GPL Key Cases Flashcards
Judd v McKeon (1926) 38 CLR 380
Q: Does s 9 of the Constitution mean voting is voluntary?
A: No, the right to vote is also a duty.
Roach v Electoral Commissioner (2007) 233 CLR 162
‘the words of ss 7 and 24, because of changed historical circumstances, including legislative history, have come to be a constitutional protection of the right to vote’ (Gleeson CJ, 174)
Rowe v Electoral Commissioner (2010) 243 CLR 1
‘Implicit in [the constitutional authority to develop the franchise] was the possibility that the constitutional concept would acquire, as it did, a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished.’ (French CJ, 18)
I.e., the voting franchise can grow, but it cannot be reduced by taking away the right to vote.
Boilermakers’ Case
Seminal case on the separation of powers in Australia - strict judicial separation. Established a 2-limbed test for determining when the implied separation of powers under the Constitution will be breached.
- Cth judicial power can only be vested in a Chap III court.
- federal Chap. III court cannot be invested with anything other than federal judicial power, or powers auxiliary or incidental to the exercise of federal judicial power. (i.e., can’t be invested with executive or legislative power)
Principle prevents Chapter III courts from exercising non-judicial powers, however in some circumstances (persona designata) federal judges are entitled to perform roles outside their judicial functions.
Engineers’ Case
Rejected the reserved state powers doctrine.
Since this case, the HCA has given the Commonwealth’s powers an increasingly broad interpretation and refuses “to imply limits within the scope of its powers to preserve a place for state regulation.” (TB, p.135)
Work Choices Case
After this case, it is generally accepted that the Cth can legislate on any subject matter under s 51(xx) (Corporations Power) as long as the law relates to the activities of trading, financial or foreign corporations. The HCA essentially broadened the scope of the Cth’s powers
Commonwealth powers are not limited by each other. The Commonwealth has a broad power over foreign and national corporations.
Tasmanian Dam Case
No ‘federal balance’.
Demonstrates a common law trend that began in the Engineers case that you can’t draw on a particular vision of what federalism looks like to limit the scope of Commonwealth powers.
Parliament can pass laws to implement Australia’s international obligations on any subject matter.
R v Richards, Ex parte Fitzpatrick & Browne (1955) 92 CLR 157
The Court held that if the warrant had set out the particulars of the allegations then it could have reviewed the terms of the allegations, however it was in general terms and was therefore conclusive.
S 9 of the Parliamentary Privilege Act now requires that any warrant emanating from Parliament that commits a person to imprisonment must set out the particulars” of allegations → a decision to imprison someone by Parliament is now subject to judicial review.
Laurance v Katter [2000] 1 Qd R 147
There is now a right of reply to allegations of misconduct made in the course of Parliament.
S 16 Parliamentary Privileges Act
Davies JA held that s 16 was confined to statements made in Parliament.
Pincus JA held that s 16 was invalid for impinging on the implied freedom of political communication.
Similar case: Rann v Olsen (2000) 76 SASR 450
Egan v Willis (1996) 40 NSWLR 650
A trespass was held to have occurred against Egan but the Council’s resolution to hold Egan in contempt and suspend him from the House was valid and confirmed Parliament’s privilege to do so.
Parliamentary privileges may be justiciable when they are part of a dispute arising under the general law.
Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1
Held that the words “peace, order and good government” in the Cth Constitution is not a limit on legislative power, though the ability to read a limit into these words was left open by the Court.
Kartinyeri v Commonwealth (1998) 195 CLR 337
Whether s 51(xxvi) of the Constitution could only be used to the benefit of ATSI peoples.
2 judges (Gummow and Hayne JJ) held that the power was plenary (unqualified, absolute) and could pass laws that discriminate either beneficial or detrimental.
2 “judges held that the power to pass discriminatory laws was limited either by the wording of the text itself (Gaudron J) or by the underlying purpose in a modern Constitution (Kirby J).
The scope of the race power remains uncertain because the HCA has not been called upon to interpret it since. It has remained unresolved.
Wright & Advertiser Newspaper Ltd v Lewis (1990) 53 SASR 416 (FC)
Parliamentary privilege can prevent some actions but it cannot be used to prevent a fair trial because this would turn the privilege from a shield into a sword.
Re Gallagher [2018] HCA 17
Gallagher sent a declaration renouncing her British Citizenship to the home officer of the UK but on the date of nomination of being a candidate she remained a British citizen.
The court held that, ‘it is not sufficient that a person has taken all reasonable steps required by the foreign law, that only applies if they are irredeemably prevented from renouncing their citizenship. If there is a way to do it, then it must be done before nomination.
Re Caravan (2017) 91 ALJR 1209
Dual citizens must get rid of their foreign citizenship before running for Parliament.
Dual citizens will be ineligible even if they don’t know about their other citizenship and they must follow the law of the foreign country to get rid of the foreign citizenship unless it imposes unreasonable requirements to do so.
‘Tampa Case’
Ruddock v Vadarlis (2001) 110 FCR 491
Government argued prerogative power to exclude aliens.
Federal Court: North J held illegal, prerogative power abolished due to Migration Act covering the field
Full Federal Court disagreed and held legal
High Court held matter had been overtaken by events and appeal dismissed
Government then passed retrospective validating Act on the matter
Cadia Holdings v New South Wales (2010) 242 CLR 195
Prerogative power in rights to royalties from gold.
Mine had both gold and copper.
Cth sought to receive royalties from all of it.
Court held Act limited the prerogative power to gold.