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- Title
NATIONHOOD AND SECTION 61 OF THE CONSTITUTION.
- Authors
Stephenson, Peta
- Abstract
This article explores the relationship between the nationhood power and s 61 of the Constitution. It argues that, in the majority of decided cases, the nationhood power has not supported the Commonwealth Government engaging in coercive activities that would have been denied to it at common law. The key issue that has arisen in the case law has been whether an executive act fell within a subject matter of Commonwealth executive power. In this regard, the Court has found that Australia's attainment of nationhood expanded the areas of Commonwealth responsibility over which the executive power could be exercised. It is further shown that the nationhood power has not undermined the federal distribution of powers. The Court has, in ascertaining whether an executive act is supported by the nationhood power, consistently applied Mason J's 'peculiarly adapted' test, which was set out in Victoria v Commonwealth and Hayden ('AAP Case'). This test incorporates federalism to condition and limit the nationhood power.
- Subjects
AUSTRALIA; EXECUTIVE power; CONSTITUTIONAL law; DELEGATION of powers
- Publication
University of Western Australia Law Review, 2018, Vol 43, Issue 2, p149
- ISSN
0042-0328
- Publication type
Article