Unit 4 AOS 1: People and the Constitution (Case Studies) Flashcards
Section 109
Example: McBain v Victoria (2000)
- Inconsistency in marital status law
- Infertility Treatment Act 1995 (Vic) were invalid because they were inconsistent with the Commonwealth’s Sex Discrimination Act 1984 (Cth)
- Section 8 of the Infertility Treatment Act stated that, to receive treatment, a woman must be:
—-married and living with her husband or living with a man in a de facto relationship
- Section 22 of the Sex Discrimination Act makes it unlawful for a person to refuse to provide a service to another person on the grounds of marital status
- Dr John McBain, a specialist IVF doctor, was directly affected by the inconsistency in the legislation, he had to refuse service to Leesa Meldrum (in a lesbian relationship)
- By denying single or lesbian patients access to the IVF program, he was meeting the requirements of the Victorian Infertility Treatment Act but, at the same time, contravening the Commonwealth Sex Discrimination Act
- The Federal Court upheld Dr McBain’s argument and found that the Victorian law was inconsistent with the Commonwealth law, so on the basis of Section 109, the Commonwealth law shall prevail
Sections 7 and 24 (High Court)
Australian Capital Television Pty Ltd v Commonwealth (1992)
- Dealt with legislation that banned all political advertising on radio and television during election periods (Political Broadcasts and Political Disclosures Act 1991 (Cth))
- This legislation allowed some free advertising to political parties that already had members serving in parliament
- However, it did not allow free or paid time on television or radio for making political comments in the media
- The High Court found the legislation unconstitutional because the Constitution guaranteed a freedom to discuss political matters in the period leading up to an election
- The reasoning of the justices varied, but related to the notion of representative government
- Representative government could only operate properly if there existed a freedom for people to communicate about political issues (to be fully informed when they were voting in an election)
Protecting the Constitution
1999 Referendum
- In the early 1990s then-Prime Minister Paul Keating expressed a desire for a republic in time for the Centenary of Federation (1 January 2001).
- This referendum required people to vote on whether Australia should become a republic
- Rejecting a referendum is a way of protecting the Constitution, it means the Australian people have said no to a change (preserving the Constitution in its existing form)
Proposals
- First proposal was for Australia to become a republic, and the second was to change the preamble to the Constitution (introductory wording)
- Two bills were passed to allow the proposals to be put to the people
- First bill, the Constitution Alteration (Establishment of Republic) Bill 1999 (Cth), was essentially aimed at making Australia a republic rather than part of the English monarchy (eg. make a president, remove monarchical references from the Constitution)
- Second bill, the Constitution Alteration (Preamble) Bill 1999 (Cth), was aimed at inserting a new preamble into the Australian Constitution
Results
- First question, which proposed the establishment of a republic, rejected by 54.87% of voters nationally and supported by only 45.13%
- Didn’t receive majority support in any state (eg. largest ‘yes’ vote was 49.84% in Victoria)
- Second question, about inserting a preamble into the Australian Constitution, only supported by 39.34% of voters nationally, rejected by 60.66%
- Didn’t receive majority support in any state (eg. largest ‘yes’ vote was 42.46% in Victoria)
Reasons for failure
- Australians are traditionally cautious of constitutional change (proposal was unfamiliar)
- Public opinion on the introduction of a president varied (eg. constitutional monarchy provides stable government)
- Many people believed that the President should be elected by the people rather than the parliament on a two-thirds majority
Then Prime Minister, John Howard of the Liberal Party, urged a ‘no’ vote on the basis of retaining our strong links with Britain
Division of Constitutional Law-Making powers (High Court)
The Brislan Case
- Section 51(v)provides the Commonwealth power to legislate on postal, telegraphic, telephonic and other like services
- The Commonwealth Parliament had passed the Wireless Telegraphy Act 1905 (Cth) requiring all owners of wireless sets (radios) to hold a licence
- The defendant challenged the validity of the Wireless Telegraphy Act in the High Court, arguing that broadcasting to a wireless set (an early type of radio common in homes before the invention of television) was not a service in the sense in which that term is used in section 51(v)
- If this was accepted, it would be up to the states to legislate in this area as it would be beyond the law-making powers of the Commonwealth
- It was rejected as four out of six High Court judges held that broadcasting to a wireless set was a form of telephonic service, and therefore fell within the scope of section 51(v)
As a result, this judgment changed the division of law-making powers by extending the Commonwealth Parliament’s power to include broadcasting to a wireless set
Interpretation of External Affairs Power
The Tasmanian Dam Case
- The Tasmanian Government intended to dam the Franklin & Gordon Rivers in south-west Tasmania for hydro-electric purposes
- This was a domestic issue for Tasmania within its law-making powers (residual power)
- The Tasmanian Parliament passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas) to set up the hydroelectric power scheme and the Franklin River dam
- Australia-wide protests caused the Commonwealth Government to intervene
- The Commonwealth Parliament maintained that it had a duty to stop work likely to damage or destroy Australia’s national heritage
- This area was listed on the UNESCO World Heritage List in 1982, and was covered by an international treaty, the Convention Concerning the Protection of the World Cultural and Natural Heritage (1972)
