DEPARTMENT OF ECONOMICS
ISSN 1441-5429
DISCUSSION PAPER 57/13
Judicial Review, Invalidation and Electoral Politics: A Quantitative Survey
Russell Smyth and Vinod Mishra

We thank Jane Quinlan and Amanda Reed for research assistance with this project, Steve McEachern, who was very
helpful in assisting us to locate historical polling data from the Australian Data Archives and Chris Coney, Matthew
Groves, Gerry Rosenberg and participants in the Workshop “The High Court, the Constitution and Australian Politics”
held at the Gilbert & Tobin Centre for Public Law, the University of New South Wales for helpful comments and
suggestions on earlier versions of this paper. The views expressed in the paper and any remaining errors are ours alone.
© 2013 Russell Smyth and Vinod Mishra
All rights reserved. No part of this paper may be reproduced in any form, or stored in a retrieval system, without the prior written
permission of the author.
1
Introduction
Bickel refers to the fact that an unelected and, therefore, undemocratic institution can exercise substantial
political power in a democratic society as the “countermajoritarian difficulty” of the Court.1 Bickel states the
problem as follows: “When the Supreme Court declares unconstitutional a legislative act or the action of an
elected representative, it thwarts the will of the representatives of the actual people of the how and now; it
exercises control, not on behalf of the prevailing majority, but against it”.2
It sounds trite to say that for the countermajoritarian difficulty to, in fact, pose a problem, the Court’s actions
must be countermajoritarian.3 If the Court makes decisions that conform with majoritarian preferences it is
fulfilling democratic principles of self-governance and furthering the interests of the majority. 4 This,
however, raises a number of murky issues, not the least of which is what constitutes the majority view. For
example, if the Court strikes down a piece of legislation in circumstances in which the majority in the
legislature do not have popular support either generally or for that specific piece of legislation, is the Court
acting countermajoritarian or promajoritarian?5 Dahl would regard such an instance as countermajoratian if
1
Alexander Bickel The Least Dangerous Branch (Indianapolis: Bobbs Merrill, 1962).
Id: 16-17. Another way in which the Court could thwart the will of the representative majority, which we do not consider here, is
circumstances in which the Court finds legislation valid, but defeats its intent in a different way. One example is the strong
privative clause that was declared valid in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, in which the High Court read
the privative clause narrowly, such that it gave it no real scope but enabled it to be declared valid. Another example is Re Minister
for Immigration & Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57, in which the High Court did not accept that certain
parts of the procedures governing Refugee Review Tribunal hearings were an exhaustive statement of natural justice. This finding
meant that the applicant could imply further procedural requirements at common law. Consequently, the legislative code that
contained the procedures was accepted as valid; it simply did not have the wider effect hoped for by the Commonwealth. Thus, the
net effect was to utterly defeat the purpose of the clause, but reading it in a different way than the parliament surely intended.
3 Barry Friedman “Dialogue and Judicial Review” (1993) 91 Michigan Law Review 577.
4 Stefanie Lindquist and Pamela Corley “The Multiple Stage Process of Judicial Review: Facial and As-Applied Constitutional
Challenges to Legislation Before the US Supreme Court” (2011) 40 Journal of Legal Studies 467.
5 John Ferejohn and Pasquale Pasquino “The Countermajoritarian Opportunity” (2010-2011) 13 Journal of Constitutional Law 353
at 360.
2
the current legislature had enacted the legislation within the previous four years. 6 Modern majoritarians,
though, are not as clear-cut.7 Building on McCloskey,8 Friedman, for instance, speaks of the majority view in
terms of “mainstream public opinion”, “the popular will” or “the considered judgment of the ….people”.9
More than one author has described the fascination that constitutional law and political science scholars in the
United States have with the countermajoritarian difficulty as an obsession. 10 Reflecting this obsession,
beginning with Dahl’s seminal study11 there is now a large quantitative literature on the extent to which the
United States Supreme Court is a promajoritarian or countermajoritarian institution. The purpose of this study
is to extend this literature to examine the extent to which the High Court of Australia (hereafter High Court)
has behaved in a promajoritarian (or countermajoritarian) manner over the period 1903 to 2011.
Theoretical Considerations
Expressed in its most simple form, the Court behaves in a promajoritarian manner if it promotes the interest of
the contemporary government. Promoting the interests of the contemporary government can be interpreted in
a narrow manner, as Dahl does, to mean that the Court does not invalidate legislation enacted by the current
legislature. Alternatively, it could be interpreted more broadly to mean that the Court does not invalidate
legislation enacted by the legislature for the period for which the current government has been in power or
more broadly still to mean that the Court does not invalidate legislation enacted by the current government or
previous governments of the same political persuasion.12 The opposite side of the coin is that the Court acts
6
Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” (1957) 6 Journal of Public
Law 279.
7 Richard Pildes, “Is the Supreme Court a ‘Majoritarian’ Institution?” (2010) 1 The Supreme Court Review 103.
8 Robert McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1960).
9 Barry Friedman The Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the
Constitution (New York: Farrar, Straus & Geroux, 2009), 368-371.
10 For example, see Barry Friedman,” The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship” (20002001) 95 Northwestern University Law Review 933; Steven Winter, “Indeterminacy and Incommensurability in Constitutional Law
(1990) 78 California Law Review 1441;
11 Dahl, above note 6.
12 This broadest interpretation is consistent with the majoritarian claims that the Court will use judicial review to reinforce laws
enacted by the ideological, or partisan, allies of the current government and invalidate laws enacted by the ideological, or partisan,
in a countermajoritarian manner if it invalidates policies supported by the contemporary government and that
this would be reflected in higher rates of invalidated legislation. Again, this can be interpreted narrowly to
mean that the Court is acting countermajoritarian if it invalidates legislation enacted by the current legislature.
Alternatively, it could be interpreted more broadly that the Court behaves countermajoritarian if it strikes
down any legislation enacted over the period the current government has been in power or even broader still if
it strikes down any legislation enacted by a government of the same political persuasion.
For the purposes of this study, we adopt this broadest definition of promajoritarian/countermajoritarian
preferences. Assuming a conservative government is in power, the Court is considered to be acting
countermajoritarian not only if it strikes down legislation passed by the current conservative government, but
also legislation passed by legislatures controlled by previous conservative governments. 13 Taking this
approach, though, of course does not address the issue of whether the view of the majority is adequately
encapsulated in the position of the elected legislature or, particularly in the case of unpopular governments,
whether the view of the majority is better reflected in current opinion polls. For the most part we focus on the
proportion of legislation invalidated enacted by the same political party as our main measure of
countermajoritarian behavior; however, we also use opinion polling data on the primary voting intentions of
the electorate as an alternative way to get a handle on countermajoritarian behavior. For example if a
conservative government is in power and the Court strikes down legislation passed either by the current or a
previous conservative government, in a Friedman view of the world, any conclusion that the Court is being
countermajoritarian should be tempered if opinion polling suggests that the conservatives are unpopular.
opponents of the government in power – see Matthew Hall, “The Political Determinants of Judicial Review” (2011) American
Political Science Association 2011 Annual Meeting Paper. Available at SSRN: http://ssrn.com/abstract=1901149
13 For examples of studies which adopts the same approach in the US context, see Hall, ibid and Tom Clark and Keith Whittington,
“Ideology, Partisanship and Judicial Review of Acts of Congress, 1789-2006”, Manuscript, Department of Politics, Princeton
University, 2009. Available at SSRN: http://ssrn.com/abstract=1475660.
Method
We collected data on all successful and unsuccessful challenges to federal and state legislation in the High
Court between 1903 and 2011 for cases reported on the AustLII database.14 To do so, we entered a list of
keywords into the AustLII search engine that we expected would appear in cases in which legislation was
challenged or invalidated (such as challenge, inconsistent, invalid, repeal, strike down, unconstitutional, ultra
vires).15 Adopting this approach resulted in convergence in that several of the keywords suggested the same
cases. Once we had a list of potential cases concerning challenges to legislation, each case was read to
ascertain if it did, in fact, involve a challenge to legislation or related, for example, to invalid trusts or awards.
When checking difficult cases, we also traced the legislation to ascertain if the Section or Act remained or had
been repealed. Given that the striking down of legislation is a remarkable use of the High Court’s power, we
also checked the Case Base entry to determine whether or not legislation had been struck down. Because there
were only a handful of cases each year in which there were challenges to legislation, we also included cases
involving challenges to subordinate legislation, i.e. by-laws and regulations, in order to expand the data set.
Based on the method described above our dataset over the period 1903 to 2011 contains 335 challenges to
federal legislation and 303 challenges to state legislation (including challenges to subordinate legislation).
The data on successful and unsuccessful challenges to legislation in the High Court was supplemented by
information on the political persuasion of the federal government (conservative or Labor), the proportion of
Justices appointed by federal conservative or Labor governments and opinion poll data on primary voting
intentions. There is fairly comprehensive Morgan Gallup poll data from 1958 to 2011. Prior to 1958, the
polling data is patchy and in the early years of the twentieth century is restricted to federal election years.16
For those years for which there is no polling data we use linear interpolation to impute numbers.
14
http://www.austlii.edu.au
Clark and Whittington above note 13 also perform an electronic word search to construct their dataset of challenges to legislation
in the United Supreme Court over the period 1789 to 2006.
16 Time series data on primary voting intentions is available from Roy Morgan primary voting intention trend
(http://www.roymorgan.com/morganpoll/federal-voting/primary-voting-intention-trend-1901-2013) and Australian Data Archive –
Morgan Gallup Poll Vote and Leadership Approval, Australian Aggregate Data, 1958-1987 (http://www.ada.edu.au/ada/00475).
15
Descriptive Tables
Table 1 reports data on challenges to federal and state legislation, together with the proportion of legislation
which was invalidated each year, in the High Court between 1903 and 2011. Table 1 also presents data on the
percentage of federal legislation invalidated each year that was enacted by the same party as was in power
when the legislation was invalidated, which is a measure of countermajoritarian behavior, as well as
information on which political party was in power (conservative or Labor), primary voting intentions of the
electorate each year and the proportion of the Court appointed by conservative governments.
There are several points worth noting about Table 1. The first is that the number of challenges to federal and
state legislation is small, relative to the United States Supreme Court. Challenges to federal legislation only
exceed 10 in three years (1943, 1949, 1992) and the maximum number of challenges to state legislation in any
given year is 10 (1957). By comparison, Zorn reports that, on average, there were 26 challenges to federal
legislation per annum in the United States Supreme Court over the period 1953 to 2003.17
The second aspect of Table 1 is that the proportion of successful challenges to legislation is similar to the
United States Supreme Court. Over the period 1903 to 2011, 22.4 per cent of the challenges to federal
legislation were successful and 24.8 per cent of challenges to state legislation were successful in the High
Court. Clark and Whittington report that 25 per cent of challenges to federal legislation were upheld in the
United States Supreme Court over the period 1789 to 2006,18 while Zorn reports that 17 per cent of challenges
to federal legislation were upheld in the United States Supreme Court over the period from 1953 to 2003.19
We find that the Court strikes down a slightly higher proportion of state legislation than federal legislation,
17
Christopher Zorn, “Ideological Extremism, Public Preferences and Federal Judicial Review in the U.S. Supreme Court”,
Manuscript, Department of Political Science, University of South Carolina, 2006. Available at SSRN:
http://ssrn.com/abstract=987872.
18 Clark and Whittington above note 13.
19 Zorn, above note 17.
although the difference in successful challenges is not large. By contrast, the United States Supreme Court
strikes down twice as many state laws as federal laws and does so as a greater rate.20
The average figures, however, mask quite a bit of variation over time. To see this more clearly, Figures 1 and
2 graph the proportion of federal and state legislation invalidated, respectively, as a percentage of challenges
over time. There are spikes in the proportion of federal legislation invalidated at the end of the first decade of
the twentieth century (1908, 1910), in the second half of the 1920s (1925, 1927, 1928) and in the late 1940s
(1948, 1950). There are also individual years in later decades in which in a given year 100 per cent of
challenges were successful (1958. 1965 and 1971), although in some of these years the number of challenges,
in absolute terms, was very low (1927, 1928, 1950, 1958, 1965). In 1992, nine of 11 challenges to federal
legislation were successful. There are spikes in the proportion of successful challenges to state legislation in
the mid-1930s (1934, 1936) and the late 1940s and early 1950s (1948, 1949, 1952, 1954) although, again, in
each case the number of challenges to state legislation, in absolute terms, was relatively small.
A third aspect of Table 1 relates to the proportion of federal legislation invalidated, which is enacted by the
same political party or a party of the same political persuasion. A high figure is indicative that the Court is
countermajoritarian and a low figure is consistent with the Court being promajoritarian. Over the entire period
studied 54.8 per cent of invalidated legislation was enacted by the government in power, or a government of
the same political persuasion. The main story that comes through from eyeballing Table 1 is that most of the
time the Court is promajoritarian, with short bouts of being countermajoritarian. The bouts of
countermajoritarian behavior occur when both sides of politics have been in government; ie. when federal
Labor has been in power (1915, 1947-48, 1990, 1992, 1994) and when a conservative political party has
formed the federal government (1921, 1925, 1928, 1935-36, 1954, 1957-1959, 1965, 1968, 1971, 1977).
20
Rorie Solberg and Stefanie Lindquist, “Activism, Ideology and Federalism: Judicial Behavior in Constitutional Challenges before
the Rehnquist Courts 1986-2000” (2006) 3 Journal of Empirical Legal Studies 237.
Table 1 also shows the primary voting intentions for those intending to vote federal conservative or Labor.
This is also graphed in Figure 3. For most of the period studied, there is little difference in the primary voting
intentions between conservative and Labor, although the conservatives line tended to be higher, reflecting the
fact that over time the conservatives have been in power longer than Labor. The primary voting intentions
allow us to directly test the Friedman “will of the people” argument. 21 Is there any evidence that the Court
strikes down legislation enacted by governments of the same political persuasion as the government in power
when the government in power is electorally unpopular, as reflected in polling data? For federal Labor this
was not the case in 1915 nor 1947-1948, but it was the case in the first half of the 1990s (1990, 1992, 1994),
when the Liberal opposition was leading the Labor government in the polls. For a conservative government,
this was not the case in 1921, 1925, 1928, 1935-36, 1957-1959, 1965, 1968 and 1971, which were all years in
which Labor trailed in the polls, but there are two years (1954 and 1977) in which a conservative government
trailed the Labor opposition. Thus, in these three years in which Labor was in power (1990, 1992, 1994) and
two years in which there was a conservative government (1954, 1977), the conclusion that the Court was
countermajoritarian needs to be qualified, depending on how one defines the majority.
There is no evidence that the proportion of Justices appointed by either political party is related to
countermajoritarian behavior, ie. there is no evidence that in those years in which the Court exhibited
countermajoritian behavior with a Labor (conservative) government that there was a high proportion of
Justices appointed by a conservative (Labor) government.22 In 1957-1959, 1965 and 1968, years in which the
Court acted in a countermajoritarian manner with a Liberal government the opposite was the case with Liberal
governments having appointed in excess of 70 per cent of the Justices on the Court. This latter result most
21
Friedman, above note 9.
This differs from the United States where the evidence suggests that liberal judges are more likely to uphold liberal leaning rules
and conservative judges more likely to uphold conservative leaning rules – for example, see Thomas Miles and Cass Sunstein, “Do
Judges Make Regulatory Policy? An Empirical Investigation of Chevron” (2006) 73 University of Chicago Law Review 823; Cass
Sunstein.”Beyond Maybury: The Executive’s Power to Say What the Law Is” (2006) 115 Yale Law Journal 2580 at 2600-2602.
