How Should the Defence Power, S51, Be Interpreted in an...

How should the defence power, Constitution s 51(vi), be interpreted in an age of terrorism? The practical application of the defence power in an age of terrorism is difficult to determine, as it is reliant upon a set of circumstances that can have a plethora of different interpretations from a range of variant perspectives. Unlike some other powers, the defence power is purposive and elastic; it waxes and wanes, and its application â€Å"depends upon the facts, and as those facts change so may its actual operation as a power†[1]. Recent developments, such as the Thomas case, have led some theorists to comment that â€Å"the elastic of the defence power has become stretched all out of proportion†[2]. In its present interpretation, the defence†¦show more content†¦The act was then nullified by the High Court in the Australian Communist Party v Commonwealth (the Communist Party Case)[14]. The Defence Power (section 51(vi) of the Constitution) was the chief foundation of power in support of both the Communist Party Dissolution Act 1950 (Cth) and section 104 of the Criminal Code. The High Court ruled that the main principle of the defence power is the ‘protection of the Commonwealth from external enemies’[15]. The Australian Communist Party, constituted mainly by Australians, was a domestic organization. While the party was actively aggressive towards governmental policies, they did not have the capacity to be at war with the Commonwealth. This provision bore no relation to the defence power. The government’s actions were therefore held to be invalid. the scope of the power later grew to encompass the defence against a terrorist threat, as held in Thomas v Mowbray. Half a century later, in response to the September 11 attack, the Howard government created legislature on a sequence of counter terrorism measures. The similarity between the