Week eleven : constitutional



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WEEK ELEVEN :CONSTITUTIONAL

This week we are finishing up the examination of the exteranl affairs power, and then move on to the defence power.


External Affairs power

Already examined the treaty aspects of the power. Turn to the non-treaty powers.


There are a number of treaty aspects we can refer to quickly.

The external affairs power can apply to persons, things and circusmtances internal to Australia, How can the power apply in this regard= it will apply in situations where matters that are directly concerned our relations with other countries, eg laws regulating the diplomatic status, or laws preventing attempts to overthrow foreign governments, also laws about fugitive offenders.

Also, the power will apply to matters that will concern the rights or duties of foreign nationals or enterprises. And you will find that there are some cases that demonstrate these propositions.

The second area of non-treaty aspects of the power concerns person, things and circusmtances geographcally external to Australia.

So all you have to so is establish geographcal externallity and the powr cann apply. This is what was established esentially by a majority of the couert in the Seas and Submerged Lands Act case and we can say that the proposition was put beyond doubt in the Polyukohivch case . In the Polyukohivh a clear majority of the court accepted that the mere fact of geographical exteranlity would be sufficient, and in that case a quater that concerned the Timor gap treaty, the court was prepared to uphold the Commonwelath law ont he basis that even if there were no treaties the subject was external to Australia, so once more geographic externaltiy was accepted and note that this principle that was establihed in Polyukohivich was again affirmed by the court in the Industrial Relations Act case.

SO at the end of all that we can say that the principle has been established beyond any doubt.

The third non-treaty aspect that we can look to is that of customery international law that the external affaris power can operate to legislate to give effect to customery international law.

Customery international law regualtes realtions between and among states int he absence of any convention. Customery interantional law consists of general and universal norms of conduct which lay down obligations in public interantional law.

Of course there can be question of when do we know whether something has attained the principle of a customery international law. To determine that we have to look at the practice of nationa states and what they haev done with there interaction with one another, but also we have to look at the legal opinion, the opinion as to whether the practice bears a normative quality, whether it has indeed achieved a satatus of itnerantional law, so you need to lookup the opinio juris . In the Tasmaina Dams Case it was established by a majority of the court that they clearly accept the propostition that the Cwth parl under the external affairs power can legislatie to give affect to tcustomery international law. This is hardley surprising because customery interational law concerns relations with other countries and this is at the heart of the external affairs power.SO this is hardly surprising and their are already indications of that in the Koowarta case in any event.

Int he Polyukhocie case, J Brennan an Toohey obviously proceed in the basis that customery international law can be legislatively implemented. but int he particualr circumstances of Polyucovich those judges held that there was no relevant princile of customery internatonal law to prosceute war criminals.

Int he Industral Relations case the majority judgement clearly contemplates that

customery international law can be implemented so in that case the court said that there was no relevant rule of customery interantional law that required states to afford a right to strike, so it was felt that that was not a principle of customery interantional law but clearly had the court been able to discern such a principle it would have seen would have actually applied it, or said that it could be implemented. The next non-treaty aspect of the power concerns recommendations of international bodies. You may recall that in Bnurgess Justices Evatt v McTiernan say that the power could even extend to the implementation of recomenndations of interatnional bodies and they obviously contemplated that these would be recomendations that fell short of anything in the nature of a convention. In the Tasmania Dams Case J. Murphy and Deane also said that the power would extend to recommedations, Gibbs CJ rejected this however and rejected recomendations if they weren’t any obligations attached whch ould seem to generally wipe out any regime of recommendations. One would think that recommendations would geneally be not obligatory.

If we accept that recomendations of international bodies can be implemented the limits on this :

-there ould be a comformity requirement because we know that when the cwth is implementing a treaty under external affairs power, there has to be conformity to the terms of the treaty, one would think that in regard to a recommendation there would also have to be conformity to the terms of the recommendations.

A second possibility or requirement might be that the court might wish to find international concern, independnetly of the recommendation.

In the Polyukohivich case, Brennan J clearly envisgaged that recomendations could be implemented, or at least he left open that possibility , in the Industrial Relations Act case , there were so ILO recomendations in question but these recommendations were clearly associated with international conventions. They set out procedures and methods for giving effect to internatonal conventions and the court here in the industrial Act cas said that the recommendations were valid commonwealth could legisalatively implement them, that was because the recomemendations were in conformity with the conventions that the recomendations were reasonably appropriate and adapted to give in effect tto the terms of the conventions. So in the Industrial Relations act case the court didn’t find that it was necessary to decide whether recomendations could be relied upon by themselves.

