Defence Flashcards
What section of the Constitution is the defence power in and what does it roughly say?
S 51(vi) and it says The Parliament shall have the power to make laws with respect to 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
What are the facts of Farey v Burvett and what are it’s 3 important points?
- During WW1 Farey had sold bread at a price greater than the maximum prescribed by an order authorised by the regulations under the relevant Cth statute He was convicted.
- He challenged the validity of the Act setting the price of bread, arguing that it was not within the defence power.
IMPORTANT POINT 1: Griffith CJ did not regard the words “naval” and “military” defence as words of limitation. - any sm that is for defence of cth in military sense will be included in the power
IMPORTANT POINT 2: Fundamentally there is a purposive element to the power (535-536 W): - important q under here
IMPORTANT POINT 3: the paramount nature of the power: “The power to make laws with respect to defence is, of course, paramount power, and if it comes into conflict with any reserved State rights the latter must give way…” W 536 (653). (pre engineers)
What are the key facts, holdings and doctrines from the Communist Party Case?
FACTS: The Communist Party Dissolution Act 1950 (Cth) was prefaced by a preamble stating that the “Australian Communist Party, its officers, members and others, being communists, were engaged in espionage, sabotage, treasonable or subversive activities and activities designed to bring about the overthrow of the established system of government of Australia and the dislocation of vital industries”
FACTS: The act itself
- 4: declared that the Australian Communist Party was an unlawful association and was by force of the Act itself dissolved.
- 5(1): as were those associations, as identified, which had the requisite degree of connection with the Communist Party these were also dissolved
- 5(2): GG authorized to declare an association unlawful if satisfied that the association fitted one of the statutory descriptions and its continued existence would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth.
- 6: the Effect of GG’s declaration was to dissolve the association.
- 5: also enabled an association to challenge before a court the declaration that it had associated with the Communist Party or with communism in the manner set out in s 5(1). But prevented a challenge to the GG’s declaration that the continued existence of the association would be prejudicial to defence etc
o (limited judicial review)
- S 9 contained provisions in relation to individual persons: empowered the GG to declare that a person was a member or officer of the Australian Communist Party or was a communist , AND declare that person was engaged or likely to engage in activities prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth.
FACTS: Effect = couldn’t hold public office among other things
HELD
1. The Act was invalid (6:1) - Only Latham CJ dissenting
2. The preamble and recitals could not take away from the Court the need to determine the necessary nexus between the Act and the defence power (b. The court itself must determine both the seriousness of the national sec threat in order then to determine whether the sm being regulated is for the purpose of the defence of the cth)
3. There are two aspects of the defence power: the “core”/ “primary” aspects and “secondary” aspects
CORE: aspects simply relate to matters which are clearly defence matters –
anything that has to do with the armed forces, their arming, preparation, training,
conscription purchase of armament, location of bases, provision of ships, )
ammunitions, the manufacture of weapons, the erection of fortificaitons etc = will
always be in power - limit- has to be for defence of the cth + NB incidental element
b. SECONDARY ELEMENT = reg of sm that on its face doesn’t apepear to have anything to do with defence at all- the only thing that links it to defence is the seriousness of the seriousness of national sec situation and whether you can then justify the reg during that period in order to conduce to the defence of the cth
i. According to fullagar –only applies in situations where aus is already at
war, in preparatory stages of war or immediate aftermath of war In peace
time you cant rely on these things 4. The Act was relying on the secondary aspect when Australia’s strategic situation did not warrant it. Why? What was different about Australia’s involvement in the Korean War? The Cold War? iv. Dixon J- court couldn’t accept the seriousness of the situation re the defence power because the exec arm of the cth wasn’t itself responsible for the conduct of the war given that our forces were under the control of US officers
- Elaboration of “the doctrine in the Communist Party case” and its rationale.
i. fullagar and Dixon J conceded that at a time of sever crisis such as war not only is the sm of the secondary defence power at its broadest but the court itself will give maximum deference to the opinion of the govt/parl that the reg of certain sm conduces to the defence of the cth
Doctrines:
- The Commonwealth cannot deem a constitutional fact (Const fact is any fact that is relevant to determine whether the law is within power – whether the sm that the law is regulating is within power)
- The Commonwealth may reverse the onus of proof of a constitutional fact (as long as the burden of proof is not unreasonably onerous, such as if it were set at “beyond reasonable doubt”.)
- However, it seems that the Commonwealth can deem a non-constitutional fact.
What are the facts and principles from Marcus Clark & Co Ltd v Commonwealth?
FACTS:
The Defence Preparations Act 1951 contained a preamble with recitals *suggesting, In addition to the primary aspects of the power, circs exist that enable a broadening of the power so that secondary elements can be included- hinting at this
The Act- GG made the Defence Preparations (Capital Issues) Regulations 1951 (Cth)- Treasurer needed to give consent before consenting to a company borrowing money
Under the act - the treasurer couldn’t refuse consent or put conditions unless it was for the purpose of defence
Under the act - aggrevied person could ask the treasurer for written reasons why
HELD:
- Dixon J W 550: Held valid
o This act is more transparent
o It was enough not to deem a const fact
o Shows the court will be willing to accept that a cosnt fact isn’t being deemed if there are safeguards against that in place in the act and the judicial review avenue is sufficient enough
Thomas v Mowbray facts and principles
FACTS:
Div 104 of the Criminal Code (Cth).
- A control order is issued by a court (at the request of the Australian Federal Police) to allow obligations, prohibitions and restrictions to be imposed on a person, for the purpose of protecting the public from a terrorist act.
2 args
1. Defence power limited to traditiona war between nation states
2. defence power limited to defending country and polity against external threat, not internal threats of this type
HELD
- both args incorrect
- Control orders are secondary aspect of the power – limiting liberty of a citizen: Validity of acts that limit liberty can only be determined by ref to the seriousness of the national sec threat posed by terrorism
PRINCIPLE: Defence power not limited to foreign/external threats (can be internal)– it also applies to non-traditional wars Ie terrorism
What is the aim of the doctrine in the communist party case?
To ensure that the judiciary retains its position as the institution that keeps the legislative and executive authorities within their constitutional powers
What is the exception to the Doctrine in the Communist Party Case?
In times of war not only is the sm of the secondary defence power at its broadest but the court itself will give maximum deference to the opinion of the govt/parl that the reg of certain sm conduces to the defence of the cth