22
likely reflects that throughout the 1950s and first half of the 1960s Menzies (with Dixon’s acquiescence)
appointed like-minded “career barristers” to the High Court who were essentially apolitical. 23
Table 2 shows average annual challenges to federal and state legislation under each Chief Justice as well as
rates of invalidation of federal and state legislation. The number of challenges to federal legislation peaked in
the 1980s and first half of the 1990s under Gibbs and Mason. Invalidation rates for federal legislation were
highest under Latham, Mason and Knox at roughly 25 per cent in each case. That the number of challenges to
federal legislation as well the invalidation rates for federal legislation peaked under Mason is consistent with
the Court adopting a more political role in that period. There were important institutional changes, such as the
Australia Act (Cth, UK), in this period which made the High Court the final court of appeal for Australia and
which were responsible for increased activity on the Court. Pierce argues that the Mason Court redefined the
boundaries between the parliament and the Court “creating an institutional role that [was] increasingly at odds
with Australia’s Westminster political traditions”.24 Challenges to state legislation were highest under French,
followed by Barwick. Invalidation rates for state legislation were highest under Mason and Knox with roughly
one in three challenges being successful. The latter result for the 1920s likely results from the broad
construction of commonwealth power at the expense of states rights in the Engineers case. 25
Table 3 shows average annual challenges to federal legislation, federal legislation invalidated as a percentage
of challenges and the percentage of federal legislation invalidated enacted by a party of the same political
persuasion according to which federal government was in power. Average annual challenges to federal
legislation have tended to be higher when Labor is in power; average annual challenges were highest under
23
Graham Fricke Judges of the High Court (Melbourne: Hutchinson, 1986) at 143-144; Geoffrey Sawer Australian Federalism in
the Courts (Melbourne: Melbourne University Press, 1967) at 61; Brian Galligan, “Prime Ministers” in Tony Blackshield, Michael
Coper and George Williams, The Oxford Companion to the High Court of Australia (Melbourne: Oxford University Press, 2001) at
554. However, see, for example, Leslie Zines, “Sir Owen Dixon’s Theory of Federalism” (1965) 1 Federal Law Review 221 who
concludes that while judicial approach is not just left/right, despite Dixon’s purported neutrality, he had a clear approach/philosophy
about federalism. See also Owen Dixon “Aspects of Australian Federalism” in Severin Woinarski (Ed) Jesting Pilate and Other
Papers and Addresses by Owen Dixon (Melbourne: Law Book Company, 1965) 113.
24 Jason Pierce Inside the Mason Court Revolution: The High Court of Australia Transformed (Durham: Carolina Academic Press,
2006) at 129.
25 Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129.
the Rudd/Gillard governments, followed by the Curtin/Chifley governments in the 1940s and the
Hawke/Keating years from 1983 to 1996. Putting aside the first decade of the Court, in which there were a
number of shifting coalitions in the Federal parliament making generalizations difficult, the highest rate of
invalidation of federal legislation was in the 1940s under the Curtin/Chifley governments. Galligan suggests
that: “Labor Prime Ministers until Hawke were associated with tumultuous constitutional politics and major
tussles with the High Court”. 26 This was certainly true of the Chifley governments of the late 1940s, when
the High Court encountered Labor’s postwar reconstruction plan. There was a series of bold legislative
initiatives in this period that ended up in high profile constitutional cases before the Court.27
The final column of Table 3 shows the percentage of federal legislation invalidated, which was enacted by a
party of the same political persuasion as that in power at the time. The Court was clearly promajoritarian for
the first decade of its existence as well as for the Scullin, Whitlam and Rudd/Gillard Labor governments and
Howard Liberal government. The rate at which the Court invalidates legislation which comes before it
depends in the rate at which the government is successful in passing legislation and pushing a reform agenda.
In this respect, Galligan suggests that the Court avoided confrontation with the Scullin Labor government
because the opposition controlled Senate meant that Scullin’s New Deal type policies for economic
restructuring during the Depression never reached the Court.28 Of course, Whitlam also did not control the
Senate, although Galligan suggests: “Despite antagonism on some issues from Barwick …. the High Court
was broadly accommodating of [Whitlam’s] adventurous use of Commonwealth powers”.29
26
Galligan above note 23 at 554.
Bank Nationalisation Case (Bank of NSW v Commonwealth (1948) 76 CLR 1); Airline Case (Australian National Airways Pty
Ltd v Commonwealth (1945) 71 CLR 29); First Pharmaceutical Benefits Case (A-G Victoria v Commonwealth (1945) 71 CLR 237);
Second Pharmaceutical Benefits Case (Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79
CLR 201). See, in general, Brian Galligan Politics of the High Court: A Study of the Judicial Branch of Government in Australia
(St. Lucia: University of Queensland Press, 1987) chapter 4.
28 Galligan, above note 23 at 556.
29 Ibid at 557.
27
There is much more evidence of countermajoritarian tendencies, in Table 3, when the conservative
governments of 1917-1929, 1932-1941 and 1949-1972 as well as the Hawke-Keating Labor governments
were in power. In each case, in excess of 60 per cent of invalidated federal legislation was enacted by a
political party of the same political persuasion as the government in power at the time. However, conclusions
that the Court was, in fact, countermajoritarian in these eras needs to be qualified. In making such judgments,
what is relevant is not only the proportion of successful challenges that were enacted by a party of the same
political persuasion as that in power at the time, but also the overall proportion of successful challenges. If a
high proportion of successful challenges are to legislation enacted by a government of the same political
persuasion, but there are relatively few successful challenges in the first place, the Court is not really
countermajoritarian. In the conservative governments of the 1950s and 1960s and in the Hawke Keating
governments the percentage of successful challenges to federal legislation were high, relative to the historical
average, but still less than 30 per cent. This figure implies that in less than 20 per cent of challenges to federal
legislation in these periods did the Court act countermajoritarian. In the Country/UAP governments from
1932 to 1941, just 14 per cent of challenges to federal legislation were successful. Thus, in less than 10 per
cent of challenges to federal legislation in this decade the Court acted in a countermajoritarian manner.
Table 4 shows the percentage of successful challenges to federal and state legislation according to the age of
the legislation at the time of the challenge. There are competing arguments concerning the expected influence
of the age of the legislation on the likelihood that the legislation will be struck down.30 On the one hand, to the
extent that the Court’s interpretation of the Constitution changes over time, older legislation might be more
vulnerable to newer constitutional interpretations.31 On the other, one might conjecture that older legislation,
at least beyond a certain age, has stood the test of time and, thus, will be more likely to be upheld. The age of
the legislation also has implications for whether the Court is promajoritarian or countermajoritarian in the
30
Lindquist and Corley, above note 4 at 483.
Stefanie Lindquist and Rorie Solberg, “Judicial Review by the Burger and Rehnquist Courts: Explaining Justices’ Responses to
Constitutional Challenges” (2007) 60 Political Research Quarterly 71.
31
manner in which Dahl defines being promajoritarian.32 Dahl defined as countermajoritarian decisions which
struck down legislation that was four years or less of age at the time it was struck down. As discussed above,
though, this definition equates being promajoritarian with upholding legislation passed by the current
legislature.33 This ignores the relevance of the political leanings of previous legislatures as well as the length
of time which the government in power has been in office. Thus, the relationship between the age of the
legislation and the percentage of successful challenges is of limited value in ascertaining whether the Court
behaves in a countermajoritarian or promajoritarian manner, based on a broader definition of these terms.
Table 4 suggests that roughly one-third of statutes which the Court strikes down are four years or less in age.
This figure is lower than that found by Dahl. Dahl found that just under half of the statutes which the United
States Supreme Court struck down were four years or less of age. 34 Thus, the results for the age of the
legislation are consistent with the Court acting in a promajoritarian manner, in the narrow way in which Dahl
defines the term, and subject to the provisos discussed above. Two other features of Table 4 are worth noting.
The first is that the relationship between the percentage of successful challenges and the age of the legislation
is broadly similar for federal and state legislation. The second is that the pattern in Table 4 is suggestive of a
non-linear relationship between the percentage of successful challenges and the age of the legislation, in
which the percentage of successful challenges is highest when the legislation is less than two years of age and
when the legislation is more than two decades old. We come back to this in the modeling reported below.
Table 5 shows the percentage of challenges to legislation upheld by the length of time that the government has
been in office. One hypothesis is that invalidation increases with the age of the government. The rationale is
that the Court acts countermajoritarian in such cases as a ‘counter’ to the government or to protect minorities
from majoritarian excess during long terms in office in which the elected legislature might become
complacent about its powers. Moreover, the longer the period that a government is in office, the higher the
32
Dahl, above note 6.
Six of the nine Australian lower houses have maximum four-year terms. The other three, including the House of Representatives
in the Commonwealth Parliament, have a maximum term of three years.
34 Dahl, above note 6 at 286
33
probability of instances of double majority in which the parliamentary and popular majorities diverge.35 Thus,
the longer the government has been in power, the more opportunities exist for the Court to respond to the
views of the (divergent) popular majority in between elections. Friedman would see this as the Court acting
promajoritarian in that it would be simply responding to the will of the people in circumstances in which the
will of the people is out of kilt with that of the representative majority. 36 The alternative hypothesis is that
invalidation decreases with the age of the government because a higher proportion of the judges come to be
appointed by the government in power. This is consistent with the Dahl view of the world in which the
legislature uses the judicial appointment process to promote the interests of the dominant governing
coalition.37 As Pildes puts it: “If a coalition governs long enough to make enough appointments to control the
Court, the Court is likely to reflect the median preferences of that coalition”.38
The results in Table 3 seem to lend support to the first hypothesis. There is evidence of the Court being
countermajoritarian during long periods of conservative rule through the 1920s and 1930s (either side of the
Scullin Labor government), 1950s and 1960s as well as in the Hawke-Keating Labor years. The results in
Table 5, however, are generally consistent with the alternative hypothesis. More than half of successful
challenges to legislation occur when the government has been in office four years or less and almost 80 per
cent of successful challenges occur when the government has been in office eight years or less. There are
differences between conservative and Labor governments with the proportion of successful challenges higher
in the first four years for Labor than conservative governments. This result seems to reflect the fact that Labor
governments have been in power for less time and for generally shorter periods.
Quantitative Study
35
Ferejohn and Pasquino, above note 5 at 363.
Friedman, above note 9.
37 Dahl, above note 6 at 293.
38 Pildes above note 7 at 115.
36
In this section we use a logit model to examine the factors determining whether the High Court struck down
federal legislation over the entire history of the Court (1903-1911). The sample is the 335 cases in our
database, in which federal legislation was challenged. While the descriptive tables presented above are
suggestive of various trends, using a logit model has the advantage that we can isolate the marginal effect of
each factor on the likelihood that the Court will strike legislation down, holding all other factors constant.
The descriptive statistics for the variables employed in the model are reported in Table 6. The dependent
variable is a binary variable denoting whether the challenge to the validity of the federal legislation was
successful (Yes=1). A key explanatory variable is a binary variable denoting whether the challenged
legislation was enacted by the government in power at the time or a government of the same political
persuasion (Yes=1). This is our measure of whether, in deciding to strike down the legislation or not, the
Court is acting in a countermajoritarian manner. If the sign on this variable is positive, it is consistent with the
Court acting countermajoritarian. Other key explanatory variables are continuous variables denoting the
percentage intending to vote federal conservative and federal Labor at the time the case was heard. These are
variables measuring the views of the popular majority or what Zorn calls majoritarian public preferences.39
Other independent variables are a binary variable depicting whether a conservative government was in power
when the case was heard (Yes=1), binary variables denoting the Chief Justice at the time when the case was
heard and the age of the government and age of the legislation at the time the case was heard, both measured
in years. Given that there are competing hypotheses concerning the relationship between the likelihood that
the Court will strike down federal legislation and both the age of the legislation and the period the government
has been in office, we also include the square of these variables to allow for potential non-linearities.40
39
Zorn, above note 17 at 13.
Clark and Whittington, above note 13, and Lindquist and Corley, above note 4, also include the age of legislation squared to
allow for potential non-linearities.
40
The results are reported in Table 7. The binary variable denoting whether the challenged legislation was
enacted by the government in power at the time, or a government of the same political persuasion, is
insignificant. This result suggests that the Court is not acting in a countermajoritarian manner, controlling for
other factors that are potentially correlated with whether to invalidate legislation. Among those variables
which are significant, the sign on intending to vote conservative is negative. A 1 percentage point increase in
those intending to vote conservative reduces the probability of a successful challenge by 1.2 per cent. One
way to interpret this result is that the Court responds to the electorate becoming more conservative by
reducing its level of overt activism. 41 In specifications not reported we also interacted intention to vote
conservative with whether a conservative government was in power at the time and with the age of the
government. The purpose of so doing was to see if the Court responded to possible divergences between the
representative majority and popular majority, but both interaction terms were insignificant.
The sign on the age of government is negative and the sign on the age of government squared is positive
suggesting that the relationship between the probability of a successful challenge and the time the government
has been in office is U shaped. A one-year increase in the age of the government initially reduces the
probability of a successful challenge by roughly 4.2 per cent. After 7.2 years in office the probability of a
successful challenge is at a minimum, thereafter the probability of a successful challenge increases again.
Several of the binary variables denoting the Chief Justice at the time of the decision are significant. For each
of the Chief Justices variables that are significant, the sign on the coefficient is negative. This means that
relative to the period Dixon was Chief Justice (base category) the probability of a successful challenge under
these Chief Justices was lower, holding all other factors constant. To be specific, relative to the period Dixon
was Chief Justice, the reduction in the probability of a successful challenge under Gavan Duffy was 15.6 per
cent, Barwick 16.7 per cent, Brennan 16 per cent and Gleeson 20.4 per cent, holding other factors constant. In
41
Although, as Pierce, above note 24, and others have noted labels such as “activist” affixed by outsiders are not shared by Sir
Anthony Mason or other members of the Mason Court.
specifications not reported, we also interacted the Chief Justice variables with the binary variable depicting
whether a conservative government was in power and the age of the government. The purpose was to see if
the Court under specific Chief Justices were more likely to strike down legislation while a conservative (or
Labor) government was in power or the length of time the government was in power made a difference under
specific Chief Justices. The interaction terms, however, in each case were not significant. 42
Conclusion
The overall conclusion is that throughout the Court’s history it has been promajoritarian. The descriptive
tables suggest that for individual years and even for extended periods in the Court’s past (1917-1929, 19321941, 1949-1972 and 1983-1996), a reasonably high proportion of federal legislation that the Court has
invalidated has been enacted by the party in power at the time or a party of the same political persuasion. This
finding is suggestive of the Court having bouts of countermajoritarianism. This conclusion, however, has to
be qualified. First, some of the instances of apparent countermajoritarianism in specific years are actually
cases in which there are divergences in the popular and representative majorities and, thus, at least arguably
cases of promajoritariamism. Second, even in those periods in which in excess of 60 per cent of invalidated
federal legislation was enacted by the government in power or its political allies, the relatively low level of
successful challenges to federal legislation mean that in less than 20 per cent of challenges to federal
legislation did the Court act in a countermajoritarian manner. The results of the logit modeling exercise
support the general conclusion that the High Court is not countermajoritarian. The variable depicting whether
the challenged federal legislation was enacted by the government in power at the time of the challenge, or a
government of the same political persuasion, was statistically insignificant, controlling for other factors that
are potentially correlated with the decision of the Court whether to invalidate federal legislation.
42
We also tried including time dummy variables, but these were found to be correlated with the Chief Justice variables. Every year
also takes one data point so including time dummy variables severely reduced the degrees of freedom.
