Law Notes Federal Constitutional Law Notes
Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:
Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...
The following is a more accessible plain text extract of the PDF sample above, taken from our Federal Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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.
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The CB writers note 5 themes which comes out of these passages:
The defence power is ‘elastic’ and ‘waxes and wanes’ – its content depending on Australia’s defence needs
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
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
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
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)
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)
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
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...
Buy the full version of these notes or essay plans and more in our Federal Constitutional Law Notes.
Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:
Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...
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