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Lecture

5.1 [51(vi)] Defence Power.doc

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
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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