A restraint on the exercise of a nationhood power is the political consequences of Executive activities. Zines has said-
"… political reality prevents federal authorities from carrying out policies which are within its constitutional power. For example, the Commonwealth is very wary of using its external affairs power despite the decision in the Tasmanian Dams Case, because of the general concern in the community regarding that power. Therefore, despite the great increase in Australian central power, the federal spirit and federal organization run through all social institutions in Australia, from the organization of football bodies to political parties. The latter in particular, where State branches have great influence, may provide as much protection for State power as judicial review."
Section 61 is subject to the constitutional prohibitions in ss. 92, 105A(5), 116 and 117, and is dependent on appropriation funds being made available: s. 83. If an Appropriation Act cannot be the subject of a legal challenge, then the executive can, unchallenged, do many things that, if a court had jurisdiction to consider, may be held to be unconstitutional. Of course, the executive is subject to Parliamentary scrutiny, but a Senate Estimates committee is rarely a forum in which constitutionality of executive action is raised.
There is also the question of standing to challenge executive action. The Court will only consider the constitutionality of executive action if a party with standing has a cause of action on which the Court is capable of providing relief. This factor alone is a significant matter when the limits of the scope of the national executive power is being considered. If the executive proposes to take certain action, the constitutionality of which is doubtful, but which is not likely to adversely affect anyone, there is little prospect, in reality, of the matter being challenged and it being held to be invalid. The use of an extended nationhood power to perform certain beneficial functions that might be convenient to be performed on a national basis, but certainly are not necessary to be performed nationally, and which need not be performed nationally, is unlikely to attract criticism or promote litigation. The further that the Commonwealth becomes involved in such matters, the more it may appear to be operating in areas traditionally performed by a national government, and thus the scope of the nationhood power may be extended by practice, thus influencing how a court, in later times might view some other executive action in an analogous field. For example, consider the use of examples of other areas of Commonwealth action referred to in the judgments of Mason and Jacobs JJ in the AAP Case, and that of Brennan J in Davis.
Nevertheless, the most likely litigant in actions concerning extension of Commonwealth operations is a State government, and the limit on Commonwealth nationhood power identified by Mason CJ, Deane and Gaudron JJ in the AAP Case, is where the Commonwealth's action may involve some competition with State executive or legislative competence. Beyond such competition, it is difficult to see that there would be a competent litigant and thus any real prospect of the High Court ruling on the competence of the Commonwealth executive to enter a field where it was not acting to the detriment of any particular person.
A Matter of Honou
r, the Report of the Review of Australia's Honours and Awards, 1995, AGPSAnderson, R, "Australian Communist Party v. The Commonwealth" (1951) 1 UQLJ 34.
Bailey, K H, "Fifty years of the Australian Constitution" (1951) 25 ALJ 314.
Besant, C W, "Two nations, two destinies: a reflection on the significance of the Western Australian secession movement to Australia, Canada and the British Empire" (1990) 20 WALR 209.
Blackshield, A R and Williams, G, Australian constitutional law and theory: commentary and materials, 2nd edition, 1996.
Byers, Sir Maurice, Comment on Saunders, C, "The national implied power and implied restrictions on Commonwealth power" (1984) 14 F L Rev 276.
Byers, Sir Maurice, Campbell, E, Hamer, Sir R, Whitlam, E G, Zines, L, Final Report of the Constitutional Convention, 1988.
Connolly, P D, "The defence power of the Commonwealth at the end of the Second World War" (1948) 1 UQLJ 60.
Crommelin, M and Evans G, "Explorations and adventures with Commonwealth powers", Labor and the Constitution 1972-1975, Evans, G (Ed.), 1977.
Dale, Sir W, The modern Commonwealth, 1983.
Derham, D P, "The defence power", Essays on the Australian Constitution", Law Book Co, 2nd ed., Else-Mitchell, editor, 1961
Detmold, M J, The Australian Constitution, 1985.
Douglas, N, "Federal implications in the construction of Commonwealth legislative power: a legal analysis of their use" (1985) 16 UWALR 105.
