7. DOES THE LAW FALL WITHIN THE DEFENCE POWER? Section 51(vi) provides a Cth power with respect to: “The naval and military defence of the Cth. and of the several States, and the control of forces to execute and maintain the laws of the Cth.” Note: This is a purposive power. A. THE DEFENCE POWER DISTINGUISHED FROM OTHER POWERS The principles from Andrews v Howell (1941) and Stenhouse v Coleman (1944): – Elusiveness of other facts and the court’s role: the executive and legislature may have confidential facts that cannot be disclosed to courts but will be essential in determining proportionality of legislation. – Elasticity: the power waxes and wanes. o “The existence and character of hostilities or a threat of hostilities, against the Cth. are facts which will determine the extent of the operation of the power” (Andrews v Howell).
The most concise and updated Federal Constitutional Law Study Notes for Australian Law Students.
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Approximately 24138 words over 55 pages. Prepared in 2022.