© 1998 Bruce Topperwien

While the Constitution does not expressly refer to them, the High Court has, from time to time, recognised powers of the Commonwealth that can broadly be described as "national" or "nationhood" powers. They have variously been described as: powers of a national character; powers attributable to the existence of the Commonwealth; powers related to the functions of a national government; powers to protect the existence of the Commonwealth; sovereign power to govern a nation; powers appropriate to the status of a nation; powers necessary and proper for the purposes of the nation; powers to protect and advance the nation; and a nationhood power.

The nature of the power and its sources are closely related. It is a purposive power and has been associated with the following basic purposes:

• self-protection;
• national advancement;
• national cultural promotion; and
• promoting national interests.

In a number of ways the power is closely related to the defence power. There has been a direct causal nexus between the use of the defence power and the growth and development of the nationhood power.

The sources of the nationhood power have been suggested as including:

• the very creation and existence of the Commonwealth;
•    the character and status of the Commonwealth as the national government;
•    the international personality and nationhood of the Commonwealth;
•     section 61 of the Constitution; and
•    the prerogative.

In recognising that this is an implied rather than an express power, the judges have been careful to limit its scope by holding that:

• the exercise of the power cannot affect the distribution of powers between the Commonwealth and the States;
• its use must be for a matter appropriate to a national government;
• it cannot be exercised merely because it is convenient, but there must be some necessity for national action; and
• it can only be used for the benefit of the nation.

The Parliament and the Executive have appeared willing to take action that, in hindsight, seems to have assumed the existence of a nationhood power, adopting a reasonably broad view of its scope. However, the High Court has been more reluctant, only slowly recognising the existence of, and need for, such a power.

Were the Constitution to be rewritten today, having regard to the fact that Australia has attained the status of an independent nation, it could be said that there would be no need to include an express defence power or external affairs power because such powers could be implied from the fact of nationhood. They could be seen as aspects of a more general implied nationhood power that inheres to the government of an independent nation.

A nationhood power is likely to develop as a dependant state changes in status to an independent nation. This can be seen with the Commonwealth's nationhood power. To a major extent, the development into a nation has been brought about, or at least hastened, by matters relating to Australia's defence, and a substantial number of uses of the nationhood power have occurred or been associated with the defence power.

The Commonwealth was brought into existence by the Commonwealth of Australia Constitution Act 1900 (UK), and can be seen to have developed into nationhood as a result of events and matters, most of which have had a direct connection with international conflict and Australia's defence interests. These include: Australia's involvement in the First World War; involvement in the Treaty of Versailles; membership of the League of Nations: the Balfour Declaration; the Statute of Westminster; the refusal in 1935 of the British Parliament to accept the petition from Western Australia to secede from the Commonwealth, the retrospective adoption of the Statute of Westminster in 1942, the effect on the war against Japan on Australia and its place in the Pacific and South-East Asia and its relationship with the United States, Australia's involvement in the formation of the United Nations in 1945, international recognition and acceptance by the community of nations, the Australia Acts, and various other instruments, matters and events.

However, the time at which it could be said that Australia was fully an independent nation remains debatable. On one view it occurred on 1 January 1901, on another view, not until 1986, and others, some date or period in between.

Murphy J was of the view that, as at 1 January 1901, Australia was a fully independent and sovereign nation. He based it on an argument that UK legislation ceased to have paramount force upon the creation of the Commonwealth of Australia, and that the Statute of Westminster merely removed any doubts. Any purported legislative or executive action by the UK government expressly intended to affect Australia could be ignored in Australia because, according to Murphy J, such action would be contrary to the Australian Constitution.

If Murphy's view is correct, no one seemed to notice for some time. Australia's right to make its own foreign policy was expressly denied at the Imperial Conference in 1911. The Imperial War Conference in 1917 suggested that after the cessation of hostilities the subject of the readjustment of the constitutional relations of the Empire "should be based upon a full recognition of the Dominions as autonomous nations of an Imperial commonwealth". Even after the First World War, the right of the Dominions to be members of the League of Nations was challenged by the United States Senate. In the Second World War, President Roosevelt told John Curtin's representative that he could not deal with him directly and personally, because he had neither the time nor the patience to deal separately with all the British colonies and the proper avenue of approach to the American President was through the British Embassy.