Table 1: Challenges to State and Federal Legislation in the High Court 1903-2011
Year
Challenges
to State
Legislation
State Invalid
as a % of
Challenges
Challenges
to Federal
Legislation
Fed. Invalid
as a % of
Challenges
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1916
1917
1918
1919
1920
1921
1922
1923
1924
1925
1926
1927
1928
1929
1930
1931
1932
1933
1934
1935
1936
1937
1938
1939
1940
1941
1942
1943
1944
1945
1946
1947
1948
1949
1950
1951
1952
0
2
1
4
1
0
4
0
0
7
0
0
0
4
3
1
0
0
0
2
0
1
3
9
4
3
0
3
1
3
1
2
6
2
9
2
3
0
1
1
0
0
0
1
0
2
2
2
3
2
0
0
0
33.3
0
0
100
0
0
40
0
0
0
33.3
0
0
0
0
0
100
0
0
0
80
100
0
0
50
0
50
0
100
50
100
28.57
0
0
0
0
0
0
0
0
0
0
100
100
0
0
100
0
0
0
0
0
4
4
4
2
3
2
2
7
5
3
6
0
4
3
0
3
5
6
8
2
2
0
0
3
4
5
2
3
3
0
2
2
0
4
3
15
8
7
6
4
4
13
2
7
3
0
0
0
0
0
100
33.3
100
0
0
0
16.67
0
0
0
0
0
50
0
50
.25
100
0
100
100
0
0
50
0
0
0
50
50
0
0
0
0
33.3
0
47
14.3
16.67
0
33.3
100
44.44
100
40
0
Federal
Gov.
Con
Con/Lab
Con
Con
Con
Con/Lab
Con/Lab
Con/Lab
Lab
Lab
Con/Lab
Con/Lab
Lab
Lab
Con/Lab
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con/Lab
Lab
Lab
Con/Lab
Con
Con
Con
Con
Con
Con
Con
Con
Con/Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Con/Lab
Con
Con
Con
% Federal
Legislation
Invalidated
Enacted by
Same Party
0
0
0
0
0
0
0
0
0
0
0
0
100
0
0
0
0
0
100
0
0
0
100
0
0
100
0
0
0
0
0
0
100
100
0
0
0
0
0
0
14
0
0
0
100
100
0
0
100
0
% Intending
to Vote
Federal
Conservative
% Intending
to Vote
Federal
Labor
% of Court
Appointed by
Conservative
Government
34.2
35.5
36.6
37.7
39.4
41.5
43.5
45.4
46.6
47.9
48.7
47.4
48.5
50
51.5
53
54.3
54
53.4
52.8
52.6
52.9
53.1
52.8
52.1
51.4
46.8
46.2
47.8
48.7
49.1
49.5
49.7
49.8
50
48.8
47.3
45.7
44.2
38.8
32.6
35.5
39.3
43.1
45.4
47.4
49.5
50.3
50
48.9
28.7
32.1
34
35.8
38.9
43
47
49.9
49.4
48.9
48.8
50.6
49.7
48.2
46.7
45.2
43.5
42.5
42.4
42.3
42.8
43.8
44.7
44.9
44.8
44.6
47.7
45
39.8
38.4
39.7
41
41.7
42.4
43
42.6
41.9
41.1
40.3
44.4
49.5
49.8
49.8
49.7
48.8
47.6
46.5
46.7
47.8
48.6
100
100
100
100
100
100
100
100
100
100
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
57.14
42.86
33.33
33.33
33.33
42.86
50
50
50
50
57.14
66.67
66.67
66.67
66.67
66.67
57.14
57.14
57.14
57.14
57.14
71.43
71.43
1953
1954
1955
1956
1957
1958
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
4
2
8
2
10
2
2
3
3
4
0
7
1
7
0
2
3
6
2
2
1
7
3
4
6
8
7
3
1
2
8
1
5
5
3
5
5
4
1
3
4
5
0
3
4
2
5
4
2
1
3
8
1
0
0
3
5
4
33.3
100
33.3
0
42.86
0
0
0
50
33.3
0
16.67
0
40
0
100
0
20
0
0
0
75
50
0
100
33.3
75
50
0
0
60
0
25
66.67
50
66.67
25
33.3
0
50
100
66.67
0
0
33.3
0
25
0
0
0
0
14.29
0
0
0
50
25
33.3
3
5
4
1
5
2
3
2
1
2
0
2
2
1
0
5
3
0
4
4
2
1
6
7
5
5
1
4
6
6
3
6
9
6
5
6
1
6
5
11
2
8
9
5
1
2
7
5
2
1
3
7
3
6
8
6
7
3
0
25
0
0
66.67
100
50
0
0
0
0
0
100
0
0
25
0
0
100
0
0
0
0
0
25
0
0
33.3
20
0
0
20
28.57
20
0
50
0
50
0
83.3
0
14.29
50
25
0
0
16.67
25
0
0
0
0
0
0
14.29
0
40
50
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con/Lab
Lab
Lab
Con/Lab
Con
Con
Con
Con
Con
Con
Con
Con/Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Lab
Con/lab
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con
Con/Lab
Lab
Lab
Lab
0
100
0
0
100
100
100
0
0
0
0
0
100
0
0
100
0
0
100
0
0
0
0
0
100
0
0
0
0
0
0
0
0
0
0
50
0
100
0
100
0
100
33
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
47.7
46.9
47.4
48
48.6
50
49.7
45.7
46.5
42.5
47
49.8
49
49
49
50.5
49
45.2
44.2
42
46
50
60
50.5
42.5
44.5
41.5
46.5
41
44
41.5
42.7
48
47
44
44.4
43.1
43.4
47.6
45.6
44.9
45.6
46.6
47.3
40.5
33
44
42
37.5
46.5
46.5
41.5
41.5
40
40.5
39.5
34
41
49.4
49.4
46
43.9
42.7
40.8
44.2
48.2
47.5
51.5
46
46.5
42.5
38
45
41
41.5
45.8
43.6
47
44
43
33
43
44
44
51
45.5
48
47
50
51
43
43.5
47
44.9
42.6
39.4
35.6
41.2
44.3
42.2
40.2
38.8
36
41
43
45
42
39.5
38.5
43
42
42
47
45.5
50.5
44
71.43
71.43
71.43
71.43
71.43
71.43
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
71.43
57.14
57.14
71.43
71.43
71.43
85.71
85.71
85.71
85.71
85.71
85.71
85.71
85.71
71.43
71.43
57.14
57.14
57.14
57.14
57.14
57.14
42.86
42.86
42.86
42.86
42.86
42.86
42.86
42.86
57.14
57.14
71.43
71.43
71.43
57.14
57.14
2011
5
25
4
33.3
Lab
0
47.5
34.5
57.14
Notes:
Challenges to Federal/State Legislation are successful challenges plus unsuccessful challenges. Federal/State Invalid as a percentage
of challenges equals successful challenges/(successful + unsuccessful challenges). Percentage intending to vote Conservative/Labor
is the mid-point voting intentions for the year from the Roy Morgan primary voting intention trend
(http://www.roymorgan.com/morganpoll/federal-voting/primary-voting-intention-trend-1901-2013) and Australian Data Archive –
Morgan Gallup Poll Vote and Leadership Approval, Australian Aggregate Data, 1958-1987 (http://www.ada.edu.au/ada/00475).
Missing values were interpolated using the linear interpolation method. Percentage of Federal Invalid Enacted by same Party refers
to the situation in which legislation which was struck down in year t when the Conservatives (Labor) were in power was enacted in
t-n when Labor (Conservatives) were in power. If the Conservatives are in power in a given year it is legislation struck down which
was enacted by a Conservative government/ (legislation struck down which was enacted by a Conservative government +
legislation struck down which was enacted by a Labor government). If Labor is in power in a given year it is legislation struck down
which was enacted by a Labor government/ (legislation struck down which was enacted by a Conservative government +
legislation struck down which was enacted by a Labor Government)
Table 2 – Rates of Invalidation by Chief Justice
Chief
Justice
Time
Period
Griffith
19031919
19191930
1930
19301935
19351952
19521964
19641981
19811987
19871995
19951998
19982008
20082011
Knox
Isaacs
Gavan
Duffy
Latham
Dixon
Barwick
Gibbs
Mason
Brennan
Gleeson
French
Average
Annual
Challenges
to Federal
Legislation
2.47
Average
Annual
Challenges
to State
Legislation
1.59
Federal
Invalid as
a%
Challenges
State
Invalid as
a%
Challenges
16.7
22.2
2.75
2.08
24.2
32
0
2.83
3
2.67
0
11.8
33.3
31.3
4.78
2
25.6
22.2
2.54
3.77
15.2
22.4
3.87
3.89
12.1
25.7
5.86
3.57
12.2
28
5.89
3.33
24.5
33.3
4.25
2.25
16.7
11.1
4.55
2.64
6
10.3
5
4.25
20
23.5
Table 3 – Rates of Invalidation by Federal Government
Prime Minister
Party
Time
Period
Average Annual
Challenges to Federal
Legislation
Federal Legislation
Invalidated as a %
of Challenges
Deakin
Protectionist
0
0
Watson
Reid
Labor
Free Trade
0
0
0
0
0
0
Deakin
Protectionist
.5
100
0
Fisher
Labor
2.5
60
0
Deakin
Comm. Lib
2.5
60
0
Fisher
Labor
2.33
29
0
Cook
Comm. Lib
1.5
33
0
Fisher/Hughes
Labor
4
13
50
Hughes/Bruce
National
2.62
23
62.5
Scullin
Labor
1.5
17
0
Lyons/Page/Menzies/Fadden
2.2
14
66.7
Curtin/Chifley
Country/
UAP
Labor
5.22
34
23.5
Menzies/Holt/McEwan/Gorton
McMahon
Whitlam
Liberal/
Coalition
Labor
2.42
28
68.8
3.25
0
0
Fraser
Liberal/
Coalition
Labor
19031904
1904
19041905
19051908
19081909
19091910
19101913
19131914
19141917
19171929
19291932
19321941
19411949
19491972
19721975
19751983
19831996
19962007
2007-
% of Federal
Legislation
Invalidated Enacted
by Same Party
0
4.44
8
33.3
4.57
28
61.1
3.58
9
0
5.6
7
0
Hawke/Keating
Howard
Rudd/Gillard
Liberal/
Coalition
Labor
Table 4: Percentage of challenges to legislation upheld by time interval between enactment and decision
Number of Years
Two Years or Less
3-4 Years
5-8 Years
9-12 Years
13-16 Years
17-20 Years
More than 20 Years
TOTAL
State Legislation
Number
(%)
34
21.5%
10
6.3%
23
14.6%
22
13.9%
14
8.9%
7
4.4%
48
30.4%
158
100
Federal Legislation
Number
(%)
61
22.5%
32
11.8%
55
20.3%
14
5.2%
18
6.6%
8
3%
83
30.6%
271
100
Total
(%)
22.1%
9.8%
18.2%
8.6%
7.5%
3.5%
30.5%
100
Table 5: Percentage of challenges to legislation upheld by length of time that the government has been in office
Number of Years
Two Years or Less
3-4 Years
5-8 Years
9-12 Years
13-16 Years
17-20 Years
More than 20 Years
TOTAL
Conservative
Number
(%)
47
17.5%
44
16.4%
89
33.1%
43
16%
16
5.9%
13
4.8%
12
4.5%
264
100%
Number
65
64
30
6
165
Labor
(%)
39.4%
38.8%
18.2%
3.6%
100
Total
(%)
26.1%
25.2%
27.7%
11.4%
3.7%
2.8%
2.8%
100%
Table 6: Descriptive Statistics
Variable
Challenge Successful (Yes = 1)
Conservative Government in Power (Yes = 1)
Legislation Enacted by Same Political Party (Yes = 1)
Percentage Intending to Vote Conservative
Percentage Intending to Vote Labor
Age of Legislation (Years)
Age of Government (Years)
Chief Justice
Mean
22.39%
57.01%
54.79%
44.90
45.52
17.12
3.44
Griffith (10.75%)
Knox (7.46%)
Isaacs (0.3%)
Gavan Duffy (3.88%)
Latham (16.42%)
Dixon (8.36%)
Barwick (14.33%)
Gibbs (8.66%)
Mason (10.75%)
Brennan (2.69%)
Gleeson (11.94%)
French (4.48%)
Std. Dev.
4.26
5.18
22.46
3.05
Table 7: Logit Regressions (Marginal Effects)
VARIABLES
Conservative Government in Power (Yes = 1)
Intending to Vote Labor (%)
Intending to Vote Conservative (%)
Legislation Enacted by Same Political Party (Yes = 1)
Age of Legislation (Years)
Age of Government (Years)
Age of Legislation (Years) Squared
Age of Government (Years) Squared
Chief Justices
Griffith
Knox
Gavan Duffy
Latham
Barwick
Gibbs
Mason
Brenan
Gleeson
French
Observations
DV Successful=1
0.0349
(0.503)
-0.0108
(-1.469)
-0.0119*
(-1.842)
0.0154
(0.332)
-0.00272
(-0.731)
-0.0418*
(-1.759)
-6.01e-06
(-0.110)
0.00323*
(1.692)
-0.109
(-1.511)
0.0298
(0.253)
-0.156***
(-2.968)
-0.0361
(-0.388)
-0.167***
(-3.143)
-0.0954
(-1.257)
0.0113
(0.0901)
-0.160***
(-2.778)
-0.204***
(-4.757)
-0.107
(-1.274)
335
Notes: z-statistics in parentheses; *** p<0.01, ** p<0.05, * p<0.1
Isaacs was removed from the regression. Dixon was treated as the reference case
Figure 1: Federal invalid as a percentage of challenges
Figure 2: State invalid as a percentage of challenges
Figure 3: Voting intentions for Federal Labor and Federal Conservative 1903 to 2011
Appendix
Table A1 – Unsuccessful Challenges to Legislation in the High Court 1903-2011
Citation
Legislation Challenged
Basis for challenge
(1904) 1 CLR 91
(1904) 2 CLR 29
(1905) 3 CLR 649
(1906) 3 CLR 807
(1906) 4 CLR 785
(1907) 4 CLR 1304
(1909) 8 CLR 419
(1909) 8 CLR 626
(1911) 12 CLR 375
(1911) 12 CLR 321
(1912) 14 CLR 220
(1912) 15 CLR 355
(1912) 15 CLR 36
(1912) 15 CLR 18
(1912) 15 CLR 407
(1912) 15 CLR 661
(1913) 16 CLR 315
s 109
s 117
Magna Carta
s 109
UV
[1913] HCA 76
(1914) HCA 25
[1915] HCA 13
[1915] HCA 39
(1915) 20 CLR 299
(1915) 20 CLR 425
Stamp Duties Amendment Act 1902 (Tas)
Administration Act 1903 (WA)
Immigration Restriction Act 1901
New South Wales Stamp Duties Act
Regulation made under the Sydney Harbour Trust Act
Income Tax Consolidated Acts 1902-4 and the Income Tax Declaratory Act 1905
Conciliation and Arbitration Act 1904 (Cth) s 19(b)
Customs Act 1901 (Cth) ss 52(g), 56
Commonwealth Salaries Act 1907 (Cth)
Land Tax Act 1910 (Cth); Land Tas Assessment Act 1910 (Cth)
Regulations made under Health Act 1890 (Vic)
Electoral Act 1902 (Cth) s 188AA
Defence Act 1903-1910 (Cth)
Rules of Court 1899 (Vic)
By-law under Local Government Act 1903 (Vic) s197
Land Tax Assessment Act 1910 (Cth) s39
Northern Territory Acceptance Act 1910 (Cth) s7; Northern Territory
(Administration) Act 1910 (Cth) s5
Conciliation and Arbitration Act 1904 (Cth) s31
Land Tax Regulations 1911 Rule 51
s 122 of the Constitution Act (Cth)
Land Tax Assessment Act 1910 (Cth), s 29
Regulations made under War Precautions Act 1914-1915
Crimes Act 1915 (Cth) ss 2, 3
(1915) 20 CLR 315
(1916) 22 CLR 150
[1916] HCA 13
(1916) 21 CLR 433
[1916] HCA 55
Trading with the Enemy Act 1914
What Acquisition Act 1914 (NSW)
Customs Act 1901 (Cth), s 152
War Precautions Act No. 10 of 1914
Conciliation and Arbitration Act 1904 (Cth), s 21AA
(1916) 22 CLR 268
[1916] HCA 62
[1916] HCA 67
[1917] HCA 13
(1917) 23 CLR 169
[1917] HCA 29
(1917) 23 CLR 311
[1917] HCA 45
[1917] HCA 63
(1918) 25 CLR 9
[1918] HCA 47
(1918) 25 CLR 506
[1918] HCA 56
(1918) 26 CLR 9
Trading with the Enemy Act 1914 s 2(2b)
Estate Duty Assessment Act 1914 (Cth) s 8(4)
Meat Supply for Imperial Uses Act 1914 (Qld)
Income Tax Assessment Act 1915-1916 s14(e)
Rules- Supreme Court Rules 1904 (SA)
Commonwealth Conciliation and Arbitration Act 1904 (Cth), s 6(1)
By Law under Local Authorities Act 1902 (Qld), s 182
Constitution Act Amendment Act 1908 (Qld)
Unlawful Associations Act 1916 (Cth), s 4
Statutory Rules 1915, No. 89 reg 17A
Aliens Restriction Order 1915, par. 2J
War Precautions Act 1914 (Cth)
Statutory Rules 1915 No 89 Reg 17A
Conciliation and Arbitration Act 1904 (Cth)
Section 6(6) of the (CTH) Industrial Arbitration Act 1916 (Qld)
[1918] HCA 70
War Precautions (Enemy Shareholders) Regulations 1916 (Cth) s11(2)
[1920] HCA 42
(1920) 27 CLR 532
War Precautions Act 1914 (Cth), s 2(2)
Conciliation and Arbitration Act 1904 (Cth) s14
(1918) 25 CLR 9
s 51(xxxv)
ss 51(i), 51(ii)
UV
ss 51(ii), 55, 114
UV
UV s51(xxxvi)
s 116
UV
UV
s 55
ss 51(ii), 55, 122
s 51 (XXXV.)
