Category Archives: Constiutional law

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12

ON 8 APRIL 2015, the High Court of Australia delivered Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 (8 April 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/12.html

The High Court held that certain provisions under the Clean Energy Regulations 2011 (Cth) were valid as they did not give preference to one State over other States and therefore did not contravene s99 of the Constitution.

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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11

ON 8 APRIL 2015, the High Court of Australia delivered Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 (8 April 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/11.html

The High Court held that Queensland Rail is a trading corporation within the meaning of s51(xx) of the Constitution and as such is an employer governed by the Fair Work Act 2009 (Cth) and not subject the Queensland industrial relations laws which are invalid to the extent that they apply to Queensland Rail.

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Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7

ON 4 MARCH 2015, the High Court of Australia delivered Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (4 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/7.html

The High Court allowed an appeal by the Australian Communications Media Authority (ACMA) against a decision of the Federal Court of Australia regarding the investigation of a broadcast in December 2012 by Today FM (Sydney) Pty Ltd, a licensee under the Broadcasting Services Act 1992 (Cth).

The broadcast contained a recorded telephone conversation between two radio presenters and two of the staff of the King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient. The conversation was recorded and broadcast without the consent of either of the hospital staff.

ACMA investigated the matter and determined that Today FM breached a licence condition of breaching a law of the Commonwealth or State or Territory by communicating a private conversation without the consent of the principal parties in breach of the Surveillance Devices Act 2007 (NSW).

Today FM brought proceedings in the Federal Court of Australia seeking declarations and injunctions against ACMA. They argued (1) that ACMA was not authorised to determine the breach of the licence condition issue until a competent court had determined that Today FM had committed the Surveillance Devices Act offices and (2) in the alternative, that if ACMA was so authorised, the legislation was invalid because of its inconsistency with the separation of judicial and executive powers in the Constitution.

The Federal Court dismissed the matter but on appeal the Full Court of the Federal Court allowed an appeal on the grounds of the first argument.

Special leave was granted for ACMA to appeal to the High Court of Australia. The High Court allowed the appeal, holding that ACMA has the power to make an administrative determination that a licensee has committed a criminal offence (under the Surveillance Devices Act), notwithstanding there being no court determination of the offence as the tribunal is not exercising judicial power not adjudging or punishing criminal guilt.

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APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 | 1 September 2005

ON 1 SEPTEMBER 2005, the High Court of Australia delivered APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322; 79 ALJR 1620; 219 ALR 403 (1 September 2005).

The plaintiffs brought proceedings challenging the constitutional validity of regulations made under Part 14 of the Legal Profession Act 1987 (NSW) banning lawyers from advertising their services for personal injury claims.

Clause 139 provided:

“(1) A barrister or solicitor must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:

(a) personal injury,

(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,

(c) a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).

Maximum penalty: 10 penalty units.

(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.”

The plaintiffs argued that the regulations infringe various provisions of the Constitution including the guarantee of freedom of communication on political matters, free trade and the rule of law.

The High Court ruled that the regulations are constitutionally valid.

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Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54 | 31 August 1920

ON 31 AUGUST 1920, the High Court of Australia delivered Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54; (1920) 28 CLR 129 (31 August 1920).

Prior to the Engineers’ case, the High Court had held that the States had reserved powers and their instrumentalities were immune from Commonwealth interference. In the Engineers Case, the High Court held that, through a literal interpretation of the Constitution, the Commonwealth Parliament has the power to make laws with respect to conciliation and arbitration, allowing the Commonwealth Court of Conciliation and Arbitration to regulate the wages and conditions of employees of the State of Western Australia.

The case is significant because of the High Court’s adoption of a literal approach to constitutional interpretation. Per Higgins at 161-2:

“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”

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APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44

ON 1 SEPTEMBER 2005, the High Court of Australia delivered APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322; 79 ALJR 1620; 219 ALR 403 (1 September 2005).

The plaintiffs brought proceedings challenging the constitutional validity of regulations made under Part 14 of the Legal Profession Act 1987 (NSW) banning lawyers from advertising their services for personal injury claims.

Clause 139 provided:

“(1) A barrister or solicitor must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:

(a) personal injury,

(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,

(c) a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).

Maximum penalty: 10 penalty units.

(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.”

The plaintiffs argued that the regulations infringe various provisions of the Constitution including the guarantee of freedom of communication on political matters, free trade and the rule of law.

The High Court ruled that the regulations are constitutionally valid.

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Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54

ON 31 AUGUST 1920, the High Court of Australia delivered Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54; (1920) 28 CLR 129 (31 August 1920).

Prior to the Engineers’ case, the High Court had held that the States had reserved powers and their instrumentalities were immune from Commonwealth interference. In the Engineers Case, the High Court held that, through a literal interpretation of the Constitution, the Commonwealth Parliament has the power to make laws with respect to conciliation and arbitration, allowing the Commonwealth Court of Conciliation and Arbitration to regulate the wages and conditions of employees of the State of Western Australia.

The case is significant because of the High Court’s adoption of a literal approach to constitutional interpretation. Per Higgins at 161-2:

“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”

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