Evatt, H V, The Royal Prerogative, 1987, ed., L Zines.
Gertrude Gerard, "A Reply to the AAP Case" (1977) 2 UNSW Law Journal 105.
Gilmore, W C, Newfoundland and Dominion status, Carswell, 1988.
Grassby, A, "Through the gates of confusion", Republican Australia? 1977, Geoffrey Dutton, ed.
Gurry, F, in "The implementation of policy through executive action" (1977) 11 MULR 189.
Hanks, P J, Constitutional law in Australia, 2nd edition, 1996.
Harper, J B, "The Crown as the source of legal powers in Australia" (1938) 1 Res Judicatae 310.
Howard, C, Australian Federal Constitutional Law, 1985.
Keith, A B, The Dominions as sovereign states, 1938.
Kidwai, M H M, "International personality and the British Dominions: evolution and accomplishment" (1975-76) 9 UQLJ 76.
Kirk, J, "Constitutional guarantees, characterisation and the concept of proportionality" (1997) 21 MULR 1.
Lee, H P, Emergency powers, 1984.
Lumb, R D, "The 'Commonwealth of Australia'-Constitutional implications" (1979) 10 FL Rev 287.
Lumb, R D, and Moens, G A, The Constitution of the Commonwealth of Australia annotated, 5th ed., 1995.
Masterman, G, "Defence Power-tension short of war: Marcus Clark & Co Ltd v. The Commonwealth" (1956) 1 Syd LR 266
Menzies, Sir Robert, Central power in the Australian Commonwealth, 1967.
Nicholas, H S, The Australian Constitution, Law Book Co, 1948, Chapter 4, "Status of the Commonwealth".
O'Connell, State Succession in Municipal and International Law, Vol I, 1967.
Ong, D S K, "The federal balance: the Australian Constitution and its implied power, implied prohibition and incidental powers" (1984) 14 MULR 660.
Renfree, H E, The executive power of the Commonwealth of Australia, 1984.
Roberts-Wray, Sir K, Commonwealth and colonial law, 1966.
Rumble, G, "The Commonwealth/State cooperative basis for the Australian Wheat Board and the National Companies and securities Commission: some Constitutional issues" (1980) 7 Adel LR 348.
Saunders, C A, "The development of the Commonwealth spending power" (1978) 11 MULR 369.
Saunders, C A, "The national implied power and implied restrictions on Commonwealth power" (1984) 14 F L Rev 267.
Sawer, G, "Implications and the Constitution" (1948-9) 4 Res Judicatae 15, 85.
Sawer, G, "The defence power of the Commonwealth in time of war" (1946) 20 ALJ 295.
Sawer, G, "The transitional defence power of the Commonwealth" (1949) 23 ALJ 255.
Sawer, G, "Defence power of the Commonwealth in time of peace" (1953) 6 Res Judicatae 214
Selway, B M, The Constitution of South Australia, 1997.
Sexton, M and Maher, L W, "Competitive public enterprises with Federal Government participation; legal and constitutional aspects" (1976) 50 ALJ 209.
Spry, M, "The executive power of the Commonwealth: its scope and limits", Department of the Parliamentary Library, Research Paper 28, 1995-96.
Sugerman, B, "The defence power and total war" (1943) 17 ALJ 207
Thorson, J T, "The British Commonwealth of Nations" (1929) 7 Canadian Bar Review 96.
Turnbull, M, The Reluctant Republic, 1993
Winterton, G, Parliament, the Executive and the Governor-General, 1983.
Winterton, G, "Extra-constitutional notions in Australian Constitutional law" (1986) 16 F L Rev 223
Wynes, W A, Legislative, Executive and Judicial powers in Australia, 5th ed., 1976.
Zines, L, "The Australian Constitution 1951-1976" (1976) 7 F L Rev 89.
Zines, L, Commentaries on the Australian Constitution, 1977.
Zines, L, Constitutional change in the Commonwealth, 1991.