In The Commonwealth v. Tasmania (the Tasmanian Dams Case) (1983) 158 CLR 1, Gibbs CJ held that the nationhood power could not be relied upon by the Commonwealth to give validity to laws concerning national parks. He said that the subject matter was traditionally one for the States and it was not so complex nor required national coordination as to warrant Commonwealth action. In making that assessment, Gibbs CJ was not necessarily endorsing a test for the scope of the nationhood power of a necessity for national coordination. He went on to say that "the implied powers of the Parliament, as a national Parliament, do not extend to allow it to prevent a State from making or permitting such lawful use of its lands as it chooses".
Deane J discussed the nationhood power and said that, in the context of ss. 51(xxxix) and 61 of the Constitution, the Commonwealth is "vested with certain powers which are inherent in its existence or in the fact of Australian nationhood and international personality", but as one "moves away from those matters which lie at the heart of the inherent powers of the Commonwealth, it becomes increasingly predictable that any such powers will be confined within areas in which there is no real competition with the States." He said that Commonwealth activity in an area under State legislative or executive control was not precluded, but such activity could not involve competition with State authority.
Deane J said that the Commonwealth could make an appropriation in respect of particular physical property or artistic, intellectual, scientific or sporting achievement or endeavour because they were part of the heritage distinctive of the Australian nation, but in the absence of any relevant grant of power to the Commonwealth, "that fact cannot constitute the basis of some unexpressed power in the Commonwealth to arrogate to itself control of such property, achievement or endeavour or to oust or override the legislative and executive powers of the State in which such property is situate or such achievement or endeavour has been effected or is being pursued".
Dawson J referred to the Pharmaceutical Benefits Case and the sedition cases, and said, "if there is some power which extends beyond that which can be drawn from the power to spend, the executive power and the incidental power and which can be described as inherent in nationhood, then it has not … 'been fully explored'. Indeed, it has not really been explored at all." Thus, he denied that any previous cases had found an inherent nationhood legislative power separate from the powers described in the Constitution itself but that powers, executive rather than legislative, may be inherent in nationhood obtained as the result of attaining international personality. He indicated that these powers are derived from the recognition of a status rather than from any constitutional provision. Thus, according to Dawson J, the Commonwealth could not legislate in support of an executive power derived from the attainment of international personality because such power does not derive from s. 61 or any other provision of the Constitution, and thus s. 51(xxxix) does not apply.
Notwithstanding the previous cases suggesting a nationhood power, in Davis v. The Commonwealth, the Court was urged by some interveners to take the view that no such power existed. Others suggested that if such a power did exist, it did not support prohibitory legislation, or it did not support engaging in enterprises or activities merely because they were adapted to the government of a nation, or it did not support going beyond engaging in enterprises or activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.
Mason CJ, Deane and Gaudron JJ said that there exists an executive power derived from the distribution of legislative powers in the Constitution itself and from "the character and status of the Commonwealth as a national polity", which includes such powers as may be deduced from the establishment and nature of the Commonwealth as a polity. They indicated that the existence of an implied executive power would ordinarily be clearest where it involves no real competition with State competence, and expressly rejected an argument that the character and status of the Commonwealth as a national government was relevant only in ascertaining the scope of executive power in relation to Australia's external relations. They held that the commemoration of the Bicentenary was pre-eminently the business and concern of the Commonwealth as the national government, and thus fell "fairly and squarely within the federal executive power".
Wilson and Dawson JJ held that "the character and status of the Commonwealth as a national government are qualities which are themselves to be found within the confines of the Constitution" and the Commonwealth thus had "the executive capacity under s. 61 to recognize and celebrate its own origins in history." They noted that such a power did not go beyond the boundaries set by the Constitution for the distribution of powers between the Commonwealth and the States, and that legislation incidental to the exercise of that power fell within s. 51(xxxix).
Brennan J appeared to take a broader view than Mason CJ, Deane and Gaudron JJ with regard to the scope of executive power, but a more restrictive view regarding legislative power. He agreed with Jacob J's view in the AAP Case that the phrase "maintenance of this Constitution" in s. 61 imports the idea of Australia as a nation, and that, as a consequence, the functions of the Executive included those relating "not only to the institutions of government but more generally to the protection and advancement of the Australian nation." He said that the "end and purpose of the Constitution is to sustain the nation", and that if "the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered", and that there "is no reason to restrict the executive power … to matters within the heads of legislative power". His Honour agreed with the criterion expressed by Mason J in the AAP Case as to the scope of this power, namely, being limited to "enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation".
