[2] Const Heads of Power - (4) DEFENCE - S 51(VI) Flashcards
GENERAL SCAFFOLD - (1) A Cth enactment will be invalid where
it is not supported by a relevant Constitutional head of power (s 51 Constitution).
GENERAL SCAFFOLD - (2) To determine whether [Cth Provision] is valid, it is necessary to
characterise the provision with reference to the ‘rights, duties, power and privileges which it changes, regulates or abolishes’ (Fairfax, Kitto J) and its practical operation (Grainpool).
GENERAL SCAFFOLD - (3) must be considered whether the source of the Cth legislative power that may support the validity of [Cth provision] is contained in
s 51(vi) Constitution ‘the naval and military defence of the Cth and of the several States, and the control of the forces to execute and maintain the laws of the Cth’
When assessing the scope of the defence power to see if the [Cth provision] is supported by this head of power - do you consider each provision separately?
Yes - If there’s a primary (core defence power) and a secondary (only in times of war) aspect consider these first then split up analysis.
Deal with Communist Party doctrine under each provision where relevant
[Scope of the Defence Power] - (1st question) - what is the subject matter question
Is the law with respect to the control of the naval & military defence of the Cth & States?
[subject matter] Do you interpret the defence power narrowly or broadly?
broadly (Farey v Burvett) - words “naval” and “military” are words of expansion (not limitation)
As long as [Cth provision] conduces to the defence of the Cth, the subject matter of the [Cth provision] may
cover other subject matters
[Scope of the Defence Power] - (2nd question) - what is the purposive element question
Is there a nexus between the [Cth provision] and the purpose of the defence power?
aka
whether:
“Can the measure in question conduce to the efficiency of the forces of the nation today, or is the connection of cause and effect between the measure and the desired efficiency so remote that one cannot reasonably be regarded as affecting the other?”
(Farey v Burvett)
[Scope of the Defence Power] - (2nd question) - whether there’s a nexus btw the [Cth provision] and defence power is a
constitutional fact - ie, court determines whether the measure objectively conduces to defence of Cth (although exception for war) (Communist Party Case)
What is a basic fact that can be taken on judicial notice in respect of the defence power?
basic fact of war ie a matter of “general public knowledge”
Where judicial notice is insufficient to establish the factual conditions of war, what will courts nevertheless do?
will give substantial deference to gov
Stenhouse per Dixon J
[Scope of the Defence Power] - (2nd question) - In considering whether there’s a nexus btw [Cth provision] and purpose of defence power, consider:
whether [Cth provision] relates to primary or secondary aspect of the defence power?(per Fullagar J in Communist Party Case)
[Scope of the Defence Power] - (2nd question) - aspects of defence power - what constitutes the primary aspect of the power?
- (i) enlistment into the armed forces;
- (ii) Training and equipment of people in armed forces;
- (iii) Provision of ships, ammunition and other military hardware;
- (iv) Prevention of activities that obstruct defence preparations
When can the primary aspect of the defence power be exercised?
In war and peace (it’s a constant!)
When can the secondary aspect of the defence power be invoked?
only in times of war!
[Scope of the Defence Power] - (2nd question) - aspects of defence power - what constitutes the secondary aspect of the power?
Deals with an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence:
- (i) Rationing
- (ii) Price control (e.g. price of bread may be regulated during wartime: Farey)
- (iii) Industrial employment
- (iv) Economic regulation
- (v) Arbitrary detention
If a [Cth provision] is invoked under the secondary aspect, how does the court treat it?
The court will not enquire as to the merit or wisdom of the law under the secondary aspect during war time or such emergencies
[Scope of the Defence Power] - (3rd question) - (3) If there’s a nexus to SECONDARY aspect of defence power, then…
assess what the natural security situation is? Four main phases of the power: Farey v Burvett; Communist Party Case
What are the 4 main phases of the defence power?
a) Profound peace: narrowest scope (although NB terrorism etc below)
b) Preparation for war:
c) Actual war: the widest scope – almost unlimited power.
d) Postwar period: a narrowing occurs
Limitations on defence power
- ss 51(xxxi) – guarantee of just terms of acquisition of property by the Cth: Dalziel
- s 92 – freedom of interstate T&C/intercourse – cannot place restrictions on intercourse even if directed towards public safety/defence: Gratwick.
Was Cth Act setting price of bread during WW1 valid or invalid (+ what case)?
Farey v Burvett (1916) - VALID bc engaged secondary aspect–>it is essential that the Cth be able to control, during war, the price of fundamental commoditise such as bread, which are essential to feed the people (wouldn’t have been available in time of peace)
Was Cth Act imposing civil disabilities on declared persons valid or invalid (+ what case)?
Communist Party Case -
INVALID Australia wasn’t at war – not warranted – (here whilst Australian army was assisting US in Korea, Australian gov wasn’t the exec gov that was responsible for conduct of the war - but note that if Australian army was under its own command would’ve been valid)
Was Cth Act allowing imposition of control orders issued by court at request of AFP valid or invalid (+ what case?)
