Thomas v Mowbray
[2007] HCA 33233 CLR 307
(Decision by: Heydon J)
Thomas
vMowbray
Judges:
Gleeson CJ
Gummow J
Kirby J
Hayne J
Callinan J
Heydon JCrennan J
Judgment date: 2 August 2007
Decision by:
Heydon J
[610] The terms of s 104.4(1)(c) and (d) of the Criminal Code (Cth) meant that the first defendant was not empowered to make the Interim Control Order he made against the plaintiff unless he was satisfied on the balance of probabilities of, inter alia, two conclusions. The first was either that making the order would substantially assist in preventing a terrorist act (s 104.4(1)(c)(i)) or that the plaintiff had provided training to, or received training from, a listed terrorist organisation (s 104.4(1)(c)(ii)). The second was that each of the obligations, prohibitions and restrictions to be imposed on the plaintiff by the order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act (s 104.4(1)(d)). The first defendant expressed himself to be satisfied on the balance of probabilities in relation to both elements of the first conclusion, and the second conclusion. The soundness of the first defendant's conclusions is not under examination in this case. Rather, the issue for decision is an issue not before the first defendant, namely whether s 104.4 is constitutionally valid - an issue far narrower than those raised by the questions asked in the Further Amended Special Case.
Defence power
[611] Breadth of the defence power . I agree with Gleeson CJ [733] , and Gummow and Crennan JJ [734] , that the defence power is not limited to defence against external threats to the Commonwealth and the States from nation states, for the reasons they give. It is not necessary to consider whether the criticisms advanced by Callinan J of Australian Communist Party v The Commonwealth [735] are sound [736] , although, subject to hearing contrary argument, there does not seem to be any significant difference between what Gleeson CJ, and Gummow and Crennan JJ have written about the defence power and what Callinan J has written about it.
[612] Do the circumstances attract the defence power? This raises an issue as to how the facts relevant to constitutional validity are to be established. I agree that the facts listed by Callinan J may legitimately be taken into account [737] . That conclusion is reached by the following route, which differs a little from his.
[613] Five categories of facts . By way of background it is convenient to divide the facts which may have to be established in litigation into five categories [738] .
[614] The first group comprises facts which are facts in issue, or relevant to facts in issue. Dixon CJ described them as "ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law" [739] . The second group concerns facts going to the constitutional validity of statutes, other enactments, or executive acts done under those statutes or enactments [740] . Dixon CJ sharply distinguished these facts from those in the first group in a respect set out below [741] . The third concerns facts going to the construction of non-constitutional statutes. The fourth concerns facts going to the construction of constitutional statutes. The fifth concerns facts which relate to the content and development of the common law.
[615] The present case concerns the second group. It is desirable to make two preliminary points.
[616] The first preliminary point is that a given factual controversy can arise under more than one head. An example may be taken from the present case. When the first defendant was considering whether making an order against the plaintiff "would substantially assist in preventing a terrorist act" within the meaning of s 104.4(1)(c)(i), it was relevant for him to reach the conclusion that in 2001: "The Al Farouk camp was run by Al Qa'ida." That fact, taken with the plaintiff's admission in par 6 of the Further Amended Special Case, that he attended the camp, tends to support the first defendant's conclusion that an order against the plaintiff would assist in preventing a terrorist act. But, although the constitutionality of s 104.4(1)(c)(i) was not in issue before the first defendant, the fact that the "Al Farouk camp was run by Al Qa'ida" also tends to support constitutional validity, because the running of such a camp, with its provision for training those attending in the use of weapons and explosives, is material to the existence of a threat to Australia. Hence the same fact may be within both the first and the second category. So far as it is within the first category, it must be proved by evidence complying with the rules which govern the admissibility of evidence in conventional litigation. Whether that is the case so far as it is within the second category is discussed below [742] .
