Thomas v Mowbray
[2007] HCA 33233 CLR 307
(Judgment by: Gummow J, Crennan J)
Thomas
vMowbray
Judges:
Gleeson CJ
Gummow JKirby J
Hayne J
Callinan J
Heydon J
Crennan J
Judgment date: 2 August 2007
Judgment by:
Gummow J
Crennan J
[33] The plaintiff is subject to an interim control order made under Div 104 of the Criminal Code (Cth) [34] ("the Code") by the Federal Magistrates Court (Mowbray FM, the first defendant) on 27 August 2006. The order was made upon the ex parte application of the second defendant, an officer of the Australian Federal Police ("the AFP"). In this Court, the Commonwealth is joined as the third defendant. Evidence at the hearing of the ex parte application was presented on affidavit and by a sworn witness and submissions were made by counsel for the second defendant.
[34] A hearing for the confirmation of the interim order has been adjourned by consent in the Federal Magistrates Court to await the outcome of the present proceeding in this Court. However, the legislative scheme is that interim orders, having been made ex parte, should come as soon as practicable before the issuing court in an inter partes proceeding for confirmation, revocation or other disposition.
[35] Part 5.3 of the Code is headed "Terrorism" and was introduced by the Criminal Code Amendment (Terrorism) Act 2003 (Cth) ("the 2003 Act"). It replaced Pt 5.3 in the form initially enacted by the Suppression of the Financing of Terrorism Act 2002 (Cth) ("the 2002 Act"). Division 104 is headed "Control orders" and was added to Pt 5.3 by the Anti-Terrorism Act (No 2) 2005 (Cth) ("the 2005 Act"). [35]
[36] Before the Full Court is a Further Amended Special Case agreed by the parties pursuant to r 27.08 of the High Court Rules. The plaintiff seeks affirmative answers to questions asking whether Div 104 [36] is invalid, whether for want of support by s 51 of the Constitution, or, even if so supported, for failure to observe the restraints imposed by Ch III upon the heads of legislative power in s 51.
[37] The Attorneys-General for New South Wales, South Australia and Western Australia intervened with submissions largely but not entirely consistent with those made by the Commonwealth.
[38] Paragraphs 5 and 6 of the Special Case state:
The Plaintiff is and was at all material times an Australian citizen.
In March 2001, the Plaintiff 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.
[39] There is no challenge to the standing of the plaintiff. The reasons given in Croome v Tasmania [37] and Re McBain; Ex parte Australian Catholic Bishops Conference [38] indicate that at least with respect to the interim control order provisions the plaintiff has standing in respect of a matter arising under the Constitution or involving its interpretation. As will appear, the interim control order made in respect of the plaintiff, whilst in force when this Special Case was placed before the Full Court, has a finite life. Nevertheless, the plaintiff's standing would not be lost were the control order to lapse. The restraints to which the plaintiff had been subjected during the life of the order would remain sufficient for him to retain standing to challenge the validity of the order.
[40] A different situation is presented by the provisions for confirmation of interim orders. These have yet to be applied to the plaintiff but the plaintiff seeks to establish that Div 104 as a whole is invalid. It will be necessary to consider whether relief in such broad terms would be appropriate.
[41] There is not before this Court any dispute as to whether, assuming the validity of Div 104, the Federal Magistrate acted within jurisdiction in making the interim control order or whether that order can or should be confirmed.
[42] Much attention in submissions, written and oral, was devoted to criticising or supporting the making of the interim order on the evidence then presented to the Federal Magistrate. However, save to the extent that this material may be indicative of constitutional facts underpinning the validity of the legislation, it is of limited utility for present purposes.
Terrorist act
[43] The object of Div 104 is stated in s 104.1 (which constitutes Subdiv A) as being:
to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act.
[44] What is a "terrorist act"? Section 100.1 of the Code contains various definitions of terms used in Pt 5.3. These include a lengthy definition of "terrorist act". This was introduced by the 2003 Act. A "terrorist act" is defined as "an action or threat of action" which has specified characteristics. The action must be done or the threat made with an intention answering two criteria. First, there must be the intention of "advancing a political, religious or ideological cause". Secondly, there must be an intention which is expressed in the alternative. The first alternative is "coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country". The second is "intimidating the public or a section of the public". The reference to "the public" is stated to include a reference to the public of a country other than Australia (s 100.1(4)(b)). The action which is committed or threatened also must answer one or more of six criteria listed in subs (2) of s 100.1. [39] Action falls outside the definition if it be "advocacy, protest, dissent or industrial action" and is not intended to cause serious harm that is physical harm to a person, or a person's death, or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public (subs (3)).