So that is an issue that remains forth to determineation
The last non-treaty aspect that I want to refer to is matter of internatioanl concern. If you can characterise a matter as a matter of international concern then, the cwth parl could legisalte under its exteranl affairs power un reagard to that.

This is of course interantional concern, irrespective of any conventions or any instrument.

A majority in the Tasmanian Dams case appears to proeed on the basis that the cwth parl could say legislatite , but you may recall from our discussion of intetnational conventiona and whther they were a test of nternational concern, that this ides of interantional concern is a rather eslastic notion, you an require quite a degree of evidence of intetnational concern before you could say satisfy it, on the other hand there is the liberal approach and say not much evidence would really be required to say satisfy the test of interantaional concern, so it is quite unclear on how to go here.

It is intresting int he Polyucovich case, J Brennan does offer some guidance on how an interantional concern approach could be adopted, and it is interesting to see that his approach here seems more cautious, he thught that if you were trying to operate an international concern test, you have to refer to standards wich are expected of and by the community of nations. He went on to say that unless those standards were broadly adhered to or likely to be broadly adhered to and unless they were expressed in terms which clearly stated the expectation of the international community, than there may be few occaions for the test of interantional concern to operate. He cautioned that the phrase interational concern was imprecise and is not a copnstituional test.



DEFENCE POWER
Obviously the defence power of the commonwealth is an important power but it gains its importance often in situations of war or war time emergency os situations of international tension, the express power with regard to defence is found in s.51(6) of the Consitution and that gives the Parliemnet power to make laws with respect of the naval or military defence of the Cwth or of the several states and the control of the forces to execute and maintain the laws of the commonwealth.
Naval and military defence are interpreted to take into account any development in warfare and the defence technology.
Note though that as well as s.51(6), other sources of power,other sections of the constitution that can be regarded as relevant for the question of defence. In that regard, look at s.51(32) gives power to railways with respect to the transport for naval or miltary purposes, also look at s.68 or 69 in regard to executive arrangements in defence, look at s.114 wher the states are prohibited from raising the armed forces.

Other aspects of the Cosntitution are relevant, in particular s.61 (the executive power of the commonwelath) if you link that up with the express incidiental power in s.51(39) it has been said to give the commonwealth power to protect ther nation from subversion, so there is a type of internal security power.


Other point to make on defence power is that it is not generally exclusive to the Commonwealth, and while there was some early hint that the power could be exclusive to the commonwealth, in the case of Carter v Egg Pulp marketing Board 1943 In that case the court said that even though there was some aspect of the defence power were exclusive of the commonwealth, by virtue of the s.114 eg), ther ewas nontheless an element of the power that was concurrent, apart from those exclusive aspect, the states could also legislative with respect to defence or defence matters, assuming that they didn’t move into those areas of exclusive defence matters,a nd assuming that there wasn’t any inconsistent law of the commonweatth, that would suggest that the states would have a role in supplementing a defence effort, proabbaly by economic legislation but otherwise if we look at the disposition of the army an the armed forces that is clearly under commonwealth authority.Another point that we have to make about the defence power is that, this is a matter that realtes to the characterisation of the power, this is the question of the fact that it is a purposive power so it has been said that the defence power is a purposeive power and this is important when we have to know whether this particular law is a law with respect to defence.

The case that clearly establishes the princple that power is a purposive one, is the case of Stenhouse v Coleman 1944. In this case, Sir Own Dickson referred to the fact that unlike most other powers in section 51, s 51(6) the defence power involves a notion of purpose or object. SO if you have a law that purports to be a law of defence the law has to be adressed to defence or war. So that irrespective of the inherent subject matter it is possible for a law to be a law with respect to a defence, the question you really have to ask yourself is there a defence need or purpose that will justify this law.

