Nationhood power summary PDF

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Brief summary of the nationhood power...

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NATIONHOOD POWER SUMMARY The power of the Commonwealth (specifically the executive) to make laws based on the Commonwealth as a nation. Must be for the protection or benefit of the nation. Purposive power – ‘reasonably appropriate and adapted’

Scope AAP Case (Victoria v Commonwealth 1975) Mason J’s judgment  The Commonwealth had ‘a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’.  ‘Nationhood power’ comes from ss 51(xxxix) and 61 of the Constitution and the ‘existence and character of the Commonwealth as a national government’.  Limit: Federalism. Mason J derived limits on the nationhood power and executive power more broadly from the federal character of the Australian polity established by the Constitution. PROTECTION OF THE NATION Communist Party Case (1951)  In defending the legislation outlawing the communist party, Commonwealth tried to rely on the nationhood power (as well as defence power).  Legislation was too specific in that it was about certain people and bodies were named – it was not directed at the nation and therefore not under the nationhood power.

ADVANCEMENT/BENEFIT OF THE NATION Davis v Commonwealth (1988)  Celebration of Australian nationalism, symbols of nationhood such as national flag and anthem fall within the nationhood power.

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Although regulations were struck down on the basis that they impinged freedom of expression.

Pape v Commissioner of Taxation (2009)  Pape challenged the federal government stimulus package during GFC, arguing that it was not under a head of power (not the taxation power as it was giving money)  Majority held that the legislation was under the nationhood power as it was ‘adequately national’ – it was peculiarly adapted to the government of the country, and for public benefit.  Nationhood power can be used to ‘defend itself from internal subversion or domestic violence (AAP case) and respond to emergencies such as war, natural disasters or financial crises (Pape) However – limited by considerations of federalism  Nationhood power only concerns matters that are truly ‘national’ in nature – must be something only the Commonwealth government could achieve (AAP case, Pape)

CHARACTERISATION – PROPORTIONALITY Legislation must be proportionate, ‘reasonably appropriate and adapted’ (Davis v Commonwealth 1988). In Davis, legislation was excessively intrusive – impinged freedom of speech...