LWB242 Constitutional Law

LWB242 Constitutional Law • Lecture 6: Defence Power; National Security and “Nationhood” Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

LWB242 Constitutional Law • Podcast 1: Introduction to the defence power Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

Overview • Podcast 1: Introduction to the defence power • Reading: textbook • Podcast 2: Defence power at peacetime • Online quiz • Podcast 3: Defence power at tense times • Reading: Australian Communist Party v Commonwealth • Online quiz • Podcast 4: Defence power at wartime and the transition between war and peace • Online activity: Discussion forum • Podcast 5: Internal defence • Reading: Thomas v Mowbray • Online quiz • Podcast 6: National security and nationhood power • Online quiz

Defence Power 51. The Parliament [has] power, subject to this Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to:- … (vi) 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;

Introduction • The powers and duties of the Commonwealth in relation to defence are derived from numerous sections of the Constitution, including ss 51(vi), 68, 52(i), 69, 70, 114 and 119. • The words “naval and military” in s 51(vi) are now also regarded as including an air force, even though air forces did not exist in 1901. • Power has a central core related to the armed forces, exerciseable both in times of war and in times of peace. • Power also has a secondary aspect that is purposive in nature: • “elastic power”: waxes and wanes with the needs of the country. • “in times of peace ... the class of laws which can be seen to possess a defence character is much more limited than it is when a danger of hostilities arises; it becomes wider still when war breaks out; it reaches its maximum amplitude when a war is raging ...” (Australian Communist Party v Commonwealth(the Communist Partycase) per Kitto J at 273)

Introduction • The proportionality concept has been used extensively in determining the validity of legislation enacted pursuant to the defence power. • Stenhouse v Coleman (1944) 69 CLR 457 per Dixon J at 471. • Marcus Clark & Co Ltd v Commonwealth (the Capital Issuescase)per McTiernan J at 226. • For a recent statement of the reasonable proportionality test, see Polyukhovich v Commonwealth(1991) 172 CLR 501 per Brennan J at 592-3: could Parliament have reasonably considered that the law was appropriate and adapted to serve a legitimate “defence” purpose? • “In times of war, laws abridging the freedoms which the law assures to the Australian people are supported in order to ensure the survival of those freedoms in times of peace. In times of peace, an abridging of those freedoms … cannot be supported unless the Court can perceive that the abridging of the freedom in question is proportionate to the defence interest to be served. What is necessary and appropriate for the defence of the Commonwealth in times of war is different from what is necessary or appropriate in times of peace.”

Introduction • Judges therefore need to have a wide knowledge of matters outside the law - politics, economics, international defence strategy and international affairs - to determine whether a law is within the defence power. • Traditionally judges have relied on their own general knowledge. • The doctrine of judicial notice, whereby the courts require no evidence of matters which are so notorious that evidence of their existence is deemed unnecessary, has been very broadly applied. • However, in some cases, the High Court has admitted evidence to show the requisite connected between the needs of defence and the provisions of a particular Act. • Jenkins v Commonwealth (1947) 74 CLR 400 at 402 • Sloan v Pollard(1947) 75 CLR 445 at 459-60, 474

Introduction • As a result of the elastic nature of the defence power, it is necessary to consider the scope of the power according to the needs of the country at the time: • the power in peacetime; • the power in tense times; • the power in wartime; • the power in the transition between war and peace. • It is also necessary to consider internal defence.

Activity Reading: textbook

LWB242 Constitutional Law • Podcast 2: Defence power at peacetime Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

Peacetime • The defence power has a central core related to the armed forces. • For example, enlistment, training and equipment of men and women, provision of ships and munitions, manufacture of weapons, erection of fortifications (see the Communist Partycase per Fullagar J). • There have been a series of cases considering the scope of the power at peacetime.

