Politics and Law ATAR 12 Key Cases

Engineers Case (1920)

A national trade union was involved in WA Government sawmill factory industrial dispute. Because it was national union the Federal government sought to legislate. Reversed s51(xxxv) decision in Railway Servants Case. Wiped away protection of State power provided by doctrine of implied immunities.

Roads Case 1926

VIC challenged CW ability to place conditions on funding provided for the construction of roads under s96 grants.HCA found that CW could attached conditions as it thinks fit to grants, even in relation to residual powers. Expanded CW financial power.

Uniform Tax Case (1942) & (1957)

To assist in WW2 Federal Government passed several tax laws. The combined effect was that the Commonwealth took over income tax. States challenged this. 1942, HC found that all 4 Acts were Constitutional basis of ss 51(ii), 96 & 109. 1957 challenged confirmed this. Meant that States unable to collect income tax, making them financially reliant on Commonwealth grants.

Communist Party Case 1951

Menzies Government's Community Party Dissolution Act 1950 sought to dissolve the Communist Party and allow for bodies and individuals declared affiliated with, or to be, communist. The Act also prevented the Communist Party from disproving allegations against them. The HC ruled the act unconstitutional, as there was no 'state of war' that could justify proscribing organisations and the threat from the party did not justify peremptory legal penalties.

Koowarta (1982)

John Koowarta, an Indigenous man, tried to buy a property. The QLD government tried to prevent this purchase. State decision contravened Racial Discrimination Act 1975, which was passed through external affairs power s51 (xxix). HC ruling in Federal favour expanded Commonweal powers at the expense of States.

Tasmanian Dams (1983)

Tasmania attempted to dam a major river, Federal gov prevented it using s51(xxix). Solidified federal powers. Further developed external affairs powers.

Dietrich (1992)

Charged with smuggling heroin in condoms, Dietrich was refused legal aid unless he pleaded guilty. Appealed based on ICCPR and right to fair trial. Established Common Law right to fair trial when individual cannot afford representation. However, no 'right' to legal representation at public expense.

Mabo (1992)

Eddie Mabo was a Torres Strait Islander. QLD regulated these islands. In 1981 Mabo made a speech at about this at James Cook University, a lawyer heard and then supported a legal case seeking to claim a form a land title. HC overruled NSW Supreme Court decision establishing doctrine of terra nullius, establishing a common law right to native title. However, if there is a break in lease native title no longer exists.

ACTV (1992)

The Political Broadcasts and Political Disclosures Act 1991 prohibited broadcasting of politically related material on electronic media in the lead up to an election. This was challenged by several broadcasters. HC found that s7 & 24 guarantee a right to freedom of speech on political matters & public affairs in order for the public to make an informed decision to vote for a representative government.

Theophanous (1994)

A published article was critical of ALP member, stating he 'appears to want a bias shown towards Greeks as migrants'. Tried to sue as defamation. The HC established that freedom of communication could be a defence against defamation if the subject was a discussion regarding a person in a political office

Wik (1996)

Wik people made a claim that native title co-exists with pastoral leases. HC found (4-3) that native title could co-exist alongside leasehold land (native title is not extinguished).

Ha & Hammond (1997)

Two cases, both v NSW, involved tobacco sale and whether States could levy fees on this. HC found fees to be an 'excise', which is exclusive to Commonwealth s90. Cases undermined State financial powers, increasing VFI.

Work Choices (2006)

WorkChoices was Commonwealth IR law introduced by Howard gov. Intended to take most of States IR powers. Federal IR power is under s51 (xxxv) is very limited, so was introduced under broader s51(xx). States lost the HC challenge, further expanding Commonwealth power.

Plaintiff M70 (2011)

Related to movement of asylum seekers to Malaysia under policy of Malaysia Solution. Plaintiffs argued this contravened Migration Act 1958 because Malaysia is not party to the 1951 Refugee Convention. The HC decision expanded scope of jurisdictional facts (conditions which must exist before a statue can be enlivened). This is important because it allows the HC to examine statutes previously assumed to have adhered to jurisdictional facts.

Rowe (2010)

In 2006 the Commonwealth Electoral Act 1918 was amended. This amendment ensured that a person could not vote at a House of Representatives or Senate election if they were serving a prison sentence. The High Court found that: (1) there is no express right to vote in the Commonwealth Constitution (2) ss 7 and 24 limit the Commonwealth Parliament's legislative powers to regulate the franchise in ways that are not consistent with a 'direct choice by the people'.

Williams No 1 (2012)

Federal gov instated the National School Chaplaincy Programme. Ronald Williams challenged the validity of using s61 to implement this programme. Helped define & limit the prerogative powers of executive. Court held that constitution does not permit executive to fund programs if Parliament has the power to legislate on it. 427 grants & programs had to be passed by Parliament as a result (2.4% of GDP was impacted)

Williams No 2(2014)

Williams again challenged NSCP, arguing that s51(23a) was an unconstitutional head of power. Gov had provided funding directly to Scripture Union. HC found that payments IAW s51(23a) needed to be paid directly to beneficiary. Further defined & limited the prerogative powers of executive

Plaintiff S99 (2016)

A refugee was raped while suffering an epileptic seizure on Nauru. She was transferred to PNG for an abortion as this was banned in Nauru. There were concerns that the procedure would not be safe in PNG due to the refugee's medical condition. The refugee sought a safe and legal abortion procedure in Australia. HCA issued an injunction to prevent abortion proceedings in PNG and preventing transfer back to Nauru. After the injunction the case was referred to the Federal Court and the refugee remained in PNG during the process as the injunction restrained the executive's action, preventing her removal.

Citizenship 7 (2017)

s44(i) of the Constitution prevents dual citizens from holding office. An investigation indicated that some MPs held dual citizenship. HC acted as Court of Disputed Returns and examined. The judiciary established the power to disqualify members and candidates for parliament.

Timber Creek (2017)

HC appeal of Griffith v NT (2016), where $1.3 million compensation for cultural & spiritual loss was awarded. HC dismissed appeal. New common law precedent established where a) cultural & spiritual loss can be commodified and b) indigenous cultural & spiritual connection is a legal priority.

The Pell Case (2020)

Victorian County Court jury found George Pell guilty of charges of historic sexual offences against young boys and he was sentenced to 6 years in prison. Pell sought leave to appeal the case to the Victorian Supreme Court of Appeal (VSCA), which dismissed the appeal in a split decision. The HC found that the jury ought to have had doubt as to the applicant's guilt with respect to each of the offences for which he was convicted. The HC ordered that the convictions be quashed and that verdicts of acquittal be entered in their place

Love and Thoms (2020)

Love (PNG) & Thomas (NZ) have aboriginal heritage. Their visas to Australia were cancelled as they committed a crime. This was challenged in HC. 4-3 decision HC held that Aboriginal Australians are not 'aliens', even if they are non-citizens. Literal interpretation of 'alien' used (belong to another place), but Mabo established Aboriginal connection to land. This limits power of Commonwealth s51 (xix).

Palmer v State of WA (2020)

Clive Palmer sought to challenge WA's tough border restrictions during the COVID crisis, claiming they inhibited free trade under s.92 The HC rejected Palmer's argument and found that the burden on interstate movement imposed by the border closures was suitable for achieving the purpose of preventing COVID-19 from entering the WA community (i.e. it was a proportionate response).