[617] The second preliminary point is that in each category it is desirable to bear in mind that there are potentially three issues which arise. One is whether it is permissible to take the fact in question into account, and for what purpose. The second is whether any evidentiary rules affect admissibility, and how they can be satisfied. The third is the extent to which the court can consider the facts in question without giving the parties notice that they are doing so.
[618] As to the last matter, I would agree with Callinan J that the parties must be given notice that there may be a finding against them of the particular fact [743] . They should also be given notice, at least in broad terms, of why the finding should be made. These propositions apply, surely, for all five categories. Save perhaps for the operation of specialised tribunals such as ecclesiastical courts [744] , it is not open to courts to conduct their own factual researches without notice to the parties [745] . In a case within the first category, the parties will usually be on notice because of the pleadings or whatever other method of defining the issues has been adopted. In cases in that category where the parties are not on notice, and in the other four categories, it is difficult to understand how any view could be maintained other than that a party should not lose on a crucial point without being warned in advance that the point may arise, and invited to deal with it.
[619] Rules of evidence apply to the first category . Subject to special statutory provisions and any contrary agreement of the parties, there is no doubt that where it is desired to prove a fact within the first category, the rules of evidence must be complied with. These rules can be restrictive. In particular, the general law doctrine of judicial notice is narrow. Where judicial notice is taken without inquiry, the fact noticed must be "open and notorious". Where judicial notice is taken after inquiry, the inquiry must be into the "common knowledge of educated men" as revealed in "accepted writings", "standard works" and "serious studies and inquiries" [746] . The words of Dixon J just quoted were used about historical events, but they apply equally to other facts. In short, matters judicially noticed at common law must be indisputable. Yet the contents of many works, particularly those dealing with historical or contemporary events, are far from being indisputable and are highly controversial.
[620] Position in second category . But must the rules of evidence be complied with in relation to the second category? It appears often to be thought that only evidence admissible according to the rules applicable to the first category can be received. That view has developed partly because in Australian Communist Party v The Commonwealth [747] Dixon J's classical statement of the judicial notice rules, based on authorities within the first category, was enunciated in a second category case as though judicial notice could only be taken of facts in that category if those rules were complied with. It has also sprung up because of the caution of this Court, when considering the second category, in going beyond the rules of admissibility for the first category. Thus in 1944, in Stenhouse v Coleman , Dixon J said, speaking of constitutional facts [748] :
"[T]he existence of [the] state of fact may be proved or disproved by evidence like any other matter of fact. But ordinarily the court does not go beyond matters of which it may take judicial notice. This means that for its facts the court must depend upon matters of general public knowledge. It may be that in this respect the field open to the court is wider than has been commonly supposed".
On the one hand, that hinted at a wider and different kind of judicial notice than appears in category one. On the other hand, it revealed a considerable suspicion of anything in the nature of a Brandeis brief, and it implied that not only was it the case that the existence of constitutional facts "may" be proved by evidence in the ordinary way, but also that it must be proved pursuant to the admissibility rules applicable to the first category. Similarly, in 1951 Williams J in Australian Communist Party v The Commonwealth said [749] :
"But it does not seem to me that the Court should be confined to notorious public facts of which it can take judicial notice. All the facts which are relevant to the decision of the constitutional issue must be admissible in evidence and the fact that the Court can take judicial notice of some facts merely expedites the manner of their proof. The facts which are not capable of proof in this way must be proved in such other ways as the laws of evidence allow."
This insistence that the ordinary rules of evidence apply to the proof of constitutional facts has other support [750] .
[621] However, the more modern authorities deny that constitutional facts can only be proved by material admissible under the rules of evidence. The starting point in that denial is, in Brennan J's words, the proposition that the "validity and scope of a law cannot be made to depend on the course of private litigation" [751] .