UV
s 80
ss51(xx), 55, 114
UV
UV, General
Constitutional powers
s 92
UV
s 51(ii) and (xxxix)
s 51(vi) and (xxxix)
ss 76(i) and 76(ii), and
51(xxxix), 73
UV
s55
s 92
s 55
UV
ss 51(xxxv) and 51(xxxix)
UV
Assent
ss 51(vi) and (xxxix)
UV
s 51(xix)
s 51(vi)
UV
s 71
Constitution Act of 1867,
sec. 15
UV s 4 of the War
Precautions Act 1914
s 51(vi)
Constitution- industrial
dispute
(1920) 28 CLR 209
[1920] HCA 79
(1921) 29 CLR 329
(1923) 32 CLR 413
(1924) 35 CLR 120
(1924) 35 CLR 69
(1924) 34 CLR 38
(1924) 35 CLR 200
(1925) 36 CLR 20
(1925) 36 CLR 410
(1925) 36 CLR 170
(1925) 37 CLR 252
(1925) 37 CLR 36
(1926) 27 CLR 393
Conciliation and Arbitration Act 1904 (Cth), s 28(2)
Inscribed Stock Act 1911 (Cth), s 52B
Treaty of Peace Act 1919 (Cth) and Treaty of Peace Regulations
Conciliation and Arbitration Act s 3
Judiciary Act s33A
Judiciary Act 39(2)(a)
Wheat Harvest (1915-1916) Act 1915 (SA) s5(1)
Judiciary Act 1903 (Cth) s 64
Customs Tariff (Industries Preservation) Act 1921 (Cth) s8(2).
Fruit Marketing Organisation Act (Qld) 1923
Motor Car Act VIC 1915
Meat Industry Act 1915 NSW s 8
Challenge to the validity of s8AA of the "Immigration Act 1901–1925".
Challenge to the validity of s39(2)(a) of the Judiciary Act.
(1926) 37 CLR 432
Section 13 of the Northern Territory (Administration) Act
(1926) 38 CLR 74
Held to be valid.
(1926) 38 CLR 153
Section 28(1) of the (CTH) Income Tax Assessment Act
(1926) 38 CLR 219
(1926) 38 CLR 380
(1926) 39 CLR 1
(1926) 39 CLR 95
(1926) 38 CLR 563
(1928) 42 CLR 209
Section 14 of the (CTH) War-time Profits Tax Assessment Act 1917-1918
Commonwealth Electoral Act 1918-1925 (CTH) s 128A(12)
Commonwealth Shipping Act 1923 (CTH)
Immigration Acts 1924 and 1925 (CTH) s 5
Commonwealth Conciliation and Arbitration Act 1904-1905 (CCAA) s 20
Stock Act 1901 (NSW)
s 55
s9
(1928) 42 CLR 162
(1928) 41 CLR 519
(1930) 43 CLR 386
(1931) 46 CLR 73
(1931) 44 CLR 450
(1932) 46 CLR 155
Farm Produce Agents Act 1926 (NSW)
Secret Commissions Prohibition Act 1919 (NSW) s 3
Dried Fruits Act 1924
Transport Workers Act 1928-1929 s 3 and regulations
Bankruptcy Rules 1928 (Cth) r 356 under Bankruptcy Act 1924 (Cth) ss 184, 203
Financial Agreements (Commonwealth Liability) Act 1932 and Financial
Agreements Enforcement Act 1932 (Cth)
Bankruptcy Act 1924 (Cth) s101
Conciliation and Arbitration Act 1904 (Cth)
Financial Agreements Enforcement Act 1932 (CTH) s 15
Primary Producers' Organisation and Marketing Act 1926 (QLD) s 9
Motor Car Act 1928 s 4 (VIC)
New Guinea Act 1920 (Cth)
Estate Duty Assessment Act 1914–1928 s8
New Guinea Act (Cth) 1920
Milk Act 1931 NSW
State Transport (Co-ordination) Act 1931 s12
Immigration Act (Cth) s3(gh)
Immigration Act 1901 (Cth) s 3(gh)
State Transport (Co-ordination) Act 1931 NSW s 37
Commonwealth Dried Fruits Act 1928 and Regulations
Dried Fruits Export Control Act 1924-1935
Regulations passed under Transport Workers Act 1928-1929 (TWA)
Transport Regulation Act 1933 Vic
Special Income and Wages Tax (Management) Act
Dried Fruits Act 1928 (Vic); Dried Fruits Regulations
Financial Emergency Act 1931 (VIC) s 13
Marine Act 1928 (VIC) s13
Bankruptcy Act 1924 (CTH) ss 209 and 217
s 92
s 109
s 92
s 51(i)
UV
s 105A
(1932) 47 CLR 482
(1932) 47 CLR 1
(1932) 46 CLR 246
(1932) 48 CLR 266
(1933) 48 CLR 316
(1933) 49 CLR 242
(1933) 49 CLR 220
(1933) 49 CLR 242
(1933) 49 CLR 399
(1933) 50 CLR 30
(1934) 52 CLR 221
(1934) 52 CLR 221
(1935) 52 CLR 189
(1935) 52 CLR 570
(1935) 54 CLR 69
(1936) 54 CLR 657
(1937) 57 CLR 327
(1937) 56 CLR 657
(1937) 57 CLR 372
(1937) 58 CLR 146
(1937) 58 CLR 618
(1938) 59 CLR 556
s 51(xxxv)
s 51(iv) of the
Constitution s71
UV
UV
s 77(iii)
UV
S 51(xxxix) Ch III
ss 55 and 90
s 92
ss 52, 106, 107, 109
s 51
Judicial Committee Act
1844 (UK)
ss 71, 72, 73 and 122
Claimed repugnant to the
“Colonial Laws Validity
Act 1865 (IMP)”
s 55
Retrospective
ss 51, 109
ss 92, 109
s 28
UV
s 105A
s 92
s 92
S 51(xxix)
s 51(II)
s 122
ss 90, 92
s 92
s 51(xxvii)
S 51(xxvii)
s 92
ss 92, 99
ss 92, 99
ss 92, 99
ss 91, 102
ss 109, 114
ss 90, 92
s 84
s 109
s 80, Ch III; UV
(1938) 60 CLR 111
(1938) 60 CLR 545
(1938) 60 CLR 263
(1939) 61 CLR 701
(1939) 61 CLR 596
(1939) 61 CLR 634
(1939) 61 CLR 735
(1939) 62 CLR 116
(1941) 65 CLR 88
(1941) 64 CLR 470
(1941) 65 CLR 255
(1942) 66 CLR 198
(1942) 65 CLR 373
Special Income and Wages Tax (Management) Act 1936 (NSW)
Sales Tax Assessment Act (No 1) 1930 (Cth)
Marketing of Primary Products Act 1935 (Vic)
Trading Stamp Act Amendments Act 1924-1935 (SA) s 5A(3)
Lotteries and Art Unions Act 1901-1929 (NSW) ss 19 and 21
Air Navigation Regulations 1937 (Cth) Sch 1 r 51(1)
Flour Tax (Stocks) Act 1938
Milk Act 1931-1936 (NSW)
By-laws, City of Brunswick
National Security Act 1939
National Security (Apple and Pear Acquisition) Regulations
Income Tax Assessment Act 1922
Income Tax Assessment Act 1942 and associated Acts (Wartime arrangements)
(1942) 66 CLR 161
(1942) 66 CLR 557
(1943) 67 CLR 347
(1943) 68 CLR 401
(1944) 68 CLR 469
National Security (Industrial Peace) Regulations (Cth)
Egg and Egg Pulp Marketing Board Regulations 1941 (Vic)
Women's Employment Act 1942
National Security Act 1939 – Price regulations made under Order No. 896
National Security (Alien Doctors) Regulations (Cth)
(1944) 68 CLR 504
(1944) 69 CLR 185
(1944) 70 CLR 362
(1944) 69 CLR 457
(1944) 69 CLR 501
National Security (ManPower) Regulations
Women’s Employment Regulations
Income Tax Assessment Act 1936 ss 104(1), 105(1)
National Security (General) Regulations reg 59
Sub-regulations 3B and 3C of National Security (Supplementary) Regulations reg
118
National Security (Aliens Service) Regulations 1942
(1945) 70 CLR 60
(1945) 70 CLR 100
(1945) 70 CLR 141
(1945) 71 CLR 237
(1945) 71 CLR 161
(1946) 72 CLR 269
(1946) 71 CLR 115
(1946) 72 CLR 141
(1946) 73 CLR 157
(1946) 73 CLR 187
(1946) 73 CLR 213
(1946) 73 CLR 237
(1947) 74 CLR 629
(1947) 74 CLR 613
(1949) 78 CLR 116
(1949) 77 CLR 261
(1949) 79 CLR 101
(1949) 79 CLR 121
(1949) 79 CLR 333
(1950) 81 CLR 1
(1950) 80 CLR 432
(1951) 83 CLR 353
(1951) 82 CLR 547
(1951) 84 CLR 42
(1951) 84 CLR 442
(1951) 84 CLR 265
(1951) 84 CLR 285
(1952) 86 CLR 169
Black Marketing Act 1942 s4(4) (Cth); National Security (Prices) Regulations
Section 58E of the Conciliation and Arbitration Act
Pharmaceutical Benefits Act 1944 (CTH)
National Security (Female Minimum Rates) Regulations
Lands Acquisition Act 1906-1936 (CTH)
Australian National Airways Act 1945 (CTH)
Government Railways Act 1912-1945 (NSW)
National Security (Economic Organisation) Regulations Pt III (CTH)
National Security (Economic Organisation) Regulations Pt III (CTH)
National Security (War Service Moratorium) Regulations (CTH)
National Security (Prices) Regulations 1940 (CTH)
Black Marketing Regulations (CTH) reg 3
National Security (Prices) Regulations (CTH) reg 49
National Security (Economic Organisation) Regulations (CTH) reg 21
Immigration Act (CTH) s 4
Crimes Act 1914 (CTH) s 24A
Crimes Act 1914 (CTH) ss 24A, 24B and 24C
National Emergency (Coal Strike) Act (Cth)
Profiteering Prevention Act (QLD) 1948
Transport Regulation Act 1933 (VIC) s 45
Harbour Trust Regulations Reg 87
Wool Sales Deduction Act Nos 1 and 2 of 1950 (CTH) and Wool Sales Deduction
(Administration) Act 1950 (CTH)
War Service Land Settlement Act 1945 (First Schedule) (VIC) and Schedule to
(VIC) Soldier Settlement Act 1945
Fisheries and Oyster Farms Act 1939 (NSW) s 40B
Conciliation and Arbitration Act 1904 (CTH) s 96M
National Security (Landlord and Tenant) Regulations 1946 (CTH)
Customs Act 1901 (CTH) s 203, 229 and 262
s 109
s 76(ii)
s 92
s 92
s 92
UV
ss 96, 51(ii), 99
s 92
UV
UV
s 55
UV - s 51(ii), (vi), (xxxi),
and (xxxix)
s 109
s 51(vi)
Vagueness/Uncertainty
ss 51(vi), 51(xix),
51(xxxxix)
UV
Ss 71, 72
S 55
UV
s 51(vi)
Not authorized by
empowering Act
s 71
s 76(ii)
ss 51, 51(xxxix)
s 51(vi)
UV s 51(xxxi)
UV and s 92
s 109
s 51(vi)
s 51(vi)
s 51(vi)
UV (extraneous purpose)
Inconsistency
Not an offence
s 51(vi), s 51(xxxix)
s 71
s 51(xxxix)
UV s 51
UV
s 92
s 92
Not authorized by Act
s 51(ii)
UV
s 92
s 51(xxxix), s 51(xxxv)
s 51(vi)
UV; ss 229(b), 229(i),
51(i), 51(ii), 51(xxix),
51(xxxi)
(1952) 86 CLR 46
(1952) 87 CLR 177
(1953) 87 CLR 1
(1953) 89 CLR 636
(1953) 89 CLR 66
(1953) 89 CLR 540
(1953) 89 CLR 78
(1954) 90 CLR 24
(1954) HCA 31
(1954) 91 CLR 136
(1955) 93 CLR 55
(1955) 93 CLR 528
(1955) 91 CLR 529
(1955) 93 CLR 247
(1955) 92 CLR 529
(1955) 92 CLR 353
(1955) 94 CLR 489
[1955] HCA 36
(1956) 94 CLR 367
(1956) 96 CLR 35
(1956) 95 CLR 550
(1957) 97 CLR 633
(1957) 99 CLR 575
(1957) 99 CLR 28
(1957) 99 CLR 227
(1957) 97 CLR 177
(1958) 99 CLR 132
(1958) 101 CLR 536
(1959) 102 CLR 280
(1959) 101 CLR 11
(1959) 104 CLR 456
(1960) 104 CLR 609
(1960) 103 CLR 177
(1960) 103 CLR 368
(1960) 106 CLR 186
(1960) 105 CLR 214
(1961) 105 CLR 361
(1961) 108 CLR 106
(1962) 107 CLR 662
(1962) 107 CLR 46
(1962) 107 CLR 279
(1962) 107 CLR 529
(1964) 113 CLR 1
(1964) 110 CLR 194
(1964) 109 CLR 395
(1964) 110 CLR 498
(1964) 113 CLR 207
(1964) 110 CLR 353
(1964) 111 CLR 327
(1965) 112 CLR 177
(1965) 113 CLR 552
Customs (Prohibited Exports) Regulations (CTH)
Defence Preparation Act 1951 (CTH) and (CTH) Defence Preparation (Capital
Losses) Regulations
Benefit Associations Act 1951 (VIC) and regulations under Act
Conciliation and Arbitration Act 1904 (CTH) s 96M(6)
Metropolitan and Export Abattoirs Act 1936 (SA) ss 70 and 77
Wool Realisation (Distribution of Profits) Act 1948 (Cth) s 8(3) and 29
Life Insurance Act 1945 (Cth)
Conciliation and Arbitration Act 1904 (Cth)
Royal Commissions Act 1902 (Cth)
Spirits Act 1906 (Cth) s 16(b)
Dairy Industry Act 1915 (NSW) s 22A(1)
Stevedoring Industry Act 1949 (Cth) s 34(1)
Matrimonial Causes Act 1945 (Cth) Pt III
State Transport Facilities Act 1946 (QLD) s 32
Factories and Shops (Long Service Leave) Act 1953 (VIC)
