Thomas v Mowbray
[2007] HCA 33233 CLR 307
(Decision by: Hayne J)
Thomas
vMowbray
Judges:
Gleeson CJ
Gummow J
Kirby J
Hayne JCallinan J
Heydon J
Crennan J
Judgment date: 2 August 2007
Decision by:
Hayne J
[391] The central issue in the special case stated by the parties is the validity, in their application to the plaintiff, of certain provisions of the Criminal Code (Cth) ("the Code"). The particular provisions in issue were introduced into the Code by the Anti-Terrorism Act (No 2) 2005 (Cth) ("the 2005 Act").
[392] Before the 2005 Act, the Code had contained various provisions dealing with the subject of terrorism. They had been made, first, by the Security Legislation Amendment (Terrorism) Act 2002 (Cth), and were subsequently amended by a number of Acts, including the Criminal Code Amendment (Terrorism) Act 2003 (Cth) ("the 2003 Act").
[393] In 2003, the Parliament of the State of Victoria had enacted the Terrorism (Commonwealth Powers) Act 2003 (Vic) ("the Victorian Reference Act"). Other States enacted similar legislation. As s 1 of the Victorian Reference Act recorded, the purpose of that Act was "to refer certain matters relating to terrorist acts to the Parliament of the Commonwealth for the purposes of [s] 51(xxxvii) of the Constitution". The Victorian Reference Act set out, as a schedule to the Act, the text of what the federal Parliament was later to enact, by the 2003 Act, as Pt 5.3 of the Code.
[394] The provisions of the Code at the centre of the controversy in the present matter are those provisions of Div 104 of the Code which were relied on when a Federal Magistrate (the first defendant) made an interim control order against the plaintiff. Those provisions would be engaged when considering whether that interim control order should be confirmed. The provisions now in issue were not contained in the text of the proposed legislation set out in the schedule to the Victorian Reference Act. There is an issue about whether those provisions are nonetheless supported in their operation in Victoria by the Victorian Reference Act.
[395] Four provisions of the Code are of particular importance: s 100.1 (and in particular, the definition of "terrorist act"), s 104.4 (which is the central provision governing the making of an interim control order), s 104.5 (which regulates the terms of an interim control order) and s 104.14 (which regulates the confirmation of an interim control order). The text of the relevant provisions sufficiently appears in the reasons of other members of the Court.
The special case
[396] Although the active parties in this litigation [531] joined in stating a special case for the opinion of the Court under r 27.08 of the High Court Rules 2004, the questions which the parties stated as "arising in the proceeding" [532] were cast in very general terms.
[397] The proceeding instituted by the plaintiff in the original jurisdiction of the Court is an application for an order to show cause why constitutional writs and associated relief should not issue to the first defendant, the Federal Magistrate who made the interim control order, and the second defendant, the Manager, Counter-Terrorism -- Domestic, Australian Federal Police, on whose application that order was made and who, it is alleged, will, if not restrained, seek confirmation of the order. It is a proceeding that arises in particular circumstances, and the matter to which it gives rise in this Court does not extend beyond the particular factual foundations revealed in the controversy between these parties. The questions of validity that arise in that matter, particularly those relating to the engagement of identified heads of legislative power, are therefore questions about the validity of the relevant provisions in their application to the plaintiff.
[398] Those questions are said to arise out of the facts agreed by the parties in their special case. The special case was amended in a number of respects while pending in this Court but it is not necessary to trace the history of those amendments. It will be necessary, however, to remark upon a number of features of the special case as it was ultimately agreed between the parties.
[399] The special case referred to a large number of statements that were said to have been made by persons or bodies as diverse as the Australian Security Intelligence Organisation ("ASIO"), persons associated with Al Qa'ida, and persons holding public office in Australia. Al Qa'ida was said, in the special case, to be "an organization associated with [Usama] Bin Laden", and persons associated with Al Qa'ida were said to have made various statements between 1998 and 2005 threatening violence against the United States of America and its allies including, in particular, Australia. The special case recorded what were described as "[v]iews and conclusions expressed or reached by or on behalf of the Commonwealth about the threat of terrorism to Australia".
[400] The special case also referred to, and included as annexures, a large number of documents, of many different kinds. They included statements and reports by ASIO, a Council of Australian Governments communiqu é , and transcripts of interviews with, or statements by, Usama Bin Laden, "a person believed to be Ayman al-Zawahiri", and other persons who, on the face of the documents, appeared to be associated with Usama Bin Laden or Al Qa'ida, or associated with some other group having generally similar aims or attitudes. Policies pursued by the United States in the Middle East were said in one of those statements to be "a clear proclamation of war against God, his Messenger, and the Muslims" and it was asserted that "[r]eligious scholars throughout Islamic history have agreed that jihad is an individual duty when an enemy attacks Muslim countries".
[401] The special case further recorded that ASIO had stated that "responsibility or involvement has been claimed by, or reliably attributed to, al-Qa'ida" for a number of attacks that had caused death and injury, including the detonation of truck bombs at United States embassies in Africa, an attack upon a United States naval ship, the USS Cole, in the port of Aden, and the aeroplane hijackings and subsequent attacks upon the World Trade Centre in New York and the Pentagon in Washington on 11 September 2001.
[402] The parties agreed that the statements recorded in the special case "were made or were likely to have been made as stated or alleged" but went on to say that "there is no agreement between the parties as to the truth of the matters stated". They agreed that the documents "were or were likely to have been published as stated or alleged" but again went on to say that "there is no agreement between the parties as to the truth of the matters contained in the documents". The caveats thus entered by the parties inevitably present difficulties in discerning the factual bases from which the relevant questions were said to arise. Not least is that because the relevance of the fact that some statements were made is not always readily apparent. It will be necessary in the course of these reasons to return to consider some more particular aspects of the difficulties presented by the way in which the special case is framed, but those aspects may be put aside for the moment.
[403] Further, when the questions that are said to arise in the matter are cast at the level of generality in which they were framed in the special case, difficult questions may be presented about what exactly are the relevant constitutional facts that bear upon those questions. That, in turn, would require consideration of issues about judicial notice of the kind that were examined in Australian Communist Party v The Commonwealth ( "the Communist Party Case "). [533] But when the questions of validity that arise in this matter are properly identified, as questions about the validity of the operation of the impugned provisions in the particular circumstances of the case, these reasons will show that it is not necessary to resolve any issue about relevant constitutional facts or to explore the limits of doctrines concerning judicial notice. No issue about what are the relevant constitutional facts need be resolved because the determinative question is whether the functions and powers given to federal courts by the impugned provisions constitute the exercise of the judicial power of the Commonwealth. And no issue about the limits of judicial notice need be resolved because the validity of the impugned provisions, in their application to the plaintiff, does not turn upon the Court's being satisfied of the existence of particular facts or circumstances.
A terrorist act
[404] The Code's definition of a "terrorist act" is central to understanding the issues that must be considered. That definition, in s 100.1 of the Code, identifies not only "an action" but also a "threat of action" that has particular characteristics (essentially the causing of serious harm to persons or property, creating a serious risk to the health or safety of the public or a section of the public, or seriously interfering with electronic systems). The action, or threat of action, is not a terrorist act if it is advocacy, protest, dissent or industrial action and is not intended to cause serious harm to persons or to create a serious risk to the health or safety of the public or a section of it. But to be a terrorist act, the action must be done, or the threat made, with the intention of advancing a political, religious or ideological cause, and the action must be done, or the threat made, with the intention of coercing or influencing by intimidation "the government of the Commonwealth or a State, Territory or foreign country" (or a part of a State, Territory or foreign country) or with the intention of "intimidating the public or a section of the public".
The issues
[405] The issues that arise in this Court can be grouped under two principal headings: questions about the legislative power to enact the provisions of the Code concerning control orders, and questions about whether the task that the Code assigns to the identified federal courts is the exercise of the judicial power of the Commonwealth. The questions about legislative power were argued with particular reference to the defence power (s 51(vi)) [534] , the reference power (s 51(xxxvii)) [535] , the external affairs power (s 51(xxix)) [536] and what was described as the "implied power to protect the nation". It will be necessary to consider whether any of the several heads of legislative power mentioned in argument is engaged. But because the discretionary authority to make control orders is given by the legislation to federal courts, it is also necessary to consider the content of the task that is thus assigned and decide whether "the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power". [537]
[406] It will be convenient to deal first with the questions about legislative power and then to deal with the questions about judicial power. The first questions should be resolved in favour of validity, but the legislation should be held to be invalid on the ground that the jurisdiction it purports to give to federal courts is not jurisdiction in a matter. The criterion of liability to suffer the making of a control order hinges about the protection of the public from a terrorist act. It does not depend upon the application of any norm or standard of conduct either to the person against whom the order is to be made, or to any past, present or future conduct of that person. The determinative question presented by the legislation to a court asked to make or confirm a control order is whether doing so will tend to protect the public from a terrorist act. The requisite tendency is to be determined [538] by application of the expression "is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public". The question that an issuing court is to address is not a question that is to be decided by the application of legal norms that are identified in the legislation.
