LWB235 Constitution Murray McCarthy
DEFENCE POWER
· Mary v Cth
- Issue whether Mary can have the regulations declared constitutionally invalid so as not to comply with them.
ELEMENT 1: Head of Power?
51. 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.
Other sections of the Constitution which are relevant to the defence power:
· s.51(32) – power to control railways w.r.t the transport for naval and military purposes),
· s.68 and 69 – executive arrangements in defence,
· s.114 – States are prohibited from raising there own armed forces,
· s.61 and 51(39) – executive power linked with the express incidental power gives the power to protect the nation from subversion – internal security power.
· This power gains its importance in situations of war or war-time emergency, or in times of international tension.
· Words “naval and military defence” take into account any development in warfare and defence technology (e.g. space warfare…). The words are not limitations BUT extention.
· The power is not exclusive to the Cth. Carter v. Egg and Egg Pulp Marketing Board cf Joseph v Colonial Treasurer except s.114, there was nonetheless an element of the power that was concurrent (the States could also legislative w.r.t. defence matters).
ISSUE: Can X have the regulations declared constitutionally invalid so as not to comply with them????
ELEMENT 2: Is there a purpose which will justify the law?
· The power is “purposive” – ie it does NOT authorise the regulation of some specific activity, like most other powers, but ANY activity if sufficiently connected with the purpose of defence
Stenhouse v. Coleman (1944)
- Dixon referred to the fact that unlike most other powers in s.51, s.51(6) involves a notion of purpose of object (so if there is a law that purports to be w.r.t defence, the law has to be addressed to defence or war).
- Irrespective of the apparent subject matter, it’s possible for a law to be a law w.r.t defence, the question is, is there a defence need or purpose that will justify this law?
ELEMENT 3: What type of judicial notice is required?
· The Ct’s power to take judicial notice in the context of the defence power, might be wider that was commonly posed. (ie what extent is it required for evidence to be adduced to establish a defence purpose?)
In Australian Communist Party v. Cth Fullagher set down a process to followed:
1.) take judicial notice of some basic fact such as war by reference to which the power could operate.
2.) ask whether the challenged law was a measure directed to dealing with the emergency and he said whether evidence was admissible or not had to depend on the circumstances.
- McTiernan J said that the Ct could accept a formal statement from the Executive. It is always possible for the Cts to hold a closed session.
Stenhouse v. Coleman
– Dixon said that ordinarily the Ct will not go beyond matters of which it could take judicial notice, however when some fact or circumstance is so notorious that the Ct will assess it w/o it having to be proved.
ELEMENT 3: Is the law referring to the primary or secondary aspect of the power?
You can divide laws w.r.t defence into two different subject matters.
1. A primary subject matter or aspect and a
2. Secondary subject matter or aspect (drawn by Fullagher J. in Communist Party Case)
Primary aspect
· Power deals with matters that are directly connected with defence and the defence forces.
- enlisting and training of soldiers,
- training and equipment of men and women in navy, army, airforce
- the provisions of ships and munitions
- manufacture of weapons
- erection of fortifications
· Also extends to incidental matters such as the prevention of activities which might obstruct defence preps. However generally in peace time the primary aspect doesn’t extend to the facets of national life.
Secondary aspect
· Concerns matters which are indirectly connected with actual defence, but which conduce to or advance a defence effort.
ð Includes laws based on economic and social matters and they may sometimes by justified as laws w.r.t defence.
- Eg Control price goods – Farey
- Housing – Blair
- Employment - Illawara
- Preserve Food Stuffs - Stenhouse
- Ration Bread, milk, wheat meat etc
-
· This aspect is accepted in times of war where the defence power extends. (The extent of this aspect will depend on the circumstances).
ELEMENT 4: To what extent can the defence power apply?
· Because the defence power is purposive, it has a variable application. Therefore the time in which a law is passed will be relevant in testing its validity. There are different classes of defence situations.
Determine the conditions and classify the time frame within one of the following
v Profound peace – everyone is happy, amity in the international community (rare)
v Uneasy peace – some international tensions but this is a time that falls short of anything in the nature of war-like hostilities.
v War preparedness – there is an international emergency and countries are taking steps to prepare themselves for a possible outbreak of hostility.
v War-time – when the power of defence is at its greatest.
v Post-war transition – HC has accepted that the defence power does not snap back after war, there will be a transitional time to put the Country back from a war-time footing to a peace-time footing.
Profound Peace
Cth v. Australian Cth Shipping Board (1926)
- Period of profound peace b/f the rise of Nazism in Germany and b/f Japanese Militarist expansion etc.
- Sydney Council called for tenders to erect and maintain some turbo alternators at one of its powerhouses. A no. of firms tendered and the successful tender was the Aust. Cth Shipping Board.
- The Board was established under Statute and was to engage in the business of manufacture, shipbuilder and repairer for the Cth and it could also engage in other business incidental thereto.
- The unsuccessful tenders challenged the power of this Shipping Board to engage in this commercial work.
HELD:
- HC held that the Board was not authorised by its statute to enter into these sorts of contracts.
