LLB203 Study Guide - Final Guide: Fifa Disciplinary Code, Adrian Knox, Judicial Notice
Defence Power
Parliament [has] power, subject to this Constitution, 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
Constitution s 51(vi)
INTRODUCTION
Powers and duties of the Commonwealth in relation to defence are derived
from numerous places Constitution ss 51(vi), 52(i), 68, 69, 70, 114,
119
51(vi), 52(i) (exclusive powers of Parliament),
68 (command of naval and military forces vested in GG),
69 (Cth transferred defence),
70 (power vests with GG or GG in council),
114 (states not allowed to raise defence forces),
119 (protection of states against invasion and domestic violence)
The words “naval and military” in are now also regarded as including an air force, even
though air forces did not exist in 1901
Constitution s 51(vi)
GENERAL PRINCIPLES
Power has a central core related to the armed forces, exerciseable both in times of war
and in times of peace Power
Defence power also has a secondary aspect that is purposive in nature (it is an
“elastic power”: waxed and wanes with the needs of the country)
Australian Communist Party v Commonwealth (the Communist Party case) per Kitto
J at 273
Defence power is more limited in times of peace and as the danger of hostility rises, it
becomes wider, reaching maximum when war is raging
The proportionality test has been used to determined validity of legislation of defence
power:
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could Parliament have reasonably considered that the law was appropriate and
adapted to serve a legitimate “defence” purpose
scope of defence power is narrowest at times of peace and widest at times of war
Polyukovich
Stenhouse v Coleman 417 per Dixon J
Regulations for the licensing of bakers and distributors of bread was approved. REASON:
power to control economic life was incidental or conducive to the prosecution of a war that is
being fought
Marcus Clark & Co Ltd v Commonwealth (the Capital Issues case) 226 per
McTiernan J
Regulations providing that companies could not issue further share capital without approval
from the treasurer was upheld.
REASONS: Recitals to the Act stated that defence preparations could not be carried out without the
diversion of certain of the resources of Australia (money, materials and facilities) for use in defence
preparations and that there existed a state of international emergency in which it is essential that
preparations for defence should be immediately made to an extent and with a degree of urgency not
hitherto necessary except at a time of war
Judges therefore need to have a wide knowledge of matters – politics, economics,
international defence strategy and international affairs – to determine whether a law is
within the defence power
Traditionally judges have relied on their own general knowledge
The doctrine of judicial notice: whereby the courts require no evidence of matters
which are so notorious that evidence of their existence is deemed unnecessary, has
been very broadly applied.
However, in some cases, the High Court has admitted evidence to show the requisite
connected between the needs of defence and the provisions of a particular Act.
Jenkins v Commonwealth at 402
Sloan v Pollard at 459-60, 474
SCOPE OF DEFENCE POWER
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Document Summary
Parliament [has] power, subject to this constitution, 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. Powers and duties of the commonwealth in relation to defence are derived from numerous places constitution ss 51(vi), 52(i), 68, 69, 70, 114, 68 (command of naval and military forces vested in gg), 70 (power vests with gg or gg in council), 114 (states not allowed to raise defence forces), 119 (protection of states against invasion and domestic violence) The words naval and military in are now also regarded as including an air force, even though air forces did not exist in 1901. Power has a central core related to the armed forces, exerciseable both in times of war and in times of peace power.
