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? (Polyukhovich v Commonwealth, Thomas v Mowbray).

It should be noted that in the Women’s Employment Case, 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.

Judicial Notice

This was given affirmation in Andrews v Howell:



End

This is the end of this topic. Click here to go back to the main subject page for Federal Constitutional Law.

References

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

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