Defence Power - s 51(vi) - Purposive Power

Approach Question like this:

1. What the Act does or purports to do
2. Such a law may be within the competence of Cth legislative power, which is within its Const. limits,
plenary, under s51(vi).
3. Cite cases
4. It could be (im)possible to challenge [section of legislation] if Parliament had power to [mention
other plenary power] (cite cases for reasons)
5. Whether Act can be supposed under defence power.
S 51(vi) -> The Cth has power to make laws wrt: “the naval and military defence of the Commonwealth
and of the several States, and the control of the forces to execute and maintain the laws of the
Commonwealth;
Section What it does
s 51(32) gives Cth control of railways for military purposes

s 68 & s 69 GG vested with formal command of armed forces

prohibits States from raising own armies unless Cth consent

s 114
obtained

s 119 protects States from domestic violence

Exec power combined with s 51(39) express incidental

s 61
power

Inherent nationhood power

1. The defence power is elastic; it waxes and wanes depending on whether Australia is at war or
peace. It is purposive in nature and is determined according to facts/circumstances surrounding Act
(Stenhouse).

2. The outcome turns on judicially noticeable facts which are matters known in general public
knowledge, as not all facts are given to court because of prejudice to defence effort (Stenhouse).

3. War takes precedence and rapidly expands the power (Stenhouse), during which people’s human
rights can be compromised in order to assure national security (Lloyd v Wallach).

4. The scope of power during war is virtually unlimited: if the law may incidentally aid defence, it will
be valid, as the Court must hold its hand and leave the rest to the judgement, wisdom and
discretion of Parliament and Executive (Farey v Burvett).

5. After war is a transitional period where defence power only gradually narrows. If the law is
reasonably necessary to regulate some consequence entirely due to war, there must be
strong evidence that supports the prolonged operation of legislation in question, without
which it falls to exclusive province of States, as general social/economic conditions
prevailing as an indirect consequence of war may not be indefinitely regulated under
defence power (R v Foster).
In peace:
1. Polyukhovich: higher threshold
a. Abridging of freedoms cannot be supported unless Court can perceive it as proportionate to
defence interest, since what is necessary and appropriate in times of war is different
from times of peace, and falls for determination according to circumstances engaging
the power.
b. A real or perceived escalation of terrorist activity within Australia might expand the defence
power even in the absence of a formally declared “war”.
2. Communist Party Case: Parliament cannot recite itself into power; factual assertions in
preamble are not conclusive. Parliament cannot itself make declaration to go beyond the
Constitution
3. Communist Party Case: to determine perceived threat, is it Primary or Secondary Aspects?
(Fullgar J):
a. Primary aspect -> Authorises laws whose direct + immediate object is for defence
preparedness in peace or war time + incidental power. If primary: automatically within s
51(vi), no question of proportionality arises.
b. Secondary aspect-> extended power, matters which in normal conditions of life
would not have connection with defence, but may be valid if evidence shows a
significant nexus upon judicially noticeable facts that character of the law deals with an
emergency - apprehended war (not actual war or national emergency). Concerned with
external enemies - must be an international situation. If secondary: the law must be
proportional to the threat.
4. Dixon J: Mere fact Australia engaged in hostilities does not mean it is at war in sense required for
expansive use of defence power + Defence power may not be used to confer unreviewable
discretion on executive to judge whether the circumstances for depriving civil liberties exist

External affairs
  s51(xxix) Power to make laws for peace, order and good governance with respect to external affairs.
 s61 Executive Power
 s75(i) Original Jurisdiction of HCA arising under any treaty

1. What the Act does or purports to do

2. Such a law may be within the competence of Cth legislative power, which is within its Const. limits,
plenary, under s51(xxix).
3. Cite cases
4. It could be (im)possible to challenge [section of legislation] if Parliament had power to [mention
other plenary power] (cite cases for reasons)
5. Whether Act can be supposed under external affairs power.

Meaning of “external affairs” = Seas and Submerged Lands Case: designed to include inter-colonial
matters which in Imperial days may not have been regarded as foreign.

R v Burgess; Ex parte Henry: treaties

1. Scope of power = broad, confined to external relations, not domestic matters within Australia, but
difficulties lie in making such characterisations as any matter is capable of affecting international
relations so as to properly become subject matter of international agreement.

Airlines of NSW: Parliament + Exec can create laws under treaties or conventions, but HC determines
whether it is are appropriate and adapted to that end.

Seas and Submerged Lands Case: Implemented international treaties and area external to Australia, the
continental shelf is also part of Australia’s sovereignty so within federal power.

Koowarta:

1. Power extends to making of laws implementing a bona fide treaty or other international agreement,
regardless of whether the subject-matter of the treaty concerns Australia's domestic affairs, or
whether the Cth would otherwise have a constitutional head of power to implement it.
2. Dissent: narrow view of power, treaties involving a relationship with other countries, persons or
things outside Australia. Agreements between other nations doesn’t mean provisions will be
international in character.

Tasmanian Dams Case.

1. Majority: broad view of power: once a bona fide treaty entered into, Cth Parliament obtained power
to legislate to implement treaty obligations, but not limited to this (subject to implied/express Const.
prohibitions).

Richardson

1. Majority: not the role of the Court to decide whether the legislation was 'appropriate and adapted' to
attaining the object of the treaty. It is for Parliament to choose how this is achieved, but for court to
 decide whether law is capable of being reasonably considered to be appropriate and adapted to
implementing the treaty.

Polyukhovich

1. Majority: Mere externality is enough to constitute law under external affairs power.
2. Dissenting: Brennan and Toohey: mere externality insufficient for external affairs ambit, but
Australia must have an 'interest' in the matter. Even if no international concern, can be under
customary international law but must give effect to obligation.

Industrial relations case:

1. If law enlivens a treaty but it affects a domestic matter, question arises as to the connection that
must exist between the law and treaty. To be valid, law must be reasonably capable of being
considered appropriate and adapted to implementing the treaty.
2. Deficiency in implementing the treaty not necessarily fatal to validity of law, but it will be invalid if
the deficiency is so substantial as to deny the law the character of a measure implementing treaty, or
makes it substantially inconsistent with it.

Criticism of the Murphy-Mason principle of broad interpretation as enabling Cth power to be too expansive
in this area, and preferable to adapt a narrower view per Dawson, who was critical of it and said as there’s no
theoretical limit to it, the power appears to be open ended.