the existence of Commonwealth executive power in areas beyond the express

The existence of commonwealth executive power in

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‘the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence.’ (94) Brennan J: ‘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’ (110)- we can recognise in s 61 that the executive has the power to take actions for the purposes of the national a government. Initiatives that strengthen the nation – e.g. flag and anthem; national initiatives in science and literature e.g. s 61 – supported by s 51 (39) ‘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’ … ‘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 …’ (112-3)- contrasting things like establishing a flag, anthem with what was being done in this case against the coercive power against an individual freedom necessary for a national government. On coercive laws appealing to the executive power, see French CJ in Pape at [10] – the scope of s 51(xxxix) (incidental power): ‘absent authority supplied by a statute under some [other] head of power … likely to be answered conservatively’ Quoting from Dixon J in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 187: ‘History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.’ 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’ Victoria v Commonwealth (1975) 134 CLR 338, 397 ( AAP Case ) Mason J. Appropriations and Spending Section 81, Constitution All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.’ What is the effect of an appropriation Act?
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