[622] Why is this so? The courts do not strike down legislation of their own motion, without one party taking the initiative. Statutes and subordinate legislation are ordinarily presumed to be valid [752] . But "to the extent that validity depends on some matter of fact, there is no onus on a challenging party which, being undischarged, will necessarily result in a declaration of validity" [753] . Why is the task of factual proof not left in the hands of the party alleging invalidity? Why, if the party which alleges invalidity fails to prove the facts on which invalidity depends, does the Court not simply treat the statute as valid and reserve the question of its potential invalidity for resolution in a battle to be conducted on another occasion, in another field and by a better-prepared litigant?
[623] Brennan J justified a liberal approach to constitutional facts thus: "validity is a question of law and questions of law do not depend upon a party's discharge of an onus of proof of facts" [754] . But that is not generally true: for many an important question of law is posed in ordinary litigation, contingent upon proof of a particular factual state of affairs, and yet the courts do not embark upon the legal question if the necessary factual basis is not laid.
[624] A better explanation is that sometimes a failure to deal with a constitutional question, feeble though the factual foundation laid by the parties may be, will create worse evils. It is repugnant for a court to convict and punish an accused person for breach of a statutory provision alleged to be constitutionally invalid without deciding on the soundness of that allegation. It is more repugnant than an inquiry into validity based on a factual examination conducted by the court without effective assistance from the parties and unconstrained by the rules applying to facts in issue [755] . That will not, however, explain every application of the doctrine, for often no question of criminal punishment is involved.
[625] Another explanation is that the Court has an overriding duty to enforce the Constitution for all citizens or residents which it must fulfil even if the limited class of citizens or residents who comprise the parties before it will not adequately assist it to do so. From the earliest times this Court has seen itself as having, in general, a duty to determine the validity, one way or the other, of legislation alleged to be unconstitutional [756] . It is a duty which not even statute can interfere with, "because under the rigid federal Constitution of the Commonwealth a provision is not valid if it would operate to withdraw from the courts of law, and so ultimately from this Court, the decision of any question as to the consistency of a statute or an executive act with the Constitution" [757] . Putting to one side the political consequences of a legislature embarking on the enactment of unconstitutional legislation, there is no body other than the judiciary capable of preventing an abuse of legislative power. These factors are seen as outweighing the difficulty of finding the facts relevant to validity.
[626] Since this Court has ultimate responsibility for the enforcement of the Constitution, it has ultimate responsibility for the resolution of challenges to the constitutional validity of legislation, one way or the other, and cannot allow the validity of challenged statutes to remain in limbo. It therefore has the ultimate responsibility for the determination of constitutional facts which are crucial to validity. That determination "is a central concern of the exercise of the judicial power of the Commonwealth" [758] .
[627] This principle of necessity - that constitutional facts must be investigated by this Court if it is to fulfil its duty to conduct judicial review of the constitutional validity of legislation - also accounts for the width of the principles pursuant to which it finds constitutional facts.
[628] That width is also to be explained by the fact that questions in relation to constitutional facts "cannot and do not form issues between parties to be tried like" ordinary facts in issue [759] . Over the centuries common law rules and legislative enactments have grown up to regulate the proof of facts in issue in category one. But the rules were never directed to constitutional facts and it is wrong to import them from their proper sphere into a quite different one.
[629] Hence the Court can receive evidence of constitutional facts which complies with the rules of admissibility applying to category one [760] . But it is not limited to that material. Thus, for example, the Court may take judicial notice on conventional principles [761] . However, many constitutional facts (and facts falling within categories three, four and five) are incapable of being judicially noticed by recourse either to common law principles or to statutory principles applying to facts in category one because they are controversial rather than beyond dispute [762] . The Court may seek to draw inferences from the challenged legislation [763] . It may, of course, rely on agreed facts, whether the agreement stems from admissions on the pleadings, or is reflected in a stated case, or arises from a formal admission, or has some other source. It may rely on the accuracy of allegations of fact made in a statement of claim to which the defendant has demurred. It has been said that it may require the parties to provide further factual material [764] . But beyond these possibilities, all relevant material may be brought to the Court's attention, independently of any of the general law rules as to admissibility in relation to facts in issue [765] .