Brennan J was of the view that, as the only power to legislate in aid of this executive power arose under the incidental power, where the Executive "engages in activity in order to advance the nation … the execution of executive power is not the occasion for a wide impairment of individual freedom", and thus the legislative power "does not extend to the creation of offences except in so far as is necessary to protect the efficacy of the execution by the Executive Government of its powers and capacities." The basis for this conclusion was that as the exercise of a prerogative power is not capable of creating an offence, nor can the exercise of a non-statutory capacity or power, and therefore, the legislature, in the enacting legislation to support the execution of such a power, cannot create an offence to supplement the Executive's activities.
Toohey J generally agreed with Wilson and Dawson JJ, and said that he was "presently not persuaded that any implied power arising only from the creation of the Commonwealth as a body politic extends beyond steps necessary to protect the existence of the government."
The sources of the nationhood power
In State Chamber of Commerce and Industry v. The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329, Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ said:
"The Constitution established a new body politic, the Commonwealth of Australia. The body politic was armed with specific legislative, executive and judicial powers. However, the establishment and the nature of the body politic gave rise also to certain implied powers, as explained by Dixon J … in Burns v. Ransley, R. v. Sharkey, and Australian Communist Party v. The Commonwealth."
In Davis's Case, Wilson, Dawson and Toohey JJ expressly denied that this passage meant that a nationhood power could be implied that went further than a self-protection power.
Mason CJ, Gaudron and Deane JJ, while not necessarily saying that this was a source of the nationhood power, held that the character and status of the Commonwealth as the national government was relevant to ascertaining the scope of the nationhood power and that such a power certainly could go further than self-protection.
Barwick CJ and Gibbs J in the AAP Case and the Seas and Submerged Lands Act Case were of the view that fact of creation of the Commonwealth and its character and status as a national government was a source of a nationhood power, albeit possibly narrower in scope than that suggested in the Davis Case.
Implication from the fact of attaining international personality
The nature of the national power that has been implied from Australia's international persona has generally been linked to its power to act in relation to international obligations and responsibilities, and thus has been closely related to the external affairs power.
I suggest that Australia's international persona is not directly a separate source of power, but a basic cause of Australia attaining nationhood status, and that instead, it is from the national character and status of the government of the nation that the nationhood power can be implied.
Perhaps, if the external affairs power were not expressly mentioned in the Constitution, that power would be implied as part of a nationhood power and Australia's international persona would be more directly significant as a primary source of power. But, the extensive reach that the High Court has given the external affairs power seems to leave very little room for separate elements within a nationhood power that rely upon attainment of international persona as their direct source.
Implication from 'maintenance and execution of the Constitution' in s. 61
Since the Wooltops Case, there has been a suggestion that section 61 of the Constitution is the source of this power, and that the words "execution and maintenance of this Constitution" contain within it the notion of the creation and existence of the government of a nation. Thus, the existence and character and status of the Commonwealth as the national government is not a separate source of power, but it is all contained within s. 61.
This view can be seen to be supported by Isaacs J in the Wooltops Case, Latham CJ in the sedition cases, Barwick CJ, Gibbs J and Jacobs J in the AAP Case, Barwick CJ in the Seas and Submerged Lands Act Case, Deane J in the Tasmanian Dams Case, and Wilson, Dawson, Brennan and Toohey JJ in Davis.
On the other hand, Fullager and Dixon JJ in the sedition cases, Mason J in the AAP Case, and Dawson J in the Tasmanian Dams Case seem to have suggested that it is a separate source of power.
Mason CJ, Gaudron and Deane JJ in Davis left this unanswered, but suggested that the character and status of the national government was at least relevant to determining the scope of the power.
I suggest that the better view is that section 61 is the real source of this power and that the existence, character and status of the national government is merely a pointer to the scope of the power.
There was a suggestion by Jacobs J in the AAP Case and Brennan J in Davis that the nationhood power was an exercise of the prerogative. Whether or not that is true probably makes no difference to the ultimate source under the Constitution. Brennan J appears to have seen the prerogative powers as being included within the scope of section 61. Winterton has said, "It is arguable that the implied incorporation of the prerogative powers of the Crown in s. 61 has converted those powers into 'statutory' powers".
Executive and legislative use of the nationhood power
The Australian Bicentennial celebration activities leading up to 1988 were only the more recent of a range of executive and legislative activities engaged in by the Commonwealth for many years that, at least in hindsight, appear to be valid almost entirely on the basis of a nationhood power.