Nevertheless, many commentators appear to have accepted that independent nationhood occurred sometime between 1931 and the end of the Second World War. For example, Sir William Dale, suggested that the Dominions became independent in 1931 by the enactment of the Statute of Westminster, and O'Connell indicated that the process was completed in 1939, a view supported by Barwick CJ.

Views have been expressed that Australia did not become an independent nation until the enactment of the Australia Acts in 1986. For example, one member of the Parliament in the Second Reading Debate on the Australia Bill indicated that the enactment of the Australia Acts were necessary to "give Australia the status it so richly deserves, that of an independent and sovereign nation." Senator Gareth Evans, in his speech in the debate on the Australia Bill indicated that some States had insisted that the British Parliament enact the Australia Act notwithstanding significant opinion that such action was unnecessary-indicating that those States considered Australia was not, at that time, independent of the British Parliament.

Turnbull has said, "Most historians would regard Australia as having achieved its independent nationhood well before 1986, and in many respects they would be right. But a country which does not control its own judicial system and which cedes the right of final judgment to the courts of another country cannot be called fully independent."

A country is really only independent if it thinks it is, and is recognised as being independent by the community of nations. If a country considers itself dependent on another country, it will defer to, and rely upon, actions of that other country (eg, compare Menzies' acceptance that Australia was at war with Germany in 1939 with the position of Canada, which adopted an independent stance on that issue). If other countries do not recognise a country's independent nationhood, it matters not that that country might think it is independent, the practical effect is that the country is unable to take independent action (eg, the refusal by Roosevelt to hear from Australia except through the British Embassy). Therefore, both conditions must be satisfied before a country can be said to be an independent nation.

When that change in attitude arose in the Australian consciousness is debatable, but I suggest it did not really begin to take hold until the 1960s, after the Menzies era, and until the overt pursuit of foreign policies independent of Britain (eg, involvement in Vietnam), and had general acceptance by the late 1970s, following the Whitlam government and its emphasis on a national identity. However, Australia's request to the British Parliament to enact the Australia Act was a sign that it still had some doubts about its own independent nationhood.

General acceptance of Australia's independence by the international community appears to have occurred significantly earlier-probably by the time of Australia's involvement in the formation of the United Nations after World War 2.

As can be seen, general recognition that Australia was an independent nation took many decades to occur. The High Court took a similar period to fully recognise the existence and extent of a nationhood power. While there were some tentative signs of its existence in the early years, they are not obvious. For example, it was perhaps first alluded to in Baxter v. Commissioners of Taxation (NSW) (1907) 4 CLR 1087, when Griffith CJ, Barton and O'Connor JJ indicated that the Constitution created a new State with a national character and sovereign powers, subject only to the British Crown.

The idea that the creation of the Commonwealth by the Constitution gave it powers of a national character was next alluded to in The Commonwealth v. Colonial Combing Spinning and Weaving Co Ltd (the Wooltops Case) (1922) 31 CLR 421, where Isaacs J indicated that there was implied within the grant of executive power in s. 61 of the Constitution "consequences" referable to the very creation of the Commonwealth executive government.

While Isaacs J did no more than point to some unwritten, or implied, "consequences" for executive power, it is an indication that Isaacs J considered that there was potential for the existence of a power related to the fact that the Executive represented the government of a nation. His Honour again hinted at the notion of a power implied from the existence of a national government in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36, where he spoke of a power to deport persons who were a threat to the existence or welfare of the community being a "national power, that is, the right of the community as a whole to preserve its own existence."

These early cases rely on two closely related sources-the very creation and existence of a Commonwealth government, which inherently has powers of a national government; and the "maintenance of this Constitution" in section 61.