[630] Thus in 1952 McTiernan J said in relation to whether a law was supported by the defence power [766] :
"The Court may decide that the law is within the legislative power, if upon facts which the Court may judicially notice, or facts proved to the Court's satisfaction, or upon any rational considerations, the Court is of the opinion that the law may conduce to making the country ready for war, if it should come."
That is, "any rational considerations" may be taken into account even if they are not factual considerations which are being judicially noticed or established by evidence.
[631] In 1959, Dixon CJ, with the agreement of McTiernan and Fullagar JJ [767] , said [768] :
"Highly inconvenient as it may be, it is true of some legislative powers limited by definition, whether according to subject matter, to purpose or otherwise, that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law. In Griffin v Constantine [769] , in order to decide the validity of the law there impugned some knowledge was necessary of the nature and history of methylated spirits but it was considered proper to look at books to obtain it. In Sloan v Pollard [770] facts were shown about arrangements between this country and the United Kingdom which gave constitutional validity to an order. In Jenkins v The Commonwealth [771] the validity of the statutory instruments was upheld on evidence as to the place of the mineral mica in electronic devices used in naval and military defence. There is no need to multiply examples. All that is necessary is to make the point that if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity."
In the first of the three cases Dixon CJ referred to, judicial notice was taken after inquiry into some facts about the history of methylated spirits to be found in Encyclopaedia Britannica and Chambers's Encyclopaedia [772] . In the second [773] and third [774] the relevant facts were proved by evidence. Thus none of the three cases affords an example of a constitutional fact being proved without compliance with the rules of evidence. However, Dixon CJ then continued by referring to some evidence adduced by a party, and said that it was "not necessary to consider now" whether the course of adducing that evidence had been essential [775] . The expressions "facts which somehow must be ascertained by the court" and "as best it can", coupled with the leaving open of the possibility that the evidence was not necessary, not only raise a doubt about whether the rules of evidence need to be complied with, but tend to go further.
[632] In 1961, in Breen v Sneddon , Dixon CJ drew a distinction between facts in category one and facts in category two. He said [776] :
"It is the distinction between, on the one hand, ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law and, on the other hand, matters of fact upon which under our peculiar federal system the constitutional validity of some general law may depend. Matters of the latter description cannot and do not form issues between parties to be tried like the former questions. They simply involve information which the Court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts."
The primary rules which govern how category one "issues between parties [are] tried" are the rules of evidence. Dixon CJ's statement that issues about constitutional facts are "not ... to be tried" in the same way as issues about facts in category one is thus excluding the application of those rules to category two facts.
[633] In 1975, Jacobs J said of constitutional facts [777] :
"The court reaches the necessary conclusions of fact largely on the basis of its knowledge of the society of which it is a part. The supplementing of that knowledge is a process which does not readily lend itself to the normal procedures for the reception of evidence. ... I only wish to state my view that parties should not feel bound to channel the information which they or any of them desire to have before the court into a pleading or statement of agreed facts or stated case (as was done in the instant cases). All material relevant (in a general, not a technical, sense) to the matter under consideration may be brought to the court's attention, though it is obviously desirable that it should be previously exchanged between the parties."
That is, the Court can take into account its knowledge of society (apparently whether the information it knows is noticed in compliance with the rules of judicial notice or not), and while it can take into account evidence and agreed facts, all other relevant material may be considered whether or not it is technically admissible.
[634] In 1985, Brennan J said in Gerhardy v Brown [778] :
"There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants. When the validity of a State law is attacked under s 109 of the Constitution and the scope of the Commonwealth law with which it is thought to be inconsistent depends on matters of fact (which I shall call the statutory facts) the function of a court is analogous to its function in determining the constitutional validity of a law whose validity depends on matters of fact."