The War Precautions Act Repeal Act 1920, which provides for the making of the Protection of Word "Anzac" Regulations, was enacted under the administration of Prime Minister W M Hughes, a nationalist, who I suggest would not have doubted that the Commonwealth had the power to enact legislation promoting matters of a national character. The only relation that that legislation has to the defence power is that it tries to preserves the memory of the Anzacs, and prevents anyone from using the word "Anzac", except in very limited circumstances, without permission from the relevant Minister. This is certainly far more tenuous a relationship than that held not to be within the defence power in the 1950s in the cases concerning preference of employment for returned service personnel. However, it would appear to fit within the scope of a nationhood power.
In 1949, the Chifley government enacted the Snowy Mountains Hydro-Electric Power Act 1949. The validity of this legislation was seriously doubted by many Constitutional lawyers at the time. While the preamble to the legislation recited the purposes as being to supply electricity for defence needs and for the needs of the ACT, it was abundantly clear that these uses of the electricity were very minor in the scheme of things, and that neither the Territories power nor the defence power would have supported the legislation if it were challenged. But as Derham has noted, who would bother challenging it? I suggest that, if it were challenged today, there may well be an argument that it would be supported by the nationhood power.
A number of national commemorative matters would appear to be supportable only under the nationhood power. These include the Anzac Day Act 1995, and the "Australia Remembers 1945-1995" program to commemorate the 50th anniversary of the end of the Second World War, and the proclamation of 11 November of each year as Remembrance Day.
Other nationhood types of matters include the proclamation of 3 September in each year as "Australian National Flag Day", the enacting of the Flags Act 1953, the proclamation of the national anthem and national emblems.
Certain cultural matters have been the subject of Commonwealth legislation and subsequent executive action, such as Australian Heritage Commission Act 1975, Australian Film Commission Act 1975, Australian Space Council Act 1994, Australian Sports Commission Act 1989, National Gallery Act 1975, National Library Act 1960, National Museum of Australia Act 1980, Olympic Insignia Protection Act 1987, Sydney 2000 Games (Indicia and Images) Protection Act 1996.
One matter that one might think could be linked to a nationhood power, but is not concerns honours and awards. The prerogative to create honours and awards is possibly the last vestige of power exercised by the Queen in her own right, and in respect of which she has expressly delegated (as envisaged by s. 2 of the Constitution) certain powers to the Governor-General (for example, the making of regulations pursuant to the letters patent issued by the Queen creating the particular award and the granting of such honours and awards). While the institution of an Australian system of honours and awards might be seen to be an exercise of the nationhood power (recognising achievement in the interests or for the benefit of the nation), it has been an exercise of the Royal prerogative (on the advice of the Australian Prime Minister) rather than any power under, or implied in, the Constitution. The exercise of the delegated powers by the Governor-General in relation to honours and awards is not part of the nationhood power, but is a separate power expressly granted to him by the Queen under section 2. Some commentators have stated that section 2 is now redundant, but, in practice, it still fulfils a role in this narrow, but nationally important, field.
If Australia were to become a republic, the creation, granting and administration of honours and awards would fall within the nationhood power unless the Constitution were amended to express that the prerogatives of the Queen in relation to Australia were to be exercised by the President.
Scope and limits of the nationhood power
Distribution of powers between the Commonwealth and the States
A restriction on the nationhood power consistently recognised by the Court is that the exercise of the power by the Commonwealth is not to disturb the distribution of powers set out in the Constitution between the Commonwealth and the States, but will be confined within areas in which there is no real competition with the States. This introduces an implied immunity doctrine for the nationhood power, which was rejected in relation to legislative power in the Engineers' Case. Nevertheless, this doctrine has to some extent been applied to the defence power and the external affairs power on the basis that the potential scope of the power would otherwise be broad enough to destroy the Constitutional distribution of powers.
There has been some criticism of this approach,, and it might be possible that a future Court could permit some expansion of Commonwealth nationhood power. In Victoria v. The Commonwealth (the Payroll Tax Case) (1971) 122 CLR 353, Windeyer J traversed the development of the Commonwealth to nationhood and said:
"With these developments the position of the Commonwealth, the federal government, has waxed; and that of the States has waned. … That the Commonwealth would, as time went on, enter progressively, directly or indirectly, into fields that had formerly been occupied by the States, was from an early date seen as likely to occur. This was greatly aided after the decision in the Engineers' Case, which diverted the flow of constitutional law into new channels. I have never thought it right to regard the discarding of the doctrine of implied immunity of the States and other results of the Engineers' Case as the correction of antecedent errors or as the uprooting of heresy. … [T]hat is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs."
