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Nationhood Power In Australia Essay

2660 words - 11 pages

Our Constitution was inaugurated on principles instituted in our legal history. Among these none could be more fundamental than the rule of law, preserved by the distinct separation of powers. In situations when "the peace and tranquility" of the nation is "disrupted by natural or economic disasters or threatened by internal dissension or external aggression", the Executive is the arm of government uniquely equipped to respond to such calamity. While the powers of the executive in these times should be amplified in order to facilitate an appropriate response - so that order of things do not arrive at such a critical stage such that a nation's constitutional and legal fabric shatter - the extent of, and limitations on, this power cannot be dismissed as legal niceties, and needs to be examined thoroughly to be better understood. Sir Owen Dixon warned us, "History… shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding executive power." The nature, scope, and exercise of the Commonwealth executive power have been exhaustively discussed as a contentious subject. This essay will focus on the development of the 'Nationhood' power and define its scope, culminating in the judgment in Pape v Commission of Taxation.[1: Hoong Phun Lee, Emergency Powers (Lawbook Company, 1984) 1. ][2: Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 187 ("Communist Party Case").][3: E.g. George Winterton, Parliament, the Executive and the Governor General: a Constitutional Analysis (Melbourne University Press, 1983); George Winterton, 'The Limits and Use of Executive Power by a Government' (2003) 31 Federal Law Review 421; Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (Lawbook Co., 3rd ed, 2010) 143-176; Tony Blackshield and George Williams, Australian Constitutional Law: Commentary and Materials (Federation Press, 5th ed, 2010) 480-521.][4: (2009) 238 CLR 1.]The older line of authority that stems out of an implied federal 'Nationhood' power comprises decisions in which the High Court has confirmed that the Commonwealth has power to protect the court against internal insurgence in addition to its express defence powers. In R v Sharkey it was held that the Commonwealth possesses the power to create an offence, inciting insurrection arose "out of the very nature and existence of the Commonwealth as a political institution". [5: (1949) 79 CLR 121.][6: Ibid, 148.]The judgment in Attorney-General (Vic) (Ex Rel Dale) v Commonwealth would be one of the earliest commentary of the Nationhood power, one in which we are allowed a glimpse of the otherwise undefined source of Executive power under s. 61. Dixon and Starke JJ referred to the 'Nationhood' power as a determinant of the extent of Commonwealth appropriation and spending power by articulating the powers under ss. 81, 83, 61, and 51(xxxix). The ramification of their judgments was that the...

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