The significance of one High Court case which has had an impact on the division of constitutional law-making powers
Name of case: the Brislan case(R v Brislan; Ex parte Williams (1935)) | ||||
Relevant legislation | Facts of the case | Legal issue | Outcome | Impact |
Wireless Telegraphy Act 1905 (Cth.)
| The Commonwealth passed the Wireless Telegraphy Act to create a licensing system for wireless sets. The defendant (Dulcie Williams) was charged with not having a licence and fined £1. She challenged the validity of the federal law in the High Court. | Williams argued that the Australian Constitution did not give the Commonwealth power to make laws regarding wireless broadcast. She claimed that the term ‘other like services’ in section 51(v) did not extend to wireless sets, as they were not a service as such – therefore the Wireless Telegraphy Act was invalid. | The High Court decided that section 51(v) included the power to regulate radio broadcasting and found that the 1905 legislation was valid law. In a majority decision, the justices interpreted the term ‘other like services’ to include wireless radios. | The Brislan case extended the meaning of section 51(v). The meaning of ‘service’ was confirmed as the broad reading (not just providing the service, but also regulating and controlling the provision of the service) and the meaning of ‘other like services’ was confirmed as not being limited to things the writers of the Constitution could foresee. The nature of the communications power was expanded from interpersonal communication to public broadcast, and from content-driven messages to things like music. The Commonwealth gained legislative power over new technologies (such as radios) that the states might have assumed were residual powers, and the states lost the ability to have conflicting legislation in these areas.
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The significance of the case regarding the impact on the division of constitutional law-making powers: The High Court’s interpretation of the division of powers caused a shift in the division of lawmaking powers from the states to the Commonwealth – the Commonwealth gained legislative power over new technologies. As a result of the Brislan case, we assume that the communications power is to be read broadly, and we assume that it covers virtually any new communication-based technology as it develops.
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Name of case: the First Uniform Tax case(South Australia v Commonwealth (1942)) | ||||
Relevant legislation | Facts of the case | Legal issue | Outcome | Impact |
The Commonwealth passed four pieces of legislation that worked together to take control of income tax.
One law raised the amount of tax the Commonwealth charged. A second law declared that the payment of Commonwealth taxes took priority over the payment of state taxes. A third law made cash grants payable to the states that were roughly equivalent to the amount they had been receiving in income tax beforehand – but receiving grants was conditional on the states not levying their own income taxes. The fourth law forced the states to hand over to the Commonwealth all staff, offices, furniture and records that they used to collect income tax.
| Prior to 1942, both the federal and state parliaments levied their own income taxes. However, Australia’s involvement in the Second World War led to the Commonwealth deciding that it wanted to take over revenue-raising to enable it to coordinate the war effort more effectively. Using its taxation power, the Commonwealth enacted four pieces of legislation that created a national income tax. The laws increased income tax to an amount equivalent to the amount the states and Commonwealth had previously been charging combined, and declared that the payment of Commonwealth taxes took priority over the payment of state taxes. The laws also made financial grants payable to the states that were roughly equivalent to the amount they had been receiving in income tax beforehand. However, the states would only receive these grants if they did not impose their own income tax. The states challenged the legislation in the High Court. | The states argued that taxation was a concurrent power, that the Commonwealth tax was so high that people would be unable to also pay state income taxes, and therefore the states would be deprived of their powers. | The High Court disagreed with the states and ruled that the Commonwealth legislation was valid. It decided that section 51(ii) of the Australian Constitution gives the Commonwealth power to make laws relating to taxation, even though the Commonwealth’s legislation had the effect of removing a state power. The High Court also ruled that under section 96, the Commonwealth could provide grants to the states, even if the purpose was indirectly coercive, and therefore it was legal to only give grants to states that stopped levying their own income taxes. | The First Uniform Tax Case reduced state power and increased those of the Commonwealth. The states effectively lost the ability to levy income tax, even though they kept the residual power to pass laws about taxation. The practice of the Commonwealth redistributing some of the income tax they collected back to the states, but attaching section 96 tied grants to it with conditions in areas of residual power, was affirmed. The states became even more financially dependent on the Commonwealth to meet their annual budgetary needs. The defence power was confirmed as both purposive and broad in scope. |
The significance of the case regarding the impact on the division of constitutional law-making powers: The High Court’s interpretation of the division of powersprevented the states from levying their own income taxes. The Commonwealth gained financial dominance over the states.
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Name of case: the Tasmanian Dams case(Commonwealth v Tasmania (1983)) | ||||
Relevant legislation | Facts of the case | Legal issue | Outcome | Impact |
World Heritage Properties Conservation Act 1983 (Cth)
| As a signatory to a treaty called the Convention for the Protection of World Cultural and Natural Heritage, Australia said that it would list significant areas on the World Heritage List for protection, if they were of natural, environmental or cultural heritage. A part of Tasmania where the Tasmanian Government was constructing a dam on the Franklin River was declared a World Heritage site. The Commonwealth passed the World Heritage Properties Conservation Act 1983 (Cth), which prevented the Tasmanian Government from constructing the dam. | The state of Tasmania claimed that the Commonwealth legislation was invalid and that the Constitution did not permit the federal parliament to pass laws about environmental protection or cultural heritage. The Commonwealth argued that it has a specific power over ‘external affairs’ in section 51(xxix), allowing it to legislate in issues that are international in nature. The existence of the treaty was evidence of the international concern, and the Commonwealth ought to have the ability to make law implementing treaties they had signed. | The High Court held that the Commonwealth legislation was valid. Tasmania was prevented from going ahead with the dam. | Tasmania was prevented from going ahead with the dam. The Commonwealth was able to legislate to implement the terms of the Convention. The High Court confirmed that the external affairs power included matters covered by treaties, even if those matters might, in other circumstances, be residual powers. The test for proportionality was applied to the external affairs power. The broad interpretation of Koowarta was confirmed – the protection of world heritage was a matter of sufficient international concern. The Commonwealth was able to more confidently override conflicting state law in a wider range of areas, pursuant to section 109 (the inconsistency rule). The states therefore lost some ability to govern themselves in ways contrary to Commonwealth policy. |
The significance of the case regarding the impact on the division of constitutional law-making powers: The High Court’s interpretation of the division of powers allowed the Commonwealth Parliament to move into a law-making area previously left with the states. This increased the law-making power of the Commonwealth Parliament.
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