In Western Australia v. Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at pp. 26-27, Windeyer J said:
"The Commonwealth Constitution … is the birth certificate of a nation. It embodied in legal form the sentiments of a people behind the idea of 'a nation for a continent and a continent for a nation'. On the enactment of the Constitution by the Imperial Parliament the Australian colonies became a Dominion under the Crown, Australia, now in its own right a nation among nations. Australian became one people. These I think are things to be remembered, because in interpreting the Constitution we are not required to ignore the purpose manifestly behind particular provisions. The Constitution is obviously designed to ensure the powers and position of the States as political elements of a federation. It is equally designed to ensure the power and position, and to promote the unity, of the new nation called into being."
It might be that the views of those who would seek to limit the scope of the nationhood power so that it cannot be used to compete with State powers, will be overtaken in the same way as Windeyer J saw the implied immunity doctrine was overtaken by the Engineers' Case-not because they were wrong, but because of the changing perceptions and expectations of the role of a national government by the community. Zines has said, "No general theory of federalism can assist in the determination of the distribution of powers between the central and regional governments. That was the basic flaw in the State reserved powers doctrine. Neither the Constitution nor federal theory gave any guidance as to which matters should be regarded as exclusively within State authority."
Like the defence power, which waxes and wanes proportionately to the external dangers facing the nation, the nationhood power probably expands and contracts in accordance with external and internal dangers and with the community perceptions and expectations of the role of a national government. In practice, it has expanded as a direct result of the exercise of the defence power, which, not only has made a major contribution to the development of nationhood, but as been the effective cause of a significant number of examples of (or excuses for) the exercise of the nationhood power. As the Commonwealth is, because of the defence power, able to exercise more extensive powers at times of danger, and thus encroach into areas of State operations, so too might the nationhood power enhance Commonwealth jurisdiction at times of national necessity.
In 1967, Sir Robert Menzies suggested that a changing world was likely to give the Court cause to reinterpret the Constitution in a way to give it a "power to do things which are really needed for the national security and advancement". As Isaacs J noted in 1922, "It is the duty of the Judiciary to recognize the development of the nation and to apply established principles to new positions which the nation in its progress from time to time assumes. The judicial organ would otherwise separate itself from the progressive life of the community, and act as a clog upon the legislative and executive departments rather than as an interpreter."
Kirby J, in the Kartinyeri v. The Commonwealth (the Hindmarsh Island Bridge Act Case) (1998) 152 ALR 540, said:
"The very application of broad language to changing facts demands a measure of accommodation. Moreover, new, and completely unpredictable matters may arise which, when measured against the text, are held to fall within a given head of power. Each generation reads the Constitution in the light of accumulated experience. Each finds in the sparse words ideas and applications that earlier generations would not have imagined simply because circumstances, experience and common knowledge did not then require it. Among the circumstances which inevitably affect any contemporary perception of the words of the constitutional text are the changing values of the Australian community itself and the changes in the international community to which the Australian community must, in turn, accommodate."
Matter appropriate to a national government
Mason J in the AAP Case and Brennan J in Davis, held that the enterprises and activities that are entered into by the Commonwealth under the nationhood power must be "peculiarly adapted to the government of a nation". This has not been doubted by others and is consistent with the very notion of "nationhood" power: its exercise must at least be related to matters concerning the nation, and in which it is appropriate for a national government to be involved.
Necessity, not mere convenience
There has been general agreement that, if the Commonwealth has a nationhood power, it can only be exercised if there is a need for national action. However, as demonstrated by the various judgments in the AAP Case, it is unlikely that there will always be agreement on whether particular Commonwealth action is a "necessity". Given some of the examples of exercise of nationhood power, such as the CSIRO and certain national cultural institutions, it is difficult to see why the matters that such institutions deal with could not be conducted by State governments. It seems that an important element in assessing "necessity" is probably the co-ordination role of the Commonwealth.
There also appears to be general agreement that the nationhood power is to be applied for the benefit of the nation. This has not been tested in any of the cases, but it seems logical that a national executive power should be exercised for the benefit of the nation rather than for its detriment. If the source of the power is section 61, and the execution and maintenance of the Constitution, it appears that it would be inconsistent with that phrase if executive action were intentionally detrimental to the nation. It is the purpose of the exercise of the power that is important, thus, even if the actual outcome is detrimental, if there was a beneficial purpose, it might still be held to be valid. Whether the Commonwealth could embark on a course of action in reliance upon this power which was not intended either to be beneficial or detrimental is uncertain. Perhaps it could be argued that such action would not arise from any necessity, and so would be invalid on that basis.