NATIONHOOD POWER NOTES
Section 61 sets out the executive power of the Commonwealth. It encompasses four broad categories of power:
1. those granted to the Commonwealth executive by Parliament pursuant to statute,
2. the common law prerogative powers of the Crown,
3. the common law capacities the Crown enjoys in common with ordinary persons, and
4. a nationhood power (or powers) arising from Australia’s character and status as a nation.
Both the prerogative powers of the Crown and nationhood power authorise the CW executive to act without
statutory authority (i.e., they are non-statutory executive powers).
In addition, the existence of such non-statutory executive powers is a source of additional Commonwealth
legislative power. Under s 51(xxxix) of the Constitution, the Commonwealth has the power to make laws ‘with
respect to … matters incidental to the execution of any power vested by this Constitution … in the Government of
the Commonwealth’. That is, the Commonwealth can rely on the incidental power to enact legislation in aid of the
exercise of executive power under s 61.
Jurisprudence on a nationhood power
To date, the vast majority of jurisprudence on nationhood power under s 61 has focused on the extent to which it
can support facultative measures — for instance, Commonwealth spending, or the establishment of bodies for
national purposes such as the celebration of the Bicentenary. The question of whether, and to what extent, a
nationhood power could support coercive measures — such as measures that compel individuals or entities to do,
or refrain from doing, particular things or the creation of criminal offences —with or without statutory authority
remains contested.
In the post-war cases of Burns v Ransley (1949) and R v Sharkey (1949), there was a recognition that the very
existence of the nation gives rise to a Commonwealth power to protect the nation. It was held that such power
authorises the enactment of laws creating criminal offences to address subversive activities. In the Communist
Party Case (1951), while legislation disbanding the Communist Party of Australia was ultimately held to be invalid,
the existence of a power to make laws to preserve the Commonwealth and protect its institutions from internal
attack and subversion was recognised.
In the AAP case (1975), Mason J drew on the recognition of a power arising from the existence of the nation in the
Communist Party case to hold that such a power extends beyond ‘internal security and protection’ and includes a
non-statutory executive power under s 61 to ‘engage in enterprises and activities peculiarly adapted to the
government of a nation and which cannot otherwise be carried on for the benefit of the nation’ (at 397). The
existence of such a power, and Mason J’s articulation of the test, were approved by a majority of the High Court in
1988 in Davis v Commonwealth. The High Court also recognised that the incidental power under s 51(xxxix) of
the Constitution could be relied on to enact legislation in aid of the exercise of the executive power there
recognised.
The test articulated in the AAP case and approved in Davis v Commonwealth is framed in terms of a ‘capacity to
engage in enterprises and activities’. This refers essentially to the Commonwealth undertaking facultative
measures. It is only in the majority decision of the Full Federal Court in Ruddock v Vadarlis (2001) that a
nationhood power under s 61 to support coercive actions in the absence of statutory authority is recognised.
Justice French (Beaumont J agreeing) held that a power to exclude and expel aliens is central to sovereignty, and
therefore Australia’s character and status as a nation. Thus, the Commonwealth had the power to ‘do such things
as necessary to effect such exclusion’ (at [193]). This is a bold claim and is a matter that remains contested.
During the hearing of an appeal to the High Court (that was ultimately dismissed because events overtook it),
Gaudron J observed that important constitutional questions about the scope of executive power remained to be
considered in an appropriate case. The issue was again raised, but ultimately overtaken by the enactment of
retrospective legislation authorising the Commonwealth’s measures, in the High Court decision in Plaintiff
M68 (2016). Only Gageler J engaged with the question of the existence of a non-statutory coercive nationhood
power under s 61. His Honour appeared, in obiter, to leave open the possibility of the existence of this kind of
power. He did not categorically exclude the existence of coercive nationhood powers, analysing the question
instead by reference to whether as a matter of history and common law, the executive was rendered incapable of
detention in the absence of statutory authority.
Of immediate relevance to the scope of Commonwealth power in response to COVID-19 is the decision
in Pape (2009). A majority of Gummow, Crennan and Bell JJ, along with French CJ (writing separately) held that a
nationhood power under s 61, in combination with the incidental power under s 51(xxxix), supported the
enactment of laws authorising payments ranging from $250 to $900 to taxpayers as an immediate fiscal response
to the global financial crisis.
