Davis & Ors v The Commonwealth of Australia

The High Court of Australia heard an application brought by three Aboriginal plaintiffs challenging the validity of the Australian Bicentennial Authority Act. The plaintiffs, one operating a printing and design business and the others involved in the retail of clothing produced by the first, sought to invalidate specific provisions of the Act, namely sections 22 and 23, and also challenged appropriations made by the Commonwealth. The Commonwealth of Australia was the defendant, with the Attorneys-General for Victoria, South Australia, New South Wales, and Tasmania intervening, some in support of the defendant and others to argue for the invalidity of portions of the Act.

The central legal issues before the Court concerned the constitutional validity of the Australian Bicentennial Authority Act, particularly sections 22 and 23, and the associated appropriations. The plaintiffs' standing to bring the action was also a relevant consideration. The Court was required to determine whether the Act and its appropriations fell within the constitutional powers of the Commonwealth, with interventions raising arguments about the incidental exercise of executive power and specific heads of constitutional power.

The Court was presented with arguments regarding the scope of Commonwealth legislative power, including the executive power and the ability to legislate for matters incidental to the exercise of governmental functions. The Solicitor-General for Queensland offered "qualified support" for the defendants, suggesting that the Authority's formation might be considered incidental to the exercise of executive power if necessary for the functions of government, but not otherwise, unless it could be brought within a specific head of power. The plaintiffs' immediate concern was with sections 22 and 23 of the Act, though their submissions indicated that the validity of these sections could impact the validity of the entire Act.