[45] It will be necessary later in these reasons to consider further the definition of "terrorist act". It is sufficient to note here that it is the political, religious or ideological motivation and the intention to intimidate governments or the public (ie elements of the body politic) which distinguishes the acts in question from acts in pursuit of private ends, which come within established offences against the person or property, or those relating to firearms or explosives.
[46] It should be said immediately that the outcome of this Special Case does not turn upon the validity of the definition of "terrorist act", as supported, for example, by s 51(vi) of the Constitution. What is at stake is the validity of substantive provisions which incorporate the definition, in particular Div 104 of the Code and the interim control order provisions of Subdiv B thereof (ss 104.2-104.5).
Interim control orders
[47] Subdivision B (ss 104.2-104.5) of Div 104 is headed "Making an interim control order". Sections 104.2 and 104.3 make detailed provision for the consent by the Attorney-General to the making by a senior member of the AFP of a "request" in relation to a person for "an interim control order" to be made by "an issuing court". [40] The last expression is defined in s 100.1 as meaning the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court. The information upon which the senior AFP member relies must be sworn or affirmed by that person (s 104.3).
[48] Section 104.4 and s 104.5 are critical provisions. They contemplate, although they do not specify in terms, an ex parte procedure. The issuing court "may make" an interim control order in the terms specified in s 104.5, but only if the criteria specified in s 104.4 are satisfied. Among other matters, the order must set out a summary of the grounds on which the order is made (para (h) of s 104.5(1)) and must state that the order does not begin to be in force until it is served personally on the person to whom it relates (para (d)).
[49] The obligations, prohibitions and restrictions that may be imposed upon a person by the order are specified in s 104.5(3). They include an obligation to permit the taking of photographs of the person, and prohibitions or restrictions upon the person being at specified areas or places, leaving Australia, communicating or associating with specified individuals, accessing or using specified forms of telecommunication, including the internet, carrying out specified activities in respect of the person's work or occupation, and possessing or using specified articles or substances, and also requirements to wear a tracking device, and to report to specified persons at specified times and places.
[50] Subdivision D (ss 104.12-104.17) is headed "Confirming an interim control order". An interim control order must specify a day, being as soon as practicable but at least 72 hours after the making of the order, on which the person the subject of the order may attend the court; the court may confirm the order (with or without variation), revoke it or declare it void (ss 104.5, 104.14). A confirmed control order must be in force for a specified period ending no more than 12 months after the day on which the interim control order was made, but successive control orders may be made in respect of the same person (s 104.16). Section 104.32 is a "Sunset provision". [41]
[51] Subdivision G (s 104.27) creates a criminal offence of contravening a control order. But the Commonwealth correctly accepts that this supplements rather than displaces the contempt power enjoyed by the issuing courts as Ch III courts. [42]
The jurisdiction of issuing courts
[52] Before proceeding further, several points now should be made respecting the jurisdiction of the issuing courts.
[53] First, the provisions respecting issuing courts must be read with paras (a) and (b) of s 15C of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"):
Where a provision of an Act, whether expressly or by implication, authorizes a civil or criminal proceeding to be instituted in a particular court in relation to a matter:
- (a)
- that provision shall be deemed to vest that court with jurisdiction in that matter;
- (b)
- except so far as the contrary intention appears, the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject.