Since his central concern was the "scope" - the construction - of a Commonwealth law, his remarks were directed to category three facts [779] . But he treated the applicable rules for category three as being the same as those for category two ("validity ... of a law") and category four ("scope of a [constitutional] law"). That is revealed by the fact that he then quoted the passage from Dixon CJ's judgment in Breen v Sneddon [780] , which has just been set out [781] , and also quoted from Dixon CJ's judgment in Commonwealth Freighters Pty Ltd v Sneddon [782] :
"[I]f a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity."
Brennan J concluded [783] :
"The court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources. Perhaps those sources should be public or authoritative, and perhaps the parties should be at liberty to supplement or controvert any factual material on which the court may propose to rely, but these matters of procedure can await consideration on another day. The court must ascertain the statutory facts 'as best it can' and it is difficult and undesirable to impose an a priori restraint on the performance of that duty."
[635] The correctness of the approach to which McTiernan J, Dixon CJ, Fullagar J, Jacobs J and Brennan J appeared to adhere - that in category two the Court can rely on matters of fact even though they have not been proved by evidence admissible under the rules of evidence - is suggested by authorities holding that that approach is to be adopted in relation to matters of fact in category three [784] , category four [785] and category five [786] .
[636] Thus the rules of evidence do not restrict the material which the Court can consider in deciding on facts falling within category two. However, as Jacobs J said, "it is obviously desirable that it should be previously exchanged between the parties" [787] . And even if this were not done - because, for example, the matter is not raised by either party but is seen as important by the Court - it would be astonishing if there were not a duty on the Court to advise the parties both of any constitutional fact it may find and of any material not tendered or referred to in open court upon which it proposes to rely in reaching a conclusion that that fact exists. It is scarcely satisfactory for a party to learn of some supposed fact by reason of which that party lost the litigation only on reading the Court's reasons for judgment, without having any opportunity to dispute the materiality of the fact, or its accuracy, or the trustworthiness of the sources from which it was taken, or the validity of the reasoning from those sources. In Woods v Multi-Sport Holdings Pty Ltd [788] Callinan J said that he did not take Brennan J's remarks in Gerhardy v Brown [789] :
"to be a warrant for the reception and use of material that has not been properly introduced, received, and made the subject of submission by the parties. What his Honour said cannot mean that the interests of the litigants before the court can be put aside. They retain their right to an adjudication according to law even if other, conceivably higher or wider, interests may ultimately be affected."
This is entirely correct, with respect, save that if the words "introduced" and "received" call for compliance with the rules of evidence applying to facts in issue, they are out of line with other authority.
[637] Underlying these processes of notification, whether inter partes or curial, is perhaps a theory that "the nature and importance of constitutional facts" is such that, even if they are not "utterly indisputable", they may "be regarded as presumptively correct unless the other party, through an assured fair process, takes the opportunity to demonstrate that [they] are incorrect, partial, or misused" [790] . In that respect, while Brennan J left open the question whether the parties should be at liberty to supplement or controvert any factual material on which the Court may propose to rely [791] , it would be strange if they were not.
[638] Whether or not a category one fact of which a court proposes to take judicial notice can be the subject of contrary evidence, the circumstance that this Court proposes to take judicial notice of a constitutional fact, or ascertain it without recourse to admissible evidence, ought not to deprive a party of the right to present evidence on the point [792] .