Sources of legislative power
[407] As noted earlier, four heads of power were relied on to support the impugned provisions of the Code: the defence power, the reference power, the external affairs power and the "implied power to protect the nation". It will be convenient to deal in any detail with only the first two of these heads of power -- the defence power and the reference power. Whether, or to what extent, the external affairs power or an "implied power to protect the nation" might support laws to the same general effect as the impugned provisions, in their operation in the circumstances of this case or in their operation in other, different circumstances, need not be considered. Nothing that is said in these reasons should be understood as deciding those questions. It is convenient to put those questions to one side because each of the defence power and the reference power supports the validity of the impugned provisions in their operation in the facts of this case.
Relevant facts
[408] As the questions of validity as properly identified are confined to the validity of the impugned provisions in their application to the plaintiff, it is necessary to begin by identifying the relevant facts and circumstances more precisely.
[409] The plaintiff challenges the validity of laws which permit the making of a control order in circumstances where it is agreed that he undertook paramilitary training overseas, for three months, including training in the use of firearms and explosives. [539] The relevant circumstances include the fact that, in seeking the interim control order, it was alleged that the training the plaintiff had received had been provided by Al Qa'ida, [540] a group which, after the plaintiff had received the training he did undertake, was listed as a "listed terrorist organisation". [541] The relevant circumstances also include the further fact that it is agreed that Al Qa'ida has made statements threatening acts in Australia, and against Australians, which, if committed, would constitute terrorist acts as that term is defined in the Code. The purpose of such acts has been said to be to have the United States of America, and its allies including Australia, end their "centuries-long war against Islam and its people" and have "their armies leave all the territory of Islam, defeated, broken, and unable to threaten any Muslim". That is, the acts threatened are acts of violence which, if committed, would be done with the intention of advancing a cause of a kind described in the definition ("political, religious or ideological"), and would be done with the intention of coercing or influencing by intimidation the government of the Commonwealth to change its foreign policies. This intention may usefully be characterised as an international political aim.
[410] Is a law that permits the making of a control order in the circumstances just described, a law with respect to the naval and military defence of the Commonwealth and of the several States?
The defence power
[411] Apart from the Communist Party Case [542] and Marcus Clark & Co Ltd v The Commonwealth, [543] the decisions in this Court about the defence power have for the most part focused upon issues presented in the context of either the First or the Second World War. Each of those conflicts was a war between nation states. Each had an identifiable commencement and an identifiable cessation of hostilities. The armed forces of the warring nation states were directly engaged in battle. But so too were the civilian populations of those states engaged in the prosecution of the war. Ideas of "total war" that traced their origins to Napoleon were given full rein. Each of those wars can readily be analysed in the elemental terms of von Clausewitz, as "not merely a political act, but also a real political instrument, a continuation of political commerce, a carrying out of the same by other means". [544]
[412] What is said in the decisions of the Court about issues presented in the context of the First and Second World Wars must be understood making due allowance for circumstances of the kind just mentioned. But it is no less important to recognise that the particular political and factual circumstances in which those cases were decided do not necessarily mark the boundaries of the legislative power with respect to the naval and miliary defence of the Commonwealth and of the several States.
[413] Political events during and between the First and Second World Wars, and in particular the emergence of the Union of Soviet Socialist Republics, may have altered the way in which some nation states identified relevant international political aims and objectives, but the military power of the nation state remained the ultimate method for the effectuation of those aims and objectives. Neither before nor during the twentieth century was the application of military power in pursuit of political aims and objectives confined to declared wars between nation states. The United Kingdom had deployed its forces throughout the British Empire and had used those forces to achieve particular ends without there being any declared war between nation states.
[414] It may be possible to identify some changes in the way in which the military forces of nation states were used after the Second World War. Whether that conclusion is justified would require consideration of a number of different forms of military engagement after 1945. First, there were various forms of military response to the independence movements in parts of the colonial empires of the United Kingdom, France, Belgium, The Netherlands and Portugal as well as former German and Italian colonies. Second, there was the engagement of forces deployed under the authority of Ch VII of the Charter of the United Nations as they were, for example, in Korea. Third, there were outbreaks of hostilities in the Middle East and in Indochina that were not preceded or accompanied by a formal declaration of war between nation states. Fourth, the military forces of nation states were used as international peacekeeping forces, sometimes with or instead of forces more closely resembling a police rather than a military force. Fifth, the military forces of nation states were used in response to great humanitarian crises that emerged from natural disasters or political action or inaction.
[415] If these events do represent some change in the way in which military forces were employed in the latter half of the twentieth century they are changes of only indirect relevance to questions that must now be considered about the ambit of the legislative power with respect to defence. Events of the kind described have not stemmed from or led to the enactment of federal legislation that has been subject to challenge. Because Australian involvement in such events has related to the ways in which Australian defence forces have been deployed, new or different legislation has not been necessary, or, the subject-matter of any new legislation being directly concerned with the military forces of the Commonwealth, no separate question of validity has been agitated.
[416] But it may be noted that these ways in which the military forces of nation states were used after the Second World War constituted the use of those forces in execution of the international political objectives of nation states. In all but the humanitarian missions, armed forces were used to achieve those political ends through the actual or threatened application of military power.
[417] By contrast, "terrorism" may be seen as raising new and different issues about legislative power. In part, perhaps in large part, that is because terrorism is a tactic that, by its very nature, may not necessarily be seen as evoking a military response.
[418] "Terrorism" and "terrorist" are words that may have been used more often in the political discourse of recent decades than they were in earlier times. But the words have a long history . The Oxford English Dictionary states, as the first meaning of "terrorism", "[g]overnment by intimidation as directed and carried out by the party in power in France during the Revolution of 1789-94; the system of the 'Terror' (1793-4)". [545] "Terrorist" is given a cognate meaning. [546] But more generally, the words are defined by that work as "the employment of methods of intimidation" [547] and "[a]ny one who attempts to further his views by a system of coercive intimidation". [548] They are, therefore, words that have been used in connection with many different kinds of actions and events.
[419] In the twentieth century, "terrorism" and "terrorist" were words that were often used in connection with actions taken for or against the prosecution of nationalist or independence movements. Sometimes they were used to refer to persons who acted for, or events that were to be explained by, revolutionary purposes. But often the words were used by one part of a society to refer to other, opposing, elements in that society and were used to refer to what may be called "internal" forces and events. Notions of what are "internal" forces and events, as opposed to "external" forces and events, have in the past often depended for their classification upon a priori conceptions of the state or society concerned as shaped by the very conceptions that were being directly challenged by those labelled as "terrorists". No bright line can be identified between some kinds of terrorism or terrorist that are "internal" and some that are "external". It is, nonetheless, important to recognise that the present case concerns threats made by persons and groups outside Australia that are made for the stated purpose of effecting a change in Australia's foreign policies. It is to that extent an "external" threat. This case does not concern any wholly "internal" threat and it is, therefore, neither necessary nor appropriate to examine the issues that might arise were it said that the defence power may be engaged to legislate with respect to such a threat.
[420] Just as no bright line may be drawn between "internal" and "external" threats, so too there is difficulty in making any division between forms of terrorism according to the kind of measures used to meet the actions of, or threats of action by, those identified as terrorists. Sometimes the acts undertaken by those identified as terrorists have evoked a response that was not markedly different from the particular society's response to other forms of criminal activity. Acts of groups like the Red Army Faction in Germany (sometimes called the Baader-Meinhof Gang) were of that kind. By contrast, the acts of groups like the Shining Path (Sendero Luminoso) in Peru were met with steps undertaken by the military forces of that country.
[421] What is important, for present purposes, is that critical to the ordinary meaning of "terrorism" and "terrorist" and to the Code's definition of a "terrorist act" is the idea of intimidation in its ordinary sense: "the use of threats or violence to force to or restrain from some action". [549] And as may well implicitly be an essential element of the ordinary meaning of those words, but is in any event explicitly an essential element of the statutory definition, intimidation is employed for particular purposes: those that the Code identifies as "the intention of advancing a political, religious or ideological cause". Terrorism is therefore a means, a tactic, employed for particular ends.
[422] At once it is evident that meanings given to "terrorism" and to "war" intersect. If, as von Clausewitz had it, war is the pursuit of a nation's political objectives by other means (namely, the concerted application of military force) and if, as the Code defines a "terrorist act", terrorism includes the pursuit of a political, religious or ideological cause by actual or threatened acts of intimidation directed at a polity (including by serious harm to persons and property) the intersection of the two ideas is revealed. They are both tactics used to achieve particular ends. But they do not overlap entirely. So much is apparent from the possibility that military forces are not used to meet a terrorist threat.
