Sir Owen Dixon and the Concept of 'Nationhood' as a Source of Commonwealth Power
in J. Eldridge and T. Pilkington (eds), "Sir Owen Dixon's Legacy", The Federation Press, Sydney, 2019, pp 56-79.
39 Pages Posted: 7 Oct 2020
Date Written: July 1, 2019
The principal focus of this chapter is to trace from the reasoning of Dixon J, and those whom he influenced, the High Court’s evolving jurisprudence with respect to the concept of “nationhood” as a source of power. A central thesis of this chapter is that it is questionable whether the reasoning of Dixon J in the Cold War Era cases (Sharkey, Burns v Ransley, Communisty Party Case, and the Pharmaceutical Benefits Case) as well as the reasoning in subsequent pivotal executive power cases in the High Court such as AAP and Davis, support the development of an inherent executive “nationhood” power in s 61 of the Constitution. The chapter examines the extent to which the influence of Dixon J, together with the nature of the very issues considered in these cases, come together to influence the outcome of what is often regarded as the most seminal case on executive power in recent years: Pape v Commissioner of Taxation.
Keywords: Owen Dixon, Executive Power, Nationhood, s 61 of the Constitution, the Mason Implication, breadth/depth, responsible government, federal distribution of powers, common law powers of the Crown, prerogative, non-statutory executive capacities
JEL Classification: K10, K30
Suggested Citation: Suggested Citation