* The significance of one High court case which has had an impact on the division of constitutional law-making powers.

Question 1

Identify one high court case that had an impact on the division of law-making powers

Answer 1

the brislan case (1935)

Question 2

Outline the facts of this case.

Answer 2

• This 1935 case involved Dulcie Brislan who was prosecuted for not holding a license under their wireless radio set. Mrs Brislan therefore challenged the validity of this act, (Wireless telegraphy Act 1905 (CTH)), arguing that a ‘wireless set’ was not mentioned in the constitution and therefore did not fit section 51 (v).
• However, the high court held that broadcasting to a wireless set was a form of telephonic service, that fell under the ambit of ‘other like services’ in section 51 (v) of the constitution, which give the commonwealth power to legislate on postal, telephonic, telegraphic and other like services.

Hence, the commonwealth law was considered valid and it had the power to collect and impose license fees.

Question 3

What would happen if the Wireless Telegraphy Act 1905 (CTH), was found to be invalid?

Answer 3

If the Act was declared ultra vires, then the power to legislate in regards to a wireless set would become a residual area of law. It would then be up to the states to legislate in this area, as the Commonwealth would be acting beyond its power.

Question 4

Significance of the Brislan case.

Answer 4

• If there is an inconsistency between the state or the commonwealth about broadcasting to wireless sets, the commonwealth law would prevail, to the extent of the inconsistency, as underlined in section 109.
• The decision did increase the power of the commonwealth, as it clarified the meaning of ‘like services’, to include all forms of communication.
• The high courts interpretation caused a change in the division of law making powers. Law making in regards to forms of communication moved from residual power to an exclusive power, thereby reducing the law-making powers of the states.

Question 5

Strengths of high courts interpretation on the division of powers. (3)

Answer 5

• The high courts interpretation can and does change the meaning of the constitution, e.g., ‘like services’ meaning ‘forms of communication’.
• The high courts interpretation can change the powers of the commonwealth and the states. E.G., ‘forms of communication’ became an exclusive power.
• The high court ensures that federal parliament legislates only on matters within its exclusive and concurrent powers. Also ensures that the state parliaments only legislate in areas within their residual and concurrent powers.

Question 6

Weaknesses of high courts interpretation on the division of powers (3).

Answer 6

• The high court cannot initiate a change in the division of law-making powers, rather it must wait for the validity of legislation to be challenged, which will determine whether a law is valid under the constitutional division of powers.
• The validity of legislation can only be challenged by a person, government, organisation etc, that is affected by the law.
• The court is unable to alter the specific words of the constitution. This requires a referendum.