Our Constitution was inaugurated on principles instituted in our legal history. Among these none could be more fundamental than the rule of law, preserved by the distinct separation of powers. In situations when "the peace and tranquility" of the nation is "disrupted by natural or economic disasters or threatened by internal dissension or external aggression", the Executive is the arm of government uniquely equipped to respond to such calamity. While the powers of the executive in these times should be amplified in order to facilitate an appropriate response - so that order of things do not arrive at such a critical stage such that a nation's constitutional and legal fabric shatter - the extent of, and limitations on, this power cannot be dismissed as legal niceties, and needs to be examined thoroughly to be better understood. Sir Owen Dixon warned us, "HistoryÃ¢ÂÂ¦ shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding executive power."
The nature, scope, and exercise of the Commonwealth executive power have been exhaustively discussed as a contentious subject. This essay will focus on the development of the 'Nationhood' power and define its scope, culminating in the judgment in Pape v Commission of Taxation.[1: Hoong Phun Lee, Emergency Powers (Lawbook Company, 1984) 1. ][2: Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 187 ("Communist Party Case").][3: E.g. George Winterton, Parliament, the Executive and the Governor General: a Constitutional Analysis (Melbourne University Press, 1983); George Winterton, 'The Limits and Use of Executive Power by a Government' (2003) 31 Federal Law Review 421; Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (Lawbook Co., 3rd ed, 2010) 143-176; Tony Blackshield and George Williams, Australian Constitutional Law: Commentary and Materials (Federation Press, 5th ed,