To send content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about sending content to .
To send content items to your Kindle, first ensure email@example.com
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about sending to your Kindle.
Note you can select to send to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
This chapter examines the extent to which there is, or may be, accountability with regard to the exercise of such powers as a result of the administrative mechanism of judicial review. It examines the way in which judges, in exercising restraint, may hinder the bringing of successful review applications with regard to exercises of emergency powers. It also focuses on express attempts by the legislature to limit the availability of judicial review, in the form of privative clauses, and the possible impact of those attempts on the review of emergency powers. Doctrines relating to ‘justiciability’, ‘act of state, ‘deference’, and procedural fairness are highlighted.
This chapter examines the power of Australian governments, both federal and state, to address public disorder against a backdrop of recognised constitutional protections for political assembly, especially the judicially established implied freedom of political communication. The laws, statutory and common law, pertaining to unlawful assembly, anti-association legislative measures, sedition, and special public disorder emergency powers are scrutinised.
The chapter focuses on the constitutional and legal frameworks regulating the call-out of the Australian Defence Force in aid of the civil power. This topic has become more prominent as result of the rise of global terrorism. It examines the implications of the Lindt Café siege and the 1978 Sydney Hilton bombing. The constitutional provisions of section 119 are scrutinised to determine the framework under which the military forces are deployed to assist a state against domestic violence. The Defence Act 1903 (Cth) is discussed.
This chapter describes the sorts of emergencies which have been experienced in Australia, including the contemporary war on terrorism.It explores the definitional problems of 'emergency', the dangers of over-reaction to an emergency as exemplified by the experience in some countries. It makes reference to international norms regulating the exercise of emergency powers.
This chapter examines the panoply of special powers frameworks for dealing with civil emergencies, particularly environmental emergencies, chemical, biological, radiological and nuclear emergencies, and public and biosecurity emergencies. It also looks at ad-hoc legislation conferring special powers in respone to a particular situation of emergency.
This chapter discusses two vital legal weapons that were made available to the authorities to deal with dangers posed by terrorists in the wake of the September 11 attacks in the United States and the many bombing tragedies in a number of countries. It provides an account of how preventative detention measures were considered by the courts in Australia and the United Kingdom. Issues relating to the constitutional validity of preventative detention orders and control orders provided by federal legislation are canvassed by reference to the separation of judicial power doctrine. The persona designata doctrine and the incompatibility doctrine as expounded by the High Court are discussed. Particular attention is given to the landmark case of Thomas v. Mowbray, in which the validity of a control order authorised by a federal judge was upheld by the High Court. Attention is focused on the operation of the Kable principle to determine the validity of state legislation authorising preventative detention orders and control orders.
This chapter explores the executive powers of the Australian government that are of particular relevance in emergency contexts. It focuses on the contemporary interpretation of the High Court on the scope of section 61 of the Commonwealth Constitution, which is viewed as the ultimate source of all national executive power in Australia. It discusses the issue of whether the exercise of the executive power to requisition property for war or emergency purposes is subject to a requirement to pay just compensation. The relationship with the prerogative powers and the notion of a bundle of inherent powers arising from the Commonwealth’s status as a national government are explored. It engages in a discussion of recent cases in relation to measures taken to respond to the global financial crisis of 2007.
This chapter engages in an exegesis on the defence power as set out in the Commonwealth (Australian) Constitution. It highlights the settled features of the defence power, its expansion and contraction by reference to the prevailing wartime or peacetime circumstances. It provides a succinct analysis of the decisions of the High Court of Australia that define the parameters of the power. Special attention is given to the Communist Party Case and the significance of the case for the rule of law. The case of Thomas v. Mowbray is analysed for its impact on the jurisprudence pertaining to the defence power. Attention is given to the application of the proportionality principle and the limits of the defence power.
A constitution – considered as a visible, written legal text – exists within a broader social and political context. This chapter provides a philosophical argument that, to a significant extent, it is this context that gives the constitution and the laws made under it whatever legal force they have; but that this context is not (and cannot be) contained within the visible constitution. Every constitution, therefore, has a crucial yet invisible aspect. The chapter thereby shows that considerations of analytic jurisprudence, and analytic philosophy more generally, suggest a sociological conclusion, namely, that each constitutional order must be its own particular thing, in virtue of its distinctive invisible elements.
Democratic countries, such as Australia, face the dilemma of preserving public and national security without sacrificing fundamental freedoms. In the context where the rule of law is an underlying assumption of the constitutional framework, Emergency Powers in Australia provides a succinct analysis of the sorts of emergency which have been experienced in Australia and an evaluation of the legal weapons available to the authorities to cope with these emergencies. It analyses the scope of the defence power to determine the constitutionality of federal legislation to deal with wartime crises and the 'war' on terrorism, the extent of the executive power and its relationship to the prerogative, the deployment of the defence forces in aid of the civil power, the statutory frameworks regulating the responses to civil unrest, and natural disasters. The role of the courts when faced with challenges to the invocation of emergency powers is explained and analysed.
Judges in Australia are not confined to the performance of judicial functions only. As judges at federal and state levels are held in very high regard by the general public, governments at both levels have from time to time sought to have judges perform non-judicial functions.
Australian judges have engaged in a broad spectrum of non-judicial or extra-judicial activities.There have been a few historical instances of judges accepting ambassadorial appointments. A Justice of the High Court of Australia, Sir Owen Dixon, served as Ambassador to the United States; Chief Justice John Latham was Minister Plenipotentiary in Japan; and Justice Fox of the Federal Court served as Ambassador of Australia for Nuclear Non-Proliferation and Safeguards. The Director of the Australian Security Intelligence Organisation (ASIO) was at one stage a federal judge; likewise the Chair of the National Crime Authority. Federal judges have been appointed as President or Deputy President of the Administrative Appeals Tribunal (AAT), a tribunal performing ‘administrative’ functions. Judges have been entrusted with the non-judicial function of authorising warrants for the interception of communications, and more recently with the issuance of detention and questioning orders in relation to terrorism investigations. The use of judges, federal and state, in conducting royal commissions and other inquiries ‘has been a settled feature of Australian public life during the whole history’ of Australia. Judges have been appointed to perform such a role mainly because of their special qualities: ‘training and skill to gather facts, identify those which are relevant, assess the honesty of evidence, evaluate competing arguments, act with sensitivity and neutrality in unravelling controversial issues and present an impartial report evidencing legal accuracy and dispassion’.
Email your librarian or administrator to recommend adding this to your organisation's collection.