Theoretically the law could be about any subject matter, as long as it has a realtionship with defence and the purposive test has to be looked at by examining the law, the facts at which it applies, the circusmtnaces that called that law for.
The next aspect of the defence power as a purposive power, is the question of judicial notice, because if we expect that the power is purposive it may be that a law could have a character that mightn’t be quite clear on its face and the question here is that what expect or what is required for evidence to be adduced to be established as a defence purpose. In Stenhouse v Coleman, Dickson said that ordinarily the court would not recive evidence on this matter, Ordinarily the court would not go beyond matters of which it could take judicial notice. Basically the idea of judicial notice just means that some sort of fact or circumstance in so notorious that the court will accept without the necessity of it having to be proved. A notorious fact would be that there is a mall in Queens Street, that would be a notorious fact for a judge sitiing in Brisbane, but in any event the nature of the judicial notice test in very broad and impressionistic terms, however in the case of Stenhouse v Coleman, Sir Owen Dickson said that the courts power to take judicial notice in the cotext of the defence power might be wider than was commonly supposed, so he seems to suggest that even though he thinks that the courts were confine themselve to judicial notice that the court might be prepared to take a greater fact than you might otherwise find in the traditional doctrine.
You also find another view of judicial notice in the case of Austrlian Comminist Party v The Commonwealth 1951, an important case. In regard to the Judicial notice, have a look at the judgement of J.Fullager,p.255-256: Fulleger was able to distinguish 2 stages in the process , he thought that the first matter was to take some judicial notice of some fact such as war by reference to which the power coul operate. The second stage was to ask whether the challenged law was a measure directly to dealing with the emergency...side ends.

..the emergency , and he said that in regard to the second stage whether evidence was admissible or not had to depend on the circumstnaces, and we can suggest tath his approach is the one that has prevailed because there are soem cases, one instances where the high court has indeed admitted evidence to assit determination of whether there is a connection with the defence power.

There can be som problems with the doctrine of judicial notice, some commentators have pointed out that the problem where the commonwealth may be trying ot secretly prepare for the defence emergency or the cwth has some top secret information and needs to prepare quickly and the question is how can the courts determine the validility of the commonwealth law without the commonwealth giving the game away, in the Comminusit party case, Justice McTiernnsn said that the court could accept a formal statement from the exeutive, a formal statement from the government, but again that could give the game away if the government wanted to maintain some sort of secrecy, it is always possible for the court to hold incamera hearings? a closed session of the court , and one owuld think that if there were some really top secret information in the context of a sudden emergency, the ocurt would be prepared to do that and would perhaps be prepared to hear what the commonwealth had to say, but I suppose that is not really acute in reality because in most siutations in reagrd defence and security matters , you’ll find a gradual deterioation in the situation and the court can obviously be aware of the course of international events, just as much as anyone else.
The next point that I want to mention is that in regard to defence power,you can divde laws with respect to defence into 2 different subject matters. A primary and secondary matter or aspect.

This distinction is being drawn by J Fullager in The Communist Party case, at p.254. There, Fullager noted that the primary aspect of the defence power deals with matter that are directly connected with defence and the defence forces, so that for eg that enlisting and training of soliders, supply of weapons and defence equipment, all these things are directly connected with defence and they will be valid at the defence power at any time. SO such a law irrespective of hte law would bea law with respect to defence. On the other hand, you have the so called secondary apects of defence, sometimes called the secondary aspects of defence, sometimes called the economic aspects, which can concern matters that are indirectly connected with actual defence but which conduce to or advance a defence effort. What we are talking about here with reagrd to the secondary aspect are those laws which look at economic and social matters and it may be sometimes justified with laws with respect to defence. We will see that the secondary aspect of the power really comes into its own at time of war, because at time of war it is accepted that the defence power will extend to enable the cwth to regulate a range of ecomonic and social matters as long as you can see that there is a defence purpose and a defence need in carrying out that sort of activity. There are these 2 elements to the power- the primary aspect that will always be within the power and the secondary aspect -the extent of which will depend on the circumstances, and so that means that because the defence power is purposive it has a variable application. So that the time in which the law is passed will be relevant in testing its validity, sometimes it has been said that the power is an eleastic power that it expands and contracts, but perhaps the best approach is to say that it is variable and it expands and contract according to circumstances and in that regard we have different classes of defence situations.


Mentions them according to a scheme and then go through them:this is a classification according to the different periods in which you might find a defence need or problem. The high court will always look at the particualr circusmtnaces at the moment, each set of circusmtances may be unique.

Nonetheless, the authorities do give guidance as to how the court will really react to the defence power, and the cases tend to fall into well-defined periods.

-The first one has been described by commentators as profound peace (everyone is happy, concord and amity in the interantional community). Pretty Rare

-Period of uneasy peace, where you do have some international tensions, some problems in the international community, but this is a time that falls short of anything in the nature of war like hostilities.

-The next situation could be regarded as that of war-preparednessm, where there is an international emergency. And countries are taking steps to prepare themselves for a possible outbreak of hostility. The next type of situation is war time that is when the power with reagrd to defence is at its greatest.