Service and Execution of Process Act 1901 (Cth)
Factories and Shops Act 1912 (NSW) s 105A
Parliamentary Papers Act 1908 (Cth); Parliamentary Proceedings Broadcasting
Act 1946 (Cth)
Metropolitan and Export Abbatoirs Act 1936 (SA) s 52(a)
ss 8(3) and 29 of the Wool Realization (Distribution of Profits) Act 1948–1952
Lotteries and Art Union Act 1901 (NSW) ss20, 21
Transport (Division of Functions) Act 1932 (NSW)
State Grants (Tax Reimbursement) Act 1946 (CTH) ss 5 and 11
Commercial Goods Vehicles Act 1955 (VIC)
Road and Railway Transport Act 1930-1956 (SA) s27
Long Service Leave Act 1955 (NSW)
Northern Territory (Administration) Act s 10
State Transport (Co-ordination) Act 1931 (NSW) ss 12 and 28
Road Maintenance (Contribution) Act 1958 (NSW)
Sales Tax Assessment Act (No. 2) (CTH)
The Roads (Contribution to Maintenance) Acts 1951-1958 (QLD)
Liquor Acts 1912-1958 s 18(1)
Motor Car Act 1958 (VIC) s 33(1)
Conciliation and Arbitration Act 1904-1959 (CTH) s 140
Papua and New Guinea Act 1949-1957 (Cth) Pt V Div 2; Income Tax Ordinance
1959
Constitution Act 1902-1956 (NSW) ss 5B
Trading with the Enemy Act 1939 (CTH) s 13(1)
Contractors' and Workmen's Lien Act 1906 (QLD)
Roads (Contribution to Maintenance) Acts 1957-1958 (QLD) s 8(1)(e)
Delegation of decision
s 51(vi)
Excise Act 1901 (Cth) s 60(1)
Marriage Act 1961 (Cth) Part IV and s 94
State Transport (Co-ordination) Act 1931 (NSW)
Australian Industries Preservation Act 1906-1950 (CTH) s 11(1)
Money-lenders and Infants Loans Act 1941 (NSW) s 24
Road Maintenance (Contribution) Act 1958 (NSW)
Commonwealth Powers (Air Transport) Act 1952 (TAS); Australian National
Airlines Act 1945 (Cth) s 19A
Matrimonial Causes Act 1959 (CTH) s 86(1)
Regulations made under Mines Regulation Act 1949 (WA) reg 106(1) in Pt VI
Wool Tax (Administration) Act 1964 (Cth), Wool Tax Act (No 1) 1964 (Cth) and
Wool Industry Act 1962 (Cth)
Administration and Probate Act 1958 (VIC) Pt IV
s 55
s 51
s 109
s 51(i)
s 109
UV
ss 51(xxxvii), 109
s 92
UV
s 92
s 51(xxxi)
s 51(xiii)
Application dismissed
UV
s 51(ii)
s 92
s 51(i)
ss 76 and 77
s 92
S 109
S 77(iii)
Ss 51, 106, 107
S 51(xxxix)
S 109
S 51(vi)
s 92
S 92
s 92
s 92
Inconsistent with Award
s 123
s 92
s 92
S 55
s 92
s 90
s 92
s 51
s 51(xxix)
s 51(vi)
s 109
s 109
s 51(xxii)
UV
s 51(i)
s 109
(1965) 114 CLR 1
(1966) 114 CLR 194
(1966) 114 CLR 361
(1966) 116 CLR 200
(1966) 115 CLR 418
(1968) 117 CLR 390
(1968) 117 CLR 383
(1968) 121 CLR 283
(1969) 119 CLR 365
(1969) 120 CLR 1
(1969) 118 CLR 465
(1969) 122 CLR 177
(1969) 120 CLR 42
(1969) 120 CLR 92
(1970) 120 CLR 463
(1970) 123 CLR 89
(1970) 123 CLR 1
(1970) 123 CLR 52
(1971) 124 CLR 168
(1971) 122 CLR 353
(1972) 124 CLR 605
(1972) 125 CLR 470
(1972) 127 CLR 588
(1972) 129 CLR 415
(1972) 127 CLR 665
(1972) 127 CLR 617
(1973) 128 CLR 482
(1973) 129 CLR 231
(1973) 129 CLR 231
(1974) 130 CLR 87
(1974) 130 CLR 177
(1975) 132 CLR 307
(1975) 134 CLR 559
(1975) 134 CLR 201
(1975) 134 CLR 338
(1975) 135 CLR 1
(1975) 135 CLR 337
(1975) 133 CLR 369
(1976) 133 CLR 603
(1976) 134 CLR 42
(1976) 136 CLR 1
(1976) 133 CLR 622
(1976) 134 CLR 495
(1976) 135 CLR 507
(1976) 135 CLR 110
(1976) 135 CLR 179
(1976) 135 CLR 194
(1976) 135 CLR 530
(1977) 137 CLR 40
(1977) 139 CLR 585
(1978) 141 CLR 204
[1978] HCA 53
(1978) 144 CLR 161
Income Tax and Social Services Contribution Assessment Act 1961 (CTH) s 11
Stamp Duties Act s 102(2)(h)
Marketing of Primary Products (Egg Marketing) Act 1965 (VIC)
Scaffolding and Lifts Act 1912 (NSW) reg 73 (1), (2) and (3)
Broadcasting and Television Act 1942-1965 (CTH) Pt IV Div 3
Poultry Industry Levy Act 1965-1966 (CTH) and Poultry Industry Levy
Collection Act (CTH) 1965-1966
Poultry Industry Levy Act (CTH) 1965
National Service Act 1951-1968 (CTH) s 54
Income Tax Assessment Act 1936-1966 (CTH) s 99A
Trading Stamp Act 1924-1935 (SA)
Pubic Service Regulations reg 14(1) (CTH)
Fisheries Act 1952-1967 (CTH)
Stamp Act 1921-1968 s101A (WA)
Stamp Act 1921-1967 (WA)
City Area Leases Ordinance 1936 (ACT) s 25(1)
Scaffolding and Lifts Act 1912 (NSW)
Customs Tariff (Dumping and Subsidies) Act 1961 (NSW) s 7(2)
National Service Act 1951 (NSW) s 49(2)
Migration Act 1958 (NSW) ss 10, 18 and 20
Pay-roll Tax Assessment Act 1941 (NSW) s 3
Marketing of Primary Products Act 1927 (NSW) reg 32A
Workers' Compensation Act 1926 (NSW)
Matrimonial Causes Act 1959 (CTH) ss 84, 86, 87(1) and 125
Service and Execution of Process Act 1901-1968 (CTH) s 16(2)
Commonwealth Electoral Act 1918 (CTH) s 73(c)(ii)
Trade Practices Act 1965-1971 (CTH)
(SA) Rules of Court Regulating the Admission of Practitioners 1955 rr 27 and 28
Matrimonial Causes Act 1959 (Cth) s87(1)(f) and (g)
Matrimonial Causes Act 1971(CTH) s 5
Conciliation and Arbitration Act 1904 (CTH) s 143
Tobacco Act 1972 (TAS)
Customs Act 1901-1971 s 233B(1)(ca) (CTH)
Dairy Act 1970 ss 23 and 33 and (NSW) Pure Food Regulations reg 79(10)(c)
Electoral Act 1973 (Cth); Senate (Representation of Territories) Act 1973 (Cth)
Appropriation Act (No 1) 1974 Sch 2 Div 530 Item 4 (CTH)
Commonwealth Electoral Act 1918-1975 (CTH)
Seas and Submerged Lands Act 1973 (CTH)
Immigration (Guardianship of Children) Act 1946-1973 (CTH) s 6
Income Tax Assessment Act
Criminal Code Act 1899 (QLD) s441
Environment Protection (Impact of Proposals) Act 1974 is valid; Customs
(Prohibited Exports) Regulations reg 9
Banking Act 1974 (Act) s 5(1)(a) (CTH)
Family Law Act 1975 (CTH)
Fisheries Act 1905-1975 (WA)
Potato Marketing Act 1948 (SA)
Regulations made under s 31 Extradition (Foreign States) Act 1966 (EFSA)
Conciliation and Arbitration Act 1904 (Cth) ss 171B
Local Government Act 1958 (Vic) s267(1)
Family Law Act 1975 (CTH)
(Representation of Territories) Act 1973, (CTH) Northern Territory
Representation Act 1922 s 6 and (CTH) Australian Capital Territory (House of
Representatives) Act 1973 s 18
Conciliation and Arbitration Act 1904 (CTH) s47(6)
Family Law Act 1975 (Cth) s 61(4)
Privy Council (Appeals from the High Court) Act
s 51(ii)
s 109
s 92
UV
S 51(v)
S 92
S 51(ii)
S 80
S 51(ii)
S 92
UV
UV
S 90
S 92
Delegation
S 52(i)
S 55
S 71
S 51(xxvii)
S 114
S 32A
S 109
S 71
S 52(xxiv)
S 75
S 92
S 117
UV
S 51(xxii)
Ch III, ss 51 and 77(i)
S 90
S 51(i)
S 92
ss 7, 57 and 122
S 81
S 24
S 51(29)
S 51(xxvii)
S 51(ii)
S 109
ss 51(i), 51(vi)
UV (s 71)
ss 51(xxi), (xxii) and
(xxxix) or s 77(iii)
S 109
S 92
UV
Ch III
S 52(1)
UV
S 122
S 51(xxxv)
S 51(xxi)
S 74
(1978) 138 CLR 194
(1978) 138 CLR 201
(1978) 140 CLR 120
(1978) 139 CLR 499
(1978) 144 CLR 120
(1979) 142 CLR 397
(1976) 138 CLR 492
(1977) 139 CLR 54
(1979) 145 CLR 1
(1979) 144 CLR 374
(1980) 145 CLR 532
(1980) 145 CLR 266
(1980) 144 CLR 462
(1981) 146 CLR 559
(1981) 148 CLR 457
(1981) 148 CLR 383
(1981) 147 CLR 259
(1981) 151 CLR 170
(1982) 149 CLR 79
(1982) 150 CLR 169
(1982) 153 CLR 168
(1982) 152 CLR 179
(1982) 151 CLR 101
(1982) 152 CLR 460
(1982) 154 CLR 25
(1982) 152 CLR 211
(1983) 151 CLR 302
(1983) 152 CLR 281
(1983) 152 CLR 570
(1983) 158 CLR 1
(1983) 158 CLR 535
(1984) 158 CLR 365
(1984) 154 CLR 349
(1984) 154 CLR 640
[1984] HCA 75
(1984) 155 CLR 186
(1985) 159 CLR 351
(1985) 159 CLR 70
(1985) 157 CLR 57
(1985) 157 CLR 605
(1985) 158 CLR 596
(1985) 158 CLR 500
(1985) 159 CLR 264
(1985) 159 CLR 636
[1986] HCA 37
(1986) 161 CLR 148
Hen Quotas Act 1973 (QLD) s 56(1)(b)
Air Navigation Regulations (ANR) (Cth) reg 106A(7)
Wheat Industry Stabilization Act (NSW) 1974
Egg Industry Stabilisation Act (NSW)1971
Trade Practices Act 1974 (CTH) s 45
Trade Practices Act 1974 (CTH) s 47(9)(a)
Australian National Airlines Act 1945 (CTH) ss 19B and 19H
Customs (Prohibited Imports) Regulations
Marketing of Primary Products Act 1958
Reg 6(1) of the Banking (Foreign Exchange) Regulations, and s 4 of the Banking
Act 1974
Health Insurance Act 1973 (Cth), ss 16A, 16B, 16C
Wheat Industry Stabilization Act 1974 (NSW), s 10(2) and the Wheat Industry
Stabilization Act 1974 (Qld), s 12(3)
Conciliation and Arbitration Act 1904 (Cth) s118
State Grants (Schools) Acts enacted by the Commonwealth Parliament between
1972 and 1976; States Grants (Schools Assistance) Act 1976 (Cth) and amending
Acts passed each year from 1976 to 1978; Schools Commission Act 1973 (Cth);
Independent Schools (Loan Guarantee) Act 1969 (Cth), and each Appropriation
Act passed between 1972 and 1979
Federal Court of Australia Act 1976 (Cth), s 32
Family Law Act 1975 (Cth), s 61(4)
Conciliation and Arbitration Act 1904 (Cth), s 144A
Planning Regulations (NT), reg 5
Electoral Act Amendment Act (No 2) 1979, ss 7, 18
Trade Practices Act 1974 (Cth), s 45D(1)
Racial Discrimination Act 1975 (Cth) ss9,12
Federal Proceedings (Costs) Act 1981 (Cth), s 16
Migration Act 1958 (Cth) s 12
Trade Practices Act 1974 (Cth), s 155
Australian Security Intelligence Organization Act 1956; Australian Security
Intelligence Organization Act 1979
s 19 of the Evidence Act 1958 (Vic)
Hospital Benefits (Levy) Act 1982 (Vic) and the Health Insurance Levies Act
1982 (NSW)
Royal Commissions Act 1902 (Cth) the Commissions of Inquiry Act 1950 (Qld)
Trade Practices Act 1974 (Cth) ss75B and 82 (1)
World Heritage Properties Conservation Act 1983 (Cth) ss 6, 8, 9, 11
Coal Industry Acts 1946 (Cth)
Regulations under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
By Law under Rundle Street Mall Act 1975 (SA), s 11(1)(a)
Banking (Foreign Exchange) Regulations (Cth), reg 42
Commonwealth Electoral Act (Cth) 1918
Regulations under Extradition (Foreign States) Act 1966 (Cth), s 10(4)
Navigation Amendment Act 1979 (Cth), s104(3) ; Merchant Shipping Act
1894 (Imp), s 503
Pitjantjatjara Land Rights Act 1981 (SA) s19
Telecommunications (Interception) Act 1979 (Cth) s 20
Primary Producers' Organisation Marketing Act 1926 (Q.) ss. 21B, 21F, 1A
Crimes Act 1914 (Cth), s 43; Judiciary Act 1903 (Cth), s 68
Regulations under Planning Act 1979 (N.T.)