[639] Important questions remain. If the rules of evidence need not be complied with, what limits are there on the capacity of the Court to take constitutional facts into account? The material ought to be sufficiently convincing to justify the conclusion that it supports a material constitutional fact, but does any more restrictive rule exist? Is it sufficient to rely on a natural inhibition against finding constitutional facts in a manner open to later public and professional criticism, and on the capacity of the parties, once advised of what possible constitutional facts may be found, and how, to protest, to argue for a contrary position, to call contrary evidence, and to point to other material not receivable under the rules of evidence [793] ? In Gerhardy v Brown Brennan J left open the question whether the sources to which the Court may have resort "should be public or authoritative" [794] . Just as it is difficult to see how the legislature can "recite" its legislation into validity, so it is difficult to see how spokesmen can "pronounce" legislation proposed by the executive into validity. But it may be that, as Callinan J suggests, "official facts", or at least those evidenced by materials not prepared with an eye to litigation about the constitutional validity of the relevant statute, will come to play a central role in determining constitutional facts [795] . Issues of constitutional validity - not only in relation to the defence power, but also in relation to any other aspect of the Constitution - can be of vital significance. If judicial power to find constitutional facts were wholly untrammelled, there would be risks of great abuse. The questions just posed are thus important ones, and it is necessary to reserve them for resolution in future cases. In the present case there was ample material, of which the plaintiff had notice, and which he did not contradict, otherwise than by occasional bald assertions, to justify inferring the necessary constitutional facts. In part that material is to be found in what was agreed between the parties in the Further Amended Special Case. In part it comes from other sources.
[640] The factual material in this case . In this case the factual material relevant to the question whether the defence power supports the legislation which is available to the Court from the Further Amended Special Case falls within the following groups.
[641] First, there is the material in the agreed part of the Further Amended Special Case. Rule 27.08.5 of the High Court Rules 2004 permits inferences and conclusions to be drawn from that material. However, there is a substantial limitation on the agreement arising from the fact that it is, unless otherwise expressly stated, subject to the following conditions:
- "(a)
- any statements stated ... to have been made were made or were likely to have been made as stated or alleged but there is no agreement between the parties as to the truth of the matters stated; and
- (b)
- any documents referred to ... were or were likely to have been published as stated or alleged but there is no agreement between the parties as to the truth of the matters contained in the documents."
If these conditions bound the Court, they would prevent the statements made in various reports of the Australian Security Intelligence Organisation and other governmental and intergovernmental agencies from being evidence of the truth of what is said. They would also exclude inferences from statements made by Osama Bin Laden and others associated with Al Qa'ida that representations made were true, and perhaps that threats made reflected the truth of important matters of underlying fact (namely that the states of mind of the makers were sincere). A further limitation arises from the cautious terms of some of the agreed facts. Thus par 19 states:
"Terrorist groups or organisations ... and terrorists exist whose objectives and capabilities are such that terrorist acts ... could occur outside or within Australia and such acts may involve the infliction of significant harm and damage ...". (emphasis added)
[642] Secondly, there is material in the findings of the first defendant - both a one-page summary forming Sched 2 to the Interim Control Order, and the eight pages forming the transcript of the first defendant's orally delivered reasons for decision. In order to be used against the plaintiff in the hearing before the first defendant, the evidence underlying those findings had to comply with the rules of evidence, because in that hearing the facts being considered were facts within the first category. The first defendant did not have to concern himself with constitutional facts, but before this Court the findings can be used to establish constitutional facts whether or not their reception, or the evidence apparently underlying them, complies with the rules of evidence. That conclusion is not disturbed by the circumstance that the plaintiff stated that he disagreed with the correctness of the findings. The plaintiff submitted that the one-page summary is "not relevant" to questions of constitutional validity. That is not wholly true, but it is partly true. Many of the findings are of limited use for the purpose of establishing constitutional facts, because they are directed only to the personal position of the plaintiff as distinct from any wider threat to Australia. The plaintiff also submitted that the one-page summary "cannot be given effect without ascribing validity to the law which conferred jurisdiction on" the first defendant. That proposition is a non-sequitur and it was erroneous for the Commonwealth to have agreed with it. The materiality of the one-page summary to the ascertainment of constitutional facts depends on the inherent probability of its contents, and that remains the same whether or not the first defendant had jurisdiction. The plaintiff's submission reveals a confusion between category one facts (in relation to which the submission could have validity) and category two facts (in relation to which it has no validity).
