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5.1 [51(vi)] Defence Power.doc

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Defence Power s51(vi) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (vi) 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 • Internal security power: s.61 & 51(39) (← executive power + incidental = prevent nation from subversion) General • Governor General has control of armed forces—right to declare war: s68 • States o May assist but not control Cth forces: Carter v. Egg and Egg Pulp Marketing Board cf. Joseph v Colonial Treasurer  But not without consent of the Cth: s114 o Cth must protect states from invasion: s119 o State defence departments transferred to Cth in war: s69  Cth can control railways for defence: s51(xxxii) • Words “naval and military defence” do not limit the power—can include new war technology (air, space warfare, etc): Farey v Burvett per Griffith CJ • Purposive power—law must advance a defence need to be valid under the power: Stenhouse v Coleman (Wartime regulation of essential supplies and services—bread licensing—incidental to the running of a war  upheld) o It authorises ANY activity if sufficiently connected with the purpose of defence “if it can reasonably be considered that there is a real connection between the subject matter of legislation and defence”: Latham CJ Dawson v Cth Application • Depends on the circumstances—degree of threat o Existence & character of hostilities: Andrews v Howell at 278 per Dixon J o Purposive → what contributes to defence will depend on the circumstances: Australian Communist Party v Cth at 273 per Kitto J o “Purpose” refers to results of legislation—not motives or policy: Australian Communist Party v Cth at 273 per Kitto J; Australian Textiles v Cth at 178 Primary—always valid • Direct relationship to the defence of the Commonwealth or defence forces. o Both peace time and war based on an ex facie connection with naval and military defence: Australian Communist Party v Cth at 253-4 per Fullager J  BUT in peacetime, will not extend to the facets of national life: Thomas v Mowbray • Includes— o Enlistment – Compulsory and Voluntary o Training and Equipment o Provision of Ships and Munitions o Manufacture of Weapons Andrew Trotter LWB242 2009-1 o Erection of Fortifications Secondary—immediate apprehension of war | war | post-war adjustment • Includes— (Australian Communist Party v Commonwealth per Fullager J) o Price and Rationing of Goods (Farey v Burvett) o Rents and Tenant Eviction (Blair) o Transfer of interests in land o Industrial Employment Conditions (Illawarra) o Preservation of food stuffs (Stenhouse) 2-step process: Australian Communist Party v Commonwealth (1) Determine state of war/peace—judicial notice (2) Evaluation of law in dealing with that situation Judicial Notice = Extent of evidence that can be used • Court must not go beyond matters of which it can take judicial notice (public knowledge) in determining the situation of war: Stenhouse v Coleman at 469 per Dixon J (licenses in various areas during wartime) • Where problems arise with respect to secrecy, formal statement may be accepted from the Executive: Australian Communist Party v Commonwealth • Evidence may be accepted in some areas—  With respect to usage of minerals compulsorily acquired during war time that had a defence purpose: Jenkins v Commonwealth  With respect to sourcing materials of dairy products and agreements made with British government: Sloan v Pollard • Affidavits may be rejected in some areas—  Uniform Tax Case  R v Foster Variable Application • Profound peace – amity in the international community (rare) • Uneasy peace – some international tensions but falls short of anything in the nature of war-like hostilities. • War preparedness – international emergency and countries are taking steps to prepare themselves for a possible outbreak of hostility. • Wartime • Post-war transition – transitional period post-war (1) Profound Peace = absence of any serious international concerns or contentions • 1926—before Stalinism & Fascism: Cth v Australian Shipping Board (1926) → Little scope for the secondary power  Establishment of business for trade: Cth v Australian Shipping Board (1926) (Shipping Board—successfully tendered to supply turbines to Sydney local council—necessary to keep operations running at a certain level so it could stay active) o Practical requirements do not justify the task: per Isaacs J Andrew Trotter LWB242 2009-1 (2) Uneasy Peace = Some international tensions present, but nothing to indicate anything in the nature of war-like hostilities • 1935—Nazism & fascism on the rise (but no war yet)  Establishment of clothing factory for military uniforms: Attorney-General (Victoria) v Commonwealth (Clothing Factory Case) (1935) (no extra machinery required—private orders a small proportion  valid) o Allows for preparation of defence →  o No inversion of the main purpose for the incidental (non-military) matter →  o Military purpose impressed from the beginning of operations → : Cf. Cth v Australian Shipping Board (3) War Preparedness = Significant deterioration of relationships between countries—presence of preparation for war- like hostilities—nation looking for an outbreak of hostilities. • 1951-2—Cold War in development—Communist party had taken over China  Attempt to outlaw Communist party: Australian Communist Party Case (1951) (5:2) (Dissolution of the communist party of Australia—GG could dissolve any associations he considered sympathetic (28 days to appeal)—declared unlawful | dissolved it | forfeited its property | prohibited meetings | disqualified from offices of Cth or industrial occupations | reversed onus of proof  unlawful) o Act cannot declare itself into validity in the preamble  Nor through opinion of GG o May have been valid in war-time: Dixon J o Law cannot penalise affiliation & belief rather than conduct o Must be an objective criteria NB Menzies referendum to insert Communism head of power failed  Economic controls—Restriction on loans for businesses (high inflation): Marcus Clark & Co. Ltd v. Cth (The Capital Issues Case) (1952) (consent of Treasurer required) o To assist in difficulty of Cth in increasing defence expenditure in competition with private enterprise o Objective connection to defence preparedness o Recitals in preamble are ok if they are a statement of purposes rather than a statement of facts which justify the legislation: cf. Australian Communist Party Case o Requirements for Treasurer to state reasons for denying consent (4) War Time → Power expands to its largest extent → secondary aspects extend to everyday life.  Giving a minister power to detain any person perceived as a threat to defence Lloyd v Wallach   Controlling prices: o Fixing price of bread: Farey v Burvett (1916)
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