Davis v Commonwealth

Davis v Commonwealth - [1988] HCA 63 - HCA 1988 case summary — Zoe

[111]

This Court has not settled the questions whether and to what extent it is within the executive power of the Commonwealth for the Executive Government of the Commonwealth to exercise its prerogative powers or to engage in lawful activities or enterprises calculated to advance the national interest. Though the Constitution gives no express answer to these questions, the answer may be derived from what the Constitution was intended to do and has done. With great respect to those who hold an opposing view, the Constitution did not create a mere aggregation of colonies, redistributing powers between the government of the Commonwealth and the governments of the States. The Constitution summoned the Australian nation into existence, thereby conferring a new identity on the people who agreed to unite "in one indissoluble Federal Commonwealth", melding their history, embracing their cultures, synthesizing their aspirations and their destinies. The reality of the Australian nation is manifest, though the manifestations of its existence cannot be limited by definition. The end and purpose of the Constitution is to sustain the nation. If the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered. There is no reason to restrict the executive power of the Commonwealth to matters within the heads of legislative power. So cramped a construction of the power would deny to the Australian people many of the symbols of nationhood - a flag or anthem, e.g. - or the benefit of many national initiatives in science, literature and the arts. It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest. But s. 61 does confer on the Executive Government power "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", to repeat what Mason J. said in the A.A.P. Case [18] . In my respectful opinion, that is an appropriate formulation of a criterion to determine whether an enterprise or activity lies within the executive power of the Commonwealth. It invites consideration of the sufficiency of the powers of the States to engage effectively in the enterprise or activity in question and of the need for national action (whether unilateral or in co-operation with the States) to secure the contemplated benefit. The variety of enterprises or activities which might fall for consideration preclude the a priori development of detailed criteria but, as cases are decided, perhaps more precise tests will be developed.

[114]

By reason of the confined scope of the power conferred by s. 51(xxxix), the area within which a law enacted under that paragraph may create offences is necessarily confined. At least since the Case of Proclamations [21] , the exercise of prerogative power has not been capable of creating a new offence. Nor can the exercise by the Executive Government of a non-statutory capacity create an offence. What offences can be created by a law with respect to a matter incidental to the execution of an executive power? In R. v. Kidman [22] Isaacs J., noting that punishment is beyond the scope of the executive power, observed that "[p]unishment is an ordinary means employed by legislatures to guard and assist the executive power". This was the basis on which Latham C.J. upheld the laws challenged in Burns v. Ransley [23] : see Australian Communist Party v. The Commonwealth [24] . However, the observation by Isaacs J. does not emphasize that the offence-creating law must be in respect of a matter incidental to the execution of executive power, presumably because his Honour regarded punishment as something "quite unnecessary to the existence or exercise of the executive functions". With respect, this seems too extreme a view. Punishment may be necessary to protect the Executive Government's execution or attempted execution of its powers from being frustrated or impaired. But it is one thing to create offences in order to protect the efficacy of execution of executive power; it is another to create offences to supplement what the Executive Government has done or proposes to do. Where the Executive Government engages in activity in order to advance the nation - an essentially facultative function - the execution of executive power is not the occasion for a wide impairment of individual freedom: cf. the Tasmanian Dam Case [25] , per Wilson J. In my opinion, the legislative power with respect to matters incidental to the execution of the executive power does not extend to the creation of offences except in so far as is necessary to protect the efficacy of the execution by the Executive Government of its powers and capacities.

[118]

The first European settlement in Australia was an event of overwhelming significance in Australian history, albeit its significance for the Aboriginal inhabitants of 1788 was profoundly different from its significance for the European settlers of that time. The ensuing two centuries have changed but not eliminated differences in the significance of the event for different people; indeed, the significance of the event has taken on new aspects as the descendants of Aborigines and of Europeans and of both have appraised that significance for themselves in the light of their own experiences and as immigrants from all parts of the world have made their appraisement in the light of the history and culture of their places of origin. Whatever significance one chooses to assign to the event, it was a turning point in the history of those who now make up the Australian nation. In 1788, a system of law and government, religious and ethical beliefs, a money economy, the institution of private property, an urban and agrarian society, and forms of literacy and numeracy that were previously unknown in this country were introduced. Those innovations set the course of modern Australian development and, of course, radically and for ever changed the life, religion, culture, laws and institutions of Australian Aborigines. Although it is arguable that, since the first European settlement occurred in New South Wales, the commemoration should be regarded properly as a State affair, the first European settlement has undoubted significance for the whole of Australia. Giving to the executive power of the Commonwealth the scope which I have described, that power undoubtedly extends to the organizing of the commemoration of the Bicentenary and the stimulation of "an enduring consciousness of the historical basis and significance of that commemoration". The significance to be attributed to the first European settlement, as contemporary experience shows, is one of the abiding concerns of the Australian people. As the Bicentenary can properly be seen as a matter for commemoration by the Commonwealth, the executive power of the Commonwealth extends to the organization of the commemoration of the Bicentenary, and the agency of the Authority is merely the administrative means by which that activity is to be carried into effect. Section 51(xxxix) empowered the Parliament to make a law in aid of that activity. Putting aside ss. 22 and 23 for the moment, the Act is supported by s. 51(xxxix) of the Constitution.

[122]

The effect of s. 22(1) is to prohibit the uses therein specified without the consent of the Authority of symbols evocative of the Bicentenary and of ordinary words, place names and figures which are likely to be used in conjunction in reference to the Bicentenary. (There are four words at the end of s. 22(6)(d)(i) which relate to the International Exposition held in Brisbane which I omit from the present discussion.) The prohibition applies in any of the ways specified in the paragraphs of s. 22(1) irrespective of the purpose of the use of the symbols and expressions or the context in which they appear and it is apt, as the present case illustrates, to inhibit communication about the Bicentenary. Indeed, it imposes an absurd prohibition on the use of "Sydney" or "Melbourne" in conjunction with "1988" (or with "1788" or "88") "in connexion with" a business, trade, profession or occupation. Freedom of speech may sometimes be a casualty of a law of the Commonwealth made under a specific head of legislative power - e.g., wartime censorship - or of a law designed to protect the nation - e.g., a law against seditious utterances - but freedom of speech can hardly be an incidental casualty of an activity undertaken by the Executive Government to advance a nation which boasts of its freedom. If a special provision were necessary to suppress fraud, deceit or the misapplication of Commonwealth funds in the commemoration of the Bicentenary, an appropriate offence-creating provision may have been supportable as a protection of the organization which the Executive Government had set up. But a prohibition on the use of symbols and expressions of communication relating to the Bicentenary in the several ways specified in s. 22(1) is not a law with respect to a matter incidental to the execution of a power to organize the commemoration; it is not a law which protects the efficacy of what the Executive Government has done or may do in organizing the commemoration. It is a law with respect to the subject-matter of the executive power: the commemoration itself. Such a law purports to control the commemoration in a manner which is beyond the executive power of the Commonwealth and which is not incidental to the execution of that power. Sections 22 and 23 are not saved from invalidity by conferring an unconfined discretion upon the Authority to consent to a particular use of prescribed symbols and expressions. The discretion does not change the character of those sections. Nor is freedom of speech restored by creating a discretionary authority to allow it.

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