4.1.4 High court cases and their impact on law-making powers.

Question 1

topic sentence

Answer 1

The Brislan case is a significant High Court case which has had an impact on the division of Constitutional law-making power.

Question 2

background information

Answer 2

In the 1930s, Australians had to pay a licence fee to own and listen to the radio. Mrs Brislan was charged under the Wireless Telegraphy Act 1905 (Cth) with having a wireless without holding a licence for it, as was required by the Act. She challenged the validity of the Act in the High Court, stating that broasting to a wireless set is not a service in the sense in which that term is used in Section 51 (v). Therefore, the section of the Wireless Telegraphy Act requiring people who had a wireless set to have a licence was invalid. If this had been found to be the case, it would be up to the states to legislate in this area because the Act would be invalid.

Question 3

section 51

Answer 3

Section 51 (v) of the Australian Constitution 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 to hold a licence. The defendant was charged with not holding a licence.

Question 4

decision

Answer 4

The High Court interpreted the term ‘other like services’ in Section 51 (v) to include broadcasting to wireless sets. This case changed the division of law-making powers by extending the Commonwealth Parliament’s power to legislate regarding postal, telegraphic, telephonic and other like services to include broadcasting to wireless sets. ‘Other like services’ included wirelesses, as they were a communication device like the other devices listed in the section. Therefore, the Wireless Telegraphy Act was valid.

Question 5

significance

Answer 5

The significance of the Brislan case was that the High Court’s interpretation of the relevant heads of power caused a shift in the division of law-making powers from the states to the Commonwealth. After this decision, the Commonwealth Parliament had the power to make laws with respect to broadcasting to wireless sets. If a state passed a law in this area, and there was a conflict between the state law and Commonwealth law, the Commonwealth law would prevail in accordance with Section 109 of the Australian Constitution. Through determining this to be a concurrent area of power it provides for uniformity on laws across the states when legislating.

This potentially gives the Commonwealth Parliament law-making authority over future communication devices if justices of the High Court follow their previous reasoning. For example, the Interactive Gamling Act 2001 (Cth) regulates the advertising and promotion of live sports wagering available over the internet.

Question 6

impact on law making powers

Answer 6

1. Expanded Commonwealth Power:
   o The case broadened the interpretation of the Constitution to include new technologies.
   o It effectively increased the Commonwealth’s ability to make laws in areas not originally foreseen in 1901.
2. Reduced State Powers:
   o Since the area of wireless communication now fell under Commonwealth jurisdiction, states lost control over this matter.
   o This marked a shift in the balance of power towards the Commonwealth.
3. Set a Precedent:
   o It set an important precedent for the interpretation of federal powers, especially in relation to technological advancements.

Question 7

3 disadvantages

Answer 7

Limited opportunity for expansion – The High Court can only interpret the Constitution when a relevant case is brought before it. This means further expansion of Commonwealth power under s 51(v) depends on new cases, which may not arise often.
Uncertainty around validity – Even with the Brislan precedent, any Commonwealth law made under s 51(v) can still be challenged. If a service is not deemed similar enough to those listed, the law may be declared invalid.
High Court decisions are final – Parliament cannot override the High Court. If the Court limits Commonwealth power in a ruling, that decision stands until a new case provides the opportunity to revisit or change the interpretation.

Question 8

3 advantages

Answer 8

Expanded Commonwealth power – The Brislan case confirmed the Commonwealth could legislate on wireless sets and similar services, allowing for national control over broadcasting, including the legal establishment of the ABC.
Adaptability to new technology – The decision enabled the Commonwealth to potentially legislate on future communication technologies (like the Internet) by interpreting them as ‘other like services’ under s 51(v).
National regulation of communication – The ruling allowed the Commonwealth to take greater control over emerging technologies (e.g. the NBN), ensuring consistent national regulation, though some view this as giving too much power to the federal government.