High Court cases – Federalism

Industrial Relations External Affairs (s 51 xxix) Finance

1904 – D’Emden v Pedder

Upheld the ‘implied immunities’ and ‘implied prohibitions’ doctrine, protecting intergovernmental interference. Tasmanian law requiring a C’th employee to pay stamp duty was overturned.
C;th could not interfere in States, vice versa. Coordinate federalism.



1936 – R v BurgessWith the advent of air travel, the HC gave the C’th the ability to legislate in this area based on the external affairs power, interpreting it quite broadly.


1908 – NSW v Commonwealth (Surplus revenue)

 Allowed the C’th to bypass s 94 by appropriating surplus revenue into special holding accounts. This meant that there was no ‘surplus revenue’ so the C’th did not have to distribute it among the States. Deakin Government.

1906 – Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association (Railway Servants)

Held that the C’th Conciliation and Arbitration Act 1904 could not apply to State government employees. S 51 xxxv

1982 – Koowarta v Bjelke-PetersonQLD had attempted to bar Aborigines from leasing land. HC ruled that it contradicted the C’th’s Racial Discrimination Act 1975.

The Act itself was upheld, because the HC interpreted s 51 xxix quite broadly. Any international treaty that the C’th had ratified was binding upon the States.


1926 – Vic v Commonwealth

The first instance in which the C’th used s 96 to attached conditions to the money it gives. HC upheld C’th’s right to do so.

 C’th gave States money to use only on roads and infrastructure. (Bruce’s Main Roads Development Act 1923)

 One of the main arguments that the state relied on (also in Uniform Tax case) is the potential for s 96’s misuse. C’th could use s 96 to affect policies that were residual powers.

1920 – Amalgamated Society of Engineers v Adelaide Steamship Co (Engineer’s)

Reversed Railway Servants. Under s 51 xxxv, C’th had the power to make laws for State businesses when issues extend beyond that State.

It was the starting point of the HC interpreting the Constitution broadly and in favour of the Federal gov’t, ‘legalist’ rather than ‘intentionalist

1983 – Commonwealth v Tasmania (Tasmanian Dams)Tasmania wanted to build a dam. The C’th prevented it, since it was a UNESCO protected area.

C’th had passed the World Heritage Properties Conservation Act 1983, preventing such projects from taking place.

HC interpreted s 51 xxix again very broadly. Almost activist, the interpretation meant that any treaty the C’th ratified, the States were obligated to follow.


1942 – SA v Commonwealth (Uniform Tax)

Australia was at war and needed urgent money. The Federal gov’t, with the support of the States, passed the Uniform (Income) Tax Agreement Act 1942, allowing them to collect income tax. The extra revenue would be distributed under s 96.

After the States discovered that the Act would continue indefinitely, and that it would be untenable to impose their own income tax, they launched a challenge.

HC held that under s 51 ii, the Act was constitutional. Very large impact on State finances and contributed to VFI. According to Prof. Black, as a result of this, C’th revenue collection rose from 16% to 45%.


1971 – Strickland v Rocla Concrete Pipes Ltd (Concrete pipes)

Allowed the C’th to legislate, under s xx, for all corporations in all circumstances when their activities involve transactions with the public.

Allowed the C’th to pass the Trade Practices Act 1974.

1957 – Vic v Commonwealth (2nd Uniform tax)

As above. Challenged again.



2006 – NSW v Commonwealth (WorkChoices)

Workplace Relations Amendment Act 2005.

HC upheld the C’th’s legislation under s 51 xx. Essentially allowed the C’th to legislate in all areas of IR and workplace relations.

1997 – Ha v NSW

NSW passed the Business Franchises Licences Tobacco Act 1987. HC ruled that these licences were excises, and defined it very broadly. Majority defined excise as any tax on goods/services prior to consumption.

Under s 90, customs and excise is an exclusive C’th power, so the Act was ruled ultra vires.

The ruling cut State revenue by 20%. Subsequent licensing fees were payed to the C’th. According to Prof. Black, this increased the C’th’s share of the revenue from 70% to 80%.


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