license.
Why was the case taken to the High Court?
Brislan argued that commonwealth parliament did not have the power to make laws in areas of wireless sets, and that it was not stated in s 51(v) that wireless sets could be legislated on.
The Commonwealth argued that whilst s 51(v) did not explicitly state a ‘wireless set’, it was granted the power to make laws on ‘other like services’, including wireless sets.
What was s 51(v)
Postal, telegraphic, telephonic, and other like services.
What did the High Court have to interpret?
Whether a wireless set was included as ‘other like services’. The High Court held that broadcasting wireless set was form of telephonic service, fell within section of 51(v). Thus, new technology will also be under the power of the commonwealth
What was the significance of the Brislan Case?
It impacted the law-making powers of both the states and commonwealth parliament, broadening the law-making powers of Commonwealth parliament, allowing them to legislate on wireless sets. Furthermore, it can be interpreted that any other services similar to ‘postal, telegraphic and telephonic’ can be legislated upon by Commonwealth parliament. Furthermore, this case is an example of how the Australian People can challenge the validity of laws using the High Court.
However, it was not significant because it did not drastically change how law-making powers are divided between the Commonwealth and the states. Additionally, the High Court decision did not state that section 51(v) is an exclusive area, and thus is presumed to be concurrent.
