How Should the Defence Power, S51, Be Interpreted in an Age of Terrorism

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How should the defence power, Constitution s 51(vi), be interpreted in an age of terrorism? The practical application of the defence power in an age of terrorism is difficult to determine, as it is reliant upon a set of circumstances that can have a plethora of different interpretations from a range of variant perspectives. Unlike some other powers, the defence power is purposive and elastic; it waxes and wanes, and its application “depends upon the facts, and as those facts change so may its actual operation as a power”[1]. Recent developments, such as the Thomas case, have led some theorists to comment that “the elastic of the defence power has become stretched all out of proportion”[2]. In its present interpretation, the defence power is no longer simply fixed on an external aggressor. Instead, the enemy is disguised domestically. It no longer depends upon judicial notice, or requires an expression of proportionality “in a context where the fact of war or piece is important”[3]. However, the reasoning behind this breed of jurisprudence is hard to decipher. The balance between liberty and safety seems to be somewhat askew. In this essay, I will attempt to argue that the defence power is, at least in its present reincarnation, excessively aggressive and at odds with other constitutional guarantors to freedom of speech. A law in relation to defence requires a test of proportionality, so that law-making channels are seen as being able to be “reasonably appropriate and adapted to the purpose of defence”[4]. Thus, in attempting to determine the correct application of the defence power in the current political climate, one must contemplate all facts and circumstances surrounding the threat of terrorism before coming to a conclusion. One must also look back through the history of the defence power to decipher the correct proportional means by which it is applied. The commonwealth cannot “simply recite itself into power"[5]. From the Jehovah’s Witnesses case and Gratwick v Johnson, we can also garner that even though wartime defence power allows for regulation of the economy and laws of day-to-day life that would be unconstitutional through times of peace, even then it remains subject to constitutional limits[6]. Since the defence power is purposive, its implementation stems from the political and social circumstances that may threaten Australia. It is therefore imperative that the terrorist threat be thoroughly assessed before a proportional defence policy is implemented. However, when the Attorney-General launched the legislative package for anti-terrorism, he provided no validated explanations for it. He stated ‘Since September 11, there’s been a profound shift in the international security environment. This has meant that Australia’s profile as a terrorist target has risen and our interests abroad face a higher level of terrorist threat.”[7]Yet the executive acknowledged that there was no known threat to Australia[8]. Moreover, as Micheal head has pointed out “no major terrorist acts have been recorded in this country since the 1978 bomb blast outside a meeting of British Commonwealth leaders at Sydney’s Hilton Hotel and to this day, responsibility for the Hilton bombing remains an answered question”[9]. In pursuing this legislation, the government discarded earlier recommendations, adhered to by consecutive administrations following the Hilton Hotel bomb blast, that it was pointless, imprudent and “constitutionally questionable to introduce generic anti-terrorism laws”[10]. Since all types of ‘violent wrongdoing’ that are termed terrorism are liable to be punished by State or Commonwealth law it does seems somewhat superfluous that it be given its own legislative definition[11]. As Michael Head has pointed out: “The new legislation will punish violent or other criminal activity far more severely if offenders are motivated by political, religious or ideological considerations than if they are acting out of other...
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