NATIONHOOD POWER AND INTERGOVERNMENTAL IMMUNITIES: WHERE DOES THE POWER VEST
I
INTRODUCTION
This article will be addressing whether the Coronavirus Attack, Response, and Defense Act (CARDA) has the constitutional validity under the inherent nationhood head of power of the Australian Constitution (AC) under the head of power section 51 (xxxix), by the operation of section 61 of the AC. The second part of the essay will be addressing whether section 2 of CARDA complies with the doctrine of intergovernmental immunities, and a discussion on how the executive can potentially interfere with states and their ability to function as a government will be elaborated on. Relevant case law will be analysed and applied to explain how the executive can implement CARDA, while pointing out characteristics that need be highlighted, due to the level of ambiguity on how nationhood powers operate and the issues that arise from overusing them. A conclusion will be provided with a few recommendations, to clarify potential avenues that could alter the course of the effectiveness of the CARDA. In order for the executive to enact legislation, that is constitutionally valid, there must be a head of power that allows them to do so, which is supported under section 51 of the AC.1 However, there are two forms of non-statutory executive power that can also be of relevance when the executive are attempting to respond to national emergencies through introducing new legislation, which cannot be categorised into a head of power listed in section 51 of the AC. Firstly, the powers said to be a consequence of nationhood. Secondly, powers that are necessary to respond to an emergency or a crisis.2 Therefore, nationhood power is the power of the commonwealth, specifically the executive, to make laws due to the inherent nature, implied nature or an expected duty that can only be achieved by the executive.3
II A
NATIONHOOD POWER
History of Development
One of the earliest ideas that contributed to the formation of nationhood power can be attributed to the case of, R v Sharkey (1949) 79 CLR 121(Sharkey). Dixon J comments on the power that is contained within a government institution, and thereby giving the foundations for the concept of nationhood power to arise.4 However, the power is not expressly given but due to the nature of having a federal government, as a political institution, nationhood power becomes an incidental power.5 There was no mention of nationhood power in the case of Sharkey, but the language used paved way for the idea of the inherent authority and character of the
1
Commonwealth of Australia Constitution Act 1900 (Imp). K M Hayne, Executive Power, (2017) 28 PLR 236. 3 Dr Max Spry, The Executive Power of the commonwealth: its scope and limits, Law and Public Administration Group, Research Paper 28 (1995-96). 4 R v Sharkey (1949) 79 CLR 121. 5 Ibid 2
5