[423] The question that now arises is whether a particular legislative response to the threat that persons, or groups of persons, will employ this tactic to intimidate the Commonwealth is, in the particular circumstances of this case, a law with respect to the naval and military defence of the Commonwealth.
[424] The plaintiff's submission, that the impugned provisions of the Code are not supported by the defence power, depended primarily upon two related propositions. The plaintiff submitted, first, that actual or threatened aggression from a foreign nation is a circumstance that is essential to the proper application of the defence power. Secondly, the plaintiff submitted that the power is with respect to the defence of the Commonwealth and the several States as bodies politic, not the defence of citizens or inhabitants of the Commonwealth or the States in their "individual capacities as such, or their property". The plaintiff further submitted that, if the defence power were not understood in this way, and in particular, if a threat from what was described as "a private group or organization" were sufficient to engage the power, it is a power which should still be understood as extending only to defence of the polities that make up the Australian federation, not the protection of the public, property, or "infrastructure systems" from aggression or violence.
[425] It is not helpful to examine the ambit of the legislative power with respect to defence at the level of abstraction at which the plaintiff's submissions are cast. Moreover, to do that may well invite error. It is not helpful because questions of the engagement of the defence power, like any question about validity, are questions about the validity of particular legislative provisions. In the familiar words of Kitto J in Fairfax v Federal Commissioner of Taxation: [550]
the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, 'with respect to', one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character?
And because the defence power, unlike most other heads of power under s 51, "involves the notion of purpose or object" [551] it is essential not to divorce the legislation in question from the proper identification of the purpose that it is intended to serve. As Dixon J made plain in Stenhouse v Coleman, [552] however, the "purpose" that is to be identified is not the subjective purposes of legislators. Rather, the "purpose" is to be collected from the legislation in question, "the facts to which it applies and the circumstances which called it forth". [553]
[426] Questions about how to identify the relevant statutory purpose were central issues in the Communist Party Case. They are questions that must be considered in the present matter. It is, therefore, convenient to examine now what was decided in the Communist Party Case.
[427] It will be recalled that the legislation in issue in the Communist Party Case, the Communist Party Dissolution Act 1950 (Cth) ("the Dissolution Act"), recited that:
it is necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the Australian Communist Party, and bodies of persons affiliated with that party, should be dissolved and their property forfeited to the Commonwealth.
That recital was preceded by recitals referring to the legislative power with respect to defence and the incidental power, a recital referring to the vesting of the executive power of the Commonwealth in the King, exercisable by the Governor-General, and recitals about aims and activities said to be pursued by the Australian Communist Party.
[428] The plaintiffs in the several proceedings that culminated in the decision in the Communist Party Case denied the statements of fact contained in the recitals and wished to adduce evidence to contradict the assertions contained in those recitals. Questions were reserved for the opinion of the Full Court including whether "the decision of the question of the validity or invalidity of the provisions of the [Dissolution Act] depend[ed] upon a judicial determination or ascertainment of the facts or any of them" stated in the recitals of the preamble to the Act. [554] That question was answered "No", and the Dissolution Act was held to be invalid. But it is important to recognise that the ultimate question of validity of the Dissolution Act, and the prior question about what facts bore upon validity, were distinct and separate questions.
[429] It is further necessary to recognise that, as Dixon J said: [555]
to conclude that the question of the validity or invalidity of the Act does not depend on the correctness in fact of the preamble or that evidence to controvert the recitals cannot be offered, the inquiry must be pursued to the point of excluding on the one hand the possibility of the Act being valid although the facts are not in truth as recited and on the other of its being invalid although they or some of them may be as recited". (emphasis added)
That is, the Court's holding in the Communist Party Case that the Dissolution Act was invalid was a holding that, regardless of the truth or falsity of the recitals, the Act was not a law with respect to defence. And it was on that basis that the question about whether the facts recited in the Dissolution Act might be controverted was answered as it was.
[430] What was said in the Communist Party Case about the relevance of the factual inquiries proposed by the plaintiffs, to a consideration of the applicability of the defence power, must be understood in this light. What it reveals is the critical importance attached to the Dissolution Act's effect on "the status, property and civil rights of persons nominatim or by other identification without any external test of liability upon which the connection of the provisions with power will depend ". [556]
[431] The recitals contained "a statement to the effect that persons or bodies of persons have been guilty of acts which might have been penalized in advance under the defence power and have a propensity to commit like acts". [557] And this was recited "as affording a supposed connection between the defence power and the operative provisions enacted". [558] Dixon J did not exclude the possibility that such "an extreme and exceptional extension of the operation or application of the defence power" [559] might result from the necessities of war, and support provisions "containing nothing in themselves disclosing a connection with Federal power and depending upon a recital of facts and opinions concerning the actions, aims and propensities of bodies and persons to be affected". But his Honour concluded [560] that "they are necessities that cannot exist in the same form in a period of ostensible peace" and the critical provisions of the Dissolution Act were held not to be supported by the defence power.
[432] It is relevant to notice the steps in the argument in the Communist Party Case that Dixon J identified as advanced in support of the validity of the Dissolution Act. The recitation of the steps in that argument will provide a useful basis for considering the competing arguments in this matter. It is simplest to set out those steps by reproducing the relevant passage of the reasons of Dixon J, but identifying separate propositions by number. His Honour said: [561]
- [1]
- The central purpose of the legislative power in respect of defence is the protection of the Commonwealth from external enemies and it necessarily receives its fullest application in time of war. It is a legislative power and therefore affords but the means of establishing all the legal machinery and making all the legal provisions considered necessary and appropriate for the purpose.
- [2]
- The responsibility for the practical measures taken in order to protect the country must belong to the Executive. The prosecution of a war is of necessity an executive function and has always been so conceived. It is needless after our recent experiences of war to enlarge upon the extent to which it is necessary in modern war to transfer both power and responsibility to the Executive. The conduct of such a war carries with it the direction and control of men and their affairs in every aspect capable of affecting in any degree the prosecution of the war.
- ...
- [3]
- I think that at this date it is futile to deny that when the country is heavily engaged in an armed conflict with a powerful and dangerous enemy the defence power will sustain a law conferring upon a minister power to order the detention of persons whom he believes to be disaffected or of hostile associations and whom he believes that it is necessary to detain with a view to preventing their acting in any manner prejudicial to the public safety and the defence of the Commonwealth: see Lloyd v Wallach; [562] Ex parte Walsh; [563] and Little v The Commonwealth. [564] The reason is because administrative control of the liberty of the individual in aspects considered material to the prosecution of a war is regarded as a necessary or proper incident of conducting the war. One man may be compelled to fight, another to perform directed work, a third may be suspected of treasonable propensities and restrained.
- [4]
- But what the defence power will enable the Parliament to do at any given time depends upon what the exigencies of the time may be considered to call for or warrant. The meaning of the power is of course fixed but as, according to that meaning, the fulfilment of the object of the power must depend on the ever-changing course of events, the practical application of the power will vary accordingly.
- [5]
- Hitherto a marked distinction has been observed between the use of the power in war and in peace. 'But this Court has never subscribed to the view that the continued existence of a formal state of war is enough in itself, after the enemy has surrendered, to bring or retain within the legislative power over defence the same wide field of civil regulation and control as fell within it while the country was engaged in a conflict with powerful enemies' (R v Foster) [565] . Correspondingly it is no doubt true that a mounting danger of hostilities before any actual outbreak of war will suffice to extend the actual operation of the defence power as circumstances may appear to demand. (emphasis added)
[433] Argument in the Communist Party Case focused upon the application of the last two propositions, especially the fourth. Thus, because at the date of Royal Assent to the Dissolution Act, Australian forces were engaged in hostilities in Korea, it was suggested [566] that "under the influence of events the practical reach and operation of the defence power had grown to such a degree" as to cover the Dissolution Act. But although Dixon J accepted [567] that "the events of the time" had brought within the application of the defence power "measures which would not have been considered competent -- for example, in the state of affairs prevailing when this Court held its first sittings" -- the Dissolution Act was held not to be supported by s 51(vi).
[434] In the present case, the plaintiff fastened upon the first proposition (that the central purpose of the legislative power in respect of defence is the protection of the Commonwealth from external enemies). The plaintiff submitted, in effect, that defence from external enemies was more than the central purpose of the power, it was a defining and necessary characteristic of the purpose of laws made in exercise of the power. Further, so the plaintiff submitted, the only relevant "external enemies" were those that are nation states, not what the plaintiff described as a "private group or organization".
