Is Constitution s 51 Suited to a Situation in which it is Claimed that There is a War on Terror - Assignment Example

Running Header: Is the Defence Power, Constitution s 51(vi), suited to a Situation in which it is claimed that there is a “War on Terror”? Student’s Name: Instructor’s Name: Course Code & Name: Date of Submission: Is the Defence Power, Constitution s 51(vi), suited to a Situation in which it is claimed that there is a “War on Terror”? Introduction War on terror for a long time has been a major concern in Australia. The terrorism act that was committed on September 11 2001 on US soil indicated that that there is a danger imposed by terror groups to cause innocent causalities on a magnitude largely seen merely during time of war. After September 9/11 and the consequences of the came to be known ‘war against terror’, legal systems have been faced with challenges of contemporary terrorism for conventional understandings of defence and war (Santow and Williams 68). For instance, while the international justice court has maintained that self-defence under the charter of United Nations cannot be utilized by a nation in regard to an aggression by non-member actors resulted this to be fiercely challenged in international law. Additionally, there exist a hot discussion regarding the lower threshold for belligerency in law of international humanitarian and if terror actors are fighters in the eye of war laws. Section 51 (vi) within the constitution of Australia, grants the commonwealth parliament rights to make legislations in regard to the defence of commonwealth and other states by the military defence (Commonwealth Consolidated Acts). Although the defence power, Constitution Section 51 (vi) is placed to some degree on perspectives of war on terror, it is agreeable that is not adequately suited to situation in which it is claimed there is war on terror. The powers under section 51 (vi) of the constitution of Australia may be passed by various states but in several instances, it is prevailed by the commonwealth law. In addition, the defence power must be read together with other different parts of the Australian constitution. This enables full knowledge of how these sections links with each other. A good example is on section 114 of the constitution which makes a provision that the parliament’s consent from the commonwealth is required for a state to maintain a military force as well as rising of a naval force. This result in powers found within section 51(vi), to be only applicable to the commonwealth. The sections in the Australian constitution link with each other such that one section is a complement of the other. To add on this, section 119 have to be read together with section 114 of the Australian constitution so as to give a duty to the commonwealth to make use of the power given in section 51 (vi). It is the duty of the common wealth to give protection to each state from terrorist invasion. This is the reason why section 51 (vi) other wise known as the defence power is to some degree viewed to be in a position to fight terrorism in Australia. Terrorism has been the major threat in the whole world, many countries and states have for a very long time declared war on terror. This is a challenge to the development of commonwealth states. Though there are laws put in place to fight global terrorism, some of these legislations develop legal loopholes whereby legal technicalities occur when there is a case involving terrorism acts. The defence power is possibly bold and covers a wide range of definition when there is a war on terror in Australia as well as other commonwealth states; it must involve a lot of creativity as well. Though the defence power is well situated to combat terrorism crime, it has some limitations especially when this power is relied on to give support to political parties in Australia. An example of support the defence power gave to the Communist Party of Australia (Twomey Anne 217). The constitution of Australia section 51(vi), creates a constitutional debate on whether it is effective in fighting terrorism in Australia, this paragraph grants the parliament the powers to form laws regarding military and naval defence of the common wealth states and several other states. This power is particularly applying to defence from foreign countries, this however, is not supported by any other written word in this section of the constitution. This is also a contradiction to the warfare that has been in existence for many years. The stating of the words military and naval does not cleary define whether this is applicable when there is war on terror simply because they do not define well whether terrorism acts fall under this section. Therefore, it is easy for this clause to be challenged in a court of law. There is no connection between naval and terrorism ; this is so because it is not well indicated in writing that terrorism acts falls under this section where naval and the military can be used in its eradication. The judicial notice doctrine is basically utilized by the court system to provide information that determine the scale of the validity and defense power of every law argued to be enacted under the power (Finnis 169). Where an issue arrives first the High court instead on appeal basis, which is mostly the scenario for constitutional validity questions, lack of agreement as to the facts among the parties, judicial notice can be the mere way of the court getting facts that influence its decision. At generality level, judicial notice is easily accepted but its application in specific cases is more difficult. It is can be uncertain if every judge has access to the similar facts and if the parties have right to rise submissions to oppose conclusions that the court is looking to make. National security matters may bring in specific complexities, particularly in regard to terrorism. Firstly, the judicial notice doctrine might leave the court with insufficient facts that base the determination of threats to national security. Specifically, some of the highly pertinent fact will not be revealed, or even be recorded in a reputable reports or works, though might only be known to the intelligence service or military. What is known fact might also turn to be inaccurate in a highly politicized and contested area such as national security where stakeholders are known to misinform public via utilization of propaganda. Thus, there might be a space between facts that can be accessed by judicial notice and the entire information needed to correctly determine a threat to security and the resulting scale of the defense power. Contemporary terror acts pose difficulty of definition. Nations have basically retained a difference between armed conflict and acts of terrorism in international humanitarian law (Williams and Pintos-Lopez 96). Terror suspects are not perceived as fighters and should not claim immunity of combatant. However, the difference between conventional insurgency forms and terrorism may be unclear when those unleashing terror utilize both non-military and military means. While some criminal activities carried out by terrorists, for instance aggression against military personnel or facilities, may be highly compared to conventional defence threats, others will be highly similar to criminal acts that are ordinary, like kidnapping or murder. Therefore, there is no fundamental to acts of terrorism that shows a needed connection to defence in every circumstance. It might be hard to decide when the threat presented by terror acts is adequately enough to substantiate recourse to the power of defence. The difficulties of constitutional characterization and interpretation are expanded by the high discretion mostly offered by the legal system to the executive in regard to issues of national security and defence (Williams and Pintos-Lopez 91) . Some functions of government are regarded as entirely to fall on the executive competence. These involve the roles mostly carried by the sovereign, specifically in regard to the conduct of war and diplomacy. Hence, the authority to declare war is specifically seen as the absolute obligation of executive and it is covered to fall within section 61. Scrutiny on judgment of the head of government in entering treaties or declaration of war will actually be unjusticiable. However, where such matters are exercised via power of legislature, like the defence powers in section 51, the legislation validity will actually be justiciable in reference to the constitutional requirements. The defence power under section 51 (vi) must be applied with combination of other parts of the Australian constitution. Though the defence power is well positioned to eliminate terror crimes, it faces some limitations. The inclusion of words naval and military in section 51 (vi) does not clearly define whether terrorism acts fall under this section. Issues regarding national security bring in implications, particularly in regard to terrorism. This because the judicial notice doctrine may leave the court with insufficient facts that base the determination of threats to national security. Current terror acts pose difficulty of definition where states have retained differences between armed conflict and acts of terrorism. The difficulties of constitutional characterization and interpretation are expanded by the high discretion mostly offered by the legal system to the executive in regard to issues of national security and defence. Works cited Commonwealth Consolidated Acts. Commonwealth of Australia Constitution Act - Sect 51. Jan. 2010. 20 May 2011. < http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html >. Finnis, Joseph. Separation of Powers in the Australian Constitution. (2008): 160-180. Santow, Edward and Williams, George. “A gap in the Rule of law?” Terrorism Threat Assessments 6. 2 (2006): 56-79. Twomey, Anne. Review of High Court Constitutional Cases. (2008): 215- 238. Williams, George and Pintos-Lopez, Hernan. “Thomas v Mowbray and the New Scope of the Defence Power” Enemies Foreign and Domestic 28.1 (2008): 83-111. Read More