Customs Act 1901 (Cth), ss 233B(1)(cb) and 235(2)
Building Industry Act 1985 (Cth)
Parliamentary Commission of Inquiry Act 1986 (Cth)
Beverage Container Act 1975 (SA)
S 92
S 51(i)
S 92
s 92
s 91
s 51(xxxi)
s 122 or 51(i)
s 92
s 92
s 51(xi)
s 51 (xxiiiA)
s 92
s 51(xxxv)
s 96
ss 75, 76
s 51(xxi)
s 51(xxxv)
Outside regulation-making
power
s 73
s 51(xx)
s 51(xxix)
Ch III
s 51(xix)
Ch III
s 116
s 109
s 109
Privilege
UV
s 51(xxix)
UV
UV
UV
UV
Constitution- Voting
UV
Statute of Westminster
Adoption Act 1942 (Cth)
s 109
Ch III
s 92
Judicial power s 43
UV
s 80
ss 51(xxxv) and 51(xxxix)
UV
s 92
(1986) 161 CLR 88
(1986) 161 CLR 556
(1986) 161 CLR 438
(1987) 162 CLR 74
(1987) 162 CLR 271
(1987) 162 CLR 514
(1987) 162 CLR 574
(1987) 163 CLR 278
(1987) 163 CLR 329
(1988) 68 ALR 18
(1988) 164 CLR 350
(1988) 164 CLR 261
(1989) 166 CLR 161
(1989) 167 CLR 399
(1989) 168 CLR 340
(1989) 168 CLR 289
(1990) 170 CLR 218
(1990) 95 ALR 502
[1990] HCA 44
(1990) 171 CLR 182
(1991) 172 CLR 84
[1991] HCA 20
(1991) 172 CLR 501
(1991) 173 CLR 194
(1991) 174 CLR 379
(1992) 174 CLR 455
(1992) 175 CLR 453
[1993] HCA 8
(1993) 176 CLR 480
(1993) 176 CLR 555
[1993] HCA 42
(1994) 179 CLR 226
(1994) 179 CLR 155
(1994) 179 CLR 155
(1994) 179 CLR 270
(1994) 179 CLR 463
(1994) 181 CLR 183
(1994) 182 CLR 272
(1995) 184 CLR 188
(1995) 184 CLR 348
[1995] HCA 48
(1996) 186 CLR 302
(1996) 186 CLR 140
Builders Labourers’ Federation (Cancellation of Registration) Act 1986 (Cth);
Builders Labourers’ Federation (Cancellation of Registration — Consequential
Provisions) Act 1986 (Cth)
Wireless Telegraphy Act 1905 (Cth), s 6
s 51(xxxv)
Family Law Act 1975 (Cth), s 79(8)
Fringe Benefits Tax Act 1986 (Cth) and the Fringe Benefits Tax Assessment Act
1986 (Cth)
National Health Act 1953 (Cth), Pts V, VA and VC, ss 39A(6), 40AA(3C) and
40AA (7)
Defence (Visiting Forces) Act 1963 (Cth) Pt III; Defence Acts Amendment Act
1981 (Cth) Pt IXA; s 19
Supreme Court Rules 1970 (NSW) Pt 10, r 2
s.79(1) of the Family Law Act 1975 (Cth)
Fringe Benefits Tax Act 1986 (Cth); Fringe Benefits Tax Assessment Act 1986
Australian Bicentennial Authority Act 1980 (Cth), ss 22 and 23
Rule- Criminal Appeal Rules 1925 (SA), r 25
Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth)
Waterworks Regulations 1974 (SA) made in pursuance of the Waterworks Act
1932 (SA)
Business Franchise (Tobacco) Act 1974 (Vic), s10
Coastal Waters (State Powers) Act 1980 (Cth) s5
Traffic Act 1949 (Qld) s 16(1)(a)
Builders Labourers’ Federation (De-recognition) Act 1985 (Vic), s 7(1),
War Crimes Act 1945 (Cth), s9
Conciliation and Arbitration Act 1904 (Cth), s 60(1)
Marketing of Primary Products Act 1983 (NSW), ss 56 and 58
Family Law Act, s 37A, and Rule O36A, r 2
s 51(xxi) of the
s 114
Builders Labourers’ Federation Legislation Amendment Act 1990 (Cth), s 5
War Crimes Act 1945 (Cth)
Judiciary Act , s 35(2), and Federal Court of Australia Act s 33(3)
Criminal Law Consolidation Act 1935 (SA), s 73(3)
Crimes Legislation Amendment Act (No 2) 1989 (Cth), s 30(1)
Environmental Planning and Assessment Regulation 1980 (NSW) underEnvironmental Planning and Assessment Act 1979 (NSW)
Industrial Relations Act 1988 (Cth) s.111(1A)
Copyright Amendment Act 1989 (Cth) ss 135ZZJ to 135ZZZB
Training Guarantee Act 1990 (Cth) and of the Training Guarantee (Assessment)
Act 1990 (Cth)
Aboriginal Lands Rights Act (1983) N.S.W; Crown Lands (Validation of
Revocations) Act 1983
Health Insurance (Pathology Services) Amendment Act 1991 (Cth)
Swimming Pools Tax Refund Act 1992 (Cth)
Swimming Pools Tax Refund Act 1992 (Cth)
Fisheries Management Act , s 106
Business Franchise (‘X’ Videos) Act 1990 (ACT)
Petroleum (Australia-Indonesia Zone of Co-operation) Act 1990 (Cth) and the
Petroleum (Australia-Indonesia Zone of Co-operation) (Consequential Provisions)
Act 1990 (Cth)
Migration Act , Pt 2A
Industrial Relations Act 1988 (Cth), s 111(1A)
Telecommunications (Interception) Act 1979 (Cth), Pt VI, Div 3 (ss 35-44) and
Pt VI, Div 4 (ss 45-61A) (amplified by ss 6D and 6H)
Corporations Law , s 701
Commonwealth Electoral Act 1918 (Cth), s 329A
Constitution Act 1889 (WA), s 6, and the Electoral Districts Act 1947 (WA)
(later styled the Electoral Distribution Act 1947 (WA)), ss 2A(2), 6 and 9
s 51(xxxv) UV
UV s 51(xxix)
UV s 73
s 109
s 51
UV
s 92
s 51(xxiiiA)
s 71
s 109
s 51(xxi)
ss 55, 55(ii)
s 51
UV
Constitution EAP
s 109
s 90
s 51(xxxviii)
s 109
s 109
s 51(xxix)
s 51(xxxv) UV
s 92
s 79
s 92
s 55
s 55
Native title
s 55
s 51(ii)
s 55
s 51(xxxi) and 51(x)
s 90
s 51(xxix)
s 92
s 92
Chapter III
s 92
UV
ss 7, 24 and 73(2)
(1996) 186 CLR 352
The Electoral Act 1985 (SA), ss 76, 126
(1996) 187 CLR 416
(1996) 189 CLR 51
(1996) 187 CLR 579
[1997] HCA 18
(1997) 189 CLR 520
Industrial Relations Act 1988 (Cth) s164
Community Protection Act
Financial Transaction Reports Act 1988 (Cth), s 31(1)
Commonwealth Electoral Act 1918 (Cth), ss 210, 211 and 211A
Defamation Act 1974 (NSW)
(1997) 189 CLR 579
Wildlife (Game) (Hunting Season) Regulations 1994 (Vic)
(1996) 186 CLR 630
(1997) 191 CLR 119
(1997) 190 CLR 410
[1997] HCA 44
Stamps Act 1958 (Vic), s 17(1),
Criminal Code (Tas), ss 122(a) and (c) and 123
Residential Tenancies Act 1987 (NSW)
Crimes Act 1958 (Vic), s 360A(1)
(1998) 193 CLR 346
(1998) 193 CLR 173
(2003) 215 CLR 185
(2003) 217 CLR 521
(2003) 217 CLR 508
(2003) 214 CLR 397
(2003) 219 CLR 325
(2003) 218 CLR 28
(2004) 217 CLR 181
(2004) 218 CLR 146
(2004) 216 CLR 595
Corporations (New South Wales) Act 1990 (NSW), s 42
Crimes Amendment (Controlled Operations) Act 1996 (Cth), inserting in the
Crimes Act 1914 (Cth), Pt 1AB- Section 15X
Hindmarsh Island Bridge Act 1997 (Cth)
Local Government (Morayfield Shopping Centre Zoning) Act 1996 (Qld)
Mining Act 1978 (WA)
s 97(3) of the Community Welfare Act (NT)
Migration Act 1958 (Cth), Pt 8
Superannuation (Resolution of Complaints) Act 1993 (Cth) s37
Commonwealth Electoral Act s240
Fauna Conservation Act 1974 (Q)
Section 112AP of the Family Law Act
Civil Aviation Act 1988 (Cth) (Act) ss 66 and 67
Trade Practices Act 1974 (Cth) ss 80 and 163A
Plant Variety Rights Act 1987 (Cth) ;Plant Breeder's Rights Act 1994 (Cth)
Corporations (Western Australia) Act 1990 (WA) s 29
Crimes Act s 29D
The Federal Courts (State Jurisdiction) Act 1999 (SA), s 11
Customs Act 1901 (Cth) ss 233B(1)(d) and 235(2)
Federal Courts (State Jurisdiction) Act 1999 (SA) ss 6, 7, 8 and 10.
Federal Courts (State Jurisdiction) Act 1999 (Qld) ss 6, 7, 8 and 10.
Industrial Relations Act 1988 (Cth), s 170MH
Jury Act 1977 (NSW) ss 22(a)(i), 54(b)
Extradition Act 1988 (Cth), s 21(6)
Aborigines Act 1905 (WA)
Child Support (Registration and Collection) Act 1988 (CTH).
Child Support (Assessment) Act 1989 (Cth).
Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (VIC) s
13; Supreme Court Act , Pt 4A
Judges' Pensions Act 1953 (NSW); Supreme Court Act 1986 (VIC).
Juries Act 1967 Act (VIC) s14A
The Juries Act (NT), s 37A
The Workplace Relations Act s 5(3)
Commonwealth Places (Mirror Taxes Administration) Act 1998 (Cth) s 14(2)
Migration Act (Cth), s 501(2)
Crimes (Confiscation of Profits) Act 1988 (WA) (now repealed)
Magistrates Act 1977 (NT)
Sch 3 cl 44 of Telco Act
(2004) 219 CLR 664
(2004) 219 CLR 562
(2004) 220 CLR 1
Migration Act (Cth) Sections 189, 196 and 198
Migration Act (Cth) ss 189, 196 and 198
Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d)`
(1998) 195 CLR 337
(1998) 195 CLR 547
(1999) 196 CLR 392
(1999) 196 CLR 553
(1999) 197 CLR 510
(1999) 197 CLR 83
(1999) 165 ALR 151
(1999) 201 CLR 351
(1999) 200 CLR 386
(1999) 202 CLR 133
(2000) 200 CLR 591
(2000) 202 CLR 479
(2000) 202 CLR 535
(2000) 172 ALR 342
(2000) 202 CLR 629
(2000) 203 CLR 248
(2000) 204 CLR 158
(2001) 203 CLR 645
(2001) 207 CLR 278
(2001) 180 ALR 593
(2001) 207 CLR 344
(2002) 210 CLR 333
(2002) 211 CLR 1
Implied freedom of
political discussion
s 51(xx)
Ch III
s 51(xii)
s 10
ss 7, 24, 128 (freedom of
political communication)
ss 7, 24, 128 (freedom of
political communication)
s 52(i)
s 109
s 109
Implied constitutional
guarantee of right to a fair
trial
Ch III
Ch III
s 51(xxvi)
Ch III
UV
s 109
ss 75 and 76,
Ch III
ss 31 and 51(xxxvi)
s 109
s 80
s 51(xxxi)
ss 75, 76 and 77,
s 51(xviii)
UV
s 51
UV
s 80
Ch III
UV
s 80
UV
UV
s 55
UV
s 55
s 80
s 80
UV
s 52(i)
s 51(xix)
s 71
Ch III
Commonwealth's power in
relation to telecoms.
s 51(xix).
s 51(xix)
Freedom of political
(2004) 220 CLR 181
(2004) 220 CLR 308
(2004) 223 CLR 513
(2004) 223 CLR 575
(2004) 225 CLR 1
(2004) 220 CLR 388
(2004) 221 CLR 400
(2005) 222 CLR 439
(2005) 222 CLR 489
(2005) 224 CLR 322
Commonwealth Electoral Act 1918 (Cth) ss 123, 136, 137 and 138A
Defence Force Discipline Act 1982 (Discipline Act) (Cth) s 9
Sentencing Act 1989 (NSW), s 13A
Sentencing Legislation Further Amendment Act 1997 (NSW).
Dangerous Persons (Sexual Offenders) Act 2003 (Qld) Sections 8 and 13
Migration Act (CTH) ss 189 and 196
Commonwealth Places (Mirror Taxes) Act 1998 (CTH)
Dust Diseases Tribunal Act 1989 (NSW) s 11A.
Papua New Guinea Independence Act 1975 (Cth), s 6
Nauru (High Court Appeals) Act 1976 (CTH)
Regulations made under (NSW) Legal Profession Act 1987
[2005] HCA 66
(2006) 227 CLR 490
(2006) 225 CLR 101
(2006) 227 CLR 532
(2006) 227 CLR 614
(2006) 228 CLR 45
Migration Act s 198
Service and Execution of Process Act 1992 (CTH) s 76
Crimes (Superannuation Benefits) Act 1989 (CTH) Pt 2
Crimes Act 1914 (Cth), ss 50BA and 50BC
Extradition Act 1988 Pt 2 (Cth)
Corporations Act 2001 (Cth) provisions; Supreme Court Act 1970 (NSW), s 37
(2006) 229 CLR 1
(2007) 230 CLR 369
(2009) 237 CLR 309
(2009) 237 CLR 501
(2009) 236 CLR 573
(2009) 238 CLR 1
(2009) 239 CLR 518
[2009] HCA 46
(2010) 241 CLR 177
(2010) 243 CLR 319
(2010) 242 CLR 1
(2011) 243 CLR 506
Work Choices amendments Act ss 16(1) and 16(4)
Safety, Rehabilitation and Compensation Act 1988 (CTH) Pt VIII- ss 104(1),
108(1) and 108A(7)(a)
Migration Litigation Reform Act 2005 (Cth), the Migration Act , s 5(1)
Corporations Act 2001s 1292
Corporations Act 2001 s 206F
Defence Force Discipline Act 1982 (Act) (CTH)
Criminal Code (Cth), Div 104
Corporations Act 2001 (Cth), s 657A(2)(b),
Corruption and Crime Commission Act 2003 (WA), s 76(2)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 70(1); Fisheries
Act (NT)
Trade Practices Act 1974 (Cth), s 152AR
Extradition Act 1988 (Cth), s 46
The Migration Act ss 476(2)(a) and 476(2)(d)
Federal Court Rules (Cth), O 20, r 5 under Federal Court of Australia Act
1976 (Cth), s 31A
National Emergency Response Act 2007 (Cth), s 34(1)
Liquor Licensing Act 1997 (SA), s 28A
Health Insurance Act 1973 (Cth), Pt VAA
Tax Bonus for Working Australians Act (No 2) 2009 (Cth)
Occupational Health and Safety Act 2004 (Vic), ss 21 and 23
Occupational Health and Safety Act 2000 (NSW), ss 8(1) and 8(2)
Crimes (Appeal and Review) Act 2001 (NSW), s 107
Migration Act 1958 (Cth), ss 46A and 195A
Serious and Organised Crime (Control) Act 2008 (SA), s 14(1)
Serious Sex Offenders Monitoring Act 2005 (Vic), s 42
[2011] HCA 10
[2011] HCA 28
[2011] HCA 29
[2011] HCA 33
Criminal Code s 669A(1)
Military Justice (Interim Measures) Act (No 2) 2009 (Cth), Sch 1, Items 3, 4 & 5
Military Justice (Interim Measures) Act (No 2) 2009 (Cth) Sch 1 It5
Construction Industry Long Service Leave Act 1997 (Vic)
(2007) 228 CLR 651
(2007) 231 CLR 350
(2007) 231 CLR 381
(2007) 231 CLR 570
(2007) 233 CLR 307
(2008) 233 CLR 542
(2008) 234 CLR 532
(2008) 236 CLR 24
[2008] HCA 7
[2008] HCA 14
(2008) 233 CLR 601
(2008) 83 ALJR 237
communication
ss 10 and 51(xxxvi)
UV
Ch III,
Ch III Kable principles
Ch III
s 55
s 51(xix)
s 76(ii)
Freedom of political
communication.
s 51
s 51 (xxiv)
s 51(xxxi)
s 51(xxix)
Ch III
s 76(ii)
s 51(xxxv)
s 51(xiv)
s 75(v)
Ch III
Ch III
s 71
Ch III and s 51(xxix)
Ch III
Ch III
ss 52(xxxi); 122
s 51(xxxi)
s 107
Ch III
UV
s 51(xxxi)
s 77(iii)
s 51(xxiiiA)
ss 51; 61
s 109
s 109
s 80
UV
Ch III
Ch III and implied
freedom of political
communication
s 51(xxxi)
Ch III.
s 109
Notes: UV refers to ultra vires. Under basis for challenge, references are to the Constitution unless otherwise specified.