[435] These contentions should not be accepted. Neither is a proposition that is established by, or supported by what is said in, the Communist Party Case or any other decision of this Court. Each is a proposition that seeks to confine the ambit of s 51(vi). Neither the words of the provision, nor the history of its application, supports propositions cast in the absolute terms advanced by the plaintiff. Rather, it will suffice for present purposes to recognise that the impugned provisions of the Code, in their application in this case, would be engaged where it is agreed or alleged that the plaintiff undertook paramilitary training overseas, with a group or body based outside Australia, which has expressed the intention to prosecute political, religious or ideological aims by the application of violence done with the intention of having Australia comply with those aims. The relevant purpose of the impugned provisions is to respond to threats of that kind by authorising the making of control orders.
[436] In support of his contentions, the plaintiff attached weight to the words "naval and military" in the expression "[t]he naval and military defence of the Commonwealth and of the several States". These words, so the plaintiff submitted, described "the kind of defence to which the power is ultimately directed": defence through the exercise of naval and military force. In Farey v Burvett, Griffith CJ said [568] that "naval" and "military" were words of extension, not limitation, "showing that the subject matter includes all kinds of warlike operations". And the many cases decided during the two world wars and upholding the validity of legislation regulating all manner of aspects of daily life are consistent only with the power not being limited to the raising, training and equipping of military forces and ancillary matters. Of course the words are not unimportant; they cannot be ignored. The power must be construed according to its terms. And as Farey v Burvett reveals, "naval and military" are to be seen, in at least some respects, as words of extension not limitation.
[437] But contrary to the plaintiff's submissions, s 51(vi) is not to be read as a legislative power whose content is defined by one or more kinds of response to external threat. It may be accepted that "naval and military defence" does point to kinds of threat with which the power is concerned. In particular, the reference to "naval and military defence" reveals that, as Dixon J said in the Communist Party Case, the central purpose of the legislative power is protection of the Commonwealth from external enemies. It by no means follows from this observation, however, that the only permitted subject-matter of legislation made in reliance upon s 51(vi) is the provision for naval and military responses to such threats. The view that the power is confined in that way was rejected in Farey v Burvett. No less importantly, however, recognising that the central purpose of the power is protection of the Commonwealth from external enemies does not mean that those enemies are necessarily confined to nation states.
[438] Even if it was once true that only nation states had the means of pursuing political aims by the application of concerted force, that is not so today. The means of applying lethal force have changed over time. Not only have weapons changed, the ways in which widespread harm may be inflicted have multiplied. During and after the Second World War, so-called "special forces" raised within regular military forces have been used, as small units, but with great military effect. During the same period, guerrilla tactics, using irregular and numerically small forces, have been used to great effect. So too, now, the events of 11 September 2001 show that "terrorist" tactics can be used by very small numbers of personnel but with large consequences. Power of a kind that was once the exclusive province of large military forces of nation states may now be exerted in pursuit of political aims by groups that do not constitute a nation state.
[439] Because that is so, it may be necessary to consider the continued utility of what Dixon J referred to in the fifth proposition from the Communist Party Case as a "marked distinction ... between the use of the power in war and in peace". The line between war and peace may once have been clear and defined by the declared state of relations between nations. But as the reference in the Communist Party Case to "a period of ostensible peace" [569] reveals, that line is now frequently blurred. The increasing capacity of small groups to carry out threats of widespread harm to persons and property may further obscure the distinction between war and peace if those terms are to be defined primarily by reference to dealings between nation states. If there is that blurring of the distinction between war and peace, it must not be permitted to obscure the essential similarity between the actual or threatened application of concerted force by one nation state on another, in pursuit of the first state's political objectives, and the actual or threatened application of such force by an organisation or group in pursuit of that organisation's international political objectives. The former may be described as "war", and the latter as "terrorism", but each is the pursuit of international political aims by the actual or threatened application of concerted force.
[440] It may be accepted that, as the plaintiff submitted, the defence power is concerned centrally with the defence of the Commonwealth and the several States as bodies politic; the power does not focus upon the physical safety of individuals or their property. Nonetheless, it is important to recognise that in war, force is ultimately applied to persons and property. The aerial bombing campaigns of the Second World War show that force is applied in war in ways that directly affect civilian populations and their property.
[441] The distinction drawn by the plaintiff between the defence of the Commonwealth and the several States as bodies politic, and the defence of citizens or inhabitants of the Commonwealth or the States in their "individual capacities as such, or their property", should, to that extent, be rejected as unhelpful.
[442] There is, however, a related distinction that should be made. It may be drawn between the application of force by individuals whose motives for doing so are not to further any international political aim and the application of force in furtherance of international political objectives. The latter kind of case, in which there are international political objectives, may engage the defence power; the former would seem unlikely to do so. Of course, it must be recognised that the distinction just described may be more difficult to draw in some cases than others, especially if the aim pursued is evidently not capable of fulfilment. And religious and ideological motives may present their own particular difficulties in that respect, especially if the aims being pursued were to be seen as utopian rather than practical. But these difficulties apart, it should be accepted that the defence power is concerned centrally with defence of the Australian bodies politic. It is therefore concerned centrally with defence against the imposition of political objectives on those polities by external force. It matters not whether that force is sought to be applied by other nation states or by groups that do not constitute a state.
[443] "[W]hat the defence power will enable the Parliament to do" in response to the possibility of actions by groups that are not themselves (and are not the proxies of) nation states "depends upon what the exigencies of the time may be considered to call for or warrant". [570] Whether and to what extent it is necessary, in the words of the second proposition identified in the Communist Party Case, "to transfer both power and responsibility to the Executive" to meet the possibility of such actions may present difficult questions. In particular, whether the point would come at which the defence power would "sustain a law conferring upon a minister power to order the detention of persons whom he believes ... that it is necessary to detain with a view to preventing their acting in any manner prejudicial to the public safety and the defence of the Commonwealth" need not be decided. It is sufficient to note that the reason given by Dixon J in the Communist Party Case for the validity of such legislation in wartime was that administrative control of the liberty of the individual in this respect was a necessary or proper incident of conducting the war in which the nation was then engaged.
[444] These are not questions that arise in this matter. The impugned provisions do not provide for administrative detention. They provide for restraints on liberty to the extent that those restraints are "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". [571] Subject to the judicial power issues that will be considered separately, the impugned provisions are explicitly directed to the prevention of terrorist acts. That is their evident purpose (understanding "purpose" in the sense described by Dixon J in Stenhouse v Coleman) [572] . They are engaged in relation to the plaintiff in the circumstances earlier described. In that operation the impugned provisions are laws with respect to the naval and military defence of the Commonwealth. They are laws with respect to naval and military defence because, in their particular operation in this case, they provide measures directed to preventing the application of force to persons or property in Australia that is sought to be applied for the purpose of changing the federal polity's foreign policies.
[445] Although the conclusions just reached suffice to support holding that (judicial power questions apart) the impugned provisions are supported by a head of legislative power, it is as well to say something about the engagement of the reference power.
The reference power
[446] Because the impugned provisions of the Code were not provisions that were part of the text set out in Sch 1 to the Victorian Reference Act, argument about the application of the reference power in the present matter focused upon the operation of s 4(1)(b) of that Act. The matter referred to the Parliament of the Commonwealth by s 4(1)(b) of the Victorian Reference Act was described in that provision as:
the matter of terrorist acts, and actions relating to terrorist acts, but only to the extent of the making of laws with respect to that matter by making express amendments of the terrorism legislation or the criminal responsibility legislation.
[E]xpress amendment" of the terrorism legislation or the criminal responsibility legislation was defined in s 3 of the Victorian Reference Act as:
the direct amendment of the text of the legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the legislation.
[447] The critical question in the present matter is whether the 2005 Act, in so far as it inserted the impugned provisions in the Code that provide for the making of control orders, is a law with respect to a matter referred by the Victorian Reference Act. The answer to that question depends immediately upon whether the 2005 Act is a species of the genus: "laws with respect to that matter [of terrorist acts, and actions relating to terrorist acts] by making express amendments of the terrorism legislation". If the impugned provisions are laws of that kind, there then is a further issue about the operation to be given to s 100.8 of the Code, as enacted in pursuance of the reference of power to enact provisions in the terms of the text set out in Sch 1 to the Victorian Reference Act. Section 100.8 provided that it applied to "an express amendment" of Pt 5.3 of the Code and that:
- (2)
- An express amendment to which this section applies is not to be made unless the amendment is approved by:
- (a)
- a majority of the group consisting of the States, the Australian Capital Territory and the Northern Territory; and
- (b)
- at least 4 States.
[448] The Commonwealth submitted that the subject-matter of the reference made by s 4(1)(b) of the Victorian Reference Act was "terrorist acts, and actions relating to terrorist acts". It further submitted that the succeeding words of the provision (introduced by "but only to the extent") indicated the way in which that reference should be implemented. That is, the Commonwealth submitted that there was a reference of power to make laws with respect to a defined subject-matter but that the reference was qualified by the requirement that the law had to be enacted in a particular form -- as part of the original Act identified as the provisions whose text was set out in Sch 1 to the Victorian Reference Act.
