Case Notes Australian Constitutional Law

Topics: High Court of Australia, Australia, Law Pages: 59 (28193 words) Published: December 22, 2012
1| Engineers’ Case| An industrial dispute between the Amalgamated Society of Engineers and employers across Australia included three employers from the Western Australian government.The ASE asserted that the Cth industrial award applied to all members including State employeess51(xxxv) ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’Was the industrial award made under the Commonwealth Conciliation and Arbitration Act 1904 (Cth) binding on the State of Western Australia?The majority held that the Act was a valid exercise of power under s 51(xxxv); State employers with industrial dispute were subject to Cth Arbitration – States were subject to Cth law| * Changed approach * Ordinary and natural meaning * Full effect * Abolished doctrine of reserved powers| s51(xxxv)Characterisation(re 51(35))- arbitration power| 2| Melbourne| An important case in Australian constitutional law. It stands for the proposition that there are limits on the scope of express Commonwealth legislative powers which can be implied from the federal character of the Constitution.This concerned a situation where the Commonwealth passed a law that sought to rely on the banking power vested in s 51(13). The Commonwealth wanted to require that states would only bank with the Commonwealth Bank which was at the time a commonwealth instrumentality. This meant that the States required the consent of the Commonwealth Treasurer before banking with private banks, however, the law was passed so as to say no private bank shall do any business with any state unless they had the written consent of the Federal TreasurerThe court said in a 5:2 majority that the law was not applicable to the states as it singled out state body and burdened it in its governmental capacityLatham CJ with whom Williams J agreed, said that this Commonwealth law was not a law with respect to banking it was a law with respect to state functions. However this is not consistent with multiple characterisations. Rich J held that the Commonwealth could not pass a law that would prevent or impede state agencies carrying out the normal and essential functions of government. - criticised because the ‘normal functions of government’ are difficult to define.| * Restrictions on Cth must be express or implied * Melb Corp prohibition is major restriction * Singles out state body; and * Burdened it in governmental capacity| Characterisation - | 3| R v Brislan 1935| Section 51(v) of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia that gives the Commonwealth Parliament of Australia power to legislate on "postal, telegraphic, telephonic, and other like services".The most problematic part of this power has been the words 'other like services'. The High Court has taken a flexible approach to interpreting this provision that has recognized that technology has changed since the constitution was written.In the case of R v Brislan, in 1935, the High Court decided that s51(v) included the power to regulate radio broadcasting. However, in Brislan four of the judges held radio to be a wireless type of ‘telegraphic or telephonic service’, rather than an ‘other like service’.In the 1965 case of Jones v Commonwealth (No 2) the High Court found that television broadcasting also fell under the ambit of s51(v). In his ratio decidendi Knox CJ expanded the definitions in s.51(v) to future development, a view shared by Higgins J.Although the communications power is often presumed to apply broadly as new technologies arise, it is uncertain, in the absence of litigation, whether Commonwealth regulation will be supported. For example, it is unclear whether regulation of internet content would be supported under Section 51(v).The Commonwealth has already relied on Section 51(v) to regulate parts of the internet. For example, the Interactive Gambling Act, which regulates the...
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