[54] When s 104.4 is read with s 15C of the Interpretation Act, it answers (subject to a submission by the plaintiff respecting repugnancy to Ch III which is considered below) the description of a law made by the Parliament "defining" the jurisdiction of any federal court other than the High Court with respect to matters arising under a law made by the Parliament, within the meaning of ss 76(ii) and 77(i) of the Constitution. [43]
[55] Secondly, the vesting of jurisdiction provided for in para (a) of s 15C brings with it all the incidents of the exercise of jurisdiction by the federal court in question. [44] Those incidents include the selection of the judicial officer to hear any particular proceeding solely in accordance with the internal arrangements of the court. The exercise of jurisdiction necessarily includes, as the Commonwealth accepts, the ordinary appellate structure of the issuing court as well as that of this Court provided by s 73(ii) of the Constitution. Paragraph (b) of s 15C has the effect of removing from the investment of jurisdiction any limits to which any other jurisdiction of the federal court otherwise may be subject. That expansion is subjected by para (b) itself to the appearance of a contrary intention. No such intention appears in Div 104 of the Code.
[56] Thirdly, interim control order proceedings "are taken to be interlocutory proceedings for all purposes", including s 75 of the Evidence Act 1995 (Cth) (s 104.28A). Section 75 provides that, in interlocutory proceedings, the hearsay rule does not apply if evidence of the source of the hearsay evidence is adduced by the party leading it. The classification of interim control order proceedings as interlocutory for all purposes has a further, and broader, significance. Applications made ex parte are a species of interlocutory proceeding which attract well-settled principles. One concerns the need for promptitude in making such applications and the serious consequence of delay. Another concerns the rigorous requirement for a full and frank disclosure of material facts; the subject is authoritatively discussed by Lindgren J in Hayden v Teplitzky. [45] Further, an interlocutory order is liable to be discharged if the party by or for whom the order was obtained publicly misrepresents its effect. [46]
[57] Fourthly, there was no disagreement in the submissions on one aspect of the construction of s 104.4. This is cast in a form earlier described by Fullagar J in Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd ( "the Associated Dominions Assurance Case "), [47] when considering the winding-up and judicial management provisions of the Life Insurance Act 1945 (Cth) ("the Life Insurance Act"), as first requiring the satisfaction of stipulated criteria, with an "ultimate discretion" not controlled by any of those criteria. Section 104.4(1), in that regard, uses the phrase "[t]he issuing court may make an order ... but only if ... ". No party or intervener submitted that s 104.4(1) conferred a jurisdiction the exercise of which was imperative if the stipulated criteria were satisfied. [48] Rather, where, as here, the order is interlocutory and made on an ex parte application, there are strong considerations that "may" is not used in an imperative sense and is used to accommodate the discretionary considerations which generally attend the making of orders on ex parte applications. Further, with respect to statutes assented to after the commencement of s 33(2A) of the Interpretation Act [49] a provision that a court "may" do a particular act or thing reposes a discretion in the court.
[58] The fifth point is one to which it will be necessary to return, for it is central to the submissions of the Commonwealth respecting validity. It is sufficient at this stage to observe that remarks by Gaudron J in Sue v Hill [50] are in point. Statutory criteria for curial decision may be expressed in broad terms but still be susceptible of application in the exercise of the judicial power of the Commonwealth.
[59] Further, as Kitto J explained in R v Spicer; Ex parte Australian Builders' Labourers' Federation ( "the Builders' Labourers' Case "): [51]
The reason for concluding in some such cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities.
The second and third points made above respecting the nature and incidents of the jurisdiction of the issuing courts indicate the necessity for a strict adherence by the issuing courts to the standards which characterise judicial activities. Contrary to the submissions by the plaintiff, the legislation does not stipulate observance of any lesser standards.
Division 104 and Ch III of the Constitution
[60] We put to one side, at this stage, the submission that Div 104 is invalid for lack of support by any head of legislative power of the Parliament, and turn directly to consider Ch III of the Constitution.
[61] As with many of the disputes concerning Ch III that have reached this Court, the issues presented in this case at bottom turn upon a view of the role of Ch III in the plan laid out in the Constitution for the development of a free and confident society. It has been well said that Ch III gives practical effect to the assumption of the rule of law upon which the Constitution depends for its efficacy. [52] But what does the rule of law require? Hence much of the debate in submissions presented in the present case.
[62] The submissions by the plaintiff respecting the judicial power of the Commonwealth were directed particularly to Subdiv B of Div 104 and to the provisions for the making of interim control orders. If Subdiv B falls, then the provisions respecting confirmation of interim orders in Subdiv D would lack the necessary substratum and would fall also. However, if Subdiv B is valid it may not necessarily follow that Subdiv D also is valid. That consideration should inform the extent of declaratory relief consequent upon a decision that Subdiv B is valid.