[449] The plaintiff contended that the matter referred by s 4(1)(b) of the Victorian Reference Act was not to be understood in this way. Rather, so the plaintiff argued, the amendments of the Code made by the 2005 Act's insertion of provisions relating to control orders constituted "the insertion of an entirely new regime, one that 'will have [substantive] effect otherwise than as part of the text of the legislation'[ [573] ] and is thus excluded from the matter referred by s 4(1)(b)". The plaintiff further submitted that there had not been consent to the amendments made by the 2005 Act that was of a kind required by s 100.8 of the Code as enacted pursuant to the reference.
[450] For the reasons that follow, the plaintiff's construction of the Victorian Reference Act should be rejected and the Commonwealth submission accepted. The text of the Victorian Reference Act requires that conclusion.
[451] First, it is important to recognise that the text and structure of that Act are consistent only with there being two distinct and different references of power: one made by s 4(1)(a) by reference to the scheduled text; the other made by s 4(1)(b). Section 4(3) of the Act provided expressly that the operation of each of paras (a) and (b) of s 4(1) "is not affected by the other paragraph". It follows that "the matter of terrorist acts, and actions relating to terrorist acts" referred to in s 4(1)(b) is not to be read as confined by reference to the particular provisions set out in the scheduled text: the "referred provisions".
[452] Next, and separately, the provisions of the Victorian Reference Act dealing with "express amendment" are consistent only with the Commonwealth submission about the way in which that Act operates. That appears most immediately from the definition of "express amendment". The definition has two parts. First, it is said that an express amendment means "the direct amendment of the text of the legislation" and various examples of the ways in which that may be done are spelled out: "whether by the insertion, omission, repeal, substitution or relocation of words or matter". Then there is a qualification: "but does not include the enactment ... of a provision that has or will have substantive effect otherwise than as part of the text of the legislation".
[453] How do these two parts of the definition mesh? At first sight, the two parts appear to be contradictory. The first part contemplates direct amendment by insertion, omission, repeal, substitution or relocation of words or matter; the second part limits that by excluding enactment of a provision that has or will have "substantive effect otherwise than as part of the text of the legislation".
[454] If, however, as the Commonwealth submits, the reference made by s 4(1)(b) permits amendment by insertion of new matter (in this case provisions for control orders) so long as that new matter falls within the description of a law with respect to the matter referred ("terrorist acts, and actions relating to terrorist acts") and that is done by express amendment to the law that was enacted in the form of the scheduled text, there is no contrariety between the two parts of the definition of "express amendment". By contrast, if the plaintiff is right to submit that no change may be made to legislation enacted in the form of the scheduled text if that change introduces a new provision having "substantive effect", the definition of express amendment cannot be given sensible meaning. On the hypothesis advanced by the plaintiff, the qualification to the definition of express amendment would swallow the body of the definition and, no less importantly, s 4(1)(b) would not constitute the reference of a second, and separate subject-matter.
[455] For these reasons the provisions about control orders introduced into Pt 5.3 of the Code by the 2005 Act are supported by the reference of power made by s 4(1)(b) of the Victorian Reference Act.
[456] The point then made by the plaintiff about the operation of s 100.8 may be dealt with briefly. In its terms, s 100.8 is a provision of federal law which purports to fetter the federal Parliament in its future action: certain amending laws may be made only if prior approval is given. That law is invalid. The federal Parliament may not fetter the future exercise of its legislative powers. It has no power to do so. It is therefore not necessary to consider how approvals of the kind for which s 100.8 provides may be signified or by what person or institution of a State or Territory such an approval would be given.
[457] For these reasons the impugned provisions, in their operation in the facts and circumstances of this case, are provisions that meet the description of laws with respect to the heads of legislative power set out in s 51(vi) and s 51(xxxvii). But those grants of legislative power are, of course, "subject to this Constitution". It is, therefore, necessary to consider the Ch III questions that are presented by the impugned provisions.
Judicial power
[458] Examination of the judicial power questions that arise in this matter must begin from two well-established principles. First , R v Kirby; Ex parte Boilermakers' Society of Australia [574] decided that the express statement in ss 75 and 76 "of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is ... clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction". [575]
[459] Secondly, it is well established that a single legislative provision may perform the double function of dealing with substantive liabilities or substantive legal relations and giving jurisdiction with reference to them. [576] Even though the liability and the jurisdiction are created by the one provision, it is possible to identify the two separate conceptions and "fit them into the pattern of Ch III of the Constitution". [577] That is, it is possible to identify a law made under s 76(ii) conferring jurisdiction on a federal court in a matter arising under a law made by the Parliament.
[460] It is, of course, clear that the legislation now in issue gives jurisdiction to federal courts. The determinative issue in the case is whether the authority given to federal courts to make control orders is authority to decide a matter arising under a law made by the Parliament.
[461] That question must be answered by giving close attention to the relevant legislation. Before doing that, however, it is necessary to say something further about the first of the premises just identified as established by Boilermakers. In its oral submissions, the Commonwealth placed heavy emphasis upon the "chameleon doctrine" [578] by which, so it was submitted, the nature of a power takes its character from the body to which it is given.
[462] It may readily be accepted that, as Kitto J said in R v Spicer; Ex parte Australian Builders' Labourers' Federation: [579]
It is true ... that there is nothing necessarily foreign to the nature of judicial power in the fact that its exercise is conditional upon the formation of an opinion described in broad terms [and that it] is true also that sometimes a grant of a power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial.
But the fact that the recipient of statutory power is a federal court does not conclude the question whether the power thus given to the court is the judicial power of the Commonwealth.
[463] Nor is that question to be answered on an assumption that the doctrine of separation of powers is "a product of abstract reasoning alone [or is] based upon precise definitions of the terms employed". [580] As Kitto J rightly pointed out in R v Davison, [581] the doctrine, as developed in political philosophy, was based upon observation of the experience of democratic states. That is why, as Kitto J also remarked in Davison, [582] the distribution by the Constitution of the functions of government amongst separate bodies, by requiring a distinction to be maintained between powers described as legislative, executive and judicial, "is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise".
[464] The well-recognised difficulties in framing any comprehensive definition of what is the exercise of the judicial power of the Commonwealth [583] do not deny the centrality of the concept of "matter" in ss 75 and 76 and the importance, in the understanding of that concept, of "arbitrament upon a question as to whether a right or obligation in law exists". [584]
[465] When, in Huddart, Parker & Co Pty Ltd v Moorehead, Griffith CJ spoke [585] of judicial power as "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property", the notion of "arbitrament upon a question as to whether a right or obligation in law exists" [586] lay at the centre of the conception that was described. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J elaborated the point when he said: [587]
a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons , a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. (emphasis added)
As Kitto J went on to say: [588]
a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.
[466] That does not mean that the exercise of judicial power will not often require the discretionary exercise of power. Conferring discretionary powers on a court is a frequent feature of conferring judicial power. But the conferral of discretionary power may, in some cases, present particular questions. [589]
[467] In Queen Victoria Memorial Hospital v Thornton, [590] the task given to a court of summary jurisdiction (described by this Court [591] as "making an appointment in substitution for the appointment made by an employer") was so unconfined that the legislation was held not to confer judicial power. No issue of fact was submitted to the court for decision, no antecedent right existed which the court was called upon to ascertain, examine or enforce.
[468] The legislation in issue in Thornton may be contrasted with s 37 of the Stevedoring Industry Act 1954 (Cth), considered by this Court in R v Spicer; Ex parte Waterside Workers' Federation of Australia ( "the Waterside Workers' Case "). [592] Of that legislation, four members of the Court said: [593]
The validity of s 37 depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under a law made by the Parliament of the Commonwealth within the meaning of s 76(ii) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature: see Barrett v Opitz; [594] Hooper v Hooper. [595] The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. ( emphasis added)
It is the need to identify an ascertainable test or standard which is to govern the grant or refusal of an interim control order which is critical in the present case. That will require close attention to the relevant provisions of the Code. Before undertaking that task it is necessary, however, to say more about discretion and judicial power.
[469] It may be thought that what was said in the Waterside Workers' Case was qualified, even departed from, in R v Joske; Ex parte Shop Distributive and Allied Employees' Assn ( "the Shop Distributive Employees' Case "). [596] It was argued in the Shop Distributive Employees' Case that a provision of the Conciliation and Arbitration Act 1904 (Cth) that permitted the Industrial Court, upon finding that there was an invalidity in the affairs of an industrial organisation, to "make such order as it thinks fit to rectify or cause to be rectified the invalidity, or to negative, modify or cause to be modified the consequences in law of the invalidity" [597] did not confer judicial power. Before making such an order, the Industrial Court was required to satisfy itself that such an order "would not do substantial injustice to the organization" or to members or third parties having dealings with the organisation.