-After war times there is a period of postwar transition, because the high court has accepted that the defence power just doesn’t snap back quickly to the position that it has been under when it had been under peace. There will be a transitonal time that will allow for certain measures to put the country back from a war time to a peace time.


Now going through the cases and looking at the particular situations.

If we look at the classes of profound peace, the case that we can look to is that of the Commonwealth v Australian Commoneralth Shipping Board 1926 . This case was decided in 1926 which is a period of profound peace. In this case the muncipal council of Sydney called for tenders to erect and maintain some turbo alternators at one of its power houses. A number of firms tended and the successful tenderer was the Australian

Commonweaklth Shipping Board, but as a result the unsucessful shipping tenderers prevailed on the Federal A.G. to institute a relator action to essentially challenge this power of this shipping board to engage in this sort of commercial work. The board was of ocurse established under statute and to engage the business of manufacturer and ship builder and repairer for the Cwth and it could also engage in other business incidentals there to.

The high court held that the Board was not authorised by its statute to enter into these sorts of contracts but the case was decided basically on the fact that the statute didn’t give the board that power, but the question was also raised to eben if the statute did allow the board to engage in that sort of activity, could that be justified under the defence power under s.51(6). The Joint judgement of the court rejected that idea and said that extensive as the defence power was, it did not authorise the establishement of businesses for the purpose of trade and wholly unconeccted with any purpose of naval or military defence. An arguement was raised here that it was necessary to have the board so you could keep operating so that you would have some work to do, the court here said that despite the practical difficulties facing the commonwealth, in mainitaining its dock yards the defence power did not warrent these activites in the ordianry conditions of peace. Whatever might be the position in time of war.


WE can contrast that case with a case that we could put under the second heaading of uneasy peace. This is the case of AG for Victoria v Commonwealth , the clothing factory case 1935. The 1930’s was a particular tubulant decade characterised by increasing aggression and the expansion of totalitarian powers leading to the outbreak of WW2 in 1939, this would be a situation of uneasy peace. The commonwealth clothing CO 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 government departments and other public utilities, so the clothing factory engaged in this non-defence orders. There was a sitaution where some disgrunteled private manufacturers attempted to argue that the non-defence orders taken by the clothing factory could not be justified under the defence power in s.51(6). However, it is interesting to note that in this particular sitaution the non-defence orders were a comparitively small part of the total output, and no extra machhinery was required, as well, the clothing factory put up a strong defence in which it supplied lengthy facts which demonstrated that the non-defecne orders were connected with the running of the clothing factory as a defence operation. There was evidence of the small quantity of non-defence orders and the fact that there are no additional machinery required . Also that the factory was working below capacity, and figures and information was released as to the numer of staff that were required for the economic running of the factory.THe High court held that the clothing factory acted within the defence act but also that this was justified under the defence power, under s.51(6). So the judges thought that it could be considered necessry that the Cwth could have specially trained and sufficeint staff on hand for the defence needs and that this could be justiifed under the defence power htat the board was not engaging in activites to such an extent that they were a main focus on its activites, it was accepted that the non-defence orders were subsidiary to the main purpose, so that J Rich said that there was no inversion of the main purpose, the supply to outsiders was of a minor character, and subsidairy. The court also said that the purpose of naval and military defence had been impressed upon the operation of the clothing factory. The court also noted that in the Shipping Board case the board in that case really hadn’t given the same sort of detailed factual context that the court could look at in determining what was actually happening. Some commentators have found difficulties in reconciling the shipping board case with the clothing factory case, but we can point to relevant distinctions. Firstly, it was a different time, that was important the dfence situation, the interantional situation had suffered a marked deterioration between 1926 and 1935, so that is probably a basic understanding for distinguishing bet those cases, but also the fact that in the clothing factory case, the board had adduced detailed evidence to sustain it’s arguement. And also for the shipping board case, we can also say that case was generally more concerned with statutory construction and it didn’t offer a detailed examination of the defence power question there. Nonetheless, it may be thought by some people that the commonwealth could have been some what fortunate to have had the clothing factory decided in that way. But you can justify it under the rubric of uneasy peace allowing for the commonwealth to maintain defence capaciity in that sort of situation.
Break
The operation of a defence power in time of war preparedness, time of some considerable international tension, and where countries may be taking at least some sort of prelimary measures to get prepared for some outback hostility. The case is the Australian Communist Party Case which concerned the period of significant interantional tension at the height of the cold war period after WW2, just after the Korean war . There was a fear that Communism was an interatnional movement that was designed to aschieve world revoluntion. The Australian gove wanted to take some steps to ensure that communism in Australia would not be able to operate. As a result the Menzies gove introduced the Communist Parties dissolution Act of 1950. This act started off with a series of recitials and these recitals ennumnerated the powers of the Parliment. they declared htat the communsist party was a violent and revoluntionary organisation which was designed to overthrow the established system of govt, and it’s activites were detrimental to the defence of the nation. So you find in the preamble of the act, a nummber of these recitials are trying to assert a connection bet what the act was going to do and the percieved situation as the commonwealth saw it. SO the main operation of the act was to authorise the dissolution of the commuist party and associations of communists. The act itself declared the Communist party to be unlawful and it dissolved the communist party and the party property was forefeited. Individual communists could be declared by the Governor-General likely to engage in activites prejudicial to the security and defence of the commonwealth. As could bodies that were not necessarily the communist party but could be regarded as front organisations for communists. Under this regime once another body was declared or prescribed, it was disolved and it’s property was forfeited. If an individual had been declared under the act, that individual became unable to hold office or employment under the commonwealth for in designated or industrial organisations. Designated and industrial organisation were defined in such detail that essentially if you were declared under the act, you probably couldn’t work in any sort of industrial enterprise. So, the act could entail that you were essentially be deprived of your livelihood.