In deciding that the Commonwealth could make these payments, Pape applied the test put forward by Mason J in
the AAP case and approved by a majority of the High Court in 1988 in Davis v Commonwealth. An analysis of the
majority judgments in Pape suggests that, at a minimum, there must exist a national concern, the response to
which is ‘peculiarly within the capacity and resources of the Commonwealth’ —this being French CJ’s more
narrowly formed reasoning (at [113]). The plurality characterised the power more broadly, finding that responding
to the global financial crisis was a species of emergency or crisis power. This broader characterisation remains
open, as French CJ did not rule it out and noted only that the question of the existence of an emergency power
did not arise in Pape.
Is there a nationhood power enabling the Commonwealth to respond to COVID-19?
Is COVID-19 a national crisis or concern?
The majority in Pape drew heavily on expert comment and guidance from international bodies such as the
International Monetary Fund (IMF), the G20 and the Organisation of Economic Cooperation and Development to
establish the existence of a matter of national crisis or concern. Comparable commentary and guidance is
available on COVID-19 today.
In terms of the economic crisis, characterising it as national in character is consistent with the majority in Pape.
While it is probable that the health crisis can be characterised similarly, analogous as it is in terms of magnitude, I
add one caveat. A glance at the spread of coronavirus across Australia suggests there are significant regional
differences. As of 11 May 2020, NSW had over 3 000 confirmed cases, more than double that of Victoria and a
hundred times that of the state or territory with the lowest number of confirmed cases: the Northern Territory.
There may be an argument that in light of such uneven spread, internal management is not a matter that is
peculiarly adapted to the government of a nation.
What is the scope of the Commonwealth’s power to respond to COVID-19 under a nationhood power?
There is little guidance from the High Court about how to determine whether a particular measure comes within
the Commonwealth’s nationhood power, nor in relation to the scope of the Commonwealth’s incidental power
under s 51(xxxix) to enact coercive laws in aid of any such power.
The formulation of an activity that ‘cannot otherwise be carried on for the benefit of the nation’ (AAP case, at 397)
has a flavour of necessity to it, essentially asking: does the Commonwealth have to do it? Similarly, to the extent
that a power to undertake coercive measures has been recognised, it relies on necessity, with the power being
one to ‘do such things as necessary to effect such exclusion [or expulsion of aliens]’ (Ruddock v Vadarlis, at
[193]).
How then does a court determine whether something is ‘necessary’ or ‘cannot otherwise be carried on for the
benefit of the nation’? No criteria were set out in Ruddock v Vadarlis to determine the answer to this question.
Similarly, in Pape, the majority did not address the question, finding only that neither the national nature of the
crisis, nor the Commonwealth’s unique capacity and resources to respond to it were seriously questioned.
Justices Hayne and Kiefel highlighted, in dissent, that the end or purpose of responding to a national crisis does
not lead to the conclusion that any and every means directed towards that end is within power. However, no
criteria were set out to determine whether the means employed were within power.
One possibility is to draw on the High Court’s reliance on proportionality testing in other contexts, and in particular,
the necessity stage of the structured proportionality test articulated in McCloy (2015) in the context of the implied
freedom of political communication. When that freedom is burdened in the government’s pursuit of a particular
end, a court asks whether the means used to achieve that end were the ‘least restrictive’ measure. That is, are
there alternative approaches that could have achieved the same policy outcome, that would have been less
restrictive on the implied freedom? In the context of the freedom of interstate trade and commerce under s 92 of
the Constitution, in Castlemaine Tooheys (1990), Mason CJ, Brennan, Deane, Dawson and Toohey JJ asked the
question in terms of whether there existed an ‘acceptable explanation or justification’ for the differential treatment
of products originating from different states (at 477). In considering the scope of Commonwealth executive power,
the question would not be framed in terms of least restrictive measures, but in terms of whether there are
alternative measures that could have been implemented to respond to the crisis.
What alternative measures might a court consider?
In the context of the implied freedom of political communication, statements by Kiefel, Crennan and Bell JJ
in Monis v The Queen (2013) and Tajjour v NSW (2014), both of which pre-date McCloy, give some guidance on
what alternatives a court may consider. In Monis, the High Court held that only those alternative approaches that
are ‘obvious and compelling’ would be considered (at [347]). In Tajjour, the High Court said that the alternatives
must be ‘as practicable … as effective … [and] as capable of fulfilling [the] purpose [as the alternative] …
quantitatively, qualitatively and probability wise’ (at [114]). In Murphy v Australian Electoral
Commissioner (2016), French CJ and Bell J seemed to apply this criterion quite stringently, stating that the
existence of a less restrictive alternative measure ‘requires that the alternative measure be otherwise identical in
its effects to the legislative measures which have been chosen’. Referring to the different costs involved across
measures, their Honours said, ‘[i]t will not be equal in every respect if it requires not insignificant government
funding’ (at [65]).
