Legal Cases Flashcards
R v Brislan
Expanding on Commonwealth Law Making Powers
- Defendant charged under the Wireless Telegraphy Act for owning a wireless without a valid licence
- Defendant challenged validity, argued the commonwealth didnt have power to make the Wireless Telegraphy Act about a wireless, as section 51(v) did not specifically mention ‘wireless set’
- Section 51(v) gives commonwealth powers to make laws about ‘postal, telegraphic, telephonic and other like services’
- Commonwealth interpreted section 51 (v)’s ‘any like services’ broadly, to include wireless sets
- Expanded the law making powers of the commonwealth parliament (exclusive powers)
Decision was expanded on in Jones v Commonwealth (1965), where the High Court determined ‘any like services’ to include the television, a technology unforeseen when the Constitution was drafted
Victoria v Commonwealth
Expanding the Law Making powers of the Commonwealth
- Commonwealth passed legislation, making financial grants to the states, setting terms that related to building and maintaining roads
- Section 96 of the constitution states: the parliament may grant financial assistance to any State on such terms and conditions the parliament sees fit
- Victoria, NSW and SA sought declaration from the high court that the law was invalid, arguing
○ The commonwealth law was about road making (a residual power)
○ The commonwealth is not empowered to make such laws under the division of powers, stating that under section 96 “the Parliament cannot attach as conditions to its grant any conditions which amount in substance to the exercise of any legislative power which is not within sec. 51 of the Constitution”
- The high court decided the legislation was valid, stating that section 96 allows the commonwealth to make a grant of money to a state, including any conditions the commonwealth sees fit
In theory states can reject the grant, although states are dependant on the commonwealth
Commonwealth v Tasmania
Expanding the Commonwealth Law Making Powers
- Tasmanian government intended to dam the Franklin River, however, the Commonwealth Intervened
- The Commonwealth signed an international treaty (the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage), This committed Australia to protecting sites of environmental significance
- The Commonwealth passed legislation (the World Heritage Properties Conservation Act 1983 (Cth)), protecting the Franklin River and surrounding areas from development
- Sections 6 and 9 prevented construction at the site of the proposed Dam
- Commonwealth asked the High Court to rule the Tasmanian Government’s proposal unlawful, as the construction breached the World Heritage Properties Conservation Act
- In retaliation, Tasmania sought a High Court declaration that sections 6 and 9 of the constitution were invalid, because it was not within the Commonwealth’s exclusive or concurrent law making powers to make laws about environmental protection
- The High Court found that the law was valid, the ‘external affairs’ power in section 51 (xxix) gives the commonwealth the power to pass laws that enforce international obligations
Decision is significant because it increase the Commonwealth’s Law Making Powers, under the External Affairs Powers
Lange v ABC
Restriction on the Law Making Powers of the Commonwealth
- Lange (NZ PM), brought a case against ABC, after he was the subject of a four corners special
- The report argued the NZ Labour party had come under the influence of large business, due to large political donations
- Lange sued for defamation, arguing the evidence was false
- It was found Freedom of Political Communication is an ongoing freedom, not only during election periods
- This created a restriction on the powers of the commonwealth parliament
Koowarta v Bjelke-Peterson
Expansion of Commonwealth Powers
- In 1966 Australia signed the International Convention on the Elimination of All Forms of Racism.
- In 1975, Commonwealth passed the Racial Discrimination Act 1975 (Cth)
- Bill aimed to erase all forms of racism in Australia
- An indigenous man ‘Koowarta’ attempted to purchase a large parcel of land, but was denied by the Queensland government, as they did not want aboriginals purchasing large blocks of land
- Koowarta challenged the government’s actions, on the basis that it breached the Racial Discrimination Act 1975 (Cth)
- In response, the Queensland government sought a High Court declaration that the Commonwealth didn’t have the ability to make the Racial Discrimination Act 1975 (Cth), and it was therefore invalid
- A majority of High Court judges decided
○ The external affairs power (section 51(xxix)) allows the Commonwealth to pass laws in areas of international concern
○ If the Australian government has signed a treaty on a particular matter, then topic then becomes a matter of international concern
○ The external affairs power allows the Commonwealth to pass laws giving effect to a treaty it has signed
Street Church Case
Limit of Freedom of Political Speech
- Street Church started preaching what they considered the ‘word of god’
- Anti-Muslim, anti-gay, anti-woman
- Adelaide City Council used a bylaw that said persons were precluded from ‘preaching, canvassing or haranguing’ on any street without a permit
- Found that the law, which limits freedom of speech, was valid, as it prevented obstruction, and protected the safe and convenient use of the streets
This limited freedom of political communication, in cases where it is needed to protect people’s safety.