The act had a number of provisions that were intended to facilitate proof that a person was a member of the communist party. Indeed, the onus of proof was really reversed, the Governor-General could reach an opinion that there was a particular state of affairs that a peson was a member of the communsit party or some other unlawful orgainsation was a foot here, the GG could reach an opinion and if so it was presumed that that state of affairs existed and was up to the person who was caught in this bind to prove otherwise.

So you can see that the act constituted a drastic interference with civil liberties, it involved the foreferiture of property and the dissollution of associations, and it also allowed for individuals to be essentially of their livelihood, and it reversed the onus of proof that in certain situations it was the opinion of the GG, that was to be taken into account and while there was some possibilty to try to have that changed it was essentailly a matter of indivdual proving otherwise.

The question was:was this a law that could be justified under the defence power in a time that we could regard as a period of war preparedness or significant international tension.

Well, the high court Held that the act was invalid , it could not be sustained under the defence power. The Chief Justice Sir John Latham dissented.He thought that this should be regarded as essentailly a matter for the government and the parliment to determine and the court should not have any role to play in this sort of situation, but no one esle in the court accepted that analysis. The judge said that they would determine whether the defence power was correctly applied and that in this situation it was not, the fundamental principle that was underlying the case was that the legislation in question puported to assign it’s connection with the defence power the legislation in question purported to assign its connection with the defence power to what the parliment said in the preamble, and also as to the opinion of the Executive.That the connection with the defence power here seemed only to be sustained by reference to what parliment said and to the opinion of the Executive. In that regard it was felt that you had a legislative and executive useapation? of the judicial role. Because the court said that it was a matter for the court to determine constituionality. Not a matter for the parliment or the executive. This is the case where the court in enuciating that relied upon the landmark US case of Marbury v Madison, but it is the court and not the legislature or the executive that has to decide the limits of constitutional power. Also Fulluger says at p.258 :the validity of a law or of a administrative act done under a law, cannot be made to depend on the opinion of the lawmaker or the person who is to do the act. And as Fullerger says Parliment should not be regarded as able to recit itself into a field which was closed, parliment just couldn’t receit itself to an area of power by its statements in the preamble and whereever else it might want to state its view or its opinion. Parliment couldn’t recit itself into constituional power. The majority of hte court indicated that there was a need for some objective criteria, by which the court could connect the law, to a defence need. Now if the act had prohibited conduct, objectively described and determined conduct, then the court could look at that and see whether there was a defence purpose involved.

In other words, had the act said that it was unlawful for indivusuals to blow up eg army installations there would be objective criteria conduct that the court could look at, but as the court noted that what you had here was a law that didn’t penalise conduct, it penalised affiliation and belief, in other words it penalised the mere fact that you were a member of the communsit party. Of course you could have been the most law abiding communist around, so the law by only focusing on affiliation and belief didn’t afford objective criteria that would be sufficiently related to the defence need.

Now, nonetheless, even if we can say that this is important that you need this objective criteria, there was some suggestion by the court that a law like this would perhaps be valid in war time, only in drastic circumstances.

Kitto J felt that the law couldn’t be justiifed at any time, but other judges did seem to lay out a possibility at least in wartime, in times that fell well short of that, you needed objective criteria with which you could test the application of the power.



