#7311 - The Defence Power - Federal Constitutional Law

The CB writers describe HC doctrine in this area as one that “waxes and wanes” – at the height of global war giving the government power to regulate almost any aspect of Australian life but much more limited during times of peace
- However the transition into peacetime conditions often justify some continuation of wartime measures
But behind these particular issues lay deeper problems of doctrine and judicial methods which were given their classic formulation by Dixon J in a series of judgments during WWII, an important one of which was Andrews v Howell [1941] HCA where his honour said (in upholding the National Security (Apple and Pear Acquisition) Regulations (Cth)
- “In dealing with that constitutional power, it must be remembered that, though its meaning does not change, yet unlike some other powers it application depends on facts, and those facts change. So may its actual operation as a power enabling the legislature to make a particular law”
- Justice Dixon went on to outline some such facts – the existence of hostilities, or a threat of hostilities

Stenhouse v Coleman (1944) 69 CLR 457

Facts: The Court upheld regulations conferring on the Minister a wider power to make orders controlling the sale of “essential articles” provided that his orders had a “real connection” with defence

Dixon J started by noting that whether a measures is incidental to the prosecution of war, the solution depends more on the ascertainment of the provision’s true nature and operation rather than a general test.

His honour noted the difficulty of obtaining all the facts necessary for this inquiry – and as such restricted the inquiry: “This means that for its facts the court must depend on matters of general public knowledge” (judicial notice)
He further noted the difficulty/uncertainty which surrounds the discussion of validity in this area – and also noted that while the presumption of validity does not provide a solution (rather a mere step in reasoning) it is reinforced by the respect the court plays to other organs of the government with whom the responsibility for carrying out war rests.
- When a challenged regulation adopts a certain means to secure some end the court will not substitute its own judgment for that of the executive as to the appropriateness of those means – but it is finally for a court to decide whether the legislation is a true exercise of the legislative power with respect to defence
He also noted the difficulty with the defence power being a purpose power – he said the purpose must be collected from: the instrument in question, the facts to which it applies and the circumstances which called it forth; among these circumstances include: the character of the war, its notorious incidents, and its far reaching consequences
He said – “the cost of war has taught us that, in great emergencies, it may be necessary, in exercise of the defence power, to assume control of the greater part of the human and material resources of the nation””
Another difficulty which this elastic application brings force is that regulations which could be justified in an emergency may continue unrevoked when the emergency has passed

The CB writers note 5 themes which comes out of these passages:
1. The defence power is ‘elastic’ and ‘waxes and wanes’ – its content depending on Australia’s defence needs
2. It authorizes the CTH to legislate for a specified purpose. Laws are not justified as being on the topic of defence but because they are, or reasonable may be, conductive to a defence purpose/object
3. The conditions which determine the scope of the power are factual – these include external (threat of invasion etc.) and internal (political, economic, social concerns) considerations which are likely to be of common knowledge which the court can take “judicial notice” of
4. Whether or not the scope for judicial notice is as limited as Dixon J suggested is a matter of debate, but even on an expansive view of judicial notice Stenhouse doesn’t solve everything
  1. e.g. the success of military polices is rarely certain – what is required is that the relevant measure is regarded as one that might achieve a defence objective)
  2. Further even when ‘facts’ satisfy the test the court may find it difficult to find them since they may not even be open to evidentiary proof (the government may not want to make it public)
    1. Accordingly the court is likely to accord substantial deference to legislative and executive judgment, giving it a wide latitude as ot what ppolices are conducive to defence
5. Despite this defence the ultimate question is one of constitutional law to be determined by a court. Separation of powers implies that the legislature/executive cannot pre-empt the judicial function by pre-determining a constitutional question (though their beliefs/intentions can help to answer the question)
The CB writers note that it is not the test of sufficient connection but of whether the “challenged law can be seen to be reasonably appropriate and adapted to achieving a defence purpose”

As most cases were, Andrews and Stenhouse involved the validity of regulations made under the National Security Act 1939 (Cth) (‘NSA’) – the powers of delegated legislation under this were broad and included the discretionary power given to the GG to be exercised on the basis that it was necessary/expedient to do so
Farey v Burvett [1916] HCA
- Isaacs J suggested an independent power to respond to wartime emergency as a result of s 61 (vesting executive power in the GG) that gave the royal war prerogative
  - The express incidental power (s 51(xxxix)) operated on s 61 to ensure that “in the most ample and absolute terms… the full power and duty of taking every measure of defence which the circumstances may require”
- His honour also suggested that the scope of the defence power was virtually unlimited during times of total war when the existence of Australia is threatened – it overrides all constitutional restraints like s 92 and displaces the ordinary distribution of power during CTH and State
  - This has not been met with later judicioal acceptance and later decisions have held that the laws passed under s 51(vi) are subject to the constitutional guarantees like s 51(xxxi)
  - But what Isaacs J said is almost acceptable as the power is extremely wide

Brian Galligan, Politics of the High Court

Galligan notes the increased regulation in Australia in response to Pearl Harbour and the Japanese threat – “A myriad of national security regulations controlled virtually every aspect of Australian life”.
In commenting on the otherwise fragmented system of federalized government he noted that WWII effectively suspended this, creating a unitary government. He quoted Rich J who said that a government “cannot hope to survive unless it submits itself for the time being to what it is in effect a dictatorship with the power to do anything which can contribute to its defence” (Dawson v CTH [1946] HCA)
While noting the wide powers given under the NSA whose validity was confirmed in Farey v Burvett (these powers being used to justify restricting drinking hours, controlling landlord and tenant rights) he went on to say that the powers were not without limits as the Courts disallowed attempts to regulate things like the working conditions of state public servants engaged in administrative work unrelated to the war and to regulate university admission

R v Foster (1949) 79 CLR 43

Facts: Throughout the period of post-war reconstruction the government repeatedly extended the operation of wartime control by enactments from year to year. Until April 1949, when three sets of regulation (relating to wage-fixing, petrol rationing and court enforced preferential housing for ex-service personnel) were challenged. In June 1949 the High Court gave a unanimous judgment to put an end to al l three and laid down a policy statement for future similar issues.

The Court noted that even when hostilities cease various powers can legitimately be made the subject of Commonwealth legislation as being incidental to the execution of defence in the past.

Argument: The defence power authorizes, beyond obvious war emergencies, laws directed at dealing with the consequences of war

The Constitution doesn’t confer power to deal with such consequences expressly, but some consequences do undeniably fall within its scope as being involved incidentally to the full exercise of power (repatriation/rehabilitation of soldiers, rebuilding a city etc.)
Their honours noted that post-war continues for centuries and that if it were held that the defence power could justify any legislation the Commonwealth Parliament would have a general power with respect to almost every subject
- But on the other hand the court shouldn’t take a narrow view of the problems with which the CTH government has to deal with when entrusted with the responsibility of defence
The court noted that the fact that formal conflict had ceased was not enough of itself for the CTH to retain the same power it had during war (but the court does consider that a treaty/agreement has not been reached) – but these factors bear little on the question on whether the regulations are valid
“The Court must see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States and unles it can do so it is the duty of the Court to...

#7311 - The Defence Power - Federal Constitutional Law

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