Roach v Electoral Commissioner
- Roach serving a 6 year prison sentence
- Commonwealth passed legislation banning prisoners from voting in Commonwealth election
- Roach challenged validity of the law, arguing the Australian Constitution guaranteed her right to vote
- High court rejected part of Roach’s argument, deciding the Constitution does not protect the right to vote for all adults
- However, the Courts also stated the sections 7 and 24 set up the principle of representative government (directly chosen by the people), requiring the government to be voted by a substantial majority of the population. The right to vote could only be removed for a significant reason
- Serving a long prison sentence was classified a significant reason, and therefore an appropriate basis to remove the right to vote
The court also stated that removing the ability to vote for all prisoners was excessive. A law removing the power to vote needed to distinguish between those who really seriously violate law, and majority of prisoners, serving a shorter sentence
Deing v Tarola
Creating Precedent
- Deing wore a belt with raised metal studs, he was arrested, charged and found guilty for possessing a weapon
- Control of Weapons Act 1990 (VIC), states it is illegal to possess, carry or use regulated weapons without lawful excuse
- Deing Appealed Conviction to the Supreme Court
- Term weapon considered broad, had to be interpreted to determine whether a studded belt was a weapon
- Weapon was determined as anything not commonly used for any purpose than as a weapon
- The belt was not found fit of that description
- Definition was narrowed
Created precedent
SGIC v Trigwell
Conservative Law Making
Abolishing Precedent
- Trigwell injured by a roaming sheep while in vehicle
- High court followed old common law, that landowner didn’t owe duty of care to roaming livestock
- Followed conservative approach to law making
Law was outdated by parliament in the Wrongs Act 1984
Carr v Western Australia
Broadened Definition
Narrowed Definition
- Carr was suspected of armed robbery
- Admitted to the crime in a police cell, and was captured on the police video surveillance
- Record was used to prove Carr guilty
- Videotape - any videotape on which an interview is recorded
- Carr appealed to the high court, arguing an ‘interview’ requires a degree of formality, and a question answer approach.
- Therefore, Carr argued the recording was not a videotape of admission as required in the criminal code
- Carr’s argument was rejected by the High Court, which defined interview as a conversation between police and a suspect, therefore the admission was admissible evidence
- This broadened the meaning of interview, and created precedent
One judge within the minority of the decision interpreted interview narrowly, which would have prohibited the footage from being considered an interview
Commonwealth v Kevin and Jennifer
Interpretation of terminology to reflect on societal values
- Kevin transitioned from female to male
- Kevin Married Jennifer, and applied for a declaration of validity for their marriage
- Challenged by the attorney general, on the point Kevin was not a male for the purpose of the definition of marriage
- Family Court interpreted the meaning of the word man to give it a contemporary, normal and everyday meaning
Kevin’s marriage was considered valid
ACT v Commonwealth
Restricted Commonwealth Law Making Powers
- Commonwealth passed legislation limiting political advertising during an election campaign, the validity of the law was challenged in the high court
- Court found that sections 7 and 24 of the constitution establish the principle of representative government
- This also requires voters to hear from parties and be free to discuss political issues to make informed choices in electing law makers
- Because of this, the high court implied a right to freedom of political communication within sections 7 and 24
- Court’s decision created a restriction on the Commonwealth law making powers, as the commonwealth can no longer create laws that hinder free political discussion
- Law was overturned
- Expanded in Lange v ABC
Mabo v Queensland
Judicial Activism
- Mabo began legal proceedings over his property which was claimed terra nullius
- Courts found terra nullius was legal fiction, found native title could exist if:
○ Strong connection between people and the land
○ Indigenous connection to the land had not been extinguished by some transaction since European settlement (land being bought and sold)
Example of Judicial Activism