Peacetime • Military service: • Krygger v Williams (1912) 15 CLR 366 per Griffith CJ • “No one can doubt that the defence of his country is almost, if not quite, the first duty of a citizen, and there is no room for doubt that the Legislature has power to enact laws to provide for making citizens competent to perform that duty.” • Control of commodities necessary for defence: • Jenkins v Commonwealth (1947) 74 CLR 400 • Mica was important for the production of military electronics and there was only one major producer of mica in Australia. During World War II, all Australian mica was bought by the Commonwealth and the plaintiffs were ordered to deliver all mica produced to the Commonwealth. After hostilities had ceased, the question was whether the regulations were still valid. • Held, the regulations on the basis that: • Although “less mica is now required for defence purposes than during hostilities”; • Mica was still rare and a “substantial portion … is still required for this purpose”; and • the Commonwealth has a legitimate interest in stockpiling “an adequate reserve for defence purposes” (“it is probable that the needs of the armed forces will increase in the near future with the increased use of guided projectiles and the expansion of the navy, and it is in the interests of defence to build up a reserve.”)

Peacetime • Maintenance of factories: • Commonwealth v Australian Commonwealth Shipping Board(Shipping Boardcase) • Held, the Commonwealth had no power to enter into an agreement with a municipal council to supply, deliver and erect on municipal land steam turbo-alternators. The High Court did not accept the argument that the Shipping Board should be commercially active to maintain itself for potential defence purposes in the future. • “Extensive as is [the defence power], still it does not authorize the establishment of businesses for the purpose of trade and wholly unconnected with any purpose of naval or military defence.” (Knox CJ, Gavan Duffy, Rich, Starke JJ at 9) • Attorney-General (Vic) v Commonwealth(the Clothing Factorycase) • A factory produced uniforms for the armed services. It also sold clothing to civilian departments, municipal authorities, and other public utilities. • Held, that it was a valid exercise of the defence power. Gavan Duffy CJ, Evatt and McTiernan JJ at 558: • “It is obvious that the maintenance of a factory to make naval and military equipment is within the field of legislative power. The method of its internal organisation in time of peace is largely a matter for determination by those to whom is entrusted the sole responsibility for the conduct of naval and military defence. In particular the retention of all members of a specially trained and specially efficient staff might well be considered necessary, and it might well be thought that the policy involved in such retention could not be effectively carried out unless that staff was fully engaged. Consequently the sales of clothing to bodies outside the regular naval and military forces are not to be regarded as the main or essential purpose of this part of the business, but as incidents in the maintenance for war purposes of an essential part of the munitions branch of the defence arm.”

Peacetime • Maintenance of discipline in the armed forces: • Re Tracey; Ex parte Ryan (1989) 166 CLR 518 • An army sergeant was charged with several offences before a military tribunal. He challenged the jurisdiction of the magistrate on the basis that the tribunal was not established under Chapter III of the Constitution (the judicature) • Held, the defence power extended to the creation of a disciplinary code outside Chapter III of the Constitution. Mason CJ, Wilson and Dawson JJ at 541: • “Although the Australian Constitution does not expressly provide for disciplining the defence forces, so much is necessarily comprehended by the first part of s 51(vi) for the reason that the naval and military defence of the Commonwealth demands the provision of a disciplined force or forces ... the proper organisation of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch III, but as part of the organisation of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch III and to impose upon those administering that code the duty to act judicially.”

Peacetime • Maintenance of discipline in the armed forces: • Re Colonel Aird; Ex parte Alpert • Defence Force Discipline Act 1982 (Cth) s 9 purported to make the Act apply to defence force personnel outside of Australia. Alpert was charged before a military tribunal with rape while on leave in Thailand and contested the validity of the Act. • Held, the legislation fell within the Commonwealth's power under s 51(vi) to maintain discipline in the armed forces. It did not matter that the soldier was on recreational leave at the time. Gleeson CJ at [6]: • “while defence members serving overseas must obey local laws, the imposition of minimum standards of behaviour by reference to Australian law is a legitimate means of preserving discipline, bearing in mind that Australian forces might be located in places where there is no government, or where there is a hostile government, or where peacekeeping is necessary. … Parliament's power under s 51(vi) is not circumscribed in a way that requires it to differentiate between localities. If it is accepted to be a proper concern of Parliament to require defence members, when serving overseas, to behave according to standards of conduct prescribed by Australian law, then there is power to impose such a requirement generally; it does not vary according to local circumstances and conditions in different places. The reasons in Re Tracey all acknowledge that the potential ambit of military discipline in the case of conduct of defence members on overseas service is wide.”

