U4 AO2 1a lesson 5: significance of Brislan HC case on division of powers Flashcards
(15 cards)
when issue heard in HC
When the power of the Cth and state parliaments to legislate over a certain area is contested and matters of the Constitution are brought to the High Court, the outcome of the case establishes a precedent and can influence the division of powers between the Cth and states.
jurisdiction of HC to resolve constitutional disputes
The jurisdiction of the High Court to resolve constitutional disputes between Cth and States can be found in s76 and s75 of the constitution.
The decision of the High Court sets a precedent which can only be changed if:
- The wording of the constitution is changed via a referendum or
- A subsequent case on the same issue leads to a different High Court determination of the words. This is
because the HC is not bound by its own decisions.
ultra vires
HC may declare a law, or part of the law ultra vires
meaning ‘beyond powers; used in law to describe parliament is acting beyond is jurisdiction.
If a legislation is determined to be ultra vires, the Act or the relevant components of the Act is deemed invalid and cannot be legally enforced.
facts of Brislan case
- Commonwealth Parliament had passed the Wireless Telegraphy Act 1905 (Cth) requiring all owners of wireless sets (radios) to hold a licence
- (Dulcie williams) was convicted and fined for owning a wireless set without holding a licence.
- Williams challenged the validity of the Cwth legislation in the High Court on the basis that the legislation in relation to radio broadcasting was outside of the scope of the Cwth law-making powers outlined in s51 (v) of the Constitution.
sec 51 (v)
Section 51(v) of the Australian Constitution provides the cwth power to legislate on postal, telegraphic, telephonic and other like services.
legal issue of Brislan case
- Williams argued that since radio broadcasting was not explicitly mentioned in the Constitution as a specific law-making power,
the power to legislate on issues concerning wireless broadcast receiving sets was a residual area of law-making - Williams contended that radio broadcasting did not fit in any of the four categories outlined in s 51(v) of the Constitution
- post, telegraphs, and telephones = one-to-one communication services
opposed to radio broadcasting = one-to-many service. t/f not ‘like service’
decision made by HC
*The High Court determined that s51(v) includes a power to regulate radio broadcasting.
- Whilst the High Court came to a majority 5:1 conclusion, there was no single ratio decidendi shared by the majority.
significance of HC decision on division of lawmaking powers:
- The decision increased and shifted the lawmaking powers of the Cth as the HC interpreted the phrase like services’ broadly - this allowed Ct to legislate in similar areas of law that have not been specifically awarded to it through the Constitution
significance of HC decision on division of lawmaking powers:
- The decision established a precedent that has impacted future legislation and technology that has not been established yet
significance of HC decision on division of lawmaking powers: residual power
- Rather than being a residual power (potentially), the HC has clarified this area as more likely a concurrent power
- The decision has limited or placed boundaries on residual powers of the State parliament as an area that is closely linked to broadcasting/communication will be unlikely to be legislated by states because of this decision
limitations of HC decision on division of lawmaking powers:
- Should a challenge be brought to the HC on current technology, HC judges have the jurisdiction to overrule previous HC decisions since they are not bound by precedent. This could override previous decisions and change the division of powers.
limitations of HC decision on division of lawmaking powers:
Although a precedent has been set in this area, should another area of technology be invented that challenges the category of ‘other like services’ a challenge can still be brought to the HC to determine whether Cth can legislate in this space.
limitations of HC decision on division of lawmaking powers:
- Should the HC decide that the Cth should not have powers over non-specifically mentioned areas in the constitution, their laws can be deemed invalid.
what was the HC required to determine for Brislan case
The High Court 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 the authority to legislate in regard to radio broadcasting.