Thomas v Mowbray -
VALID - defence power extends to national security risks in absence of a traditional war -
In Thomas v Mowbray (2007) what was accepted on judicial notice?
here accepted on judicial notice that terrorist situation in Australia was serious enough to warrant use of the secondary aspect of the defence power
what is the aim of the Communist Party Doctrine
to ensure that the judiciary retains its position as the institution that keeps the legislative and executive atuhorities within their constitutional powers (Zines).
What is the Communist Party Doctrine
Cth can’t deem a Constitutional Fact
[Communist Party Doctrine] Any fact is a Constitutional fact if
the existence of that fact is essential to the determination of whether the law with respect to the fact is within a head of power
[Communist Party Doctrine] If the Cth creates a provision that deems a constitutional fact, why will it be invalid?
Invalid bc the fact or subject matter which invokes Cth legislative power must exist objectively, cannot deem it to exist – “the stream cannot rise above the source”
only the court can determine what is and isn’t within power: Fullager J in CPC
[Communist Party Doctrine] If Cth deems a constitutional fact in a provision, but this fact is judicially reviewable, is the provision valid or invalid?
valid per Marcus Clark (in relation to Defence Preparations Act)
[Communist Party Doctrine] - (question 1)
(1) Has Parliament in enacting the impugned law attempted to legislate itself into power ie, attempted to legislate the extent of the security situation?
[Communist Party Doctrine] - things falling short of constitutional fact - although the Cth cannot deem a constitutional fact IT CAN:
(1) Cth can reverse the onus of proof of a constitutional fact
(2) Deem a non-constitutional fact (probably can) (i.e. a fact that does not determine whether or not the legislation is within power)
[Communist Party Doctrine] - If Cth reverses the onus of proof of a constitutional fact what does this mean?
the Act must provide the opportunity to disprove that the subject matter is the constitutional subject matter (prescribes certain evidence to rebut the averment)
[Communist Party Doctrine] - When might the deeming of a constitutional fact be permitted?
(1) War time - o The Court will give maximum weight to the opinion of the government as to whether the law needs to exist for the defence of the Cth
(2) Provisions providing for judicial review (Marcus Clark)
What were the facts in the Communist Party Case?
- Cth Act imposing civil disabilities on declared persons part of Aus Communist Party
- In this Act, the Preamble was attempting to recite itself into power by declaring that the circumstances were such to warrant the Cth using its defence powers over the ACP
- ## Law gave GG power to determine the constitutional fact and declare associations unlawful (w/o any court determination that they’d been engaged in subversive conduct)
What was held in the Communist Party Case?
- Parliament cannot validly base legislation on its own declaration (or that of GG or an administrator) that constitutional facts exist
- Unconstitutional of the Parliament to attempt to remove from the courts the power to determine whether the necessary nexus existed between the Act and the defence power
Facts in Farey v Burvett (1916)
- During WW1 Farey was convicted for selling bread at a price greater than the maximum prescribed by an order authorised by the regulations under the relevant Cth statute
- He challenged the Act’s validity, arguing that it was not within the defence power
Outcome in Farey v Burvett (1916)
Law was valid under the defence power! Essential that Cth be able to control fundamental prices of commodities like bread during war time to be able to feed the people
Farey v Burvett (1916) for a law t be within the defence power, you must be able to show:
that the law itself conduces to efficiency (or defence) of the Cth
Facts in Marcus Clark v Cth –> first statute
Defence Preparations Act 1951 had recitals about
(1) existence of a state of international emergency (referred to cold war + hositlities on Korean peninsula and fighting with US forces)
(2) need to provide for the raising and equipping of armed forces,
(3) that maintenance and sustenance of ppl of Australia was a part of defence prep
(4) to provide services to est the Australian economy to meet demands upon event of war
(6) that defence prep requried diversion of certian resources incl $, materials, facilities
Facts in Marcus Clark v Cth –> under s 4 First statute (Defence preparations Act), what second regulations emerged
s 4 of Defence Prep Act empowered GG to make regulations for defence prep –> so made Defence Prep (Capital Issues) Regs whcih prohibited:
(1) certian borrowings/share issues by companies w/o consent of treasurer unless it was for purposes of defence prep etc
What was argued in Marcus Clark?
Section 4 Defence Prep Act allowed GG power to determine the constitutional fact
- aggreived person could apply to court for order directing Treasurer to give reasons in writing for why refusal related to purposes of defence prep
Marcus Clark company brought action bc GG refused to consent to company’s proposal to borrow $ and issue new shares
Outcome in Marcus Clark (1951)
provisions were valid - dif to CPC!
–> the judicial remedies available ensured the Treasurer didn’t go beyond scope and meaning of defence prep may or may not be determinative of adequacy of purpose of provisions BUT clear from the regulations that the determination of that Q re defence prep WAS NOT TO BE CONCLUSIVE
