How should the defence power s51

Patrick Stevedores v MUA

How should the defence power s51

The original version contains full footnote details. However, when transferring to the web, these details somehow got ommitted. Bibliographical details are at the end of the document.

This essay addresses a hypothetical problewhich has not been provided here. In Australia, the government has been under pressure from two sides: On the one side, is an open-ended requirement from the United Nations Security Council requiring States to take comprehensive measures to combat terrorism.

How should the defence power s51

On the other side are strong precedents set by the UK and the US. The Commonwealth Constitution enumerates the powers of the Commonwealth Parliament in s This paper will examine whether s How should the defence power s51 vi of the Constitution allows Parliament to legislate on matters relating to terrorism, and if so, what is the scope of that power.

It shall attempt to advise Kumar whether the charges laid upon him under ss It will assess whether these offences are necessary, sufficient and proportionate in relation to the actual or potential terrorist threat in Australia. It extends not only to the actual prosecution of war but also to preparation for war and perceived hostilities.

It has no general power to deal with crime and, consequently, it may have limited power to deal with non-federal acts of terrorism. However, the implied incidental powers conferred to each heads of power in the Constitution, allows the Parliament to make laws which create criminal offences, and provide for their investigation, prosecution and punishment.

Therefore, while terrorism is usually considered to be a flagitious crime, it is important to ask what distinguishes terrorism from other offences to make it a matter of national security?

The answer to this question may seem simple: However, this is a flimsy interpretation of the nature of terrorism. It is not enough for terrorism to be of a violent political or even international nature.

What is necessary is that the purpose of the law is proportionate to the purpose of the defence power. Yes, the organisation may be involved in political and terrorist activities, however, do these activities reach beyond the borders of Sri Lanka? Is there any evidence that the Tamil Tigers have or will carry out terrorist activities in Australia and what is the likelihood of the Tamil Tigers carrying out terrorist attacks against Australian interests in the future?

However, the Commonwealth might argue that secret intelligence information could suggest otherwise and thereby, give reason to investigate that organisation.

In that case, the question whether intelligence is relevant to security and whether a communication of intelligence is for the purpose relevant to security will be determined by the courts.

Moreover, the High Court decided in in the Communist Party Case that the Parliament cannot recite itself into power by putting before the court a threat to the security of the nation.

The Parliament and the Government must articulate a constitutional basis for its legislation; otherwise that is a clear reason why the legislation by itself would be unconstitutional.

On the other hand, any possible threat to Australia is largely unknown. Substantively, all that Resolution requires is that Australia ensure that its laws criminalise terrorist activities, that those laws deal with terrorist financing and material support for terrorist organisations and that they be applied or enforced in conformity or conjunction with other foreign jurisdictions.

Arguably, anything more, for example along the lines of the UK and US approaches, exceeds our obligations to the international community.


Following these precedents may be dangerous for Australia. Therefore, it could be argued that the urgency of enacting comprehensive anti-terrorism laws is very minimal, effectively making the laws somewhat redundant and disproportionate to the intended purpose of the Act itself.

The first is the excessively broad definition of the offences in ss The second is the lack of safeguards and excessive burden of proof within ss Dealing with the second issue firstly, we see that s This provision places a heavy burden on the defendant in respect of his activities.

This provision means that any member of the Australian public, not just Kumar need to make sure that they are at no times dealing with terrorists; this could encourage ethnic profiling. In particular, it may be difficult to ensure that one does not directly or indirectly receive funds from or make funds available to, a proscribed organisation.

In that case, it was held unconstitutional for the legislature to confer on the executive the power to proscribe organisations that were prejudicial to the security of the Commonwealth. The High Court found that the defence power, s 51 vidid not authorise the legislature to delegate to the executive the power to conclusively decide if certain actions were necessary for the defence of the nation.

This broad discretion is compounded by the fact that judges are reluctant to review assessments pertaining to national security. This would make it difficult for an organisation or person caught by the wide discretion in s Other issues that need to be considered and can be argued in a court of law by Kumar is the actions of ADF in respect of its surveillance activities under this Act.In the Sword of Angels, you can ask stars to obtain a variety of Constellations, which when used appropriately can greatly boost your power.

However, there are some tips to bear in mind if you want to know the functions of different constellations and which combinations to use. The setting of the film Blood Diamond is Sierra Leone, a West African country ravaged by political this unrest, rebel factions terrorize the countryside intimidating and enslaving the locals in order to harvest diamonds (Herskovitz & Zwick, ).

Section 51 of the Constitution of Australia grants legislative powers to the Australian Military defence: s51(vi) 'the incidental power' s51(xxxix) allows the Commonwealth to act on matters 'incidental' to an enumerated head of power.

The National Legal Eagle Volume 11 Issue 2Spring Article 6 Rule of law, separation of powers and judicial decision making in Australia- Part 2 Tina Hunter-Schulz.

Power of Crown Court to Deal with Summary Offences. If the defence require more time, they should seek the permission of the Crown Court. Alibi Defences. The defence is required to notify the prosecution of any proposed alibi witnesses under the defence disclosure provisions, including the name and address, or information that might help.

that would extend the operation of the defence power so broadly that it would support a law that would jump straight to penalty on the basis of parliament opinion that someone is guilty.

Treated the issue as falling within the “secondary” aspect of s51(vi).

How are human rights protected in Australian law? | Australian Human Rights Commission