Fertile Ground for Federalism? Internal Security, the States and Section 119 of the Constitution
| DOI | 10.22145/flr.43.2.5 |
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
| Subject Matter | Article |
FERTILE GROUND FOR FEDERALISM? INTERNAL
SECURITY, THE STATES AND SECTION 119 OF THE
CONSTITUTION
Peta Stephenson*
ABSTRACT
Section 119 of the Australian Constitution confers a duty on the Commonwealth to protect
the states against invasion. It al so directs the Commonwealth to protect the states against
domestic violence when an application is made by a state gov ernment. This article
contends that there are compelling reasons to construe this second limb of s 119 as a
federal constraint on the power of the Commonwealth t o call out the military
domestically. This interpretation of s 11 9 is consistent with the plai n meaning and
constitutional context of th e provision and it coheres well with the High Court's revival
of interpretive federalism.
I INTRODUCTION
In Williams v Co mmonwealth ('Williams'), 1 a majority of the High Court relied on
'interpretive federalism'2 to constrain the scope of the Commonwealth's executive
power.3 The majority held that a C ommonwealth funding agree ment and expenditure
* BA, LLB (Hons) (UQ); PhD Candidate, TC Beirne School of Law, University of Queensland.
I would like to thank the anonymous referees for their thoughtful and detailed comments.
An earlier version of this article was presented as part of the Working Paper Series at the TC
Beirne School of Law at The University of Queensland. My thanks are especially due to
Jonathan Crowe and to Graeme Orr, Jim Allan, Simon Bronitt, Rebecca Ananian-Welsh and
the other participants for their generous and helpful feedback. Any errors and omissions are,
of course, my own.
1 (2012) 248 CLR 156.
2 See David Hume, Andrew Lynch and George Williams, 'Heresy in the High Court? Federalism
as a Constraint on Commonwealth Power' (2013) 41 Federal Law Review 71, 74, 83, 90.
3 The federal character of the Commonwealth was also a relevant factor in interpreting the
Commonwealth's executive power in Commonwealth v Colonial Combing, Spinning and
Weaving Co (1922) 31 CLR 421, 443 (Isaacs J) ('the Wooltops Case'); R v Sharkey (1949) 79 CLR
121, 151–2 (Dixon J); Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 364 (Barwick
CJ), 378–9 (Gibbs J), 396–8, 400–1 (Mason J), 406 (Jacobs J) ('the AAP Case'); R v Duncan; Ex
parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535, 560 (Mason J) ('Duncan'); Davis v
Commonwealth (1988) 166 CLR 79, 93 (Mason CJ, Deane and Gaudron JJ), 103–4 (Wilson and
Dawson JJ) ('Davis'); R v Hughes (2000) 202 CLR 535, 554–5 [38] (Gleeson CJ, Gaudron,
290 Federal Law Review Volume 43
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for the provision of school chaplaincy services in state schools could n ot be supported
solely by the Commonwealth's general executive power to spend, in the absence of
legislative authority. The majority accepted that the Commonwealth's executive power
'is not unlimited'4 and held that the school chaplaincy program fell within an area of
state responsibility.5 Williams has been described as a 'landmark' decision,6 because of
the High Court's renewed emphasis o n federalism as an interpretive tool to aid its
construction of s 61 of the Constitution.7 This article consid ers the possible relevance of
'interpretive federalism' in Williams for s 119 of the Constitution.
Section 119 is the wallfl ower of the Constitution. It is entitled 'Protection of States from
invasion and violence' and appears in Chapter V of the Constitution dealing with 'The
States.' Section 119 provides that:
The Commonwealth shall protect every State against invasion and, on the application of
the Executive Government of the State, against domestic violence.
It is a provision which has consistently remained at the sidelines of constitutional
analysis in Australia. It has received only scant attention from scholars8 a nd, save for
some passing remarks made in a handful of cases, 9 the provision has largely escap ed
the scrutiny of the High Court. This is primarily because s 119 has rarely been utilised.
The states have requested Commonwealth assistance on few occasions10 and have
McHugh, Gummow, Hayne and Callinan JJ); Pape v Commissioner of Taxation (2009) 238 CLR
1, 62 [131]–[132] (French CJ); 114 [323], 115–6 [327] (Hayne and Kiefel JJ) ('Pape').
4 Williams (2012) 248 CLR 156, 231 [131] (Gummow and Bell JJ), 269 [247] (Hayne J), 303 [362]
(Heydon J), 347 [501], 356–7 [539] Crennan J, 371 [586] (Kiefel J) quoting with approval the
AAP Case (1975) 134 CLR 338, 396 (M ason J).
5 Williams (2012) 248 CLR 156, 192–3 [37] (French CJ), 235 [146] (Gummow and Bell JJ), 347
[501], (Crennan J), 370 [581], 373 [594] (Kiefel J).
6 Hume, Lynch and Williams, above n 2, 71. See also Gabrielle Appleby and Stephen
McDonald, 'Looking at the Executive Power through the High Court's New Spectacles' (2013)
35(2) Sydney Law Review 253, 272–5.
7 Williams may, therefore, signal a retreat from interpretive principles set out in Amalgamated
Society of Engineers v Commonwealth (1920) 28 CLR 129 ('Engineers Case').
8 See, eg, A R Blackshield, 'The Siege of Bowral – The Legal Issues' (1978) 4(9) Pacific Defence
Reporter 6; C M Doogan, 'Defence powers under the Constitution' (1981) 31 Defence Force
Journal 31; Michael Head, 'The Military Call-Out Legislation – Some Legal and Constitutional
Questions' (2001) 29 Federal Law Review 273; Michael Head, 'Calling Out the Troops –
Disturbing Trends and Unanswered Questions' (2005) 28(2) University of New South Wales
Law Journal 479; Michael Head, Calling Out the Troops: The Australian Military and Civil Unrest
(Federation Press, 2009); Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat
to Democracy (University of New South Wales Press, 2004); R M Hope, Protective Security
Review (Australian Government Printing Service, 1979); H P Lee, E mergency Powers (Law
Book, 1984); Margaret White, 'The Executive and the Military' (2005) 28(2) University of New
South Wales Law Journal 438.
9 Farey v Burvett (1916) 21 CL R 433, 452 (Isaacs J); Joseph v Colonial Treasurer of New South Wales
(1918) 25 CLR 32, 46–7 (Isaacs, Powers and Rich JJ); Adelaide Company of Jehovah's Witnesses
Inc v Commonwealth (1943) 67 CLR 116, 162–3 (Williams J); Carter v Egg and Egg Pulp Marketing
Board (Vic) (1942) 66 CLR 557, 589 (McTiernan J); R v Sharkey (1949) 79 CLR 121, 148–152
(Dixon J); Thomas v Mowbray (2007) 233 CLR 307 , 394–5 [247]–[249] (Kirby J).
10 See, eg, requests for Commonwealth assistance from: the Tasmanian Government in 1916 to
protect against expected disturbances from the referendum on conscription; the Queensland
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