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Australian & Comparative Constitutional Law


Finding Cases

This page will help you find cases on the Commonwealth Constitution. For more detailed information about finding Australian cases, please see the Australian Case Law page on our Australian Cases, Legislation and Law Reform Research Guide.


Finding Cases on a Topic

Finding Leading Cases

All books discussing your topic will refer to leading cases. For landmark constitutional cases (the most important cases), see the following book, but note it was written in 2003, so use more recent books to update it:


Overview

Finding all cases 

Searching

KeyCite on Westlaw Australia (UniMelb staff & student access)

  • Search for your topic using the 'Classification' field on the search form. As you type, a list of suggested terms will open up. Alternatively, enter search terms in the 'Catchwords' field on the search form - this will search for your term in the catchwords section of the judgment. 

Lexis Advance (UniMelb staff & student access)

  • Use the arrow next to Advanced Search at the top of the screen and select Cases.
  • On the Advanced Search screen, use the Catchwords/Summary search box, and type eg: constitution AND marriage.
  • The results will be listed by relevance but can be sorted by date, court, or jurisdiction.
  • The results can be narrowed by using the sidebar menu on the left of the page to select court, jurisdiction, timeline or legal topic. hand side by eg: selecting  topics and then selecting constitutional law; or selecting a particular court.
  • The results can be further refined by adding terms in the Narrow Search box on the top right hand of the results screen.

JADE (open access)

‚ÄčMost of JADE is open access (you need to register your email address to use it - see here for more details).

  • Select Jade Browser from the top menu.

  • Select Browse Collections > By Topic from the left-hand sidebar.

  • Select Constitutional Law from the alphabetical list.
  • Click Edit This Search at the top of the page - this will take you to the Advanced Search screen.
  • Add your topic eg: marriage - to the Text search box and select Catchwords from the dropdown menu.
  • Click the Filter button at the bottom of the screen to see the results.

 

 

 

Browsing            

Westlaw Australia 

From the sidebar on the left of the homepage:

  • Click on Cases
  • Then open the + sign next to FirstPoint to see an alphabetical list of topics
  • Scroll to Constitutional Law and open the + sign to open up narrower and narrower topics and then click on the topic you want
  • The cases are arranged by year, with the most recent first.


Which Courts can hear Commonwealth Constitutional Cases?

Australia has no constitutional court. Matters arising under the Constitution or involving its interpretation are heard in courts of general jurisdiction.


Finding Cases on Sections of the Constitution

Finding Leading Cases 

  • Use Annotators, which provide a section by section commentary and list leading cases for each section.
  • See also the box below on this page, which contains some leading cases on specific sections.

Finding all cases 

The following all have similar content, but enough differences to make it worth using all if you want to search comprehensively. 

FirstPoint on WestlawAU (UniMelb staff & student access)

  • In the Legislation Title field, type constitution. In the Legislation Provision field, type eg: 51(xxi).
  • From the results, you can use the sidebar to refine by eg: classification, court, jurisdiction, date, most cited.

Lexis Advance (UniMelb staff & student access)

  • Use the arrow next to Advanced Search at the top of the screen and select Cases.
  • On the Advanced Search screen, use the Legislation Title and Provision Number search boxes.
  • From the results page, use the sidebar menu to refine by eg: court, jurisdiction, date or topic

JADE 

Most of JADE is open access (you simply need to register your email address to use the open-access part of JADE. Finding cases on legislative provisions requires a subscription - see here for more details).

  • Start to type Constitution of in the top search box - JADE will auto-suggest Constitution of Australia - document in JADE. Click on this:

 

  • If you want cases on s 51(xxi) (the 'Marriage' section), scroll to s 51.
  • On the right of the section, you'll see a green 'jademark' and a green box indicating the number of citations to this section. Click the + sign to open this and you will see links to citations to the sub-sections. Click on 51(xxi) to see all cases citing this sub-section.

 

Some Landmark Commonwealth Constitutional Cases

Landmark decisions on the Commonwealth Constitution are made by the High Court of Australia and reported in the authorised report series, the Commonwealth Law Reports ('CLR'). CLRs are available on WestlawAU (UniMelb staff & student access). The hyperlinks on the unreported citations for the cases below take you to the cases on JADE (open access). Many of the older cases on JADE include images of the reports in the CLR. 