In Attorney-General (Vict.) v. The Commonwealth (the Pharmaceutical Benefits Case) (1945) 71 CLR 237 elements in the judgments show a prospect for an implication of a national executive power. Latham CJ expressly referred to the Executive, indicating that some of its powers may be attributable to the very existence of the Commonwealth. Starke J made a similar statement, extending the source of power to include not only the fact of the existence of the Commonwealth, but also its status as a Federal Government. While Dixon J also pointed to the existence of the Commonwealth, he introduced the phrase "functions of a national government" as being an indicator of the scope of Commonwealth power. Significantly, he stated that a narrow view of Commonwealth powers should not be taken. McTiernan J built on these ideas and said:

While this passage relates to "Commonwealth purposes" in the context of the appropriation power, it parallels Mason J's later statement concerning the changing nature of the nationhood power in the AAP Case.

In R. v. Hush; Ex parte Devanny (1932) 48 CLR 487 at p. 511, Evatt J said that the language used in section 61 gives no assistance in determining the scope of executive power, and said, "the question may again be debated whether there is any 'inherent' legislative authority in the Commonwealth Parliament which can support the validity of the [sedition] enactments." Seventeen years later, that question was answered in the affirmative. In Burns v. Ransley (1949) 79 CLR 101, Latham CJ indicated that the Commonwealth had power to protect its own existence. His Honour referred to the Governor-General's power, in s. 61 of the Constitution extending to "the execution and maintenance of the Constitution" and the incidental power in s. 51(xxxix). In holding that the sedition law was a valid exercise of the legislative power incidental to the executive power under s.61 to "maintain this Constitution", Latham CJ found that the notion of a national existence and identity could be implied within that phrase.

Dixon J in The King v. Sharkey (1949) 79 CLR 121, said that the power to legislate to outlaw sedition "is not expressly given but it arises out of the very nature and existence of the Commonwealth as a political institution", and is "incidental to the protection and maintenance of the Australian Federal polity itself".

In Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, Fullager and Dixon JJ indicated that these two sources of power may well be separate. Fullager J noted that the power might be implied from the very existence of the Commonwealth as a national government rather than merely an implication from the words of s. 61, and referred to the power being implied "from the existence and nature of the Constitution as the foundation of a body politic". Dixon J was more definite than Fullager J, indicating that the source of power was "deeper and wider" than mere reliance upon s. 51(xxxix) and the executive power in section 61 and related it to the existence and character of the polity established as the Commonwealth.

Nearly all these cases related to "defence" in a broad sense (self-defence of the nation from dangers within, and measures taken in reliance on the defence power).

The concept of international personality as a source of power was perhaps implied in these cases with their reference to "national" government, but because of the nature of these cases, they necessarily concerned domestic matters. The existence of a Commonwealth national power related to Australia's international persona was first referred to in Fishwick v. Cleland (1960) 106 CLR 186. The High Court considered that the Commonwealth had sufficient power to acquire the Territory of New Guinea and administer it in accordance with the Trusteeship Agreement, which the Court noted required that the administering authority be "a State externally sovereign which possess plenary governmental powers to which the Trust Territory is to be submitted". Thus, while this case was principally concerned with the external affairs and territory powers, there is an indication that the Commonwealth's powers were also to be taken to equate to those of a sovereign nation, and could be exercised accordingly.

It was not until the AAP Case, in 1974, that the concept of a nationhood power was clearly expressed by the Court. The earlier cases generally only suggested that a separate power might exist, without discussing in any detail its nature or scope.

In the AAP Case, Barwick CJ said that some powers come from the very formation of the Commonwealth as a polity and its emergence as an international state, but the extent of powers which are inherent in the fact of nationhood and of international personality had not been fully explored. He then went on to say that merely because a matter or situation is of national interest or concern does not attract any power to the Commonwealth. He concluded that "some power of a special and limited kind may be attracted to the Commonwealth by the very setting up and existence of the Commonwealth as a polity, [however,] no power to deal with matters because they may be conveniently and best be dealt with on a national basis is similarly derived."

Barwick CJ indicated that whatever powers may be implied from the setting up and existence of the Commonwealth, they could not be such as to interfere with the distribution of powers between the Commonwealth and the States. He also said that the executive could only do that which has been or could be the subject of valid legislation.

Gibbs J supported Barwick CJ's concern regarding the effect of a broad nationhood power on the distribution of powers between the Commonwealth and States.

