[2] Const Heads of Power - (4) DEFENCE - S 51(VI)

Question 1

GENERAL SCAFFOLD - (1) A Cth enactment will be invalid where

Answer 1

it is not supported by a relevant Constitutional head of power (s 51 Constitution).

Question 2

GENERAL SCAFFOLD - (2) To determine whether [Cth Provision] is valid, it is necessary to

Answer 2

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).

Question 3

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

Answer 3

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’

Question 4

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?

Answer 4

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

Question 5

[Scope of the Defence Power] - (1st question) - what is the subject matter question

Answer 5

Is the law with respect to the control of the naval & military defence of the Cth & States?

Question 6

[subject matter] Do you interpret the defence power narrowly or broadly?

Answer 6

broadly (Farey v Burvett) - words “naval” and “military” are words of expansion (not limitation)

Question 7

As long as [Cth provision] conduces to the defence of the Cth, the subject matter of the [Cth provision] may

Answer 7

cover other subject matters

Question 8

[Scope of the Defence Power] - (2nd question) - what is the purposive element question

Answer 8

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)

Question 9

[Scope of the Defence Power] - (2nd question) - whether there’s a nexus btw the [Cth provision] and defence power is a

Answer 9

constitutional fact - ie, court determines whether the measure objectively conduces to defence of Cth (although exception for war) (Communist Party Case)

Question 10

What is a basic fact that can be taken on judicial notice in respect of the defence power?

Answer 10

basic fact of war ie a matter of “general public knowledge”

Question 11

Where judicial notice is insufficient to establish the factual conditions of war, what will courts nevertheless do?

Answer 11

will give substantial deference to gov

Stenhouse per Dixon J

Question 12

[Scope of the Defence Power] - (2nd question) - In considering whether there’s a nexus btw [Cth provision] and purpose of defence power, consider:

Answer 12

whether [Cth provision] relates to primary or secondary aspect of the defence power?(per Fullagar J in Communist Party Case)

Question 13

[Scope of the Defence Power] - (2nd question) - aspects of defence power - what constitutes the primary aspect of the power?

Answer 13

• (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

Question 14

When can the primary aspect of the defence power be exercised?

Answer 14

In war and peace (it’s a constant!)

Question 15

When can the secondary aspect of the defence power be invoked?

Answer 15

only in times of war!

Question 16

[Scope of the Defence Power] - (2nd question) - aspects of defence power - what constitutes the secondary aspect of the power?

Answer 16

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

Question 17

If a [Cth provision] is invoked under the secondary aspect, how does the court treat it?

Answer 17

The court will not enquire as to the merit or wisdom of the law under the secondary aspect during war time or such emergencies

Question 18

[Scope of the Defence Power] - (3rd question) - (3) If there’s a nexus to SECONDARY aspect of defence power, then…

Answer 18

assess what the natural security situation is? Four main phases of the power: Farey v Burvett; Communist Party Case

Question 19

What are the 4 main phases of the defence power?

Answer 19

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

Question 20

Limitations on defence power

Answer 20

• 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.

Question 21

Was Cth Act setting price of bread during WW1 valid or invalid (+ what case)?

Answer 21

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)

Question 22

Was Cth Act imposing civil disabilities on declared persons valid or invalid (+ what case)?

Answer 22

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)

Question 23

Was Cth Act allowing imposition of control orders issued by court at request of AFP valid or invalid (+ what case?)

Answer 23

Thomas v Mowbray -

VALID - defence power extends to national security risks in absence of a traditional war -

Question 24

In Thomas v Mowbray (2007) what was accepted on judicial notice?

Answer 24

here accepted on judicial notice that terrorist situation in Australia was serious enough to warrant use of the secondary aspect of the defence power

Question 25

what is the aim of the Communist Party Doctrine

Answer 25

to ensure that the judiciary retains its position as the institution that keeps the legislative and executive atuhorities within their constitutional powers (Zines).

Question 26

What is the Communist Party Doctrine

Answer 26

Cth can’t deem a Constitutional Fact

Question 27

[Communist Party Doctrine] Any fact is a Constitutional fact if

Answer 27

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

Question 28

[Communist Party Doctrine] If the Cth creates a provision that deems a constitutional fact, why will it be invalid?

Answer 28

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

Question 29

[Communist Party Doctrine] If Cth deems a constitutional fact in a provision, but this fact is judicially reviewable, is the provision valid or invalid?

Answer 29

valid per Marcus Clark (in relation to Defence Preparations Act)

Question 30

[Communist Party Doctrine] - (question 1)

Answer 30

(1) Has Parliament in enacting the impugned law attempted to legislate itself into power ie, attempted to legislate the extent of the security situation?

Question 31

[Communist Party Doctrine] - things falling short of constitutional fact - although the Cth cannot deem a constitutional fact IT CAN:

Answer 31

(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)

Question 32

[Communist Party Doctrine] - If Cth reverses the onus of proof of a constitutional fact what does this mean?

Answer 32

the Act must provide the opportunity to disprove that the subject matter is the constitutional subject matter (prescribes certain evidence to rebut the averment)

Question 33

[Communist Party Doctrine] - When might the deeming of a constitutional fact be permitted?

Answer 33

(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)

Question 34

What were the facts in the Communist Party Case?

Answer 34

• 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)

Question 35

What was held in the Communist Party Case?

Answer 35

• 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

Question 36

Facts in Farey v Burvett (1916)

Answer 36

• 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

Question 37

Outcome in Farey v Burvett (1916)

Answer 37

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

Question 38

Farey v Burvett (1916) for a law t be within the defence power, you must be able to show:

Answer 38

that the law itself conduces to efficiency (or defence) of the Cth

Question 39

Facts in Marcus Clark v Cth –> first statute

Answer 39

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

Question 40

Facts in Marcus Clark v Cth –> under s 4 First statute (Defence preparations Act), what second regulations emerged

Answer 40

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

Question 41

What was argued in Marcus Clark?

Answer 41

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

Question 42

Outcome in Marcus Clark (1951)

Answer 42

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