Australian Constitution

Cases

Landmark constitutional decisions

2023
s 51(xix)s 71

NZYQ

Indefinite immigration detention is unconstitutional; overturned Al-Kateb v Godwin

2021
s 92

Palmer v WA

COVID-19 border closures upheld under s 92; reunified the trade/commerce and intercourse limbs and applied structured proportionality to s 92

2020
s 51(xix)

Love v Commonwealth

Held that Aboriginal Australians recognised under traditional law and custom as belonging to a community cannot be considered 'aliens' under s 51(xix) and therefore cannot be deported

2019
s 7s 24

Clubb v Edwards

Confirmed and refined the structured proportionality test; abortion clinic safe-zone laws upheld as valid

2017
s 7s 24

Brown v Tasmania

Anti-protest legislation held invalid as an impermissible burden on the implied freedom of political communication; protest is constitutionally protected

2015
s 7s 24

McCloy

Introduced structured proportionality testing (suitability, necessity, adequacy in balance) into the implied freedom of political communication

2013
s 7s 24

Unions NSW

NSW electoral donation restrictions held to impermissibly burden the implied freedom of political communication

2012
s 61s 81s 83

Williams v Commonwealth

Held that the Commonwealth executive power does not extend to entering into contracts and spending money on any subject; Commonwealth funding of the National School Chaplaincy Programme required legislative authorisation under a head of power

2010
s 71s 73

Kirk

State Supreme Courts possess a constitutionally entrenched minimum jurisdiction to review jurisdictional errors of inferior courts and tribunals

2010
s 7s 24

Rowe

The Constitution embeds a right to vote; early closure of electoral rolls after writs are issued was invalid

2009
s 61s 51(xxxix)s 81

Pape v Commissioner of Taxation

Recognised the Commonwealth's executive power under s 61 as an independent source of spending power in circumstances of national emergency, upholding the stimulus payments during the Global Financial Crisis

2009
s 51(xxxi)s 122

Wurridjal

The just terms guarantee in s 51(xxxi) applies to acquisitions of property under the territories power (s 122)

2007
s 7s 24

Roach v Electoral Commissioner

Held that the constitutional requirement that members of Parliament be 'directly chosen by the people' implies a constitutionally protected right to vote that cannot be restricted by a blanket ban on prisoner voting

2006
s 51(xx)s 51(xxxv)

Work Choices Case

Broadly interpreted the corporations power (s 51(xx)) to uphold the Work Choices industrial relations legislation, overturning the narrow reading from Huddart Parker

2004
s 51(xix)s 71

Al-Kateb

Indefinite detention of a stateless person held constitutionally valid where removal from Australia was not reasonably practicable

2003
s 75(v)

Plaintiff S157

Upheld the constitutional entrenchment of judicial review under s 75(v), holding that privative clauses cannot oust the High Court's jurisdiction to review jurisdictional error

1999
s 71s 75s 76

Re Wakim

State Parliaments cannot confer State jurisdiction on federal courts; the cooperative cross-vesting scheme was partially invalid

1999
s 44

Sue v Hill

The United Kingdom is a foreign power for the purposes of s 44(i); dual citizens with the UK are disqualified from sitting in Parliament

1997
s 90

Ha v New South Wales

Broadly interpreted s 90 to prevent States from imposing duties of excise; redefined excise as a tax on goods at any point before consumption

1997
s 7s 24s 64

Lange v ABC

Reformulated and clarified the implied freedom of political communication, establishing the two-step test for determining whether a law infringes the implied freedom

1996
s 71s 77(iii)

Kable v DPP

Held that State legislation cannot confer functions on State courts that are incompatible with their role as repositories of federal judicial power under Chapter III

1992
s 7s 24s 64

Australian Capital Television v Commonwealth

Established the implied freedom of political communication derived from the system of representative and responsible government in the Constitution

1992
s 7s 24

Nationwide News v Wills

Recognised the implied freedom of political communication; struck down a provision criminalising criticism of the Industrial Relations Commission

1992
s 51(xxvi)s 109

Mabo (No 2)

Recognised native title in Australian common law, rejecting the doctrine of terra nullius; has constitutional significance regarding the races power and the relationship between Commonwealth and State laws on Indigenous matters

1992
s 51(xix)s 71

Lim

Executive detention of aliens must be non-punitive; punitive detention is exclusively a judicial function under Chapter III

1992
s 44

Sykes v Cleary

Leading case on s 44 disqualification — defined requirements for renouncing foreign citizenship and the scope of office of profit under the Crown

1989
s 117

Street v Queensland Bar Association

Interpreted s 117 (rights of residents in States) as prohibiting discrimination on the basis of State residence, striking down Queensland Bar rules that discriminated against interstate barristers

1988
s 92

Cole v Whitfield

Reinterpreted s 92 (freedom of interstate trade and commerce) as a guarantee against discriminatory and protectionist burdens on interstate trade, abandoning the individual rights-based 'free trade' interpretation

1983
s 51(xxix)s 51(xx)

Tasmanian Dam Case

Broadly interpreted the external affairs power to uphold Commonwealth legislation preventing the construction of a dam in Tasmania, based on World Heritage Convention obligations

1982
s 51(xxix)

Koowarta v Bjelke-Petersen

Upheld the Racial Discrimination Act 1975 as a valid exercise of the external affairs power, confirming that implementation of international treaties falls within s 51(xxix)

1971
s 51(xx)

Concrete Pipes Case

Broadened the corporations power (s 51(xx)) by overruling Huddart Parker, allowing Commonwealth regulation of the activities of trading corporations

1957
s 51(ii)s 96

Second Uniform Tax Case

Confirmed the validity of the uniform taxation scheme in peacetime, upholding the Commonwealth's continued dominance of the income tax field

1956
s 71s 72s 73

Boilermakers' Case

Established the strict separation of judicial power doctrine under Chapter III of the Constitution, preventing federal courts from exercising non-judicial power and non-judicial bodies from exercising judicial power

1951
s 51(vi)s 51(xxxix)

Communist Party Case

Struck down the Communist Party Dissolution Act 1950, holding that the Commonwealth cannot simply declare facts to bring legislation within a head of power; Parliament cannot expand its own powers by legislative recital

1948
s 51(xiii)s 92

Bank Nationalisation Case

Struck down the Banking Act 1947 provisions for nationalisation of private banks, partly on the basis of s 92 freedom of interstate trade

1947
s 51(ii)

Melbourne Corporation Case

Established the implied limitation on Commonwealth legislative power that prevents the Commonwealth from discriminating against States or impairing their capacity to function as governments

1942
s 51(ii)s 51(xxxix)s 96

First Uniform Tax Case

Upheld the Commonwealth's wartime scheme to impose uniform income taxation, effectively excluding the States from the income tax field

1920
s 51s 109

Engineers' Case

Rejected the doctrine of implied intergovernmental immunities and reserved State powers; established that Commonwealth powers should be interpreted according to their natural meaning

1909
s 51(xx)

Huddart Parker v Moorehead

Early interpretation of the corporations power (s 51(xx)) held it did not extend to regulating the conduct of trading corporations, only their incorporation

1904

D'Emden v Pedder

Established the doctrine of intergovernmental immunities, holding that Commonwealth instrumentalities were immune from State laws