[63] One of the grounds upon which the plaintiff submits that Div 104 of the Code is invalid is that it confers on federal courts, being the issuing courts, non-judicial power contrary to Ch III of the Constitution. A second ground is that, in so far as Div 104 does confer judicial power, it authorises the exercise of that power in a manner contrary to Ch III. We turn to consider the first ground.
Non-judicial power
[64] Section 104.4 should be set out. It states:
- (1)
- The issuing court may make an order under this section in relation to the person, but only if:
- (a)
- the senior AFP member has requested it in accordance with section 104.3; and
- (b)
- the court has received and considered such further information (if any) as the court requires; and
- (c)
- the court is satisfied on the balance of probabilities:
- (i)
- that making the order would substantially assist in preventing a terrorist act; or
- (ii)
- that the person has provided training to, or received training from, a listed terrorist organisation; and
- (d)
- 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.
- (2)
- In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances).
- (3)
- The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction.
[65] The submissions by the plaintiff respecting the repugnancy of Subdiv B to Ch III require close attention to the terms of s 104.4(1), in particular to satisfaction on the balance of probabilities respecting the matters mentioned in paras (c) and (d) thereof. An interim control order must state that the issuing court is satisfied of the matters in paras (c) and (d) (s 104.5(1)(a)). Section 104.4(2) requires the issuing court to take into account the impact of the obligations, prohibitions and restrictions on the personal circumstances of the individual concerned. This was described in submissions as involving a "balancing exercise" by the issuing court. At the forefront of the plaintiff's case are arguments challenging the sufficiency of the matters mentioned in paras (c) and (d) of s 104.4(1) and the requirements of s 104.4(2) to provide adequate or permissible criteria for the exercise of the judicial power of the Commonwealth.
[66] In White v Director of Military Prosecutions [53] reference was made by Gummow, Hayne and Crennan JJ to the importance which has been attached in the decisions respecting Ch III to the presence or absence of an understanding at the time of the adoption of the Constitution of the treatment of a particular class or type of function as apt for exercise by a court. The Commonwealth supports its case for validity by reference to what it contends is the long history of what are at least analogous functions to the making of interim control orders and to their exercise by English and colonial courts. Consideration of these particular submissions may be put to one side for the present.
[67] Reference also was made in White to the development of various theories or descriptions of judicial power which are expressed in general and ahistorical terms. [54] An example was given of the distinction drawn between arbitral and judicial power, with emphasis upon the power of enforcement attending the latter but not the former.
[68] The particular issues respecting the alleged attempt to confer upon the issuing courts power other than the judicial power of the Commonwealth which were pressed by the plaintiff may be approached by taking as a starting point the following passage in the joint judgment of Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs: [55]
Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, 'a great cleavage'. [56] The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation. [57] This is discharged by ascertainment of facts , application of legal criteria and the exercise, where appropriate, of judicial discretion. [58] The result is promulgated in public and implemented by binding orders. The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government. (emphasis added)
[69] The plaintiff's submissions emphasise in particular the absence of at least two of the characteristics identified in that passage in Wilson. These are the requirements of a " justiciable controversy " and of the provision by the legislation in question of " legal criteria " to be applied by the court.
[70] The plaintiff submits that (a) critical criteria in s 104.4 are concerned with subjective and political questions best suited for determination by the executive and unsuited for determination by the judiciary and (b) the task required by s 104.4 of balancing the need to protect the public with the circumstances of the individual is not governed by objective standards or criteria. We turn to consider submission (b), then submission (a) and will then consider the remaining submissions respecting Ch III.
Absence of legal criteria?