Table A2 – – Successful Challenges to Legislation in the High Court 1903-2011
Citation
Case
Year
Decided
Legislation
Challenged
Section
Legislation
Enacted
(1906) 3 CLR
1099
Carroll v Shillinglaw
1906
Friendly Societies
Act 1890
Rule 7 made
under s13v of
act
1880
(1908) 6 CLR 41
R v Barger
1908
(1908) 6 CLR 469
Attorney-General for N.S.W. v Brewery
Employees Union of N.S.W
Fox v Robbins
1908
(1909) 8 CLR 330
Huddart Parker & Co Pty Ltd & Appleton v
Moorhead
1909
Excise Tariff (1906)
Cth
Trade Marks Act
1905
Wines, Beer and
Spirit Sale Act
Australian Industries
Preservation Act
(1909) 9 CLR 370
Bishop v Macfarlane
1909
Reg 50 made under
Metropolitan Traffic
Act 1900 s21
(1910) 11 CLR
311
(1910) 11 CLR
689
Australian Boot Trade Employees Federation v
Whybrow & Co
Owners of the SS Kalibia v Wilson
1910
Conciliation and
Arbitration Act
Seaman's
Compensation Act
(1912) 13 CLR
529
Page v King
1912
(1909) 8 CLR 115
1909
1910
By laws made under
Local Government
Act 1910
ss 5, 8
ss 38(f), 38(g)
State
or
Fed?
State
(Vic)
Invalid
under
Constitution?
No
If so, which
Section?
1906
Federal
Yes
1905
Federal
Yes
ss 51(ii), 99 and
92
s 51(xviii)
1880
State
(WA)
Federal
Yes
s 92
Yes
s 51
1900
State
(NSW)
No
1904
Federal
Yes
1909
Federal
Yes
1910
State
(TAS)
No
1906
ss 51(xxxix),
51(xxxv)
ss 76(iii), 98
(1912) 16 CLR 99
R v Smithers; Ex parte Benson
1912
Influx of Criminals
Prevention Act
s3
1903
State
(NSW)
Yes
s 92
(1914) 17 CLR
665
Waterhouse v Deputy Commissioner of Land
Tax (Cth)
1914
s 36(2)
1910
Federal
Yes
s51(ii)
(1915) 20 CLR 54
Commonwealth v New South Wales
1915
Pt V
1912
Federal
Yes
s101
(1916) 21 CLR
357
Foggitt Jones & Co Ltd v New South Wales
1916
s 5(1)
1915
State
Yes
s92
(1921) 29 CLR
257
(1922) 31 CLR
174
Re Judiciary Act 1903-1920
1921
s 88
1903
Federal
Yes
s76
Melbourne Corp v Barry
1922
State
(Vic)
No
(1923) 32 CLR 68
1923
(1925) 35 CLR
422
(1925) 36 CLR 88
Cameron v Deputy Federal Commissioner of
Taxation
Cameron v Deputy Federal Commissioner of
Taxation (Tas)
British Imperial Oil Co Ltd v Federal
Commissioner of Taxation (BIO case)
Carbines v Powell
(1925) 36 CLR
119
(1926) 38 CLR
408
The Commissioner of Taxation v Australian
Tesselated Tile Co Pty Ltd
Commonwealth & Commonwealth Oil
Refineries Ltd v South Australia (COR Case)
1925
(1926) 38 CLR
441
Hume v Palmer
1926
Land Tax
Assessment Act 1910
(Cth)
Inter-State
Commission Act
1912 (Cth)
Meat Supply for
Imperial Uses Act
1915 (NSW)
Judiciary Act 1903
(Cth)
By-law under Local
Government Act
1915 (Act)
Income Tax
Regulations
Income Tax
Regulations 1917
Income Tax
Assessment Act
Wireless Telegraphy
Regulations
Income Tax
Assessment Act
Taxation (Motor
Spirit Vendors) Act
1925
Navigation Act 1901
and regulations
(1926) 37 CLR
466
Clyde Engineering Co Ltd v Cowburn
(Cowburn's case)
1926
(1924) 34 CLR 8
1924
1925
1925
1926
Forty-four Hours
Week Act
By-law
Reg 46
1917
Federal
No
Reg 46
1917
Federal
No
s 28(3)
1922
Federal
Yes
Reg 92
1924
Federal
No
s 21(5)
1922
Federal
Yes
ss71, 72
1925
State
(SA)
Yes
ss 90, 92
1901
State
(NSW)
Yes
s 109
1925
State
(NSW)
No
ss 11, 113; art
19, art 30, reg
2
ss 6, 12 and
13
ss71, 72
(1926) 38 CLR
408
Commonwealth & Commonwealth Oil
Refineries Ltd v South Australia (COR Case)
1926
(1927) 39 CLR
139
John Fairfax & Sons Ltd & Smith's Newspapers
Ltd v New South Wales
1927
(1927) 39 CLR
411
(1927) 40 CLR 1
R v Turner; Ex parte Marine Board of Hobart;
Tasmania v Commonwealth
James v South Australia (Dried Fruits Case)
1927
(1928) 41 CLR
442
(1930) 43 CLR
472
(1931) 44 CLR
492
(1932) 48 CLR
128
(1934) 51 CLR
108
(1935) 51 CLR
677
(1935) 52 CLR 52
James v Commonwealth (Dried Fruits Case)
1928
McClean, Ex Parte
1930
Huddart Parker Ltd v Commonwealth
1931
Stock Motor Ploughs Ltd v Forsyth
1932
Vacuum Oil Co Pty Ltd v State of Queensland
1934
Vacuum Oil Co Pty Ltd v State of Queensland
(No 2)
Broadcasting Co of Australia Pty Ltd v
Commonwealth
Tasmania v Victoria
1935
R v Burgess; Ex parte Henry(Aviation/Henry's
case)
Grech v Bird
1935
Attorney-General (NSW) v Homebush Flour
1937
(1935) 52 CLR
157
(1936) 55 CLR
608
(1936) 56 CLR
228
(1937 56 CLR
1927
1935
1935
1936
Taxation (Motor
Spirit Vendors) Act
1925
Finance (Newspaper
Taxation) Act;
Finance (Taxation
Management) Act
Navigation Act 19121920
Dried Fruits Act
Dried Fruits Act 1928
(Cth); Regulations
Masters and Servants
Act
Transport Workers
Act 1928; regulations
Moratorium Act
Motor Spirit Vendors
Act 1933
Motor Spirit Vendors
Act
Wireless Telegraphy
Act 1905
Vegetation and Vine
Diseases Act 1928
Air Navigation
Regulations (Cth)
Regulations made
under Marketing of
Primary Products Act
The Flour
Pt IX.
1925
State
(SA)
Yes
ss 90, 92
1926
State
(NSW)
Yes
s 90
1912-1920
Federal
Yes
ss 51(I), 98
1924
State
(SA)
Federal
Yes
s 92
Yes
s92
State
(NSW)
Federal
Yes
s 109
State
(NSW)
State
(QLD)
State
(QLD)
Federal
No
State
(VIC)
Federal
Yes
1927-1934
State
(NSW)
No
1931
State
Yes
1928
s4
1904
1928
1930
1933
1933
1905
1935
1920
Regs
No
Yes
s 92
Yes
s 92
No
s 92
No
s90
390
Mills Ltd(Flour Tax case)
(1937 56 CLR
746
Shire of Swan Hill v Bradbury
1937
(1941) 66 CLR 50
Gregory v Railways Commissioner (Cth)
1941
(1943) 67 CLR 1
Silk Bros Pty Ltd v State Electricity
Commission of Victoria
1943
(1943) 67 CLR 95
R v University of Sydney; Ex Parte Drummond
1943
(1943) 67 CLR
116
Adelaide Company of Jehovah's Witnesses Inc v
Commonwealth (Jehovah's Witnesses Case)
1943
(1943) 67 CLR 25
Peacock v Newtown Marrickville & General
Co-operative Building Society (No 4) Ltd
1943
(1943) 67 CLR
314
Johnston Fear & Kingham v Commonwealth
1943
Acquisition Act
(NSW)
By-laws under the
Local Government
Act 1928
By-law under
Commonwealth
Railways Act 19171925
National Security
(Landlord and
Tenant) Regulations
(Cth)
National Security
(University
Commission)
Regulations (Cth)
National Security
(Subversive
Associations)
Regulations (Cth)
National Security
(Contracts
Adjustment)
Regulations
National Security
(Supply of Goods)
(NSW)
By-law
1928
State
(VIC)
No
By-law 21
1917
Federal
No
Regs 15, 16
Federal
Yes
Reg 16
Federal
Yes
Regs 3, 6B
and 6A
Federal
No
Federal
No
Federal
Yes
The regs
purported to
confer judicial
power to courts
that were not
federal courts
constituted by
the Constitution
under ss71, 72
nor were they
state courts
under s77.
No connection
with defence or
safety,
therefore UV
s51(xxxi)
(1943) 67 CLR
347
Victorian Chamber of Manufactures v
Commonwealth(Women's Employment Board
Case)
Victorian Chamber of Manufacturers v
Commonwealth (Industrial Lighting Regulations
case)
1943
(1944) 68 CLR
261
Minister of State for the Army v Dalziel
1944
(1945) 71 CLR 29
Australian National Airways Pty Ltd & Guinea
Airways Ltd v Commonwealth(Airlines
Nationalisation/TAA case)
Lord Mayor, Councillors and Citizens of the
City of Melbourne v Commonwealth (State
Banking Case)
Bank of New South Wales v
Commonwealth(Bank Nationalisation case &
Banking case)
Wenn v A-G (Vic)
1945
(1948) 77 CLR
339
(1949) 79 CLR 43
Crouch v Commonwealth
1948
R v Foster; Ex Parte Rural Bank of NSW;
Wagner v Gall; Collins v Hunter
1949
(1949) 79 CLR
201
British Medical Association in Australia v
Commonwealth (Pharmaceutical Benefits
case(No2))
Koon Wing Lau v Calwell
1949
(1943) 67 CLR
413
(1947) 74 CLR 31
(1948) 76 CLR 1
(1948) 77 CLR 84
(1949) 80 CLR
533
1943
Regulations
Women's
Employment
Regulations
National Security Act
1939; National
Security (Industrial
Lighting)
Regulations)
National Security
(General)
Regulations
Air Navigation
Regulations
s5(1); Regs
Federal
No
Federal
Yes
s71
Federal
Yes
UV
Federal
Yes
s 92
1945
Federal
Yes
s 51(xiii)
1947
Federal
Yes
s 92
1943
State
(Vic)
Yes
s 109
1946
Federal
No
s 51(vi)
Federal
Yes
ss 51(vi);
51(xxxi);
51(xxxix) and
51(xxxv)
ss 51(xxiiiA);
51(xxxix)
1939
Reg 79(3)
1947
Banking Act
1948
Banking Act
1948
Discharged
Servicemen's
Preference Act
Defence (Transitional
Provisions) Act
Regulations made by
the Defence
(Transitional
Provisions) Act
Pharmaceutical
Benefits Act
s 10
s 7A
1947
Federal
Yes
War-time Refugees
Removal Act
ss 4(1)(b)-(g),
5, 7
1949
Federal
Yes
1949
s 48
ss 51(vi),
51(xix),
(1949) 80 CLR
229
(1949) 80 CLR
382
Parton v Milk Board (Vic)
1949
Milk Board Act
PH Magennis Pty Ltd v Commonwealth
1949
War Service Land
Settlement
Agreements Act
(1950) 81 CLR 64
R v Kelly; Ex Parte State of Victoria (Butchers
case)
1950
(1951) 83 CLR 1
Australian Communist Party v Commonwealth
(Communist Party/Dissolution Act Case)
Morton v Union Steamship Co of New Zealand
Ltd
Wilcox Mofflin Ltd v NSW
1951
Clements v Bull
1953
R v Davison
1954
Commonwealth
Conciliation and
Arbitration Act 19041949
Communist Party
Dissolution Act 1950
Excise Regulations
1924 (Cth)
Hides and Leather
Industries Act
Melbourne Harbour
Trust Act
Bankruptcy Act
O'Sullivan v Noarlunga Meat Ltd
1954
Hughes & Vale Pty Ltd v New South Wales (No
2) (Transport Case)
1955
(1951) 83 CLR
402
(1952) 85 CLR
488
(1953) 88 CLR
572
(1954) 90 CLR
353
(1954) 92 CLR
565
(1955) 93 CLR
127
1951
1952
Metropolitan and
Export Abattoirs Act
(NSW) State
Transport (Coordination)
Amendment Act
1954; (NSW) Motor
Vehicles Taxation
Act 1951 and (NSW)
Motor Vehicles
Taxation
Management Act
1949
Yes
Yes
s 51(xxxi)
1904-1949
State
(VIC)
Federal
and
State
(NSW)
Federal
51(xxvii),
51(xxxix)
s 90
Yes
51(xxxv),
51(xxxix)
1950
Federal
Yes
ss 51(vi),
51(xxxix), 61
Reg 188
1924
Federal
No
s6
1948
Yes
Reg 275
1928
s 24
1924
State
(NSW)
State
(VIC)
Federal
Yes
ss 71, 72
s 52a
1936-1948
State
(SA)
State
(NSW)
Yes
s 109
Yes
s 92
s 30
1933
1945
s 41(1)
1954; 1951;
1949
s 92
No
(1955) 93 CLR
292
(1957) 96 CLR
245
Nilson v State of South Australia
1955
Shanahan v Scott
1957
(1957) 96 CLR
177
(1957) 97 CLR
673
Russell v Walters
1957
Traffic Act
Shepherd v State of New South Wales
1957
(1957) 99 CLR
575
Victoria v Commonwealth; New South Wales v
Commonwealth
1957
(1957) 100 CLR
312
(1958) 100 CLR
246
R v Spicer; Ex Parte Waterside Workers
Federation of Australia
Federal Commissioner of Taxationv Clyne
1957
(1959) 101 CLR
467
(1961) 106 CLR
268
Illawarra District County Council v Wickham
1959
Butler v Attorney-General
1961
(1962) 108 CLR
189
(1964) 111 CLR
353
Swift Australian Co (Pty) Ltd v Parkinson
1962
Anderson's Pty Ltd v State of Victoria
1964
Transport (Division
of Functions) Act
1932 (NSW)
Income Tax and
Social Services
Contribution
Assessment Act
Stevedoring Industry
Act
Income Tax and
Social Services
Contribution
Assessment Act
Re-establishment and
Employment Act
Discharged
Servicemen's
Preference Act 1943
Slaughtering
Regulations
Stamps Act
(1965) 113 CLR
54
Airlines of New South Wales Pty Ltd v New
South Wales (No 2)(Airlines case (No 2) &
Airlines of NSW case)
1965
1958
Road Traffic Act
(Regulations)
Egg Pulp Marketing
Regulations 1953
Air Navigation
Regulations (Made
under Air Navigation
Act 1920 (Navigation
1954
Reg 44
1953
1938
State
(SA)
State
(VIC)
No
State
(TAS)
State
(NSW)
Yes
s 92
Yes
s 92
s 51(ii)
No
s 27
1932
s 221(1)(a)
1936
Federal
Yes
s 37
1954
Federal
No
s 79A
1936
Federal
Yes
ss 51(ii), 99,
UV
s 3(1)
1955
Federal
Yes
s 51(vi)
ss 10, 3, 4, 7,
9
1943
State
(VIC)
Yes
s 109
1953