Activity Online quiz

LWB242 Constitutional Law • Podcast 3: Defence power at tense times Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

Tense times • The necessities of war will give the Commonwealth “authority over an immense field’, but those necessities “cannot exist in the same form in a period of ostensible peace”. (Communist Partycase) • In times of profound peace, notionally only the central core of the power may remain. • Nevertheless, the scope of the power increases as required in tense times falling short of actual war. • Marcus Clark & Co Ltd v Commonwealth • Scope of the power depends on the existence or threat of hostilities, actual and apprehended dangers: • Andrews v Howell (1941) 65 CLR 255 per Dixon J at 278: • “it must be remembered that, though its meaning does not change, yet unlike some other powers its application depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law. … The existence and character of hostilities, or a threat of hostilities, against the Commonwealth are facts which will determine the extent of the operation of the power. Whether it will suffice to authorize a given measure will depend upon the nature and dimensions of the conflict that calls it forth, upon the actual and apprehended dangers, exigencies and course of the war, and upon the matters that are incident thereto.” • Communist Party case per Dixon J at 195: • “a mounting danger of hostilities before any actual outbreak of war will suffice to extend the actual operation of the defence power as circumstances may appear to demand”

Tense times • Communist Party case • The Communist Party Dissolution Act 1950(Cth) declared the Australian Communist Party to be unlawful, confiscating its property. The Act also allowed Executive to declare affiliated organisations unlawful and to declare particular persons to be communists, rendering them unable to be employed by the Commonwealth or hold office in a union in a “vital” industry. The Act purported to give the executive the power to determine (a) whether there was a connection to defence; and (b) the guilt of declared organisations and individuals (see more on judicial power later this semester). The Act contained a preamble designed to fit it within s 51(vi).

Tense times • Preamble to the Communist Party Dissolution Act 1950 (Cth): • “And whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat" • "And whereas the Australian Communist Party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic industrial or political ends by force, violence, intimidation or fraudulent practices:" • "And whereas the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King's dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble:" • "And whereas certain industries are vital to the security and defence of Australia (including the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry and the power industry):" • "And whereas activities or operations of, or encouraged by, the Australian Communist Party, and activities or operations of, or encouraged by, members or officers of that party and other persons who are communists, are designed to cause, by means of strikes or stoppages of work, and have, by those means, caused, dislocation, disruption or retardation of production or work in those vital industries:" • "And whereas it is necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the Australian Communist Party, and bodies of persons affiliated with that Party, should be dissolved and their property forfeited to the Commonwealth, and that members and officers of that Party or of any of those bodies and other persons who are communists should be disqualified from employment by the Commonwealth and from holding office in an industrial organization a substantial number of whose members are engaged in a vital industry:”

Tense times • Communist Party case: • Held, that while the Commonwealth had the power to deal with subversion; for example, the offence of sedition under the Crimes Act 1914(Cth), the legislature had no power to suppress communists during a period of international tension. • The High Court was very critical of the Legislature's attempt to declare itself into power. Fullagar J at 258: • “The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.” • The High Court held that only it had the power to determine the ambit of the defence power. • There must be a real connection to defence.

Tense times • Marcus Clark & Co Ltd v Commonwealth(the Capital Issuescase) • During the Cold War legislation prohibited borrowing of money and issuing share capital over a threshold without consent of the Treasurer. • Held, the legislation was valid. The Court distinguished the Communist Party case on the basis that “the true scope and object of the regulations is to stop the use of capital ... for purposes tending to prejudice the full development or execution of the defence preparations undertaken”. • The Commonwealth could accordingly regulate money flows for defence purposes given only a “threat of war”. • The Court took judicial notice of the fact that such economic controls were normal practice for a country going on a war footing.

Activity Reading: Australian Community Party v Commonwealth

LWB242 Constitutional Law • Podcast 4: Defence power at wartime and the transition between war and peace Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

Wartime • The necessities of war will give the Commonwealth “authority over an immense field”. • Communist Partycase • As the power is purposive, the question is whether the law is proportionate to the purpose of defence. • In Farey v Burvett(1916) 21 CLR 433 Isaacs J provided an early and very broad definition of the power in cases of total war that was only “bounded only by the requirements of self-preservation” – on this conception, the power could extend to “every phase of life, and embrace the co-operation of every individual with all that he possesses”. • By the end of World Wart II, the Court proposed a still very broad, but slightly more moderate position. In wartime, the power includes “extensive and detailed control of the community by the Commonwealth in relation not only to war service and war supplies, but also to industry in general, food, clothing and housing, and financial, economic and social conditions.” • R v Foster; Ex parte Rural Bank of New South Wales • The power extends to matters that are quite broad in war time.

