The Defence Power

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This topic is within Federal Constitutional Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014) pp.845-57;863-84.

Introduction

Section 51 (vi) states that the CommonwealthParliament may legislate with respect to “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.” This is known as the defence power.

  • The defence power is often described as an 'elastic power', referring to the idea that its scope may fluctuate according to the current political situation (ie, in times of war, the power may be used to apply to a lot more areas than in times of peace, since more issues become relevant to the defence of the country).
  • Thus, the scope of the law varies according to factual conditions - is Australia in war, is it facing an invasion etc): Andres v Howell.

Purpose power

The defence power is a purpose power, meaning that it allows the Parliament to legislate in order to achieve a certain purpose. Accordingly, a law purporting to be made under this head of power will be deemed valid only if it actually made for achieving the defence of Australia, as opposed to any law dealing with the defence of Australia (as would be required for a subject-matter power).

In addition, purpose powers employ a test of proportionality - can the law be seen to be reasonably appropriate and adapted to a defence purpose? This was discussed in Polyukhovich v Commonwealth:

  • Facts: the appellant was persecuted for war crimes allegedly committed in another country during WWII as per a new law passed by the Commonwealth. The validity of the law was challenged.
  • Held: the court found the power to be a purpose power as opposed to a subject matter power, and thus requiring a proportionality test. In this instance, the court discounted the argument that he law would pass a strong message against war crimes and thus safeguard further atrocities in Australia. Instead, the injustice caused by a retrospective law is much greater. Accordingly, the law is disproportionate and invalid.

It should be noted that in the Women’s Employment Case (below), Starke J (in dissent) opined that the power is a subject matter power and would not be one which would entitle the Commonwealth to legislate with respect to anything so long as it is made for the purpose of defence. Starke J contended that the majority formulation is inconsistent with the federal system.

Elastic Power

The defence power 'waxes and wanes' as Australia defence needs fluctuate. It has been described as a 'fixed cocnept with a changing environment'. The decisive factor is ultimately what is the nature & extent of the threat faced by Australia: Stenhouse v Coleman (Dixon J).

  • This is a factual question.
  • The existence and character of hostilities (or a threat of hostilities) against Australia are facts which will determine the extent of the operation of the power.
  • Nature and dimensions of the conflict, actual and apprehended dangers, exigencies and course of war, and matters that are incident thereto will all be relevant: Andrews v Howell.

This was discussed in the Women’s Employment Case :

  • Facts: the issue was whether laws related to the employment of women had sufficient connection to the defence power. In determining that, the court was to consider whether the relevant legislation dealt with a matter which arose because of the war, and with which it may reasonably be considered to be necessary to deal with in order to finish the war.
  • Held: in times of war, the defence power can theoretically extend to apply to almost area provided there is sufficient connection to defence. This is a very low threshold.
    • In this instance, the setting of conditions and wages were relevant because they were a part of a concentrated effort to allow manufacturing to continue during wartime.
    • A qualification was suggested by Williams J: industries which are too remote would be outside the scope of the power. In addition, powers which are explicitly made for the duration of the war preferably enforced (yet the absence of such a formulation will not invalidate the law).

This was supported by Dixon's judgment in Stenhouse v Coleman, and also in Farey v Burvett:

  • Facts:
  • Held: in times of war scope of defence power is virtually unlimited; that is ‘Navy & Army’ are not limiting words.
    • In this instance, the scope extended to price controls and censorship in the National Security Act.
    • The reasoning is that we must allow the government to take charge as they are the only ones with the information ad tools to protect the country.

Post-war

The idea of the defence power being elastic suggests that when war or another threat have passed, the scope of the power generally diminishes. However, the reality is that the effects and problems caused by a war remain ongoing even after the end of hostilities. Often, matters will remain within scope of the defence power since they are incidental to achieving the purpose of the power in the past. This rule has been set in R v Foster.

  • The rule is that the defence power does not authorise post-war laws but it does incidentally authorise those laws which are directed at dealing with the consequences of war.
    • Eg, reparation and rehabilitation of soldiers.
  • Furthermore, matters which were approved under the defence power need not cease with the actual fighting as the laws may be required to deal with life after the war.
  • However, there are limits - the government can no longer legislate to all areas of life under the defence pretense; what is authorised is a matter of factual judgement.
    • There is a need to draw a line: “it does not place within Federal legislative authority every social, economic or other condition that might not have arisen except for war…many matters which result from a plurality of causes of which war is one. To point to war as a contributory cause can hardly be enough.”

Peacetime

This section deals not with laws made in the aftermath of a war, but in general peacetime. In general peacetime, the scope of the defence power is narrower and requires a significant connection between the purported law and the defence of Australia. This has been previously described to be limited to matters of 'direct defence preparation', ie, enlistment, training, army equipment and munitions, manufacture of weapons, erection of fortifications, etc: Communist Party Case. Eventually, this line of thought has been expanded in Thomas v Mowbray (see below).

A good early illustration of the use of the defence power in peacetime is Australian Commonwealth Shipping Board:

  • Facts: the Commonwealth passed legislation to establish a commercial enterprise building docks. This was done ostensibly under the defence power with the Commonwealth arguing that the docks were primarily required for defence, although if they were not also used commercially in peacetime it would not be viable to build them.
  • Held: the docks were in fact primarily built for a commercial purpose, and the fact that they would potentially be used at a time of war was not enough to engage the power.

The above case is to be distinguished from the Clothing Factory Case, where a different result was reached:

  • Facts: the Commonwealth established a clothing factory which produced the uniforms for various government bodies, including the defence forces.
  • Held: there is a valid need to keep a work force ready to produce the uniforms of the defence, and to keep the profitably of the military arm.

Terrorism

The defence power is no limited to external threats; the defence of Australia against internal threats such as terrorism is also within the scope of the defence power: Thomas v Mowbray.

This question was first considered in the Communist Party Case, which marked the traditional (and now overturned) view:

  • The defence power is elastic. At times of peace, it relates mainly to external threats and primary aspects of defence.
  • Only in times of crisis will the law be expanded to apply to secondary aspects, including protection against domestic threats.

This view was then altered in Thomas v Mowbray:

Judicial Notice

Judicial notice refers to matters which are common/public knowledge and therefore the court may 'assume' as established fact. In determining the factual situation/condition of Australia for the purposes of examining the scope of the defence power at a current time, the court only considers facts which are matters of judicial notice (ie, only facts which are a matter of public knowledge are taken into consideration): Stenhouse v Coleman.

  • This means that the court doesn't really listen to arguments by the parties trying to describe the factual situation of Australia at the time - its simply what everyone seems to know.

Substantial deference

Where judicial notice is insufficient in order to establish the factual conditions, the court will give 'substantial deference' (ie, give a lot of weight) to the arguments of the government and parliament concerning matters of defence: Stenhouse v Coleman.

  • This is because the court is ill-equipped to try find out these facts, especially because matters are often necessarily confidential etc.

Nevertheless, it is still up to the court to determine whether the law was validly passed for the purposes of defence (the authorisation requirement), since Parliament cannot evaluate itself: Stenhouse v Coleman.


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End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

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