Category Archives: Constitutional law

Constitutional law, Criminal Law, Criminal Procedure, LAW FIRM, Uncategorized

Cheatle v R [1993] HCA 44 | 26 August 1993

ON 26 AUGUST 1993, the High Court of Australia delivered Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 (26 August 1993).

http://www.austlii.edu.au/au/cases/cth/HCA/1993/44.html

South Australian law allowed for a majority verdict of 10 or 11 jurors. Mr and Mrs Cheatle were convicted by a majority verdict of a South Australian jury for the indictable offence of conspiracy to defraud the Commonwealth. The High Court allowed an appeal, holding that s80 of the Constitution required unanimous verdicts for Commonwealth indictable offences. A new trial was ordered.

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Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 | 21 August 1992

ON 21 AUGUST 1992, the NSW Court of Appeal delivered Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.

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Administrative Law, Constitutional law, LAW FIRM, Migration Law

Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 | 21 August 2007

ON THIS DAY in 2007, the Federal Court of Australia delivered Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (21 August 2007).

http://www.austlii.edu.au/au/cases/cth/FCA/2007/1273.html

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Constitutional law, Criminal Law, Criminal Procedure, LAW FIRM

Pollentine v Bleijie [2014] HCA 30

ON 14 AUGUST 2014, the High Court of Australia delivered Pollentine v Bleijie [2014] HCA 30 (14 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/30.html

The Criminal Law Amendment Act 1945 (Qld) provides that a judge of a trial in which a person is found guilty of a child sexual offence may seek medial opinion as to whether or not the offender is “incapable of exercising proper control over the offender’s sexual instincts” and if the opinion is that the offender is incapable of exercising such control, the judge may in addition to or in lieu of any other sentence, declare that the person is incapable of exercising such control and direct that the offender be detained in an institution during “Her Majesty’s pleasure”.

The plaintiffs challenged the validity of s18, alleging that the provision is contrary to Chapter III of the Constiution by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

The court upheld the validity of s18, holding that the provision is not contrary to Chapter III because the presiding judge has the discretion whether to direct the detention; and a decision to release an offender is not the subject of an unconfined executive discretion as it is subject to safeguards including medical opinion and judicial review.

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Constitutional law, LAW FIRM

Polyukhovich v Commonwealth (“War Crimes Act case”) [1991] HCA 32 | 14 August 1991

ON 14 AUGUST 1991, the High Court of Australia delivered Polyukhovich v Commonwealth (“War Crimes Act case”) [1991] HCA 32; (1991) 172 CLR 501 (14 August 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/32.html

Polyukhovich brought proceedings against the Commonwealth seeking declarations that the War Crimes Amendment Act 1988 (Cth) and certain provisions of the War Crimes Act 1945 (Cth) were constitutionally invalid on the grounds that the legislation (1) exceeded the Commonwealth’s defence (s51(vi)) and external affairs powers (s51(xxix)); and (2) invalidly usurped the Commonwealth’s judicial power, infringing Chapter III.

The High Court held that the legislation was valid.

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Constitutional law, LAW FIRM

Melbourne v Commonwealth (“Melbourne Corporation case”) or (“State Banking Case”) [1947] HCA 26 | 13 August 1947

ON 13 AUGUST 1947, the High Court of Australia delivered Melbourne v Commonwealth (“State Banking case”) [1947] HCA 26; (1947) 74 CLR 31 (13 August 1947), also known as the Melbourne Corporation case.

http://www.austlii.edu.au/au/cases/cth/HCA/1947/26.html

The Commonwealth attempted to nationalise Australian banks through the enactment of legislation including s48 of the Banking Act 1945 (Cth). The legislation was enacted under the Commonwealth Parliament’s banking powers of s51 (xxxi) of the Commonwealth Constitution.

The High Court declared s48 to be constitutionally invalid. The court implied, from the federal nature of the Constitution, limitations on the Commonwealth’s express powers. Those limitations were (1) prohibition of discriminatory burdens or disabilities on the States and (2) prohibition of making laws of general application which operate to destroy or curtail the continued existence of the States or their ability to govern.

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Bank of NSW v Commonwealth (“Bank Nationalisation case”) | 11 August 1948

ON 11 AUGUST 1948, the High Court of Australia delivered Bank of NSW v Commonwealth (“Bank Nationalisation case”) [1948] HCA 7; (1948) 76 CLR 1 (11 August 1948).

http://www.austlii.edu.au/au/cases/cth/HCA/1948/7.html

The High Court held that the nationalisation of banks was beyond the Commonwealth’s constitutional power.

The Banking Act 1947 (Cth) provided that the Commonwealth Bank could acquire shares in private banks, whether by agreement or compulsion. The effect of the legislation would be to grant an monopoly to the Commonwealth Bank, owned by the Commonwealth.

The Banking Act 1947 was held to be invalid on a number of grounds including (1) that it infringed the s92 constitutional guarantee of freedom of interstate trade, commerce and intercourse by compelling the States and their agencies to bank with the Commonwealth Bank and (2) the proposed acquisition was not on just terms as required under s51(xxxi).

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Al-Kateb v Godwin [2004] HCA 37 | 6 August 2004

ON 6 AUGUST 2004, the High Court of Australia delivered Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 (6 August 2004).

http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html

The High Court held that the provisions under the Migration Act 1958 (Cth) requiring the continued detention of non-citizens for an indefinite period are not prohibited by the Constitution because the purpose of the legislation is the eventual removal of those persons.

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Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40 | 2 August 1962

ON 2 AUGUST 1962, the High Court of Australia delivered Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40; (1962) 108 CLR 372 (2 August 1962).

http://www.austlii.edu.au/au/cases/cth/HCA/1962/40.html

The case is notable for establishing the “Cigamatic doctrine”: that the Constitution grants to the Commonwealth a limited immunity from State laws.

The immunity relates to the Commonwealth’s executive capacities rather than the exercise of those capacities. In other words, a State law can regulate the exercise of Commonwealth executive capacities as long as it does not alter or deny those capacities: see Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410; (1997) 146 ALR 495; (1997) 71 ALJR 1254.

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Constitutional law, Taxation

South Australia v Commonwealth (“First Uniform Tax case”) [1942] HCA 14 | 23 July 1942

ON 23 JULY 1942, the High Court of Australia delivered South Australia v Commonwealth (“First Uniform Tax case”) [1942] HCA 14; (1942) 65 CLR 373 (23 July 1942).

http://www.austlii.edu.au/au/cases/cth/HCA/1942/14.html

The Commonwealth passed four Acts

  • Income Tax Act 1942, which imposed income tax as high as 90 percent, leaving no room for additional state income tax.
  • States Grants Act 1942, allowing grants to states who did not impose income tax.
  • Section 221 of the Income Tax Assessment Act 1942, requiring Commonwealth taxes to be paid before state taxes.
  • the Income Tax (Wartime Arrangements) Act 1942, requiring the states to transfer to the Commonwealth all tax collection officers, offices, equipment and records.

The effect of the four acts was to put an end to the end of state income taxes.

The Act was challenged in the High Court by South Australia, Victoria, Queensland and Western Australia. The Court dismissed the actions, holding that the four pieces of legislation were valid.

The solicitor for the Commonwealth was Fred Whitlam, the father of the Honourable Edward Gough Whitlam AC QC, Prime Minister of Australia from 1972 to 1975.

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