[643] However, in view of the Commonwealth's agreement with the plaintiff's submission, it is desirable to leave the findings of the first defendant out of account.
[644] There are other relevant categories of material.
[645] In the first place, contrary to one of the plaintiff's submissions, in determining what constitutional facts exist, the Court is not limited to the facts set out in the Further Amended Special Case for reasons given below [796] . Nor is it bound by the conditions agreed by the parties in relation to the facts set out in the Further Amended Special Case. The plaintiff's submission that the Court could not go beyond the Further Amended Special Case, repeated in other contexts, is without warrant. It is completely inconsistent with the statement of Jacobs J quoted above [797] . The plaintiff had notice of the statements and documents referred to. He did not attempt to challenge them by evidence (whether or not admissible pursuant to the rules of evidence), or by reasoning directed to show their unreliability. Provided the Court thinks they are reliable enough to be taken into account, there is no error in doing so. Examples include statements in the Australian Security Intelligence Organisation annual reports: they were made under a statutory duty [798] , they have been available for public perusal and criticism for years, they have not been contradicted by more convincing material, and they have not been placed in doubt by other material of sufficient reliability.
[646] Secondly, whether or not items of information learned by members of the Court over past years from news broadcasts, the print media and public discussion are sufficiently open, notorious and within the common knowledge of educated persons [799] to justify judicial notice being taken of them under the law of evidence applicable to category one cases, they may be employed in determining constitutional facts.
[647] The utilisation of these processes of reasoning entitles this Court to reach factual conclusions stronger than the sometimes guarded and limited ones stated in the Further Amended Special Case. They also enable this Court to concur in the following propositions advanced by the Solicitor-General in order to demonstrate the particular vulnerability of Australia:
"The first is the ready availability today of explosive substances, highly toxic poisons, germs and other weapons or things which can be used as weapons ... The second matter is that [Australia] contains cities with very large localised populations and of necessity many people are frequently concentrated in a small area. The third factor is the very high value our society places on human life. A society which had no regard for human life including that of its own members would not suffer from the vulnerability that our society does suffer from. The fourth matter is the dependency of modern society on a variety of types of infrastructure. The fifth is the high value placed by our society on a number of iconic structures ... The sixth is that infrastructure and iconic structures can easily be destroyed by explosives. Water supplies can be poisoned and in other ways great damage can be done to infrastructure and human life by individuals.
The seventh matter is the particular vulnerability of aviation and, to a lesser degree, ships, buses and trains. The eighth is the growth of fanatical ideological movements which compass the destruction of western civilisation and, in particular, of Australia, or elements of it. The archetypical examples of the combination of factors I have referred to, or some of them, are the events of 11 September 2001, the events of Bali, Madrid, London, Nairobi and Dar es Salaam, Jakarta."
[648] The plaintiff submitted that these facts could not be relied on so far as they went beyond the facts agreed in the Further Amended Special Case. There is no warrant for that submission [800] . The plaintiff also submitted that these facts could not be judicially noticed: he said that they were not "commonly known" and were in part simply "assertions ... as to possible future occurrences". The latter proposition is incorrect and even if the facts are not all commonly known, which is questionable, that is not a condition for reception of them as a basis for inferring a constitutional fact.
[649] On the bases outlined above it is to be inferred that there are constitutional facts favouring the conclusion that Australia faced a threat sufficient to support a characterisation of the impugned legislation as falling within the defence power.
Other heads of legislative power
[650] It is not necessary to consider whether the legislation is supported by the powers conferred by s 51(xxix), s 51(xxxvii), s 51(xxxix) or the implied nationhood power.
Chapter III
[651] The plaintiff's arguments in relation to Ch III are to be rejected for certain of the reasons given by Gummow and Crennan JJ [801] and Callinan J [802] . I also agree with what Gleeson CJ has said on the subject [803] .
Orders
[652] I agree with the answer and order proposed by Gummow and Crennan JJ.