Wartime • Victorian Chamber of Manufactures v Commonwealth (Prices Regulationcase) (1943) 67 CLR 335 • Regulations permitted the Minister of Trade to fix the prices of goods and services by declaration. The Minister declared almost all goods and services to be regulable. • Held, the regulations and the exercise of the Minister's discretion to be valid under the defence power. Latham CJ at 339: • “The prosecution of the war involves the withdrawal of many men from the manufacture and distribution of goods and from the supply of services, so that they may serve in the fighting forces or work in manufacturing munitions. The result is a reduction in the supply of goods and services which they had formerly provided, with a natural tendency to increases in the prices of goods and in the charges for services. This tendency is aggravated by a great increase in the amount of money in circulation, that increase being due to war conditions. Though there is a general increase in the amount of money available for expenditure, that increase has been brought about, at least to a material extent, by reducing the incomes of many members of the community. Uncontrolled increase of prices produces grave economic and social effects, and may result in a complete dislocation of the organisation of the community. In modern times all countries in time of war have found it necessary to deal with profiteering and inflation. In my opinion the Legislature is validly exercising the defence power when it legislates for the purpose of protecting the people against such results of the war. In my opinion the Commonwealth Parliament may, under the defence power, validly control prices of commodities and charges for services.”

Wartime • However, even at a time of war, the defence power is not an unlimited power. • Victoria v Commonwealth(1942) 66 CLR 488 per Latham CJ at 507 • “A court will be most cautious and indeed reluctant before it decides that measures which are promulgated under the defence power are not really defence measures, but that they exceed the limits of that power. But the most complete recognition of the power and responsibility of Parliament and of the Government in relation to defence does not involve the conclusion that the defence power is without any limits whatever. The existence of the defence power of the Commonwealth Parliament and the exercise of that power do not mean that all governmental power in Australia may, by the action of the Commonwealth Parliament, be concentrated in Commonwealth authorities. The Constitution cannot be made to disappear because a particular power conferred by the Constitution upon the Commonwealth Parliament is exercised by that Parliament.”

Wartime • However, even at a time of war, the defence power is not an unlimited power. • R v University of Sydney; Ex parte Drummond (1943) 67 CLR 95 • Held, the defence power could not be used to regulate admission into university • Rich J and Williams J held that the Commonwealth has no power to regulate education generally, considering it can conscript those students or professors it needs for the war efforts. • Starke J would probably have allowed the regulations if they had diverted the students turned away into useful work. Under the regulations, students unable study medicine and engineering etc were free to enrol in arts, law, economics, and architecture. At 109: • “In truth, in taking power to determine the total number of students who may be enrolled in any faculty or course of study in the universities of Australia, the Commonwealth is seeking to control education in the universities of Australia, which is wholly beyond its power, and, as the regulation and the determination and direction made under it are framed, without any connection whatever with the defence or safety of the Commonwealth.” • Latham CJ, dissenting, at 102: • “The total war in which Australia is at present engaged demands a total war effort. It may be necessary for the Government to assist and develop essential activities, that is, activities which the Government, subject to the control of Parliament, regards as essential because they are either necessary or useful in the war effort or in maintaining the civilian population, the activities of which are necessary to support any war effort.” • Latham CJ at 103 would have left the issue to Parliament's determination: “It is not possible for a court, for example, to determine whether, having regard to the present outlook and the possible duration of the war, it is better for a young woman to enter upon a five year medical course, or to occupy herself for the time being in some other form of immediately required activity, such as nursing or clerical work.”