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; [1956] HCA 10 ('Boilermakers Case') - a landmark decision on the separation of powers. The majority of the High Court held that the Commonwealth Court of Conciliation and Arbitration was not a Chapter III court and could not validly exercise judicial functions.

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 ('Mabo') - this decision recognised native title in Australia for the first time. The High Court rejected the doctrine of terra nullius in favour of the common law doctrine of aboriginal title.

 

Section 51 Landmark Decisions

Section 51 (xxvi) - the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws - Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 ('Hindmarsh Island Bridge Case') - dispute regarding the Hindmarsh Island Bridge and the issue regarding the scope of the race power. Click here for You Tube video.

Section 51 (xxix) external affairs Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 ('Tasmanian Dam Case') - in this case, the Commonwealth succeeded in stopping the building of a hydro-electricity dam proposed for Tasmania. It was held that the Commonwealth had power under section 51 (xxix) of the Constitution to stop the dam based on Australia's international obligations under the World Heritage Convention.

Section 51 (xxxi)  the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws 

  • Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 - this case decided that when acquiring property in a Territory or in a State, the Commonwealth must do so on 'just terms'. In other words the majority in this case held that the Commonwealth had infringed section 51 (xxxi).
  • Bank of New South Wales v The Commonwealth (1948) 76 CLR 1; [1948] HCA 7 (the 'Bank Nationalisation Case'), revolved around the Labor Government's attempt to nationalise private banks in Australia. The constitutional validity of the legislation was challenged and found to be invalid on two bases. The first of these was based upon an 'individual rights' interpretation of the operation of the constitutional freedom of interstate trade and commerce (s 92), which the Court held conferred a positive right on the banks to engage in the business of interstate banking. The second basis was that the mechanism used to nationalise the banks was not on "just terms" and therefore was outside the scope of section 51 (xxxi).

Section 51 (xxxv) and (xxxix) Australian Communist Party v The Commonwealth (1951) 83 CLR 1; [1951] HCA 5 (the 'Communist Party Case'). This case revolved around the validity of the Communist Party Dissolution Act introduced by the Prime Minister 1950 pledging to dissolve the Australian Communist Party. The Court held that the Commonwealth had legislative power to protect itself from subversion under the Crimes Act 1914 (Cth), yet the Communist Party Dissolution Act had simply declared the party guilty in its 'recitals' in the preamble and was therefore invalid.

Section 51 (xxxv) - conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State - Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; [1920] HCA 54 ("Engineers' Case") - this case overturned the doctrine of implied intergovernmental immunities and reserved state powers and established the modern basis for the legal understanding of federalism in Australia.

Section 51 (xxxix) - matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth - Pape v Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 - this case revolved around the constitutional validity of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) which gave one-off payments of up to $900 to Australian taxpayers. By a margin of 4-3, the High Court held that the Act was a valid law under the Constitution.    

Section 92 - freedom of interstate tradeCole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 (the 'Tasmanian Lobster Case'). In this case, the High Court overruled the long-held notion that the words "absolutely free" in section 92 of the Australian Constitution protected a personal individual right of freedom in interstate trade. It was instead replaced with the economic notion of "free trade". The Court also overruled two long settled approaches to the interpretation of the Constitution, that no regard could be had to the debates of Constitutional Conventions in the interpretation of the Constitution.

Section 96 - grants of financial assistance to a State by the Commonwealth on terms or conditions. In 1942, the Commonwealth passed four new laws designed to raise funds to support the war effort by encouraging the States to give up their right to collect income tax. On June 22 1942, South Australia, Victoria, Queensland and Western Australia went to the High Court seeking the legislation to be declared invalid. In the case of South Australia v Commonwealth (1942) (1942) 65 CLR 373, [1942] HCA 14 (the 'First Uniform Tax Case'), the High Court ruled that the four pieces of legislation were valid. In 1957, Victoria again challenged the constitutionality of the scheme. But in Victoria v Commonwealth (1957) (1957) 99 CLR 575, [1957] HCA 54 (the 'Second Uniform Tax Case'), the Court held that Commonwealth grants to the States under section 96 of the Constitution may be validly tied to prescribed purposes.

Source: H P Lee and George Winterton, Australian Constitutional Landmarks edited by (Cambridge University Press, 2003)

 

Section 51 Landmark Decisions