- As extensive as the defence power was, it did not authorise the establishment of businesses for the purpose of trade and wholly unconnected with any purpose of naval or military defence.
- An argument was raised that it was necessary for this Board to have these orders so that it could keep operating. Ct said that despite the practical difficulties facing the Cth in maintaining its stockyards, the defence power did not warrant these activities in the ordinary conditions of peace, whatever might be the position in times of war.
Uneasy Peace
A-G for Vic v. Cth (the Clothing Factory Case) (1935)
- 1930s - increasing aggression and the expansion of totalitarian powers leading to the outbreak of WW2.
- The Cth Clothing Factory was authorised under the Defence Act to engage in the manufacture of naval and military equipment and uniforms. The Factory also made clothing for State Govt depts and other public utilities (non-defence orders).
- Some disgruntled private manufacturers attempted to argue that the non-defence orders taken by the factory could not be justified by the Defence power in s.51(6).
- However, in this situation, the non-defence orders were a comparatively small part of the total output and no extra machinery was required.
- The clothing factory put up a strong defence in which it supplied lengthy facts which demonstrated that the non-defence orders were connected with the running of the factory as a defence operation
HELD:
- HC held that the clothing factory acted within Defence Act - justified under the defence power in s.51(6).
- The judges thought that it could be considered necessary that the Cth could have specially trained and efficient staff on hand for its defence needs and that this could be justified under the Defence power – the Board was not engaging in activities to such an extent that they were the main focus of their activities.
- It was accepted that the non-defence orders were subsidiary to the main purpose. “the sale of colthing to civilian customers could be seen as incidents in the maintenance for war purposes of an essential part of the munitiions branch of the defence arm.
War Preparedness
· Time when there is considerable international tension and when countries are taking some preliminary measures to prepare for outbreak of hostilities.
Australian Communist Party Case (1951)
- This concerned a period of significant international tension at the height of the Cold War period after WW2
- Menzies Govt therefore introduced the Communist Party Dissolution Act 1950.
- The Premble declared the CP was violent and revolutionary and aimed to overthrow the Govt and that its purpose was detrimental to Australia’s defence.
- The Act itself declared the CP to be unlawful and it dissolved the party and the party’s property was forfeited.
- If an individual was named in the Act they were unable to hold office of employment in the Cth as an industrial enterprise.
- CP wanted to know if if the could rebutt the allegations made in the Preamble
ISSUE:
- Could this law and the preamble be justified under the defence power at a time of significant international tension?
HELD:
Dixon, McTiernan, Williams, Fullagar, Kitto
1. The Act was NOT shown to be a law for the defence of the Cth in the peace time context of the Act
2. The validity of the Act did not depend on the allegation in the preamble
3. Neither the legislature’s preamble or the GG opinion barred the HC from inquiring into the constitutionality of the legislature’s and GG actions
- The legislation in question purported to assign its connection with the defence power to what the Parl said in the preamble and also as to the opinion of the Executive. There was a Legislative and Executive usurpation of the judicial role.
- The Ct and NOT the Legislature or the Executive, that has to decide the limits of Constitutional power.
- Fullagher said that the validity of a law does not depend on the opinion of the law-maker or the person who is to do the Act.
- The majority of the Ct held that there must be objective criteria by which the Ct could connect the law to a defence need.
- If the Act had prohibited conduct then the Ct could look at that and see whether there was a defence purpose or need involved. But the Ct held that here, there was a law that didn’t penalise conduct, it penalised affiliation and belief (the mere fact that a person was a member of the Communist Party).
ð Not penalising conduct, they were penalising a persons belief
ð Eg Act says “All people with the first name of Murray will be killed.” – no objective criteria. Should be “All people with a first name if Murray will be killed if they attempt to assault Michelle.”
- There was a suggestion by the Ct that a law like this could be valid during war-time.
- Kitto J. felt the law could not be justified at any time. In times short of war-time, the Ct felt that objective criteria were needed, with which you could test the application of the power.
Marcus Clark & Co. Ltd v. Cth (The Capital Issues Case) (1952)
- The Cth passed a Defence Preparations Act 1951 for the purpose of making regulations for defence preparation (the international situation had deteriorated further, the Chinese communists had entered into the Korean War and Australian soldiers were in Korea).
- The Act opened up with recitals (same style as Communist Party Act) that said there was a state of national emergency which required the Govt to make defence preparations w.r.t economic and financial resources.
- Under the Act, defence preparations capital issues regulations were made and these regs required the Treasurer’s consent to raising loans and issuing shares.
- Marcus Clark was a retailer and required funds for remodeling its stores and factories and had to pay its employees, so it proposed to borrow money and to raise capital by a share issue. But, the consent of the Treasurer was refused. It was challenged before the HC.
HELD:
- The HC upheld the validity of the legislation and the regulations as being laws connected with defence.
- The Ct took judicial notice of the international emergency and the fact that there was a degree of inflation in the country and also the difficulty of the Cth in embarking on defence spending in competition with private capital expenditure.