Wartime • However, even at a time of war, the defence power is not an unlimited power. • Victorian Chamber of Manufactures v Commonwealth(the Industrial Lightingcase) (1943) 67 CLR 413 • Held, the defence power could not be used to prescribe standards for the lighting of industrial premises. • Regulations were said to be aimed at improving industrial efficiency and thereby promoting the war effort. However, this was not accepted by the Court. • Latham CJ at 418: • “In my opinion the Industrial Lighting Regulations do not have a real connection with defence. They do not deal with a subject which has any specific relation to the subject of defence, except in so far as all matters affecting the well-being of the community have such a relation, and that is a general and not a specific relation.” • Williams J at 428: • “the Regulations [are not] required even incidentally for the defence of the Commonwealth. Their whole substance and purpose is to legislate upon a social subject which does not present any features in time of war not present in normal times”

Wartime • However, even at a time of war, the defence power is not an unlimited power. • Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth • Pursuant to National Security Regulations, the Commonwealth declared Jehovah's Witnesses to be a subversive organisation prejudicial to the defence of the Commonwealth and the efficient prosecution of the war and attempted to disband the organisation. The property of the declared body would become the property of the Commonwealth. The Commonwealth was also permitted to enter into possession of the premises of the declared organisation and to seize the property found therein. A further regulation prohibited the publication of unlawful doctrines, defined to include any doctrine advocated by declared bodies. • Held, a number of regulations were invalid as being in excess of the defence power. • The regulations went beyond what was necessary for defence. Starke J at 154 said “In themselves the Regulations are arbitrary, capricious and oppressive.” • Williams J at 163: • “For the purposes of defence the Commonwealth can in times of war pass legislation affecting the rights of the States and of their citizens and corporations under State laws to a greater extent than it can in times of peace … But the extent to which it can entrench upon these rights is limited by the reasonable necessities of defence during the period of the war. … the mere fact that the corporation or individual or body of individuals is carrying on some activity, which in the opinion of Parliament or of some Minister is prejudicial to the defence of the Commonwealth, cannot, in my opinion, conceivably require that the Commonwealth should enact that the property of such corporation or individual or body should be forfeited to the Crown, and the rights of all corporators and creditors in that property under State laws completely destroyed.”

Transition between war and peace • The transition between war and peace will not immediately invalidate legislation – wartime controls can continue for a reasonable period after the defence emergency has passed. • By 1949, the High Court held that the Commonwealth could no longer regulate to control women’s employment, ration petrol, or control residential accommodation within the defence power. • R v Foster; Ex parte Rural Bank of New South Walesat 84-5: • “No one doubts that the defence power will justify some legislation directed to the transition period between war and peace and some legislation which operates even after the full establishment of peace. But it does not place within Federal legislative authority every social, economic or other condition that might not have arisen except for the war. Where a state of facts exists which though outside the chief or central purpose of the power, namely, the armed defence of the country, is from a practical point of view entirely due to war, legislation to deal with it may fall within the defence power. For in that event such legislation may well be incidental to the exercise of the power. … But there are many matters which result from a plurality of causes of which the war is one. To point to the war as a contributory cause can hardly be enough. The recent war has produced some changes in almost every part of our lives. This fact does not mean that the whole life of man is to be regarded as a war consequence. It is obvious that to determine whether any given attempt to continue laws or regulations in force for an extended period after the end of hostilities is valid, it is necessary to consider in detail the nature and application of the particular measure.” • Incidental legislation can be permissible – e.g. dealing with repatriation and rehabilitation of soldiers or rebuilding a war torn city. • But the defence power cannot be used to provide Commonwealth legislative authority over every social, economic, or other condition which may not have arisen but for the war.

Activity Discussion Forum

LWB242 Constitutional Law • Podcast 5: Internal defence Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

Internal defence • Historically, the defence power was limited to external threats. • Recently, however, the High Court has held that the power extends widely to address internal threats. • Thomas v Mowbray • Thomas had admitted training with Al-qaeda. A federal magistrate made an interim control order imposing a curfew on Thomas and prohibiting him from leaving Australia, obtaining explosives, communicating with certain people, and using certain communication networks. Thomas challenged the validity of s 104.4 of the Criminal Code (Cth) • Held, with Kirby J dissenting, that the defence power extended to dealing with terrorism. • The defence power is not limited to dealing only with external threats or the defence of the Commonwealth itself. • There was no need to find a wartime or defence emergency to fit the law within an enlarged scope of the defence power – terrorism fits within the core of the defence power. (See Gleeson CJ; Gummow and Crennan JJ; and Hayne J) • There was some discussion about the continuing strength of the Communist Party case (see particularly Callinan J). • Thomas v Mowbray can be read to enlarge the scope of the defence power, providing legislative authority to the Commonwealth where it can show the existence of a threat, beyond the classical nexus of declared war or defence emergency.

