Attorney-General (NSW); Ex rel McKellar v The Commonwealth

The Attorney-General of New South Wales, on the relation of McKellar, brought an action against the Commonwealth of Australia in the High Court of Australia. The dispute concerned the validity of certain provisions of the *National Service Act 1951* (Cth) and the *Defence Act 1903* (Cth), specifically those relating to the compulsory military training and service of citizens. The core of the challenge was whether the Commonwealth possessed the constitutional power to enact such legislation.

The High Court was required to determine whether the Commonwealth Parliament had the constitutional authority to make laws with respect to compulsory military training and service. This involved an examination of the scope of the defence power conferred by section 51(vi) of the *Constitution*, and whether it extended beyond the raising and maintaining of a military force to encompass the compulsory training and service of citizens in peacetime. The Court also considered whether the impugned provisions were supported by any other head of Commonwealth legislative power.

The Court ultimately held that the defence power in section 51(vi) of the *Constitution* was sufficiently broad to support legislation for compulsory military training and service in peacetime. Barwick C.J., Gibbs, Stephen, Mason, and Aickin JJ formed the majority, reasoning that the power to raise and maintain a defence force necessarily included the power to train and equip those who would form that force. They distinguished between the power to *raise* a force and the power to *maintain* it, concluding that the latter encompassed the means by which the force was kept effective, including the training of its members. Jacobs and Murphy JJ dissented, arguing for a narrower interpretation of the defence power. The Court dismissed the plaintiff's claim.