[470] Of these provisions, Mason and Murphy JJ said: [598]
It involves, so the argument runs, the conferment on the Court of functions which differ markedly from the ascertainment and declaration of existing rights, involving as they do, the making of determinations by reference to criteria not enunciated and the making of orders creating new rights. In addition, it is urged that the concept of 'substantial injustice' is so vague as not to lend itself to an exercise of judicial power. These considerations, it seems to us, are not enough to bring us within reach of the conclusion which the prosecutors seek to attain. Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise , there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised -- nevertheless they have been accepted as involving the exercise of judicial power ( see Cominos v Cominos) [599] . It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decision; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under subs (2)(a) and the impact which such an order will have on the interests of persons who may be affected. (emphasis added)
[471] Two observations may be made about this aspect of the reasons of Mason and Murphy JJ. First, their Honours did not suggest that the propositions they formulated were at odds with the earlier decision of four members of the Court in the Waterside Workers' Case. Secondly, and more fundamentally, what is said in the Shop Distributive Employees' Case must be understood in the light of some basic principles.
[472] The Boilermakers' Case, and many other decisions of the Court both before and after Boilermakers, establish beyond argument that the Constitution provides a separation of powers. It follows inevitably that the bare fact that legislation gives power to a federal court does not mean that no Ch III question can arise. Whatever the ambit of the so-called chameleon doctrine, by which a power that may be exercised administratively or judicially may take its colour from the body to which it is given, [600] the doctrine does not strip the concept of separation of powers of all meaning. Contrary to the submissions of the Commonwealth, the chameleon doctrine does not mean that Boilermakers "does not matter much any more". [601] There remains a real and radical difference between the judicial power of the Commonwealth and executive and legislative power.
[473] Although Mason and Murphy JJ concluded, in the Shop Distributive Employees' Case, [602] that the exercise of the power given to the Industrial Court to grant or withhold relief according to the consideration of "substantial injustice" was itself an exercise of judicial power, it is important not to divorce that conclusion from the context in which it was reached. In particular, it is important to recognise that the power to grant relief was predicated upon the Court's finding that there was some invalidity in the affairs of the organisation. On any view, then, the issue about whether there was an "invalidity" in the affairs of the organisation constituted a "matter". There was a controversy between parties about whether past action or inaction accorded with identified legal standards. The notion of "substantial injustice" was to be engaged in considering what orders should be made if an "invalidity" were established.
[474] Now it may be thought, from the manner in which the joint reasons in the Waterside Workers' Case were expressed, that it is useful to divide the problem into two questions: first, whether there is a claim of right depending upon the application to facts as ascertained of "some legal criterion provided by the legislature" [603] and second, whether the remedy is discretionary. The utility of such a segmented approach to the problem of whether a power given to a court is a judicial power may be doubted. The whole of the relevant legislative provisions must be considered. Observing that a discretion is given to a federal court does not, standing alone, require the conclusion that the power is not judicial power. The decisions in the Waterside Workers' Case and the Shop Distributive Employees' Case ( and many other decisions of the Court) [604] show that to be so. But power cannot validly be given to a federal court if the decisions whether and when to exercise the power that is given are not governed or bounded by a "defined or definable, ascertained or ascertainable" [605] standard. Such power is not power to decide a matter. There may be "a legal proceeding", [606] but there is not that "arbitrament upon a question as to whether a right or obligation in law exists". [607]
[475] It is with these principles in mind that the impugned provisions must be examined. That examination will show that the impugned provisions have a number of features common to many forms of the exercise of judicial power. There is the giving of the power to courts, the requirement to find facts, the specification of a standard of proof, the articulation of the connection that is to be drawn between premise and conclusion using terms familiar to judges and lawyers ("reasonably necessary" and "appropriate and adapted"). But what sets the impugned provisions apart from an exercise of judicial power is the indeterminacy of the criterion that the courts are required to apply -- "for the purpose of protecting the public from a terrorist act".
[476] That criterion is unlike any that hitherto has been engaged in the exercise of judicial power. It is a criterion that does not call for the judicial formulation of standards of conduct or behaviour. It is a criterion that does not require the application of any familiar judicial measure of a kind found in fields as diverse as the law of tort ("reasonable") [608] , matrimonial causes ("just and equitable" or "necessary ... to do justice") [609] , corporations law or related fields ("just and equitable") [610] , regulation of contractual relations ("inequitable or unduly onerous") [611] or industrial relations ("oppressive, unreasonable or unjust") [612] . It is a criterion that does not direct attention to whether an identified person is likely to offend against the criminal law if released from prison. [613] It is a criterion that seeks to require federal courts to decide whether and how a particular order against a named person will achieve or tend to achieve a future consequence: by contributing to whatever may be the steps taken by the Executive, through police, security, and other agencies, to protect the public from a terrorist act. It is a criterion that would require a federal court to consider future consequences the occurrence of which depends upon work done by police and intelligence services that is not known and cannot be known or predicted by the court.
[477] Standards expressed in general terms, like those that are referred to earlier, are susceptible of "strictly judicial application". [614] The criterion that is fixed by the impugned provisions is not. To explain why that is so, it is necessary to say something more about the impugned provisions, and to do that by reference to the Commonwealth's submissions.
[478] The Commonwealth submitted that in exercising the powers under Div 104 a court issuing an interim control order, or confirming such an order, gives effect to the rights created by the Division. The Commonwealth contended that the issuing court "is required to examine past facts relating to [the person concerned], and to assess those facts against the standards specified in the Division". Those standards were identified as specified in ss 104.3, 104.4 and 104.12A of the Code and were said to be "sufficiently precise to engage the exercise of ... judicial power". [615] Yet at the same time, the Commonwealth acknowledged that "[t]he area of operation of Div 104 adjusts with the level of threat", that is, threat to the public constituted by the possibility of commission of a terrorist act. What then are the standards specified in ss 104.3, 104.4 and 104.12A?
[479] Section 104.3 is directed to the manner in which an interim control order is requested. It says nothing about the criteria to be applied in deciding whether an interim control order should be granted. Section 104.12A regulates procedures for confirming an interim control order, but again says nothing about what criteria are to be applied by the issuing court in deciding whether to confirm the interim order. Whether to confirm an interim control order is a subject dealt with by s 104.14 which provides [616] that the court may revoke the interim control order if "not satisfied as mentioned in para 104.4(1)(c)".
[480] In the end, it is s 104.4(1) which states the only criteria that an issuing court is to apply in deciding whether to grant an interim control order or confirm such an order. Two conditions must be met. First, the court must be satisfied on the balance of probabilities that either (i) "making the order would substantially assist in preventing a terrorist act" or (ii) "the person has provided training to, or received training from, a listed terrorist organisation". [617] The second condition is that "the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". [618]
[481] Several features of this second condition should be noted. Each of the obligations, prohibitions and restrictions to be imposed by the order must have two characteristics: (a) that it is "reasonably necessary" for the purpose of protecting the public from a terrorist act, and (b) that it is "reasonably appropriate and adapted" for that purpose. In a case where it is not contended that the person concerned has provided training to or received training from a listed terrorist organisation, there is an evident overlap between the requirement of the alternative element of the first condition, that the court be satisfied that making the order would substantially assist in preventing a terrorist act, and the requirement that the particular obligations imposed are both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
[482] In the present case, it was alleged that Mr Thomas was a person who had received training from a listed terrorist organisation. That is, the second element of the first condition was said to be engaged. This element, provided by s 104.4(1)(c)(ii), that a person has provided training to or received training from a listed terrorist organisation would, on its face, appear to extend to any and every form of training. So much would appear to follow from the distinction drawn in s 101.2 between a person providing or receiving training, and the training being "connected with preparation for, the engagement of a person in, or assistance in a terrorist act". But the significance of the apparent reach of the provision need not be explored.
[483] The facts explicitly agreed in the special case included only that:
In March 2001, [Mr Thomas] left Australia and travelled to Pakistan, and then to Afghanistan. Whilst in Afghanistan, he undertook paramilitary training at the Al Farooq training camp for a period of three months. This training included training in the use of firearms and explosives.
Who provided that training was not recorded as a fact agreed for the purposes of the special case.
[484] The special case included both the Federal Magistrate's reasons for granting the interim control order against Mr Thomas and the order itself. Schedule 2 to the order set out a "Summary of the grounds on which this order is made". Paragraph 1 of that schedule recorded that Mr Thomas had "admitted that he trained with Al Qa'ida in 2001" and that "Al Qa'ida is a listed terrorist organisation under s 4A of the Criminal Code Regulations 2002, made under the [Code]". It went on to record that Mr Thomas also admitted that "while at the Al Qa'ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons".