Internal defence • Thomas v Mowbray • Kirby J dissented. At [385]-[386], [388]: • “In the past, lawyers and citizens in Australia have looked back with appreciation and gratitude to this Court's enlightened majority decision in the Communist Party Case. Truly, it was a judicial outcome worthy of a "free and confident society" which does not bow the head at every law that diminishes liberty beyond the constitutional design. … I did not expect that, during my service, I would see the Communist Party case sidelined, minimised, doubted and even criticised and denigrated in this Court. Given the reasoning expressed by the majority in these proceedings, it seems likely that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and state, that exceed or offend the constitutional text and its abiding values.” • “In the face of contemporary dangers from terrorism, it is essential that this Court should insist on the steady observance of settled constitutional principles. It should demand adherence to the established rules governing the validity of federal laws and the deployment of federal courts in applying such laws. It should reject legal and constitutional exceptionalism. Unless this Court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia.”

Activity Reading: Thomas v Mowbray

LWB242 Constitutional Law • Podcast 6: National security and nationhood power Photo: “Lifeboat carrying men of the 1st Divisional Signal Company, 25 April 1915”. Taken on on April 25, 1915 in Eceabat, Çanakkale, TR. This photograph is from the Australian War Memorial's collection cas.awm.gov.au/photograph/A02781

National Security and “Nationhood” Power 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. 51. The Parliament [has] power, subject to this Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to:- … (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth;

Introduction • By reading s 61 with s 51(xxxix), the High Court has concluded that the Commonwealth has power to legislate on matters for the “execution and maintenance” of the Constitution and the laws of the Commonwealth. • Accordingly, laws regulating internal threats might be supported under either the defence power or the incidental legislative power. • Burns v Ransley • R v Sharkey

Sedition • Laws regulating internal threats might be supported under either the defence power or the incidental legislative power. • Burns v Ransley • Burns was a member of the Australian Communist Party participating in a public debate. Burns said that the Australian Communist Party would fight on the Soviet side in a third world war between Russia and the west. Burns was arrested for sedition under the Crimes Act 1914(Cth). Burns claimed that the Commonwealth had no power to legislate against political criticism. • Held, the Commonwealth could not punish political criticism, but it did have the power to punish sedition - “excitement to disaffection against a Government”. The combination of the executive power and the incidental power under s 51(xxxix) gave the federal legislature the power to make laws against subversive activities for the protection of the Commonwealth. • R v Sharkey • Held, laws against sedition were valid. • Latham CJ at 135: • “Section 51 (xxxix.) of the Constitution confers power upon the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to "Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth." Laws which are directed to the protection and maintenance of the legal and political organization of the Commonwealth and of the Commonwealth in its legal and political relations may properly be enacted under this power.” (Latham CJ) • Dixon J at 148: • “I do not doubt that the legislative power of the Commonwealth extends to making punishable any utterance or publication which arouses resistance to the law or excites insurrection against the Commonwealth Government or is reasonably likely to cause discontent with and opposition to the enforcement of Federal law or to the operations of Federal government. The power is not expressly given but it arises out of the very nature and existence of the Commonwealth as a political institution, because the likelihood or tendency of resistance or opposition to the execution of the functions of government is a matter that is incidental to the exercise of all its powers.”

An implied power to protect the nation • Communist Party case • Dixon J at 187-8 expanded on his opinion in Sharkey; the Commonwealth's power to legislate to protect itself stems not just from a combination of ss 51(xxxix) and 61, but from an implied power to protect the nation: • “For myself I do not think that the full power of the Commonwealth Parliament to legislate against subversive or seditious courses of conduct and utterances should be placed upon s. 51 (xxxix.) in its application to the executive power dealt with by s. 61 of the Constitution or in its application to other powers. I do not doubt that particular laws suppressing sedition and subversive endeavours or preparations might be supported under powers obtained by combining the appropriate part of the text of s. 51 (xxxix.) with the text of some other power. But textual combinations of this kind appear to me to have an artificial aspect in producing a power to legislate with respect to designs to obstruct the course of government or to subvert the Constitution. History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected. In point of constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend. As appears from Burns v. Ransley and R. v. Sharkey, I take the view that the power to legislate against subversive conduct has a source in principle that is deeper or wider than a series of combinations of the words of s. 51 (xxxix.) with those of other constitutional powers. I prefer the view adopted in the United States, which is stated in Black's American Constitutional Law (1910), 2nd ed., s. 153, p. 210, as follows:—" ...it is within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason the suppression of insurrection or rebellion and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government ... "” (emphasis added) • However, neither source of power is unlimited. The Commonwealth legislature could not reserve to itself the power to determine the guilt of persons accused of subversive acts.