State
(QLD)
State
(VIC)
Yes
s 90
Yes
s 90
Federal
Yes
ss 51(i), 109
and 92
ss 131B,
131C and
131E
Reg 200B
1958
1920
Act) s 26)
By-law made
pursuant to (WA)
Road Districts Act
1919
Margarine Act
(1966) 120 CLR
572
Marsh v Shire of Serpentine-Jarrahdale
1966
(1966) 115 CLR
177
O'Sullivan v Miracle Foods (SA) Pty Ltd
1966
(1968) 118 CLR
90
(1968) 120 CLR
400
Conroy v Carter
1968
CJ Burland Pty Ltd v Metropolitan Meat
Industry Board
1968
(1970) 121 CLR 1
Western Australia v Chamberlain Industries Pty
Ltd (Receipts Duty Case)
Willocks v Anderson
1970
Strickland v Rocla Concrete Pipes Ltd (Concrete
Pipes case)
Dickenson's Arcade Pty Ltd v Tasmania
(Tobacco Tax Case)
M G Kailis (1962) Pty Ltd v Western Australia
& Minister for Fisheries & Fauna
R v Loewenthal; Ex Parte Blacklock
1971
Apple and Pear
Organisation Act
(Subordinate
regulations)
Trade Practices Act
1974
(1971) 124 CLR
293
(1971) 124 CLR
468
(1974) 130 CLR
177
(1974) 130 CLR
245
(1974) 131 CLR
338
(1975) 134 CLR
298
(1977) 139 CLR
527
(1977) 139 CLR
527
(1977) 138 CLR
By-laws
1919
State
(WA)
No
ss 23, 24; Reg
6(a)6 of
Margarine
Regulations
s 6(1)(b)
1939
State
(SA)
Yes
s 92
1965
Federal
Yes
s 92
By-laws
1915-1965
State
(NSW)
No
ss 99A, 99B
1921-1969
Yes
Reg 40
1938
State
(WA)
Federal
1965-1969
Federal
Yes
s 51(xx)
Tobacco Regulations
ss 35, 41, 42,
43
Reg 2 - 8
Yes
s 90
1974
Fisheries Act
s 35c
1905
Yes
s 90
1974
Criminal Code
s 469
Yes
s 109
Commonwealth v Queensland (Privy Council
References/Queen of Queensland)
Logan Downs Pty Ltd v Queensland
1975
ss 3, 4
1973
Yes
Ch III
1977
Appeals and Special
Reference Act
Stock Act
s7
1915
Yes
s 90
Attorney-General (NSW); Ex rel McKellar v
Commonwealth (McKellar's case)
Robinson v Western Australian Museum
1977
Representation Act
State
(TAS)
State
(WA)
State
(QLD)
State
(QLD)
State
(QLD)
Federal
Yes
s 24
1977
Museum Act 1959
State
Yes
s 109, UV
1971
Poultry Industry
Levy Collection Act
By-laws made
pursuant to Meat
Industry Act
Stamp Act
1905
s 90
No
283
(1977) 138 CLR
399
Australian Broadcasting Commission v
Industrial Commission (SA)
1977
(1978) 139 CLR
338
(1978) 141 CLR
269
(1979) 144 CLR
633
(1979) 142 CLR
509
(1979) 145 CLR
78
(1980) 153 CLR
650
Finemores Transport Pty Ltd v New South
Wales
Miller v Miller
1978
McGraw-Hinds (Aust) Pty Ltd v Smith
1979
Smith (obh National Parks and Wildlife Service)
v Capewell (Kangaroo Skins case)
Boyd v Carah Coaches Pty Ltd
1979
J Bernard & Co Pty Ltd v Langley
1980
(1980) 146 CLR
447
R v Lambert; Ex parte Plummer
1980
(1981) 149 CLR
227
(1983) 153 CLR
280
(1983) 151 CLR
599
(1983) 152 CLR
632
Western Australia v Wilsmore
1981
Viskauskas v Niland
1983
Hematite Petroleum Pty Ltd v State of Victoria
1983
Metal Trades Industry Association of Australia v
Amalgamated Metal Workers Union
1983
1978
1979
(WA), the Museum
Act 1969 and the
Maritime
Archaeology Act
1973
Industrial
Conciliation and
Arbitration Act
Stamp Duties Act
(WA)
s 15(1)(e)
1972
State
(SA)
Yes
s 109
s 84G
1920
Yes
s 92
Listening Devices
Act
Unordered Goods
and Services Act
National Parks and
Wildlife Act 1974
The Travel Agents
Act
Meat Industry Act
1978 (NSW); Meat
Inspection and
Stamping
Regulations 1978
Family Law Act 1975
(Cth)
s 7(1)
1969
Yes
s 109
s 8(3)
1973
Yes
s 92
s 105A
1974
Yes
s 92
Licensing
provisions
s 43; regs 14
and 15
1973
State
(NSW)
State
(NSW)
State
(QLD)
State
(NSW)
State
(NSW)
State
(NSW)
Yes
s 92
Yes
s 92
s 10
Federal
Yes
s 51(xxi)
Family Law Act 1975
(Cth)
Anti-Discrimination
Act 1977
Pipelines (Fees) Act
1981
Employment
Protection Act 1982
(NSW)
s 90
1975
(amended
1976)
1975
Federal
Yes
s90
s 19
1977
Yes
s109
s 35
1981
State
(NSW)
State
(VIC)
State
(NSW)
Yes
s90
Yes
s90
1978
1982
(1984) 158 CLR
447
University of Wollongong v Metwally
1984
(1985) 155 CLR
368
Gosford Meats Pty Ltd v State of New South
Wales
1985
(1985) 156 CLR
249
(1985) 159 CLR
192
Re Cook; Ex parte C, Re Judges of Family Court
of Australia; Ex parte C
Queensland Electricity Commission v
Commonwealth
1985
(1986) 160 CLR
330
(1986) 161 CLR
376
(1986) 161 CLR
60
(1987) 162 CLR
317
(1988) 165 CLR
411
(1988) 165 CLR
462
Australian Mutual Provident Society v Goulden
1986
Re F; Ex parte F
1986
Ackroyd v McKechnie
1986
Dao v Australian Postal Commission
1987
Bath v Alston Holdings Pty Ltd
1988
Air Caledonie International v Commonwealth(
1988
(1988) 166 CLR
79
Davis v Commonwealth
1988
(1988) 166 CLR
186
Mabo v Queensland
1988
1985
Racial Discrimination
Amendment Act
1983 (Cth; Racial
Discrimination Act
1975 (Cth)
Meat Industry Act
Family Law Act 1975
(Cth)
Conciliation and
Arbitration
(Electricity Industry)
Act 1985 (Cth)
Anti-Discrimination
Act
Family Law Act 1975
(Cth)
Fauna Conservation
Act 1974 (Qld)
Anti-Discrimination
Act 1977 (NSW)
Business Franchise
(Tobacco) Act 1974
Migration
Amendment Act
1987 (Cth)
Australian
Bicentennial
Authority Act 1980
(Cth)
Queensland Coast
Islands Declaratory
Pt II
1983; 1975
Federal
Yes
s109
s 11C(4)(a);
reg 41(2)
Meat Industry
(Licensing)
Regulations
s 5(1)(e)(i)
1978
State
(NSW)
Yes
s 90
1975
Federal
Yes
s 51(xxi)
1986
Federal
Yes
s92
s 49K(1)
1977
Yes
s 109
s 5(1)(e)(i)
1975
State
(NSW)
Federal
Yes
s 64(3)
1974
Yes
s 51(xxi) or
(xxii)
s92
ss 25 and 113
1977
Yes
s109
Yes
s92
Yes
s55
s 34A
1987
State
(QLD)
State
(NSW)
State
(VIC)
Federal
ss 22, 23
1980
Federal
Yes
s 51(xviii) or
51(xx) or 122
1985
State
(QLD)
Yes
s109
1974
(1989) 168 CLR
461
Street v Queensland Bar Association (Dingo
Fence/Sandy Street Case)
1989
(1990) 169 CLR
436
Castlemaine Tooheys Ltd v South Australia
1990
(1990) 169 CLR
482
New South Wales v
Commonwealth(Corporations Act/Incorporation
case)
1990
(1990) 170 CLR
276
(1992) 104 ALR
389
Bourke v State Bank of New South Wales
1990
Australian Capital Television Pty Ltd v
Commonwealth
1992
(1992) 173 CLR
450
Mutual Pools & Staff Pty Ltd v Federal
Commissioner of Taxation(Swimming Pool
Sales Tax case)
Deputy Federal Commissioner of Taxation v
State Bank of New South Wales
1992
Nationwide News Pty Ltd v Wills(Free Speech /
Industrial Relations Commission case)
Capital Duplicators Pty Ltd v Australian Capital
Territory
1992
Chu Kheng Lim v Minister for Immigration
Local Government & Ethnic Affairs(Cambodian
"Boat People" case)
1992
(1992) 174 CLR
219
(1992) 177 CLR 1
(1992) 177 CLR
248
(1992) 176 CLR 1
1992
1992
Act 1985 (Qld)
Rules Relating to the
Admission of
Barristers of the
Supreme Court of
Queensland
Beverage Container
Act Amendment Act
1986 (SA)
Corporations Act
1989 (Cth)
Trade Practices Act
1974 (Cth)
Broadcasting Act
1942 (Cth); Political
Broadcasts and
Political Disclosures
Act 1991 (Cth)
Sales Tax Act (No 1)
1930 (Cth)
Sales Tax
Assessment Act (No
1) 1930 (Cth)
Industrial Relations
Act
Business Franchise
(‘X’ Videos) Act
1990
Migration
Amendment Act
1992 (Cth) inserted
into the Migration
Form 10, r 15,
r 15B, r 38(d)
State
(QLD)
S117; 92
s 5b and Regs
1986
State
(SA)
Yes
s92
ss 112-125,
155(1), (3),
(4) and 156158
ss 52 and 52A
1989
Federal
Yes
s 51(xx)
1974
Federal
Yes
s 51(xiii)
Pt IIID
1991
Federal
Yes
Freedom of
Communication
s3
1930
Federal
Yes
s 55
s 17(1)
1930
Federal
Yes
s114
s 299(1)(d)(ii)
1988
Federal
Yes
s 51(xxxv).
1990
State
(ACT)
Yes
s 90
1992
Federal
Yes
s 51(xix), Ch
III
s 54R
(1993) 178 CLR
634
Rainsong Holdings Pty Ltd v Australian Capital
Territory
1993
(1993) 178 CLR
561
Capital Duplicators Pty Ltd v Australian Capital
Territory (No 2)
1993
(1994) 179 CLR
297
Georgiadis v Australian & Overseas
Telecommunications Corp
1994
(1994) 179 CLR
388
Wallis v Downard-Pickford (North Queensland)
Pty Ltd
1994
(1994) 181 CLR
583
(1995) 183 CLR
245
PvP
1994
Brandy v Human Rights & Equal Opportunity
Commission
1995
(1995) 183 CLR
373
Western Australia v Commonwealth; Wororra
Peoples & Biljabu v State of Western
Australia(Second Native Title Act case)
1995
(1995) 128 ALR
81
Dingjan, Re; Ex parte Wagner
1995
(1996) 190 CLR
311
Harrington v Lowe
1996
(1997) 189 CLR
465
Ha v State of New South Wales; Walter
Hammond & Associates v State of NSW
1997
Act 1958 (Cth)
Business Franchise
("X" Videos) Act
1990 (A.C.T)
Business Franchise
("X" Videos) Act
1990 (A.C.T)
Commonwealth
Employees'
Rehabilitation and
Compensation Act
1988 (Cth)
Carriage of Goods by
Land (Carriers'
Liabilities) Act 1967
(Qld)
Guardianship Act
1987 (NSW)
Racial Discrimination
Act 1975 (Cth)
Native Title Act;
Land (Titles and
Traditional Usage)
Act
Industrial Relations
Act 1988 (Cth)
Family Law Act 1975
(Cth) and Family
Law Rules
Business Franchise
Licences (Tobacco)
Act 1987 (NSW)
ss 5(2)(b),
9(2)(c), 19, 20
and 20A
ss 5(1)(b),
9(2)(c), 19
and 20
s 44
1990
State
(ACT)
Yes
s 90
1990
State
(ACT)
Yes
s 90
1988
Federal
Yes
s 51(xxxi)
s 6(1)
1967
State
(QLD)
Yes
s109
s 35(1)
1987
Yes
s109
ss 25ZAA,
25ZAB,
25AZAC and
252C
s 12; 7
1,975
State
(NSW)
Federal
Yes
Ch III, 71,72
1975
Federal
Yes
s109
s 127C, ss
127A and
127B
O 24, r1(8),
(9)
1988
Federal
Yes
s 51(xx)
1975
Federal
No
1987
State
(NSW)
Yes
s 90
(1999) 197 CLR
61
Telstra Corp Ltd v Worthing
1999
(1999) 198 CLR
511
(2000) 204 CLR
493
Wakim, Re; Ex parte McNally
1999
Smith v ANL Ltd
2000
(2004) 216 CLR
595
Bayside City Council v Telstra Corp Ltd;
Moreland City Council v Optus Vision Pty Ltd;
Warringah Council v Optus Vision Pty Ltd;
Hurstville City Council v Telstra Corp Ltd
Roach v Electoral Commissioner
2004
Betfair Pty Ltd v Western Australia
2008
Lane v Morrison
2009
Clarke v Federal Commissioner of Taxation
2009
(2007) 233 CLR
162
(2008) 234 CLR
418
(2009) 239 CLR
230
(2009) 240 CLR
272
2007
Workers
Compensation Act
1987 (NSW)
Corporations Act
1989 (Cth)
Seafarers
Rehabilitation and
Compensation Act
1992 (Cth)
Local Government
Act 1989 (VIC) and
Local Government
Act 1993 (NSW)
Commonwealth
Electoral Act
Betting Control Act
1954 (WA)
Defence Force
Discipline Act 1982
(Cth)
Superannuation
Contributions Tax
(Members of
Constitutionally
Protected
Superannuation
Funds) Imposition
Act 1997 (Cth) and
the Superannuation
Contributions Tax
(Members of
Constitutionally
Protected
Superannuation
Funds) Assessment
1987
State
(NSW)
Yes
s 109
1989
Federal
Yes
Ch III
s 54
1992
Federal
No
Pt 8; s116
1989; 1993
State
(NSW)
Yes
Discrimination
Constitution
s 93(8AA)
2006
Federal
Yes
ss7 and 24
ss 24(1aa),
27D(1)
Pt VII, Div 3
1954
Yes
s 92
1982
State
(WA)
Federal
Yes
Ch III
1997
Federal
Yes
(2009) 240 CLR
319
International Finance Trust Company Ltd v New
South Wales Crime Commission
2009
(2010) 241 CLR
491
(2010) 243 CLR 1
Dickson v The Queen
2010
Rowe v Electoral Commissioner
2010
(2011) 243 CLR
181
Wainohu v New South Wales
2011
(2011) 244 CLR
144
Plaintiff M70/2011 v Minister for Immigration
and Citizenship
2011
and Collection Act
1997 (Cth)
Criminal Assets
Recovery Act
1990 (NSW)
Crimes Act 1958
(Vic)
Electoral and
Referendum
Amendment
(Electoral Integrity
and Other Measures)
Act 2006 (Cth),
Crimes (Criminal
Organisations
Control) Act
2009 (NSW)
Migration Act 1958
(Cth)
s10
1990
State
(NSW)
Yes
Ch III
ss 71, 72(1)
and 321
Sch 1, Items
20, 24, 28, 41,
42, 43, 44, 45
and 52
1958
State
(VIC)
Federal
Yes
s 109
Yes
ss 7 and 24
2009
State
(NSW)
Yes
Ch III
1958
Federal
No
s 198
2006