[485] As noted earlier in these reasons, the special case is drawn in such a way that it is by no means clear whether the findings made by the Federal Magistrate, and recorded in the summary of grounds on which the interim control order was made, are to be taken to be established facts for the purposes of the special case. The better view may well be that they are not agreed facts. It is, however, not necessary to go beyond the point of noticing that one asserted basis for the grant of the interim control order was that Mr Thomas received training of the kind described with Al Qa'ida.
[486] Now as counsel for Mr Thomas pointed out, in reply, the assertion was that Mr Thomas trained with Al Qa'ida in 2001 , before Al Qa'ida was listed as a terrorist organisation in 2002. That temporal observation may or may not be relevant to the application of the first condition of s 104.4(1). That is, there may be a question whether, on its true construction, s 104.4(1)(c)(ii) requires that the training be given to or received from an organisation that is a listed organisation at the time of the training. That question need not be decided. But the facts agreed do not assert, and the parties did not assert in argument, that it is relevant to consider whether, at the time of Mr Thomas undertaking training, he was acting in breach of federal law, whether as stated in the Code or elsewhere.
[487] Assuming, without deciding, that the way in which the two conditions specified in s 104.4(1)(c) are framed presents no separate question about the sufficiency of the statute's specification of the rights and obligations to be determined by a court in exercise of the judicial power of the Commonwealth, particular attention must be directed to the requirements that the court is satisfied, to the requisite standard, that the obligations, prohibitions and restrictions to be imposed are both reasonably necessary for the purpose of protecting the public from a terrorist act and reasonably appropriate and adapted for that purpose.
[488] Again, some questions of construction of the provision arise. In particular, what is meant by the cumulative requirement that the court be satisfied that each of the obligations, prohibitions and restrictions to be imposed is reasonably necessary and reasonably appropriate and adapted for the stated purpose?
[489] The expression "reasonably necessary" would make no sense if "necessary" were to be understood as "indispensable". [619] The better view may therefore be that "reasonably necessary" is used to convey some less intense connection.
[490] In oral argument it was suggested that it should be understood as having substantially the same meaning as the word "necessarily" has been construed to have in income tax law allowing deductions for expenditure "necessarily incurred" in the carrying on of a business. [620] In that context "necessarily" has been understood to mean "clearly appropriate or adapted for", not "unavoidably". As Gleeson CJ pointed out in Mulholland v Australian Electoral Commission, [621] there is, in Australia, "a long history of judicial and legislative use of the term 'necessary', not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted". And the latter expression, "reasonably appropriate and adapted", can be traced to McCulloch v Maryland. [622]
[491] If "reasonably necessary", when used in s 104.4(1)(d) and s 104.4(2) of the Code, were to be understood in this way, the further reference in those provisions to the orders being "reasonably appropriate and adapted" for the purpose of protecting the public would be superfluous. That may be a strong reason to think that "reasonably necessary" should be understood in some other way but no other construction of the expression was offered in the course of argument.
[492] In the end, it is not necessary to resolve these issues of construction. For present purposes, it is sufficient to notice that the statutory question presented to a court asked to make an interim control order requires the court to draw a connection between the order and "the purpose of protecting the public from a terrorist act" (s 104.4(1)(d)) and then, under s 104.4(2), to take into account "the impact" of each element of the order that is to be made "on the person's circumstances (including the person's financial and personal circumstances)". The nature or intensity of the connection between the order and that purpose which is to be understood as being conveyed by the expressions "reasonably necessary" and "reasonably appropriate and adapted" need not be decided.
[493] What is of critical importance is that the focus of the statutory question for a court asked to make an interim control order is upon protecting the public from a terrorist act. What is the standard which is thus engaged?
[494] A court deciding whether to grant an interim control order, and deciding how that order would be framed, would usually, perhaps inevitably, give close attention to what the evidence adduced reveals about what the person who is to be the subject of the order would do, or would be likely to do, if the order were not made. The Code does not require, however, that the court decide, or even consider, whether the conduct to be restrained would otherwise be lawful or not. The Code offers no legal standard of that kind as a standard against which threatened or intended conduct on the part of the person who is to be the subject of the order is to be measured. No question of antecedent right or liability is to be determined. Rather, the focus of the relevant provisions of the Code falls exclusively upon a future consequence: the order's achieving, or tending to the achievement of, "the purpose of protecting the public from a terrorist act".
[495] The indeterminacy of the inquiry requires the conclusion that the task assigned to a federal court by s 104.4 is not the authority to decide a "matter". The task assigned is not to exercise the judicial power of the Commonwealth.
[496] As noted earlier, the impugned provisions have a number of features common to many forms of the exercise of judicial power. Further, courts exercising the powers and functions given by the impugned provisions would inevitably approach the task according to the "skills and professional habits" [623] of the judicial branch of government. In particular, courts would look to past decisions, especially past decisions made under s 104.4 of the Code, for any guidance that the reasons given in those cases may provide for the disposition of issues presented in the instant case. But to say that the courts might thus "develop and elaborate criteria regulating the discretion", [624] does not conclude the questions about Ch III of the Constitution that are presented by the impugned provisions. There are several points to make about the significance that may properly be attached to the observation that courts given the powers and functions that are now in issue will seek to do so in accordance with established judicial method.
[497] The fact that the legislature reposes power in a court does not conclude any question about the nature of that power. It would be contrary to the fundamental basis for all that this Court has decided about Ch III to hold otherwise. Likewise, to observe that courts called upon to decide questions of the kind presented by s 104.4 would do so by the application of judicial method does not conclude the question that must be decided.
[498] To say that the courts will develop criteria regulating the exercise of the powers given by the Code is a proposition that, at best, assumes rather than demonstrates that there is a basis to be found in the impugned provisions for the development of those criteria. If it does not make that assumption, it asserts no more than that courts given the relevant powers will seek to employ judicial method when considering whether to exercise those powers. That is an assertion that does not advance the argument.
[499] The impugned provisions offer no legal standard against which an application for a control order is to be judged. Because that is so, a court which is asked to make an order under the impugned provisions is necessarily left to decide the case according to nothing more definite than its prognostication about the order's achieving, or tending to the achievement of, "the purpose of protecting the public from a terrorist act". The repeated exercise of that power would yield a succession of factually specific predictions made by individual judicial officers, each necessarily based on its own particular evidentiary foundation. Judicial method may very well have been used in undertaking the evaluation of the evidence that is tendered in connection with what, in the end, would be a particular species of fact-finding. But it is far from clear how a course of such decisions would yield any rule or standard of law that subsequent courts could identify and apply. If, however, a discernible pattern did emerge from a series of cases, and it was thought possible to distil some legal principle governing the making of the relevant prediction, the principle discerned would not come from the Code. The courts, not the legislature, would have created the legal standard that governs the application of the legislation.
[500] All of these considerations point only to the conclusion that the task given to federal courts by the impugned provisions is not the exercise of the judicial power of the Commonwealth.
[501] It is necessary to return to and amplify the proposition that the impugned provisions offer no legal standard against which an application for a control order is to be judged.
[502] To decide what will (tend to) protect the public from a terrorist act it is necessary to know more than the fact that there is a threat to commit such an act. Even assuming that a particular threat is well defined (and much more often than not in the case of threats of terrorist acts, it will not) the utility of making an order to restrain a person in one or more of the ways specified in s 104.5(3), and in particular the tendency of such an order to secure public protection, cannot be assessed without knowing what other measures are being taken to guard against the threat. Knowing what other measures are being taken to guard against the threat may be seen as a matter for evidence that would prove the measures that have, or have not, been taken to thwart the threat that is under consideration. But it is the evaluative judgment that the criterion requires to be made by the court asked to make a control order that is a judgment ill-fitted to judicial determination. Several considerations point to the conclusion that it is not a question that is to be resolved by application of a criterion or criteria which would suffice to govern or bound the decision "by some ascertainable tests or standards". [625]
[503] First, the statute says nothing about how a court is to decide whether or when its orders will (tend to) protect the public from a terrorist act. It may be accepted that the conditions stated in s 104.4(1)(c) are jurisdictional facts to be established before the power given by s 104.4 may be exercised. But taken as a whole, the section is not to be read as requiring a court, on establishment of the jurisdictional facts specified in s 104.4(1)(c), to make an order containing one or more of the obligations, prohibitions or restrictions specified in s 104.5(3). Section 104.4(1) is cast in a form that is radically different from provisions of the kind considered in cases like Finance Facilities Pty Ltd v Federal Commissioner of Taxation. [626] The several conditions identified in paras (a) to (d) of s 104.4(1) are stated as qualifying what otherwise is a general discretion given to the court ("[t]he issuing court may make an order ... but only if" the conditions are met). Further, no party to the present proceedings contended that satisfaction of the conditions stated in paras (a) to (d) of s 104.4(1) required the court to make an order. All accepted that the court could nonetheless refuse to make an order if, for example, there had been undue delay in making the application or there were some other disqualifying reason.
