Measuring the Metes and Bounds of Commonwealth Executive Power: Towards an Explanation of Section 61 of the Constitution
The High Court of Australia has, in a series of decisions, attributed constitutional significance to the attainment of nationhood. Various members of the Court have considered the character and status of the Commonwealth as a nation as being a relevant factor in their construction of s 61 of the Constitution. It has also been used as a source of power. This so-called ‘implied nationhood power’ has authorised the Commonwealth to engage in a wide range of activities of a ‘peculiarly national character,’ often in the absence of parliamentary authorisation. There is, therefore, some concern that the concept of nationhood has been used by the High Court as a means of expanding the scope of Commonwealth executive power, as it has authorised the Commonwealth to engage in activities which largely fall beyond the subject matters of legislative power conferred by the Constitution.
This thesis explores the relationship between nationhood and Commonwealth executive power in s 61 of the Constitution with a view to presenting an overarching theory about nationhood as a constitutional principle. It asks probing questions about the constitutional significance of Australia’s attainment of nationhood. It examines how the concept of nationhood has been employed by the High Court and contends that a distinction needs to be drawn between the use of nationhood as a legal principle and nationhood as a source of inherent or implied Commonwealth power. The thesis concludes by determining whether nationhood can be limited by express constitutional provisions or other constitutional implications, focusing particularly on the interaction between nationhood and Australian federalism.