The defence power

The idea

Section 51(vi) gives the Commonwealth power to make laws for the naval and military defence of the Commonwealth and of the several States. It is a purposive power. You do not ask what the law is about. You ask whether the law is appropriate to the purpose of defence.

The power has two aspects. The primary aspect authorises laws whose direct and immediate object is naval and military defence, such as the enlistment, training and equipment of forces and the manufacture of weapons, and it binds at all times in peace and in war. The secondary aspect reaches further, to matters that are not military in themselves but that assist the defence effort.

The reach of the secondary aspect expands and contracts with the threat. In war it can support the price of goods, rationing, rents and conditions of employment, and at its fullest the detention of a person believed to be disaffected. In peace it contracts, and the most extreme measures fall away. This movement is the heart of the topic.

Whether the security situation supports a given law is a question for the Court. Parliament cannot settle it by reciting that a danger exists. The Court finds the constitutional facts by judicial notice.

Where it comes from

The controlling authority is the Communist Party Case. The Commonwealth passed the Communist Party Dissolution Act. It banned the party, disqualified its members and prefaced the ban with nine recitals asserting that the party was a danger. The Court held the Act invalid. Fullagar J explained that the power is given by reference to the purpose or object of the law and not by reference to some concrete subject matter. A recital cannot supply the connection. This is because Parliament cannot recite itself into a field from which superior law excludes it. In 1950 the notorious circumstances could not be noticed as grave enough to justify dissolving a political party.

Thomas v Mowbray carried the power into internal threats. The Court upheld an interim control order imposed on a man once trained by Al Qaeda. Gummow and Crennan JJ held that the power is not confined to external threats or to defence of the body politic, so it reaches internal threats and the protection of citizens and inhabitants. Preventing a terrorist act that intimidates the public or coerces government falls within a central conception of the defence power, so this protection is available at all times without proof of any special security situation.

How it is examined

Defence is a small bank. It has been examined twice, once in finals at six marks in the 2023 problem and once at mid semester in the Special 2 paper. It serves the optional mid semester exam and remains a finals possibility through its overlap with the separation of judicial power.

The papers plant a line of danger and invite you to take it at face value. A ministerial statement that classified research shows a grave threat, or a claim that the nation is at war with some social evil, is bait. The marks sit in refusing it and proving the threat by judicial notice instead.

The recital point and the peacetime contraction are where the easy marks sit. Dixon J held that what the power enables depends on what the exigencies of the time call for, so at the date of assent in 1950 the matter fell to be judged substantially as if a state of peace existed. Thomas v Mowbray then carries the power to internal threats, and a purely domestic actor puts that split in play. Budget your words on characterising the purpose and fixing the aspect, then on judicial notice.

How to argue it

Work through the law in a fixed order. In a problem the Commonwealth defends the law and the party it burdens attacks it.

1. Characterise the purpose. The Commonwealth will argue the law is appropriate to the purpose of defence. The challenger will argue it resembles a criminal, economic or political subject matter and lies outside the power. Decide it on purpose rather than subject matter.
2. Identify the aspect. A law whose direct and immediate object is naval and military defence sits in the primary aspect and binds at all times. A law remote from military defence can be supported only in the secondary aspect.
3. For the secondary aspect run the two stages. First ask whether the security situation brings the extended aspect into play. Then ask whether the law has the character of a step that assists in dealing with the emergency.
4. Prove the facts by judicial notice. The Commonwealth cannot rest on a recital or a ministerial statement. Ask what a court can properly notice, such as the Korean War in 1950, and whether that supports a measure this severe.
5. Check the peacetime contraction. As the threat recedes the secondary aspect narrows and the most extreme measures fall away, so participation in an overseas war does not by itself expand the power.
6. State the endpoint. Where the scheme shades into detention, house arrest or control orders, flag the separation of judicial power question and take it up under federal judicial power rather than resolving it in the defence answer.

On a purely domestic actor the split in Thomas v Mowbray decides the answer. The Commonwealth will argue, with Gummow and Crennan JJ, that no external element is required. The challenger will argue, with Hayne J, that a wholly internal threat with no international objective falls outside the power. The judges split and the point is open, so argue both views and decide on the facts.

Practice problems

One hundred exam-style problems across twelve topics. Pick a topic, read the problem, write your own answer in IRAC, then reveal the Pass and H1 exemplars and the examiner's comments. Step through in order or jump to a random one. Nothing you type is saved or sent anywhere.

The trap

The most expensive mistake is treating the recital as evidence. When a problem plants a line that classified research shows a grave threat, or that the nation is at war with slavery, it is inviting you to accept the danger on Parliament's say so. Parliament cannot recite itself into the defence power. Prove the threat by judicial notice or not at all. The second mistake is forgetting that the secondary aspect contracts in peace, so an overseas deployment does not on its own carry the nation into the expanded power.

Key authorities

• s 51(vi) — the power to make laws for the naval and military defence of the Commonwealth and of the several States, read by reference to purpose.
• Communist Party Case (Fullagar J) — the power is purposive, so the question is whether the law is appropriate to the purpose of defence.★
• Communist Party Case (Fullagar J) — a recital of danger cannot supply the connection, and the Court finds the constitutional facts by judicial notice.★
• Communist Party Case (Dixon J) — the reach depends on the exigencies of the time, so in 1950 the matter fell to be judged substantially as if a state of peace existed.★
• Thomas v Mowbray (Gummow and Crennan JJ) — the power reaches internal threats and terrorism, protecting citizens at all times as a central conception.★
• Thomas v Mowbray (Hayne J) — the power extends to an individual who applies force for an international political objective, though the internal external divide survives.★
• Andrews v Howell — a court may take judicial notice of the notorious circumstances of the time.