R v Brislan

Question 1

High Court:

Answer 1

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.

Question 2

Brislan Case: facts

Answer 2

Section 51(v) of the Australian Constitution provides the Commonwealth power to legislate on postal, telegraphic, telephonic and other like services. (concurrent power)

The Commonwealth had passed the Wireless Telegraphy Act 1905 (Cth) requiring all owners of wireless sets to hold a licence.

The defendant (Dulcie Williams) was convicted and fined for owning a wireless set without holding a licence.

Question 3

Brislan Case: legal issues

Answer 3

She challenged the validity of the Wireless Telegraphy Act in the High Court, arguing that the Constitution did not give the Commonwealth Parliament power to make laws in relation to radio broadcasting and were acting beyond their power (ultra vires). -statutory interprtation

Commonwealth argued wireless radios fall under other like services as all of the devices involve a type of communication.

Question 4

Brislan case: decision

Answer 4

The High Court decided that broadcasting to a wireless set was, like all others mentioned in the list, a form of communication service and do fall under the meaning of a ‘like service’ and therefore the Commonwealth did have power to make laws in this area.

Question 5

Brislan case: impact

Answer 5

This case changed the division of lawmaking powers by broadening the Commonwealth Parliament’s power to include broadcasting to a wireless set.

This resulted in a shift in the division of law-making powers from the states to the Commonwealth.
* If a state parliament passed a law in this area, and there was a conflict between the state law and the Commonwealth law, the Commonwealth law would prevail.
* It therefore somewhat reduced the states’ power, as wireless sets are now an area of concurrent power, rather than a power only held by the states. (residual power)

It also broadened and clarified interpretation of like services to include all forms of communication.

Question 6

Brislan case: future impact

Answer 6

This case influenced a subsequent High Court case (Jones v Commonwealth) concerned with television broadcasts, where the High Court decided these also fit within the scope of section 51(v).

These cases may have significance for future types of communications and technological advances. Given the comments made by the High Court judges in the Brislan case, and in particular that the phrase ‘other like services’ was designed to cover new developments, it is arguable that the Commonwealth has the power to regulate the use of the internet. (therefore fed gov regulate NBN).

Where new forms of technology arise, cases may need to be brought to High Court to decided whether Commonwealth has authority in this area (tech advancing more rapidly than the legal system)

However, states can still legislate in these areas provided they are not in conflict with Commonwealth law.