Category Archives: Constiutional law

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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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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CPCF v Minister for Immigration and Border Protection [2015] HCA 1

ON 28 JANUARY 2015, the High Court of Australia delivered CPCF v Minister for Immigration and Border Protection [2015] HCA 1.

http://www.austlii.edu.au/au/cases/cth/HCA/2015/1.html

The plaintiff and 156 other passengers were on an unseaworthy Indian flagged vessel which was intercepted by an Australian border protection vessel in Australia’s contiguous zone in the Indian Ocean. The plaintiff claimed to be a refugee fleeing persecution in Sri Lanka for being a Tamil. The plaintiff and the other passengers were detained by the Australian maritime officers and first taken to India and then to the Australian Territory of the Cocos (Keeling) Islands where they were placed into immigration detention.

The plaintiff claimed damages for wrongful imprisonment, alleging that the detention was unlawful under the Maritime Powers Act because he was not afforded procedural fairness in that he was not asked whether or not he was a person in respect of whom Australia owed non-refoulement obligations.

The High Court dismissed the claim, holding that the detention was not unlawful under the Maritime Powers Act 2013 (Cth). The court held that:

 

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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