- The World Heritage Properties Conservation Act 1983 (Cth) was passed to prohibit construction of the proposed dam (ratified the treaty)
- The Tasmanian Government argued before the High Court that the Commonwealth Parliament has passed legislation in an are of state responsibility (power generation) and so the legislation should be invalid
- The Commonwealth responded that it had the power to intervene because its ‘external affairs’ power (section51(xxix)) gave it authority to make laws relating to an issue covered by a World Heritage listing (an international treaty)
- The High Court decided that the Franklin River area was covered under the external affairs power as it was covered by an international treaty that we were a signatory to
- As a result of this decision there was inconsistency between the World Heritage Properties Conservation Act and the Gordon River Hydro-Electric Power Development Act
- Under section 109, the Commonwealth Act prevailed
Significance
- The High Court interpreted the words ‘external affairs’ to include any area covered by an international treaty that we are a signatory to
Did not mean that Commonwealth had legislative authority over power generation (still a residual power) but it meant that it could intervene legislatively in state matters, in order to uphold international treaties
Right to freedom of religion
Williams v Commonwealth (2012)
- Ronald Williams challenged the Commonwealth Government’s power to fund a chaplaincy service that was running in his children’s government primary school in Queensland
- Williams argued that the funding agreement was invalid because it was beyond the executive power of the Commonwealth under section 61 of the Constitution and/or prohibited by section 116 of the Constitution. section 116 states that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. Williams argued that the school chaplain is an ‘office … under the Commonwealth’ and, further, that there is a religious test to hold such an office.
- High Court unanimously dismissed the challenge under section 116 relating to a ‘religious test’ because the chaplains were not employees of the Commonwealth
However, section 61 did not empower the Commonwealth to enter into the funding agreement to make the payments for the school chaplaincy program. In other words, because there was no Act giving authority for the funding agreement, the agreement was invalid
Right to free interstate trade and commerce
Belfair Pty Limited v Western Australia (2008)
- Challenge made to legislation passed by the Western Australian Parliament to prohibit certain types of betting
- Betfair, is incorporated in Tasmania and operates a national agency
- Amendments to the Betting Control Act 1954 (WA) prevented Betfair from participating in a segment of the wagering market, arguing that the type of gambling offered by Betfair, where a punter could place bets on a horse to lose a race, was not appropriate
- Betfair challenged the validity of the legislation in the High Court, arguing that it was inconsistent with section 92 of the Australian Constitution
In a unanimous decision, the High Court found that the Western Australian legislation was discriminatory against a company that was incorporated outside of that state, so was therefore invalid.
Right to receive ‘just terms’ when property is acquired by the Commonwealth
JT International SA v Commonwealth (2012)
- Challenge to the constitutional validity of the Tobacco Plain Packaging Act (2011), which imposed a requirement for plain packaging tobacco laws
- The plaintiffs, a group of tobacco companies, argued that under the Act the Commonwealth had acquired their intellectual property rights (such as trademarks and copyright images) and this was not on ‘just terms’
The High Court held that there was no acquisition of property by the Commonwealth. The Court recognised that the Act regulated the plaintiff’s intellectual property rights and restricted the plaintiff’s enjoyment of their rights, but it did not give a proprietary benefit or interest to the Commonwealth or any other person. Thus, the Act was found to be valid as it did not acquire property.
Right to trial by jury for indictable commonwealth offences
Alqudsi v The Queen (2016)
- Application made by one of the accused to be tried by a judge alone in the absence of a jury pursuant to the Criminal Procedure Act 1986 (NSW). The prosecution also supported the use of trial by judge alone.
- Years earlier, in the 1986 case of Brown v The Queen (1986) 160 CLR 171, a similar question arose as to whether an accused person charged with a Commonwealth indictable offence could elect a trial by judge alone. In that case, the High Court’s decision was clear: a jury trial could not be avoided in an indictable offence trial under the Commonwealth law.
- High Court rejected the applicant’s arguments. They stressed the importance of the role of trial by jury in the structure of government and found that contemporary trial judges have the capacity to address any concerns posed by pretrial publicity in a case such as those involving terror-related offences
In his judgment, Justice Gageler noted that there was no flexibility in the application of section 80 once the Commonwealth Parliament decides that an offence is against a law of the Commonwealth
Right not to be discriminated against on the basis of the state where you reside
Street v Queensland Bar Association (1989)
- Alexander Street challenged the Bar Admission Rules in Queensland, which at that time required that applicants for admission to the bar (to become a barrister) must have resided in Queensland for at least 12 months and ceased practising law elsewhere
- In argument before the High Court, Mr Street claimed he was unable to comply with the rules in Queensland without foregoing his place of residence in Sydney and his practice as a barrister in New South Wales. On this basis, he contended that the Bar rules in Queensland were in contravention of both sections 92 and 117 of the Australian Constitution
The High Court agreed with Mr Street’s arguments and declared that the Queensland Bar rules requiring an intention to be a resident of Queensland were invalid