Underlying the approach of the Communist Party case, was a concern that the act in question was invasive of basic civil liberty. Even though in the judgement they are not ringing endorsements of freedom of poilitical belief and association, the judgements are written in technical language, focusing on the constituional issues as they were presented at the time, but you can see that the court was obviously concerned, that this was a drastic interference with civil liberties and that there would need to be some clear justification for a law like this. The court felt that there was no clear justification for a law like that. The civil liberties implications are bubbling below the surface, if you just note a remark that Sir Own Dickson made , and perhaps Dickson was offereing broad hints to the govt to pull back from any sort of activites like this because at p.193 he said that what we had in Australia was governmetn under the constitution, and he said that the constituion was an instrument framed in accordance with many traditional conceptions, among these it oculd be fairly said that the rule of law forms an assumption, so he is suggested that in this system, it was impossible to say that a law like this could be valid because it afforded no objectie test as to the applicability of the power.
Following the High court rejection of the legislation, of course this was a time of great turmoil in politics, the Menzies governmetn put up a referendum that the commonwealth be given power to deal with Communstists and communsusim, the referedum proposal was in 2 parts the first was to give power to the cwth with respect to communsists or communism, essentally as the parl considered necessary, so there was an attempt to amend the constituion to give cwth parilemnt a legislative power with respect to communism a the parl felt necessary, the second part was essentially an attempt to approve the law declared invalid by the high court. SO the second part would make the communsit party dissolution act constitutionally valid. It seemed that when the referendum proposal was first formulated there were quite a strength of majority support for the proposall, but ultimately when put to the referendum, the proposal was defeated in 1951. It is interesting to note that the political background is quite fascinating because Evatt who was leader of the opposition was strenuously opposed to the govt legislation and indeed Evatt who had been Minister in the previous labour govt, had been a member of the High court but resigned to be a member of the Labour party, Evatt had actually represented the Communsit party in the Communist Party Act case. And he represented them sucessfully in the communist party case, then the referendum proposal went up , he went agaisnt that. The ultimate effect of this in the turmoil of the time in the subsequently the Austrlaian Labour party split, because of the issue of Communism and Communsim in the Unions or whatever, Evatt was denied his cherished ambition of ever becoming PM.

Nonetheless, we can say as Kirby speaking extra-judically has said this was Evatt’s finest hour in that Evatt ensured that a law that was something that we could reagrd that was reminisent or associated with the MacArthur era in US, Evatt ensured that that sort of tendency or activity was blocked in Australia.Indeed, later Menzies had doubts as to wisdom of what he had done because he did note that essentially the Australian public would seem to be reluctant to vote for a law that would modify in any way the principle that a person is presumed innoecnt until proven guilty.



It seems at the time that the Australian electorate did seem ultiamtely to be swayed by the proposition that the law in key respects reversed the onus of proof that an individual was indeed guilty until that individual proved their innocent. The fact that the law was so invasive of civil liberites meant that Evatt’s campaign esentially paid off and the law was rejected, the referendum proposal was rejected by the people and as a result that fascinating episode in constituional political history at least meant that we didn’t have further draconian laws that would infringe civil liberties.
The next case To look at int he context of the situation of war preparedness, is the case of Marcus Clarke Co Ltd v Commonwealth, the Capital Issues case 1952. In this case the commonwealth passed a defence preparations act of 1951 for the purpose of making regulations for defence preparations. This was a year later than the communist party case, suppose that you can say that the international situation had deteriorated further in so far as the Chinese Communists had entered into the Korean war, and that Australian soliders were in Korea by 1952. If we look at the Commonwealth Act, the purpose was to make regulations for defence preparations, the act opened up with recitals so it took the same sort of style of the Communist Party Dissolution Act, the act started with recitals that there was a state of national emergency existed which required the Govt to make defecne preparations with reagrds to economic and finacial resources. Under the Act, so called defence preparations, capitial issues regulations were made and these regualtions required the treasurers consent to raising loans and issuing shares. Marcus Clarke was a retailer and required funds for remodelling its stores and factories and had to pay its employees so it proposed to borrow moeny and to raise capital by a share issue. But the consent if the treasureer was refused, this was challenged before the court, but the High court upheld the validity of the legislation here and the regualtions as being laws connected with defence.
It is interesting to note here that the court here took judicial notice of the international emergency of the fact that there was quite a degree of inflation in the country and also the court took judicial notice of hte difficulty of the Commonwealth in embarking of the defence spending, in competition with private capital expenditure so here you can see that the court took fairly wide expansive view as to what it should do under judicial notice, the court distinuished the Communist Party case from the present one, because in the Marcus Clake it was said that there were objective tests by which the connection with the defence power could be ascertained. In particular the court said that the recitals in the present act were different to those in the Communist Party case, because they only amounted to a statement of the purposes within whcih the act was to operate rather than being an attempt by the legislature to itself say or determine that its law was within power.