By contrast, in Betfair (2008), in the context of s 92, Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ
drew on policy approaches that were not equally effective, in determining whether there was an ‘acceptable
explanation or justification’ for the regulatory burden being challenged. Their Honours held that the availability of
‘effective but non-discriminatory regulation’ (at [110]), such as Tasmania’s approach (which did not ban betting
exchanges, but imposed penalties for certain conduct that was likely to impinge on the integrity of the racing
industry) meant that ‘it cannot be said that [Western Australia’s ban on betting exchanges was] … necessary for
the protection of the integrity of the racing industry of that State’ (at [110]).
Which of these approaches could be drawn on in determining whether the Commonwealth is authorised under the
nationhood power to undertake a particular response to COVID-19? One factor that may inform the answer to this
question may be the severity of the crisis facing the nation. For instance, the more existential the threat to the
nation, the closer to the challenged measure any alternative must be. Another relevant factor may be the scope
for state and territory action to address the crisis. In Davis v Commonwealth, Mason CJ, Deane and Gaudron JJ
held that ‘the existence of Commonwealth executive power in areas beyond the express grants of legislative
power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition
with State executive or legislative competence’ (at 93–4). In Tasmanian Dam (1983), Deane J noted, at the other
end of the spectrum, that the Commonwealth could not rely on nationhood power and s 51(xxxix) to enact
legislation that ‘override[s] and displace[s] legislative and executive powers of the State … and authorise[s] or
regulate[s] conduct thereon’. The interaction between Commonwealth and state powers can run the gamut
between these two poles. Therefore, there may be scope for the intensity of scrutiny to be informed by the effect
or burden on the ‘legislative and executive powers of the State’. The greater the burden, the broader the range of
alternatives a court can consider in determining whether a measure fulfils the criteria.
As discussed above, whether the Commonwealth could rely on a nationhood power to undertake coercive
measures without statutory authority remains contested. As to whether the existence of a national crisis or
concern could be relied on to make coercive laws pursuant to the incidental power under s 51(xxxix), French CJ
noted, in obiter, that reliance on a combination of s 61 and the incidental power under s 51(xxxix) to enact
coercive laws was likely to be approached conservatively.
Justice Deane said in Tasmanian Dam
[t]he inherent powers of the Commonwealth could not, on any proper approach, be seen as including a
power to enact laws [that] impos[e] drastic restrictions … [or that] to no small extent, override and displace
the ordinary legislative and executive powers of the State … [and] authorize or regulate conduct thereon
(at 253).
However, French CJ’s comments were made in the context of a case dealing with the Commonwealth’s power to
respond to an economic crisis. Similarly, Deane J’s comments were made in the context of determining the scope
of the Commonwealth’s power to protect the natural and cultural heritage of the nation. Neither of these cases
speaks to a protective power that affects the form of government itself, or other threats to the nation. We see from
Latham CJ, Kitto, Fullagar and McTiernan JJ’s comments in the Communist Party Case — which characterised a
nationhood power to protect the nation as a legislative power — that they conceived of the coercive power as one
limited to a power to protect the nation. However, only McTiernan J among them specifically limited such power to
‘protect[ing] against acts of violence or acts that would lead directly to violence’ (at 212). This suggests that
French CJ and Deane J’s comments notwithstanding, there may be some scope for a Commonwealth power to
implement coercive laws in response to COVID-19, a health crisis, which globally has presented a clear danger of
mass deaths. Chief Justice Mason, Deane and Gaudron JJ’s comments in Davis v Commonwealth that a coercive
law must be proportionate to the power for which the executive power is exercised lends support to this view.
Conclusion
Crises such as COVID-19 demonstrate that modern governments may be called on to act quickly and decisively.
Decision makers and their advisors need to be able to predict the scope of their powers with some certainty. As
Hayne and Kiefel JJ highlighted in Pape, it is the judiciary’s role to ‘identify the criteria that are to be applied to
determine whether those particular means are constitutionally valid’. To that end, French CJ’s call for ‘for further
academic discussion and suggestions for a principled approach to appropriate limits upon executive power’ at
the inaugural Winterton lecture seems all the more pressing. A brief consideration of the jurisprudence on
nationhood power, and in particular, the decision in Pape and its application to COVID-19, raises fertile questions
for further inquiry in that direction.