16 February 2019


'The Schmitelsen Court: The Question of Legitimacy' by Or Bassok in German Law Journal (Forthcoming) comments
  In recent years, a new creature has emerged on the institutional landscape: the Schmitelsen Court. This Court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate during the Weimar years on “Who is the Guardian of the Constitution?”. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. However, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton in the Federalist No. 78 raised the notion of the guardian of the constitution long before Schmitt and Kelsen did so. He designated the judiciary as the guardian and ascribed expertise as its source of legitimacy. After describing how in recent decades the American Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into a Schmitelsen guardian.
'Nationhood and Section 61 of the Constitution' by Peta Stephenson in (2018) Vol 43(2) University of Western Australia Law Review 149
 explores the relationship between the nationhood power and s 61 of the Constitution. It argues that, in the majority of decided cases, the nationhood power has not supported the Commonwealth Government engaging in coercive activities that would have been denied to it at common law. The key issue that has arisen in the case law has been whether an executive act fell within a subject matter of Commonwealth executive power. In this regard, the Court has found that Australia’s attainment of nationhood expanded the areas of Commonwealth responsibility over which the executive power could be exercised. It is further shown that the nationhood power has not undermined the federal distribution of powers. The Court has, in ascertaining whether an executive act is supported by the nationhood power, consistently applied Mason J’s ‘peculiarly adapted’ test, which was set out in Victoria v Commonwealth and Hayden (‘AAP Case’). This test incorporates federalism to condition and limit the nationhood power.
Stephenson comments
Section 61 is the principal repository of Commonwealth executive power in the Constitution. It vests the executive power of the Commonwealth in the Queen and states that it is exercisable by the Governor-General and ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. Section 61 ‘marks the external boundaries’ of Commonwealth executive power but does not define it. The meaning of s 61 can only be properly understood if it is considered in the light of British constitutional history, conventions and the common law. 
Consistent with our British heritage, it is now generally accepted that, in addition to executive powers sourced directly in the Constitution and conferred by statute, s 61 incorporates all of the common law or ‘non-statutory’ powers of the Crown that are appropriate to the Commonwealth, subject to the federal distribution of powers effected by the Constitution. In a classification that has since received judicial endorsement, Sir William Blackstone divided the common law powers into two categories, namely, the prerogative powers and capacities of the Crown. The ‘prerogative’ was understood as referring to ‘those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects’, such as the power to declare war and peace, enter into treaties and confer honours. ‘Capacities’, on the other hand, were those powers that the Crown shared in common with its subjects. Of the Crown’s common law capacities, the power to contract and spend has received the most judicial consideration in recent years, following a spate of High Court challenges to controversial Commonwealth spending programs. 
In Victoria v Commonwealth and Hayden (‘AAP Case’), four Justices of the High Court confirmed that the executive power in s 61 also incorporated an implied executive power derived, in part, from Australia’s national status. Mason J gave the most precise formulation of it, describing it as ‘a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’. This aspect of the executive power has been described as the ‘inherent power’,or ‘implied national power’. More commonly, scholars have referred to it as the ‘nationhood power’, notwithstanding that, until fairly recently, this description was not adopted by a majority of the High Court of Australia.