Furthermore, the court noted that there were provisdion in the regualtions requireing that the Treasurer to state the grounds on which he had refused consent . Those grounds could be examined by the court to ascertain the relationship to defence preparations.

SO the court felt here that what was going on here was altogether different from what was happening in the Communist Party Case. The Capital Issues case is notable because it demonstrates that in period in marked internationsal tension the cwlth can validly enact laws that do effect signifigant economic controls.
-Now turn to WAR time in regard to the operation of a defence power, and in time of war the defence power reaches its greates extent, and can expand into all areas of economic and social life, this was clear right from the start when we look at the first important case, on the defence power in context of WWI. This was the case of Farey vBurvett 1916 21 CLR 433.

In this case there was a price fixing order under the war precautions act in 1914, and this proscribed the maximum price of bread for a given area. So it was price fixing, it was a law that dealt with economic life in Oz in the time of war. The court held that this mesure was clearly within the defence power, that the defence power extended to economic and domestic matters that involved marshalling the nations resources for the war effort. CJ Sir Sameal Griffith noted that such laws with repesoect to the basic control of food stuffs had always been common law measures and that infinitely various means for securing efficiency in war. He is prepared to take a wide view taht there can be infinetely various means for securing efficiency in war and any measure that would conduce to the sucessful prosection of the war could be justified. SO the power right from the start was given an expanisve interpretation in war time.


Cases that we would refer to in this context.

First Uniform Tax Case : recall that one of the acts in question in the scehme of acts by whcih the commonwealth gained control of income tax, one of these acts was a measure that transferred state offices, equpiment and records to the Commonwealth. Of course that act was upheld under the defence power, it was upheld by a majority of 3:2, and one would sugest that such law would probably not have been regarded in peace time or any time short of war,but in war time the court was prepared to hold that it was valid, this is in context of WW2 and a situation of total war and the court was able to ensure that the commonwealth was able to fully matshall the resources of the nation in this regard . Of course once that happened, once those personal equpiment and records were taken over by the Commonwealth, they became commonwealth personal,equipment and records and there was no way the states could get them back. So that was a cruicial element of the scheme in the question of htis case.
Adelaide Co of Jehovah Witnesses Incorp. vCommonwelath 1943 67 CLR 116. Here there was a law that was a little reminiscient of the law in the cOmmunist party case,and what the court could perhaps have done to put the Menzies Govt on its gaurd as to what it was doing, but this was actually a situation where you had national security, subversive organisation regualtions. The regulations aimed at outlawing subversive bodies prejudicial to the war effort. There were 2 regulastions that were being challenged under this scheme. One regualtions permitted the commonwealth to occupy the premiese of a declared orgainsation, if property of the organisation remained on the premises, another regualtion prohibited the publication of unlawful doctrines and they were defined to include any doctrine advocated by declared bodies. The High Court Held here that there was no sufficient relationship bet the regualtions and defence , the court said this even in war time. With regard to the first regaulation the court said that the criterion for occupying the premises was the mere presence of property.It didn’t matter whether the use of the property was lawful or unlawful, the mere presecnce of property of the organisation allowed the premises to be occupied. THe court said that that wasn’t really sufficient because it didn’t really realte tot he use of the property. As to the second regulation well the court said the criterion for illegality here was merely that the doctrines were advocated by declared body, it didn;t depend on the content of the doctrines, or whther the doctrines were indeed prejudicial to the war effort. So, it merely meant that any doctrine advocated by declared body would be prohibited and the CJ Sir John Latham pointed out,in the instance case:Jehovah Witness the ten commandments would fall within scope of unlawful doctrines, the high court will never say that the ten commandments are unlawful doctrines.

When the the CJ pointed that out, he pointed out the problem that the law was to widely passed, that the law didn;t have a sufficient relatioship to a defence,need or purpose So you have to bear in mind that there always must be a sufficient realtionship to a defence need or purpose and even in war time, commonwealth measures can be struck down. But if you look at the range of cases that were decided in regard to WW2, all sorts of economic and social regualtions were allowed.