Mason J essentially agreed with Barwick CJ and Gibbs J that whatever the extent of the executive power, it did not extend into areas of State responsibilities, but that some powers could be implied from the character and status of the Commonwealth as a national government. However, he saw that the incidental power, taken in conjunction with s. 61, added a further dimension to what the Commonwealth may achieve in the exercise of other specific powers, but that there was, in addition to the incidental power combined with the s.61 power, certain implied powers stemming from the Commonwealth's existence and its character as a polity. He then went on to combine these two notions and extend the scope of the power beyond that to which it had hitherto been recognised. He said:

Mason J said that the CSIRO could have been established under this implied power, and that the Commonwealth could undertake "other enterprises and activities appropriate to a national government ... on behalf of the nation." He said:

Mason J noted that, because the power arose only by implication, it was limited in scope, and that:

Jacobs J was prepared to see the implied nationhood power in a much broader frame. His Honour saw the exercise of executive power as an exercise of the prerogative, which could be exercised on "all matters of Australian concern", and that "the extent of its exercise ... has throughout the years of federation been a growing extent." He recognised that the exercise of executive power was "primarily" limited to those areas that are expressly made the subject matters of Commonwealth legislative power, but he said that it could not be strictly limited to those matters.

While Jacobs J also expressed a limitation referable to the division of responsibilities between the Commonwealth and the States, it appears not to have involved the same degree of limitation as was seen and understood by Barwick CJ, Gibbs or Mason JJ. Jacobs J referred to the Commonwealth governing for all the people of Australia (from whence it derives its existence, and thus its power) and being able to exercise executive power "on all matters of Australian concern". He saw an expanded scope of Commonwealth executive activity as a direct result of the development of nationhood.

Although speaking of "need" and "necessity" and things that "must" be carried out on a national basis in order for the Commonwealth to have the relevant power, the overall tenor of Jacob J's judgment appears more to be related to the "flavour" of the subject matters being matters of concern to Australia as a nation and which require national rather than local planning rather than any strict necessity for national action in that field.

In New South Wales v. The Commonwealth (the Seas and Submerged Lands Act Case) (1975) 135 CLR 337 Barwick CJ pointed to a national executive power when he said:

Gibbs J was of the opinion that it was "perhaps possible" to justify the Commonwealth's legislation concerning territorial waters "by reference to the principle that Commonwealth powers extend to 'whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government' " and "it could not be doubted" that the power to make such laws would arise "from the status of the Commonwealth as a national government". He reiterated his concern that the existence of such powers would not enable the Commonwealth "to alter at will the distribution of powers made by the Constitution".

Stephen J said that, at federation, the Commonwealth had the potentiality for nationhood and an undeveloped capacity to exercise powers appropriate to such status, but that such a power could not be used to affect the property rights and associated legislative jurisdictions of the former colonies as they existed before federation.

Mason J disagreed with Stephen J's view and held that, notwithstanding before federation the colonies had the power to vest proprietary interests in the seabed, "it is consistent with the Commonwealth's character as an international persona and with the State's lack of that character, that legislative power and jurisdiction over the territorial sea and its seabed should reside in the Commonwealth rather than the States." Thus Mason J saw the fact of nationhood providing authority for the Commonwealth to assert sovereignty over property that had previously been vested in the Crown by a State when it was a colony.

In The Queen v. Duncan; Ex parte Australian Iron and Steel Pty Ltd (1982-83) 158 CLR 535, Mason J reiterated what he had said in the AAP Case that the scope of the executive power is to be ascertained from the distribution of legislative powers effected by the Constitution and the character and status of the Commonwealth as a national government, and indicated that "it extends to entry into governmental agreements between Commonwealth and State on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution."

Deane J echoed the sentiments of Jacobs J in the AAP Case, tracing the relevant Commonwealth power back to the agreement of "the people" to unite in a Commonwealth, conferring upon the Commonwealth such "powers as were considered necessary and proper for the purposes of the nation that would be formed by, and would develop under, the federation". He noted that some specific prohibitions were inserted into the Constitution relating to both the Commonwealth and the States, but that the Constitution did not otherwise abolish or "diminish the amplitude of the totality of legislative powers". Thus the Commonwealth had sufficient powers on the basis of its existence as the national government to enter into the relevant arrangement with the State.