[71] Is there in s 104.4 an absence of legal standards or criteria governing the exercise of the jurisdiction conferred upon the issuing courts, something, as remarked in Wilson, which is necessary for the functioning of the federal judicial branch? The issue thus raised was treated in argument as if the existence of such standards is an essential requirement of legislation for it to attract the exercise of the judicial power of the Commonwealth spoken of particularly in s 71 of the Constitution. The issue may be expressed somewhat differently, as being whether s 104.4 (read with s 15C of the Interpretation Act) is a law which is adequate to "define" what is "the jurisdiction" of the issuing courts, within the sense of s 77(i) of the Constitution, or whether it fails to do so because it is an attempt to delegate to the issuing courts the essentially legislative task of determining "the content of a law as a rule of conduct or a declaration as to power, right or duty". [59]
[72] In what follows, it will be assumed that no relevant distinction is presented between these two expressions of the issue. What is critical is the presence in s 104.4 of what may be said to be adequate legal standards or criteria. It should be said at once that the case law shows acceptance of broadly expressed standards.
[73] In its form when considered in the Builders' Labourers' Case, s 140 of the Conciliation and Arbitration Act 1904 (Cth) included among criteria for the curial disallowance of the rules of registered organisations the terms "oppressive" and "tyrannical". This, as Dixon CJ put it, was one of the "considerations", no one of them apparently being "necessarily decisive", which supported the holding of invalidity. [60] When the section was recast in terms which survived challenge in R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section ( "the Amalgamated Engineering Union Case ") [61] there was a prohibition of rules which were "oppressive, unreasonable or unjust". However, Kitto J (with whom Dixon CJ agreed) said of the new s 140: [62]
It must be conceded that the words 'oppressive', 'unreasonable' and 'unjust', in relation to conditions, obligations or restrictions imposed by a rule upon applicants for membership or upon members, describe attributes which are not demonstrable with mathematical precision, and are to be recognized only by means of moral judgments according to generally acknowledged standards. There is a degree of vagueness about them which, in the context of the former section, assisted the conclusion that the intention was to confer on the Court a general administrative discretion for the amelioration of rules. But the notions which the words convey, more readily to be associated with administrative than with judicial decisions though they be , must be conceded, having regard to the nature of criteria with which courts are familiar in other fields, to be not so indefinite as to be insusceptible of strictly judicial application; and their employment in the present context is not sufficient to show, against the strong indications which there are to the contrary, that the Court is intended to exercise its power under the section otherwise than judicially. ( emphasis added)
Similar conclusions should be reached respecting the presence in s 104.4(1) of the phrases "would substantially assist in preventing a terrorist act" and "protecting the public from a terrorist act".
[74] The entry by the Parliament into the field of business regulation (by legislation including the Life Insurance Act and the Trade Practices Act 1965 (Cth)) and the field of matrimonial causes (by the Matrimonial Causes Act 1959 (Cth) ("the Matrimonial Causes Act")) was attended by the creation of new heads of federal jurisdiction the exercise of which was governed by broadly expressed standards. Indeed, in the Associated Dominions Assurance Case, [63] Fullagar J said of the absence from s 59 of the Life Insurance Act of criteria to guide the exercise of curial discretion to make a winding-up order:
I cannot say that I have felt any serious difficulty as to the general principles which should guide the Court in exercising its discretion under s 59. With regard to the ultimate discretion, I think the general conception to be applied is that which is inherent in the words 'just and equitable' in the Companies Acts. Those words are wide and vague, but they have become very familiar, and they have been judicially considered on many occasions.
In Mikasa (NSW) Pty Ltd v Festival Stores [64] the Court rejected an argument that the absence of specified criteria by which the court was to decide whether or not to enjoin engagement in retail price maintenance was fatal to validity of the relevant provision.
[75] In Cominos v Cominos [65] the Court upheld the validity of provisions of the Matrimonial Causes Act which provided in wide terms for the making of maintenance orders (s 84), "just and equitable" property settlements (s 86), and ancillary orders "necessary to make to do justice" (s 87). When considering s 86 Mason J remarked: [66]
To authorize a court to make an order where it is just and equitable to do so creates a judicial discretion exercisable after a consideration of all the circumstances relevant to the making of the order and in accordance with principle. The conferment of such an authority is not inconsistent with the exercise of judicial power.
