Category Archives: Constitutional law

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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R v Kirby; Ex parte Boilermakers’ Society of Australia (“Boilermakers’ case”) [1956] HCA 10 | 2 MARCH 1956

ON THIS DAY IN 1956, the High Court of Australia delivered R v Kirby; Ex parte Boilermakers’ Society of Australia (“Boilermakers’ case”) [1956] HCA 10; (1956) 94 CLR 254 (2 March 1956).

http://www.austlii.edu.au/au/cases/cth/HCA/1956/10.html

The Commonwealth Court of Conciliation and Arbitration was established under the Conciliation and Arbitration Act 1904 (Cth). The court was vested it with federal executive powers under s51(xxv) of the Australian Constitution regarding “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. The court also exercised federal judicial jurisdiction and power as a court under Chapter III of the Constitution.

The High Court ruled that the Commonwealth Court of Conciliation and Arbitration was unconstitutional because it conferred non-judicial functions on a Chapter III court.

The decision confirmed the doctrine of separation of powers in the Constitution by the rule that it is unconstitutional for non-judicial power to be conferred on a Chapter III court.

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Marbury v Madison 5 US 137 (1803) | 24 February 1803

ON THIS DAY IN 1803, the US Supreme Court delivered Marbury v Madison 5 US 137 (1803).

http://laws.lp.findlaw.com/getcase/us/vol/getcase/US/5/137.html

The Supreme Court of the United States held invalid legislation passed by Congress which purported to enlarge the original jurisdiction of the Supreme Court by authorising the issue of mandamus. The Court held that Congress had no power to give original jurisdiction to the Supreme Court in cases other than those described in Art III.

The decision is significant in that it sets the principle that the US Supreme Court has the ultimate power to review the validity of acts of Congress enacted in violation of the United States Constitution.

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R v Toohey; Ex parte Northern Land Council [1981] HCA 74 | 24 December 1981

ON 24 DECEMBER 1981, the High Court of Australia delivered R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 (24 December 1981).

Delegated legislation of the Governor in Council is invalid if made for an improper purpose, namely, a purpose which is not within the scope of the empowering legislation, even if it appears valid on its face. The Crown and its agents are not immune from challenge when acting not in good faith or for ulterior purpose.

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Thomas Bonham v College of Physicians (“Dr Bonham’s case”) 8 Co Rep 107a; 77 Eng Rep 638 | 1 December 1610

ON 1 DECEMBER 1610, the Chief Justice of the English Court of Common Pleas, Sir Edward Coke, delivered Thomas Bonham v College of Physicians 8 Co Rep 107a; 77 Eng Rep 638.

Dr Bonham had been fined and imprisoned by the Royal College of Physicians for continuing to practise as a Physician in London. He brought a case for false imprisonment.

Coke CJ held that Charter granted by the Parliament to the College of Surgeons was invalid due to bias.

Coke CJ at 118a ruled:

“The censors cannot be judges, ministers, and parties; judges to give
sentence or judgment; ministers to make summons; and parties to have the
moiety of the forfeiture…”

Coke CJ at 118a said:

“It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an act to be void.”

The case establishes the rule against bias as a constitutional limit on the exercise of parliament’s legislative powers. In short, (1) a person may not be a judge in their own case and (2) an Act of Parliament is invalid if it conflicts with a basic principle of the common law (such as that a person may not be a judge in their own case).

 

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Street v Queensland Bar Association [1989] HCA 53 | 16 November 1989

ON 16 NOVEMBER 1989, the High Court of Australia delivered Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 (16 November 1989).

http://www.austlii.edu.au/au/cases/cth/HCA/1989/53.html

Section 117 of the Australian Constitution provides: “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State”.

The Rules of Court for Barristers applying for admission in Queensland were held to not apply to Mr Street as they contravened s117 of the Constitution by requiring him to have an intention of practising principally in Queensland.

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Kuczborski v Queensland [2014] HCA 46

ON 14 NOVEMBER 2014, the High Court of Australia delivered Kuczborski v Queensland [2014] HCA 46 (14 November 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/46.html

A Hells Angels member brought proceedings challenging the constitutional validity of Queensland legislation enacted to disrupt the operations of motorcycle clubs and associations.

The plaintiff sought declarations that the legislation is invalid as it infringes the the principle of Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 by conferring functions on the Queensland courts that are incompatible with their institutional integrity and therefore contrary to Chapter III of the Constitution.

The High Court held unanimously that the plaintiff did not have the standing to seek the declarations as he had not been charged with or committed any offence under the legislation and therefore was not restricted in his freedom.

The court also held that the laws do not impose an extraordinary imposition on the Queensland judiciary.

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Tajjour v State of New South Wales [2014] HCA 35

ON 8 OCTOBER 2014, the High Court of Australia delivered Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South WalesTajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

http://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-35-2014-10-08.pdf

http://www.austlii.edu.au/au/cases/cth/HCA/2014/35.html

The High Court upheld the constitutional validity of s93X of the Crimes Act 1900 (NSW).

Section 93X makes it an offence for a person to habitually consort with convicted offenders and consort with those convicted offenders after being given an official warning in relation to each of those offenders.

The section was challenged on the basis that it impermissibly burdens the implied constitutional freedom of communication concerning government and political matters.

The court determined that the section did not impermissibly burden the implied constitutional freedom.

The court accepted that there is a burden, but held the section was not invalid as it was “reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of government”.

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Kable v Director of Public Prosecutions [1996] HCA 24 | 12 September 1996

ON 12 SEPTEMBER 1996, the High Court of Australia delivered Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (12 September 1996).

The High Court established the principle that a State Parliament may not legislate to confer a power on a State Court that is inconsistent or repugnant to the State Court’s Chapter III judicial power as a court exercising federal jurisdiction under the Constitution.

The High Court held that the Community Protection Act 1994 (NSW) was incompatible with Chapter III as it required the NSW Supreme Court to order the continued imprisonment of a person convicted of manslaughter after the expiration of his sentence.

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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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