An elastic power? The defence power has been termed an Dependent on the Facts - by Dixon J power which waxes and wanes and ebbs and flows’ ‘elastic in (1944) 64 CLR 457 since its application is Stenhouse v Colemen – highly dependent on the perceived necessity for its enforcement and defence of the Commonwealth. Based on per [2007] HCA 33 Thomas v Mowbray Strategic and international political assessments Probability of external aggression Probability of internal aggression The HCA indicated (1916) 21 Extreme Hostilities Farey v Burvett – CLR 433 that during extreme hostilities it will defer judgement to the Parliament [at 488-49] Defence Power in Peacetime The power has two limbs per the Communist Case – This limb can be exercised by Parliament in Primary Limb – times of war and of peace. This limb can only be exercised when Secondary Limb – Australia is involved in war. Immense Field – - Exercise over the second limb Exercise Secondary Limb would provide the Commonwealth with extreme power and over an immense field’ ‘authority The primary limb which exist Exercise Primary Limb - ‘cannot in the same form [as the secondary limb] in times of otensible peace’ per Fullagar J Primary Limb – The primary limb which is exercisable in peacetime per R v – (1942) 66 CLR 452 Bevan; Ex parte Elias and Gordon – allows the establishment and enforcement of a code of military law. This infers that it the defense power can be exercised to A statutory compulsion to render military (1912) 15 CLR service Krygger v Williams – 366 Legislative Control of Commodities in to facilitate Australian Military needs Logan – (1965) 112 Downs Pty Ltd v Cmr of Taxation CLR 177 Maintenance of discipline in armed forces – (1994) 181 CLR 18 Re Tyler; Ex parte Foley
An elastic power? Dependent on the Facts - The defence power has been termed an ‘elastic power which waxes and wanes and ebbs and flows’ by Dixon J in Stenhouse v Colemen (1944) 64 CLR 457 – since its application is highly dependent on the perceived necessity for its enforcement and defence of the Commonwealth. Based on per Thomas v Mowbray [2007] HCA 33 Strategic and international political assessments Probability of external aggression Probability of internal aggression Extreme Hostilities – The HCA indicated Farey v Burvett (1916) 21 CLR 433 that during extreme hostilities it will defer judgement to the Parliament [at 488-49] Defence Power in Peacetime The power has two limbs per the Communist Case – Primary Limb – This limb can be exercised by Parliament in times of war and of peace. Secondary Limb – This limb can only be exercised when Australia is involved in war. Immense Field – Exercise Secondary Limb - Exercise over the second limb would provide the Commonwealth with extreme power and ‘authority over an immense field’ Exercise Primary Limb - The primary limb which ‘cannot exist in the same form [as the secondary limb] in times of otensible peace’ per Fullagar J Primary Limb – The primary limb which is exercisable in peacetime – per R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 – allows the establishment and enforcement of a code of military law. This infers that it the defense power can be exercised to A statutory compulsion to render military service – Krygger v Williams (1912) 15 CLR 366 Legislative Control of Commodities in to facilitate Australian Military needs – Logan Downs Pty Ltd v Cmr of Taxation (1965) 112 CLR 177 Maintenance of discipline in armed forces – Re Tyler; Ex parte Foley (1994) 181 CLR 18
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