More recent cases • Davis v Commonwealth (1988) 166 CLR 79 • This case concerned the power of the Commonwealth to legislate for the Bicentennial celebrations in 1988. The Act set up an Australian Bicentenary Authority which was given exclusive power to use particular symbols and trade marks associated with the event, including “1788”, “1988”, “88”, “Sydney” with “1988” and “Melbourne” with “1988”. Davis, an Aboriginal political activist, printed shirts using these symbols within slogans which protested against the commemoration of the bicentennial. Davis challenged the constitutionality of the law. • Held, that the provisions of the Act which gave the Australian Bicentenary Authority the exclusive authority to use the symbols were invalid. However, some members of the court explored the nature and extent of the implied nationhood power. Mason CJ, Deane and Gaudron JJ at 93: • “[T]he legislative powers of the Commonwealth extend beyond the specific powers conferred upon the Parliament by the Constitution and include such powers as may be deduced from the establishment and nature of the Commonwealth as a polity.” • And at 92: • “The scope of the executive power of the Commonwealth has often been discussed but never defined.” • Some conflicting authority as to whether the legislative component of the nationhood power is an independent implied legislative power or exists only by combination of s 51(xxxix) and s 61 (executive power).

More recent cases • Pape v Commissioner of Taxation (2009) 238 CLR 1 • Concerned the validity of the Tax Bonus Act. Pape argued that the Commonwealth did not have the power to make gratuitous payments to Australians. Commonwealth argued, in part, that spending to stimulate the economy and mitigate the effects of the global financial crisis was supported either under the executive power (s 61) in conjunction with the incidental legislative power (s 51 (xxxix)), or under the implied nationhood power. • Held, by majority, that the bonus was a valid exercise of the executive power supported by the incidental legislative power. • There was no need to identify whether an implicit nationhood power existed. • Majority accepted formulation of Mason J in AAP case: s 61 extends to authorise the Commonwealth "to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation". • The incidental legislative power in s 51 (xxxix) accordingly mirrors the executive power. • In this case, the Commonwealth sought to take steps to mitigate the effects of the global financial crisis in a way that was on a scale and within a timeframe which could only be achieved by the Federal Government. • French CJ at [133]: “The executive power extends, in my opinion, to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of the Commonwealth Government.” • However at [127], “the exigencies of ‘national government’ cannot be invoked to set aside the distribution of powers between Commonwealth and States and between the three branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions.”

More recent cases • There were, however, persuasive dissents in Pape v Commissioner of Taxation: • Hayne and Kiefel JJ at [357] held that construing such a broad executive power “would, by ’enabling the Commonwealth to carry out within Australia programmes standing outside the acknowledged heads of legislative power merely because these programmes can be conveniently formulated and administered by the national government’, effect a radical transformation in what has hitherto been thought to be the constitutional structure of the nation.” • Hayden J at [520]: “the contours of executive power generally follow those of legislative power”. The Australian federation rests on constitutional distinctions which are not to be discarded, “however out of touch with practical conceptions or with modern conditions they may appear to be in some or all of their applications”

Scope of the power and limits • Clearly, the executive power and incidental legislative power extends to allow the Commonwealth to deal with internal security and sedition (“execution and maintenance” of the Constitution). • There is some power to enact legislation “peculiarly adapted to the governments the nation and which cannot otherwise be carried on for the benefit of the nation”. • Extends to necessary responses to national crises and national celebrations. • However, the power has some limits particularly where the Federal government would be encroaching too far on the domain of the states. • The power will be stronger where only the Commonwealth can act. • The exact scope of the power has not yet been fully delineated.

LWB242 Constitutional Law