high court

Question 1

high court - law making

Answer 1

the high court has jurisdiction under section 75 of the aus 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

r v brislan ex parte williams (1931)

Answer 2

the brislan case is an example of a high court decision shifting the division of law-making power in favour of the commonwealth
section 51(v) of the constitution provides the commonwealth power to legislate on postal, telegraphic, telephonic and other like services
the commonwealth parliament had passed the wireless telegraphy act requiring all owners of wireless sets to hold a licence
the defendant (williams) was convicted and fined for owning a wireless set without holding a licence
the defendant challenged the validity of the act in the high court arguing that the constitution gave no power to the commonwealth to make laws relating to radio broadcasting

Question 3

the decision

Answer 3

majority of the 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 changed the division of law-making powers by extending the commonwealth parliaments power to include broadcasting to a wireless set - an additional form of communication service
(came under the scope of ‘other like services’)

Question 4

significance of brislan

Answer 4

the high courts decision shifted law-making power
the commonwealth now has the pwoer to make laws with respect to broadcasting wireless sets
if a state passed a law in this area and was inconsistent with commonwealth legislation, the state law would be invalid because of section 109
- somewhat reduced the power of the states, as it is now a concurrent power

Question 5

significant effects of case

Answer 5

• brislan suggested that the commonwealth could make laws in relation to new communication technologies, as they could be considered ‘other like services’. therefore this means that there is potential for the commonwealth to assume the power to legislate in regard to the internet and other future technologies not invented yet

Question 6

limitations of the case

Answer 6

where the commonwealth has legislated in relation to ‘other like services’ in reliace on th ebrislan decision, it is still possible for the validity of that legislation to be challenged in the high court, and there is potential that such legislation may be declared invalid if the service under consideration is not as similar to those services listed in s51
- parliament cannot overrule high court decisions. Therefore, if the high court makes a decision limiting the law-making power of the commonwealth in relation to broadcasting services, the decision remains final. Thus, the commonwealth would no longer be able to legislate in this area until another case comes before the court which alters the precedent and once again, expands the commonwealth’s law-making powers