LAW 2501 Lecture Notes - Lecture 4: Australian Communist Party V Commonwealth, Control Order, Wilfred Fullagar
23 May 2018
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DEFENCE POWER
Summary of PQ process
Red- process in interpretation notes
STEP 1: s 51(vi) vests the Parliament with power to
make laws for the peace, order and good government
of the Cth with respect to the naval and military
defence of the Cth and the several states, and the
control of the forces to execute and maintain the laws
of the Cth
STEP 2: The issue is whether (the legislation) is
supported by s 51(vi)
STEP 3: two stage process of characterisation outlined
by McHugh J in Re Dingjan; Ex parte Wagner (1995)
183 CLR 323, 369. Affirmed in Grain Pool of Western
Australia v Commonwealth (2000) 202 CLR 479, 492.
(1) Interpret DEFENCE POWER s 51(vi)
a. use Fullgar J’s two aspects from the
Communist Party Case the characterise the
power
b. consider constitutional facts that give rise
to a threat and need for defence
c. action taken must be proportionate to the
threat
(2) Determine whether the legislation is made
with respect to the head of power. two stage
process of characterisation outlined by Mc
Hugh in Re Dingjan
a. Analyse the legislation- ‘true character of
the law’
b. Compare the legislation to the defence
power
• Purposive power, test of
proportionality
Test= whether the law is
proportionate, or reasonably
appropriate and adapted to the
achievement of the relevant
purpose A-G (SA) v Corporation
of the City Of Adelaide (2013) 249
CLR 1
STEP 4: conclude whether the law is supported by s
51(xxix) and therefore valid/ invalid
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