There were a number of measuers that were upheld by the court, the court clearly upheld price controls, controls of industrial conditions, even resticitons of Christmas advertising, controls of the sale of land, shares, rents and housing, the control and disposition of motor cars. Also the fixing of drinking hours.

A whole range of economic and social laws were upheld. But the Cwth didn;t always get it its own way, some measures were struck down, but those didn;t have much to do with the defence, eg , laws with regard to the making of Fly spray weren’t justified under the defence power. Or the conditions of labour of state public servants not engaged in war work.

Also another one that wasn;t accepted was the installation of artifical lighting in factories. So the court said that that was moving away from a real defence need or purpse there.

A more important one was the commonwealths attempt to control admissions into university,but hte court eld that that wasn’t justiifed under the defence power. If you look at the whole range of laws there, many laws that affected economic and social life were upheld in WW2, also note that WW2 was a time of total war, and not every war situation would allow a ssomething like that, although you have to bear in mind that it is the particular war nned in question, in WW2 where it could be said that in Austrlia engaged in a struggle for its very existence thenthe High ocurt was prepared to allow quite extensive war time controls.


-Now look at the Post war transition period.

Remeber that in post war transititon after war the High Court expects that there has to be a time in whcih war time controls can be wound down, but hte court will give the commonwealth time to wind back war time controls, inthis period the defence power will obvuiously be wider than it would other wise be in a situation of profound peace.

The first case to look at is R v Foster ; Ex parte Rural Bank of NSW 1949 79CLR 43. In this case you had an attempt by a commonwealth to continue certain war time regualtions, and this was 3 years after the end of the war. One lot was so called womans employment regualtions another was liquid fuel regualtions, in other words Petrol rationing and certain moratorium regulations to protect the rights of service personal. Now the court here said that these meausres could no longer be justified, the court said at this point in time, 3 years after the war, these measures oculd no longer be justified, but the court did recognise that some post war regualtions could be necesary as incidental to the war time itself, but these could nolonger be justified.

The court also noted that the effects of WW2 would continue for centuries , and the mere fact that we have had a war doesn’t mean that the Cwth can legislate with respect to anything that may have in some way affected by the war, because that would give the Cwth a general law making power so the court said that is not how we should read the defence power but hte parliment could legsiatle to continue some war time controls and of course that soem matters that profoundly affected by the war could perhaps be subject to some limited cwth legislation. In particular,the high court was prepared to accept that after the war the Cwth could maintain its system of benefits for its ex-service personal, that sort of law could be justified so that you could attempt to do that and also perhaps various post war reconstructions would to some extent be justiifed. That emerges in Illawara District County Council v Wickham 1959 101 CLR 467. Here, there was legislation that attempted to give comulory employment to ex-service personal. This legislation had been extended up to 1958,so this was 13 years after the war. At this time the matter came before the high court and the high court said that by this time ,the connection bet the preference provision and the defence of the cwth was too remote ,the court was obviously prepared to accept that you could have measures to ensure ex-service personal could be integrated back into the communtiy. That was acceptable, but the advance of time had diminhed those considerations, of course the courts did accpet that the Crown could be validily required by cwth law to provide benefits or special entitlements for ex service personal , the high court wan’t saying that you couldn’t. But the law in the question here went beyond that, Sir Own Dickson noted that it was a general law which affected the civil rights of all others in reference to employment, so this just wasn’t a law that was solely for the benefit of ex service personal,this law affected the civil rights in reference to employment , also affected the right to employers. Such a law just couldn’t be continued indefintely.


The last matter to look at briefly is just a question what are the limits on thr defence power. Very briefly note that the defence ppower like other powers in s.51 is subject to the Constitution so it is subject to express and implied cosntituional limits.In Farey vBurvett Sir Isac Isaccs seemed to suggest that the defence power was soemthing that would allow the commonwealth a free reign and that it would only be subject to control if the commonwealth exercisies power with wantonness?? or caprice.So he was really suggesting that other sections of the constituion could almost be overridden by the defence power, but no one else int hat case was prepared to accept that and no on else ahs really that so the power is subject to express and implied limtis though of course it may be that the court could decide that a particualr limti may not a approapriate for a defence, so there could be a question as to whether a particlar section is designed to apply, or have an operation in a defence situation. - don’t go deeply into that at the moement.

But nonetheless, we can see that hte defence power is subject to s.92, eg, the defence power just can’t override s.92 of hte constitution.



With regard to some other matters look at the S.G. where it talks about some recent Austrlian cases, that accept that under the defence pwoer, the Cwth can pass laws with respect to discipline in the armed forces ,just look at S.G.
The end


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