Defences Power

  1. Cthcan may laws wrtCth and state naval and military defence, and the control of the forces to execute and maintain Cth laws (s 51(vi))
  2. Primary aspect :Essence of military defence(Fullagar J in Communist Party Case)
  3. e.g. raising and maintaining armed forces
  4. Secondary aspect - Less direct measures conducive to defence or dealing with consequences of war
  5. Test: law must be reasonably appropriate and adapted (i.e. proportionate) to achieving a defence related purpose(Polyukhovich)
  6. To determine if a law has a defence related purpose, look to (Stenhouse):
  7. Text of the Act
  8. facts that it applies to, and
  9. circumstances that called it forth
  10. Scope of the power ‘waxes and wanes’ - will depend on factual circumstances (Andrews)
  11. Judicial notice: Court is to consider facts that are of general public knowledge (Stenhouse)
  12. On the basis of facts, there must be a sufficiently serious national or international emergency to extend the power that far (Communist Party Case)
  13. During war: scope of defences power is extremely wide, but can be limited (Farey v Burvett)
  14. Includes matters that are incidental or conducive to war efforts(Andrews)
  15. Courts must first recognise the existence of war or national emergency before secondary aspects can be considered (Communist Party Case)
  16. Greater control of resources(Stenhouse)
  17. Sale and distribution of ‘essential articles’ – Yes (Stenhouse)
  18. Encouraging/regulating women’s employment (response to a war-created problem) (Women’s employment)
  19. Prohibiting Christmas ads re sale of goods(discourage overspending)(Ferguson)
  20. Does not include:
  21. Regulatingworking conditions forpeople involved in admin work (nothing to do with the war effort) (R v Cth Court of Conciliation & Arb)
  22. Regulating uni admission(R v Usyd)
  23. Controlling insect spray manufacture (Wertheim)
  24. Post-war: applicationdiminishes; may still deal with conditions brought about by defence power (Foster)
  25. Cstn does not have express power to deal with consequences of war,but some will fall underDefence power
  26. Includes repatriation and rehab of soldiers; rebuilding damaged city.
  27. [Foster: War ended, but the women’s employment board still exists its existence has been extended year by year since 1945]
  28. Peace: Defence power enables Cth to maintain ‘defence preparedness’ (Communist Party Case)
  29. Conduct and orgs primarily linked to ‘defence’ may also involve ancillary activities less clearly related to defence
  30. Establishing factory for defence uniforms and other govdeps & scouts - YES (Clothing Factory Case)
  31. Establishing manufacturing/engo business for general commercial purposes to maintain dockyard and works (not connected with naval or military defence purpose) - NO(AusCth Shipping Board)
  32. Matters outside fed power warranted only in ‘extreme and exceptional’ circumstances (Communist Party Case)
  33. [Communist Party Case: Act providing for the dissolution of the Community Party & confiscation of members’ property was invalid - Cth did not provide link b/w the Act and the defence power. Act also attempted to preempt judicial review, by stating that the Government gets to decide what it within power. did not concern state of war that Australia was involved in]
  34. Terrorist acts: Defence power can extend to terrorism cases; not confined to defence against external aggression (Thomas v Mowbray)
  35. [Thomas v Mowbray: Interim control order issued to prevent potential terrorist act. Legislation valid as ‘terrorist act’ fell within the purpose envisaged under s 51(vi).]