LLB203 Study Guide - Final Guide: Crimes Act 1914, Australian Bicentenary, Communist Party Of Australia
INTERNAL DEFENCE
Historically, the defence power was limited to external threats
See Communist Party case
Dixon J: ‘central purpose’ of the power is the protection of the Commonwealth from external
enemies
Recently, however, the High Court has held that the power extends widely to
address internal threats. Thomas v Mowbray – PRINT…
FACTS: Thomas had admitted training with Al-qaeda. A federal magistrate made an interim
control order imposing a curfew on Thomas and prohibiting him from leaving Australia,
obtaining explosives, communicating with certain people, and using certain communication
networks. Thomas challenged the validity of s 104.4 of the Criminal Code (Cth)
HELD: with Kirby J dissenting, that the defence power extended to dealing with terrorism. The
defence power is not limited to dealing only with external threats or the defence of the
Commonwealth itself
o Gummow and Crennan JJ: long history concerning defence of threats internal and external—
the law
of treason is an example. Restrictions aimed at anticipating and avoiding suffering
comes within federal scope. Second, the defence power in that regard is sufficient
legislative support without recourse to any implication of a further power of the kind
identified in Communist Party case. Third, the fluid nature of the defence power
mean that protection from a terrorist act necessarily engages the defence power
o Callinan J: defence not only needed at time of war. Defence power can include
internal threats—Cth must be able to prepare for defence of Australia. The strength
of the Communist Party was found to have statements which led to the conclusion
made
o There was no need to find a wartime or defence emergency to fit the law within an
enlarged scope of the defence power – terrorism fits within the core of the defence
power. (See Gleeson CJ; Gummow and Crennan JJ; and Hayne J)
o Kirby J (diss): in face of terrorism, the court must ensure to insist on observing settled
constitutional principles, especially when determining a laws validity. Failure to do so
would deliver the terrorists successes. The defence power has two aspects: 1) defence of
Cth; 2) control of forces. In this case, the law does not contemplate the domestic
deployment of military, which is a necessary interpretation if the law was held valid. No
state of war when enacted. Therefore, without facts of a threat diected at the bodies politic,
it is therefore invalid.
Thomas v Mowbray can be read to enlarge the scope of the defence power, providing
legislative authority to the Commonwealth where it can show the existence of a threat,
beyond the classical nexus of declared war or defence emergency.
NATIONAL SECURITY AND NATIONHOOD POWER
Executive power is vested in the Queen and is exercisable by the Governor-General as the
Queen’s representative, and extends to the execution and maintenance of this Constitution,
and the laws of the Commonwealth
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Constitution s 61
The Parliament [has] power, subject to this Constitution, to make laws for the peace, order
and good government of the Commonwealth with respect to: - (xxxix) matters incidental to
the execution of any power vested by this Constitution in the Parliament or in either House
thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in
any department or officer of the Commonwealth
Constitution s 51(xxxix)
Introduction
By reading s 61 with s 51(xxxix), the High Court has concluded that the Commonwealth
has power to legislate on matters for the “execution and maintenance” of the
Constitution and the laws of the Commonwealth.
Accordingly, laws regulating internal threats might be supported under either the
defence power or the incidental legislative power.
Burns v Ransley
R v Sharkey
Sedition
Laws regulating internal threats might be supported under either the defence power or
the incidental legislative power.
Burns v Ransley
FACTS: Burns was a member of the Australian Communist Party participating in a public
debate. Burns said that the Australian Communist Party would fight on the Soviet side in a
third world war between Russia and the west. Burns was arrested for sedition under the
Crimes Act 1914 (Cth).
Burns said that the commonwealth had no power to legislate against political criticism
HELD: the Commonwealth could not punish political criticism, but it did have the power to
punish sedition - “excitement to disaffection against a Government”. The combination of the
executive power and the incidental power under s 51(xxxix) gave the federal legislature the
power to make laws against subversive activities for the protection of the Commonwealth.
R v Sharkey
HELD: laws against sedition were valid.
Latham CJ (135): in considering s 51(xxxix), laws directed to protection and maintenance of
the legal and political organisation of the Commonwealth may be properly enacted under this
power
Dixon J (148): Power extends to making punishable publication which excited insurrection against
Commonwealth or is reasonably discontent with and opposition to enforcement of federal law. Power
not express but arises out of nature of the Commonwealth as political institution because of
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Document Summary
Historically, the defence power was limited to external threats. Dixon j: central purpose" of the power is the protection of the commonwealth from external enemies. Recently, however, the high court has held that the power extends widely to address internal threats. A federal magistrate made an interim control order imposing a curfew on thomas and prohibiting him from leaving australia, obtaining explosives, communicating with certain people, and using certain communication networks. Thomas challenged the validity of s 104. 4 of the criminal code (cth) Held: with kirby j dissenting, that the defence power extended to dealing with terrorism. The defence power is not limited to dealing only with external threats or the defence of the. Commonwealth itself: gummow and crennan jj: long history concerning defence of threats internal and external the law of treason is an example. Restrictions aimed at anticipating and avoiding suffering comes within federal scope.