[504] Secondly, whether or not the impugned provisions of the Code are supported in every aspect of their possible operation by the defence power, they are provisions which, at least in part, are to be understood as being directed to the protection of the public from threats which include threats of a kind that engage the defence power. As Kitto J pointed out in the Communist Party Case: [627]
This Court has always recognized that the Parliament and the Executive are equipped , as judges cannot be, to decide whether a measure will in practical result contribute to the defence of the country, and that such a question must of necessity be left to those organs of government to decide. (emphasis added)
The subject-matter of the particular power given to federal courts by s 104.4 (the power to make orders for the purpose of protecting the public from a terrorist act) is public protection. That is a subject which is quintessentially for the Parliament and the Executive to consider and it is for those branches of government to decide what steps are to be taken to achieve that purpose. It is not for the judicature to establish criteria that will decide those questions. It is for the judicature to decide whether the steps taken by the legislative and the executive branches are lawful. That role of the judicature is fundamental to the system of government for which the Constitution provides and is as important in times of threat as it is in other, more peaceful times. It is a role that must not be abdicated. [628]
[505] Subject to this important qualification, the defence of the nation is peculiarly the concern of the Executive. [629] The wartime cases like Lloyd v Wallach, [630] Ex parte Walsh, [631] Little v The Commonwealth [632] and Wishart v Fraser [633] recognise that "in war the exigencies are so many, so varied and so urgent that width and generality are a characteristic of the powers which [the Executive] must exercise". [634]
[506] But that does not mean that if, as I would hold to be the case, the present legislation is invalid for contravention of Ch III, it could validly be re-enacted in a form that confers powers on the Minister like those that the impugned provisions give to federal courts. As noted earlier in these reasons, there is a real question (that need not be decided in this matter) whether the point would come in a time of "ostensible peace" where the defence power would sustain a law conferring upon a Minister power to order either the detention of persons or their subjection to restraints like those which the impugned provisions of the Code allow a court to make as part of a control order, if the Minister believes it is necessary to detain or restrain those persons. It is not to be supposed that such extraordinary measures would be supported by the defence power except in extraordinary circumstances. And again, although the point does not arise here, the Communist Party Case reveals that there are limits to the capacity of the Parliament (or, I would add, the Executive) to recite those arms of government into a valid exercise of the defence power. The ultimate limit is provided by the duty of this Court to pronounce on the validity of legislative or executive action when challenged on the ground that it exceeds constitutional power: "It is, emphatically, the province and duty of the judicial department, to say what the law is." [635]
[507] The fact that the defence of the nation is particularly the concern of the Executive has two relevant consequences that must be considered. First, there are some consequences for what questions can validly be submitted to federal courts for their determination.
[508] The Executive's decisions about what steps can or should be taken to protect the public from a terrorist act will often be affected by intelligence and other material of a kind not readily made available in courts which, at least as a general rule, transact their business in public on the basis that the parties to the litigation know what evidence is led and what arguments are advanced.
[509] Difficulties that are presented for courts by reference to intelligence material are well illustrated by the decision of the House of Lords in A v Secretary of State for the Home Department. [636] The majority of the House formed its conclusions about whether "there was an emergency threatening the life of the nation" [637] upon its examination of only some of the material that had been placed before the relevant administrative decision-maker: by reference to only the "public" as distinct from the "closed" material. Thus, although the question was one in which it was.
open to the judiciary to examine the nature of the situation that has been identified by government as constituting the emergency, and to scrutinise the submission by the Attorney General that for the appellants to be deprived of their fundamental right to liberty does not exceed what is 'strictly required' by the situation which it has identified [638]
that task was undertaken by reference to only so much of the available material as the Executive chose to make public.
[510] The desirability of keeping intelligence material secret is self-evident. Often it will be essential. But the problem presented by the use of intelligence material is more deep-rooted than any question of preserving secrecy. Even if taking steps to secure the continuing secrecy of intelligence material is, or can be made, consistent with the generally open and adversarial nature of litigation in the courts, it is the nature of the material to be considered that presents issues of a kind not suited to judicial determination. In particular, by its very nature, intelligence material will often require evaluative judgments to be made about the weight to be given to diffuse, fragmentary and even conflicting pieces of intelligence. Those are judgments of a kind very different from those ordinarily made by courts.
[511] For the most part courts are concerned to decide between conflicting accounts of past events. When courts are required to predict the future, as they are in some cases, the prediction will usually be assisted by, and determined having regard to, expert evidence of a kind that the competing parties to the litigation can be expected to adduce if the point in issue is challenged. Intelligence information, gathered by government agencies, presents radically different problems. Rarely, if ever, would it be information about which expert evidence, independent of the relevant government agency, could be adduced. In cases where it could not be tested in that way (and such cases would be the norm rather than the exception) the court, and any party against whose interests the information was to be provided, would be left with little practical choice except to act upon the view that was proffered by the relevant agency.
[512] These difficulties are important, but not just because any solutions to them may not sit easily with common forms of curial procedure. They are important because, to the extent that federal courts are left with no practical choice except to act upon a view proffered by the Executive, the appearance of institutional impartiality and the maintenance of public confidence in the courts are both damaged. [639] To that extent, "[t]he judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature". [640] These are signs or symptoms of a more deep-seated problem. The difficulties that have been mentioned both emerge from and reveal a fundamental feature of the impugned provisions: that a decision about what is necessary or desirable for public protection is confided to the judicial branch of government.
[513] There is a second consequence that follows from the observation that the defence of the nation is particularly the concern of the Executive. It is for that arm of government to decide what is necessary for public protection. To achieve that end the Executive may well wish to intercept and prevent certain conduct before it occurs. But absent specific statutory authority, the Executive may not lawfully detain or restrain persons. If the conduct that is to be intercepted or restrained would, if undertaken, be contrary to law, legislation empowering a court to grant orders restraining a person from undertaking that conduct would be an orthodox and unremarkable conferral of jurisdiction. What sets the present legislation apart is that it seeks to give to the courts the decision of what is necessary to protect the public and, for the reasons earlier given, offers the courts no standard by which to decide that question.
[514] An important and revealing contrast may be drawn between the provisions now under consideration and certain provisions of the Canadian Criminal Code [641] (particularly s 83.3 of that Code) which are directed to the same general end. The Canadian provisions hinge about conclusions reached by a "peace officer". If that officer " believes on reasonable grounds that a terrorist activity will be carried out" and " suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity" the officer may, with the consent of the Attorney General of Canada, lay an information before a judge. [642] The issue that is then presented for judicial determination is whether the judge is "satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion". [643] That is an issue of a kind that courts deal with frequently. It requires consideration and evaluation of what the relevant official puts forward as the grounds upon which the impugned decision has been made. It does not require, as the provisions now in issue do, the court to decide for itself what is necessary or desirable for protection of the public.
Conclusions and orders
[515] Many rules applied by the courts are expressed in abstract terms of great generality. Phrases like "just and equitable" and words like "reasonable" require difficult judgments to be made in particular cases. Those judgments are to be made, however, in the context of deciding the rights and duties of identified parties. They are judgments that depend upon applying recognised, if imprecise, measures of what is "just and equitable" or "reasonable". By contrast, the provisions now in issue require an assessment of how to protect the public from the conduct of persons who may have no direct connection with the person to whom the order is directed. By hypothesis the persons whose terrorist acts are to be impeded by the making of the order are themselves unwilling to obey Australian law. The federal courts are asked to make orders that will (help to) impede their conduct but are given no standard by which to decide when such an order should be made except the tendency of the order to protect the public.
[516] In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, [644] a majority of the Court concluded that a statutory power for a State Supreme Court to grant an injunction "in all cases in which it shall appear to the Court or judge to be just and convenient" required that Court, when asked to grant an interlocutory injunction, to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought. The provision was held not to expand the jurisdiction of the Supreme Court to permit the grant of an interlocutory injunction where no legal or equitable rights were to be determined. Gaudron J identified [645] the root of that conclusion as being found in a proposition "beyond controversy[,] that the role of Australian courts is to do justice according to law -- not to do justice according to idiosyncratic notions as to what is just in the circumstances". To require a Ch III court to decide whether to impose upon a person obligations, prohibitions or restrictions of the kind specified in s 104.5(3), by reference only to the relationship between those orders and the protection of the public from a terrorist act, would require the court to apply its own idiosyncratic notion as to what is just. That is not to require the exercise of the judicial power of the Commonwealth.
[517] For these reasons I would answer the first question stated in the Further Amended Special Case filed on 15 February 2007:
Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
as follows:
In so far as Div 104 purports to confer on a federal court the power to make an interim control order or to confirm an interim control order it is not a valid law of the Commonwealth.
[518] It would not then be necessary to answer questions 2 or 3. Question 4 should be answered: "The Commonwealth".