R v. Brislan: ex parte Williams Flashcards
(6 cards)
1
Q
What is in s51 (v) of the Constitution?
A
- ‘The parliament shall, subject to this constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to postal, telegraphic, telephonic and other like services’
2
Q
Facts of the case
A
- Wireless Telegraphy Act 1905 required that radio devices could not be used without a license
- Brislan, the inspector, visited William’s home and found an unlicensed radio, and she was fined
- Williams challenged the validity of the Cth legislation in the HC, on the basis that the legislation was outside of the scope of the Constitutional lawmaking powers
3
Q
Legal issue brought by Brislan/Williams
A
- Williams contended that radio broadcasting did not fit any category as it was a one-to-many service rather than a one-to-one
- The HC was required to determine whether radio broadcasting was classified as a ‘postal, telegraphic, telephonic, or other like service’ and therefore rule on whether the Commonwealth had authority to legislate in this area
4
Q
Decision
A
- Majority 5:1 conclusion that radio broadcasting did fit under s51 (v) of the Constitution
- The 5 judges had different ratio decidendi, but agreed it fit within the jurisdiction
- The words were inserted ‘to provide for future developments and inventions’
5
Q
Significance of the case
A
- Increased/shifted the lawmaking powers of the Cth as ‘other like services’ was interpreted broadly, which allowed for a wider jurisdiction
- Rather than being a potential residual power, it was clarified as a concurrent area of lawmaking
- Created a precedent that impacts future tech developments and limits the lawmaking power of states
6
Q
Limitations of the significance of the case
A
- Although a precedent has been established, if another tech development occurs and a challenge is brought, it can be changed
- The HC has power to overrule past precedent due to the fact they are not bound by past decisions
- If the precedent is overruled, then the old Cth law can be deemed invalid
