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3.3 [ss61 & 51(xxxix)] Executive & Nationhood.doc

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Nationhood Power Origins • Power implied into the constitution by virtue of the existence of the Cth as a national polity: Pharmaceutical Benefits Case o Needs a nationhood power to deal with matters that arise from the Cth’s status as an entity • Has been accepted as a source of both legislative and executive power • Alternative—s61 (executive power) & s51(xxxix) ← for judges who do not want to recognise implied power: Australian Communist Party v Cth o Ct Hesitant about applying nationhood power too broadly → s61 & 51(xxxix): Davis v Cth (Bicentennial Authority Case) Application • Where need is such that national co-ordination is desired (subject matter is peculiarly adapted to the nation and to be carried on for the benefit of the nation): AAP case, Bicentennial Authority case • Content of the power will vary depending on circumstances and need of the nation • Where the subject matter can only be dealt with effectively at the national level: AAP case • Where practical considerations require national involvement—eg project needs large funds ← Cth has financial dominance: AAP case Scope • Matters incidental to the existence of the Commonwealth as a state: AAP Case per Gibbs J • Commonwealth’s right to self-protection o To protect itself and punish those obstructing it: R v Kidman o To protect against subversion & sedition: Burns v Ransley (Based on implied legislative power: Ch II Constitution) • To engage in enterprises & activities adapted to the government of the nation: AAP Case per Mason J o ← CSIRO, investigations & inquiries, scientific research • Research and Exploration | growth of national identity (widest view): AAP Case per Jacobs J • Regulation of Australian Territorial Seas: Seas & Submerged Lands Case (1975) (even apart from external affairs power) • Appropriation & payment of money to assist in truly national endeavours: Tas Dams per Deane J; Dawson J • Conducting celebrations: Davis v Cth (Bicentennial Authority Case) (also looking at s61 & s51(xxxix)) • Protecting certain symbols (but not common expressions): Davis v Cth (Bicentennial Authority Case) (symbols, but not expressions such as 200 yrs, Bicentennial, 1988 etc)) • Probably also promoting the arts, promoting the natural heritage and culture of Australia Limits • Nationhood power does not allow disturbance of distribution of powers in the federal system: Tas Dams per Gibbs CJ, Dawson J; AAP Case per Mason J; Re Wakin per Kirby J o National nature of the subject matter doesn’t automatically bring it within Cth control (The perception for need of national control is not enough): AAP case per Mason J Andrew Trotter LWB242 2009-1 • Coercive laws not valid under nationhood power if not otherwise valid under other heads of Constitutional power: Tas Dams per Wilson J o Limited—as per Bank Case Latham CJ o Except to protect Cth initiative (or institution created to give effect to that initiative) ← Cth can protect its own activities and its own bodies if necessary, through coercive laws: AAP, Bicentennial Authority case • Confined to areas where there is no real competition within the States: Tas Dams per Deane J Andrew Trotter LWB242 2009-1 Executive Power s61
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