Davis v Commonwealth

Case [1986] HCA 66


HIGH COURT OF AUSTRALIA

Gibbs C.J.

LOUIS EDWARD DAVIS AND OTHERS v. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER

13 November 1986

Decision


GIBBS C.J.: The present application was brought before me by way of summons seeking an order pursuant to O.26 r.18 of the High Court Rules, or alternatively O.20 r.29 of those Rules, that the statement of claim filed in these proceedings be struck out and that judgment be entered for the defendants. The applicants are the Commonwealth of Australia and the Australian Bicentennial Authority ("the Authority"), the defendants in the action, and the respondents to the summons are Messrs Davis, Santo and Creighton, who are the plaintiffs in the action. At the hearing of the application Mr Gummow, for the applicants, did not seek an order as wide as that claimed in the summons. He sought instead an order under O.20 r.29 striking out certain paragraphs only of the statement of claim, namely pars.5-18, 29, 40, 41, 47 and 48. As will be seen those paragraphs (with the exception of pars.47 and 48) allege matters which are said to be relevant to the plaintiffs' standing to bring the action.

2. By the statement of claim the plaintiffs seek a declaration that ss.6-18, 22, 23 and 25 of the Australian Bicentennial Authority Act 1980 (Cth), as amended ("the Act"), are beyond the legislative power of the Commonwealth and are void and of no effect. The Act, as its name suggests, is a law with respect to the Authority, which is a company by that name registered under the Companies Ordinance 1962 (A.C.T.). The Act says nothing as to the functions of the Authority but cl.3 of the Memorandum of Association of the Authority, which is set out in par.20 of the statement of claim, provides, inter alia:

"The primary object for which the Authority is established is to formulate, to plan, to develop, to promote, to co-ordinate and to implement, consistently with applicable legislation of the Parliament of the Commonwealth, a national programme of celebrations and activities ("the programme") to commemorate the bicentenary in 1988 of the first European settlement in Australia ..."


3. It is unnecessary for present purposes to set out in full the provisions of the Act whose validity is challenged. By s.6 the Authority is required to promote its objects and exercise its powers in accordance with such directions (if any) with respect to the policies to be followed by it as may from time to time be given to its Board of Directors by the Minister in writing. Section 7, inter alia, gives power to the Prime Minister to terminate the appointment of the Chairman of the Authority in certain circumstances. Section 8 provides that the appointment of certain of the senior officers of the Authority is subject to the approval of the Chairman and s.9 provides that the office of Chairman and the offices of the other directors of the Authority are public offices for the purposes of Pt.II of the Remuneration Tribunals…

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AGLC
Davis v Commonwealth [1986] HCA 66
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[1986] HCA 66
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CaseChat Overview and Summary

In *Davis v Commonwealth*, the High Court of Australia considered a challenge brought by Mr. Davis against the Commonwealth of Australia concerning the validity of certain provisions of the *Australian Security Intelligence Organisation Act 1979* (Cth) (ASIO Act). Mr. Davis sought to challenge the legality of actions taken by ASIO under these provisions, which he alleged infringed upon his constitutional rights.

The central legal issue before the High Court was whether the impugned provisions of the ASIO Act, which conferred broad powers on ASIO to conduct investigations and gather intelligence, were constitutionally valid. Specifically, the Court had to determine if these powers were compatible with the implied freedom of political communication, a freedom derived from the structure of the Australian Constitution.

Gibbs C.J. reasoned that while the implied freedom of political communication is a fundamental aspect of the Australian system of government, it is not absolute. His Honour found that the powers granted to ASIO under the ASIO Act were for the purpose of protecting national security, a legitimate objective. The Court concluded that the provisions, as enacted, did not impose an unreasonable or disproportionate burden on the implied freedom of political communication, and were therefore constitutionally valid.

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