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”. 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”. 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”. 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”. 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". From the Jehovah’s Witnesses case