[76] There is apparent in these cases an appreciation that in the course of the 20th century State legislation had established regimes to regulate and modify property and contractual rights and obligations by reference to broadly expressed criteria and to provide for the exercise by State courts of jurisdiction to implement the legislation. [67] An early appreciation both of the frequency of State legislative intervention of this nature and of its importance for the future operation of federal jurisdiction is to be found in the reasons of Williams J in Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd. [68] There his Honour gave seven examples from the statute law of New South Wales as it stood in 1943. In Peacock the Court upheld the conferral of federal jurisdiction under the National Security (Contracts Adjustment) Regulations, [69] made under the National Security Act 1939 (Cth). The grounds for curial variation or cancellation of a contract included satisfaction on the part of the court that by reason of circumstances attributable to the war, performance of the contract had become or was likely to become "inequitable or unduly onerous" to the party seeking relief.
[77] Sir Owen Dixon was not a party to the decision in Peacock. His subsequent reasons in the Builders' Labourers' Case [70] and his silence in Cooney v Ku-ring-gai Corporation [71] upon the rejection by Kitto, Taylor, Menzies and Windeyer JJ of limitations upon the use of the injunctive remedy in public law, restrictions which he had earlier favoured, [72] evince a dissatisfaction with the course legislation was taking and some resistance to the adaptation of Ch III jurisprudence to accommodate it.
[78] It should be added that criteria for judicial decision-making may involve the prevention or occurrence of future consequences by steps taken by the executive branch of government in the exercise of its powers. Mandatory court orders may stipulate, for their full effectiveness, the exercise of such powers. A well-known example is the form of specific performance decree set out in the report of Butts v O'Dwyer. [73] The defendants were obliged to seek the approval of the Minister administering the Crown Lands Consolidation Act 1913 (NSW) to the transfer of lease and, if that was forthcoming, to complete the transfer to the plaintiff.
[79] In assessing whether the courts have adequate legal standards or criteria "for the purpose of protecting the public from a terrorist act" it is relevant to note, not only that a judicial procedure has been laid down, but also that the orders which may be made are a familiar part of judicial power to make orders restraining the liberty of the subject, for the purposes of keeping the peace or preserving property. Orders, which are not orders for punishment following conviction, but which involve restraints upon the person to whom they are directed, can be made after a judicial assessment of a future risk. Such orders are familiar in the context of binding over orders discussed later in these reasons, and in the context of statutory protection orders made for the prevention of future violence. In addition to the injunctive relief available under ss 68B and 114 of the Family Law Act 1975 (Cth) ("the Family Law Act"), every State and Territory has enacted legislation with powers to make and tailor orders for the protection of targets of violence against those who have either perpetrated or threatened it. [74]
"Policy" considerations
[80] Something should be said here of the significance of criteria for curial determination which fix upon considerations of "policy". What is meant by the use of that word? In its general sense, a policy is a principle or course of action which is adopted or proposed, particularly by the legislature and by the executive in its administration of legislation. But in the case law there also appears, for example, in the restraint of trade doctrine and the principles respecting relief against penalties and forfeitures, the policy of the law upon various aspects of the conduct of commerce . Magill v Magill [75] concerned the policy of the law respecting the application of the law of tort to intimate personal relationships.
[81] In Australian Communist Party v The Commonwealth [76] Kitto J declared that "[t]he courts have nothing to do with policy", but spoke too broadly. Where legislation is designed to effect a policy, and the courts then are called upon to interpret and apply that law, inevitably consideration of that policy cannot be excluded from the curial interpretative process. No principle of the separation of the judicial power from that of the other branches of government should foreclose that activity, for it is apt to lead to the just determination of controversies by the courts.
[82] Statutes implement particular legislative choices as to what conduct should be forbidden, encouraged, or otherwise regulated. It is a commonplace that statutes are to be construed having regard to their subject, scope and purpose. Much attention now is given by the courts, when engaged on that task, to placing the law in question in its context and to interpreting even apparently plain words in the light of the apprehended mischief sought to be overcome and the objects of the legislation. [77]
[83] The context in which the Parliament enacted Pt 5.3 of the Code includes matters of "general public knowledge" [78] set out in the Special Case. Paragraph 32 of the Special Case lists recent terrorist attacks including the attacks in the United States of America on 11 September 2001, described in para 32(c) as follows:
On 11 September 2001, four planes were hijacked. Two of the planes were flown into the towers of the World Trade Centre in New York, resulting in the eventual collapse of both towers and the death of 2752 people. A third plane was flown into the Pentagon in Washington, the headquarters of the US military, killing 189 people. A fourth plane crashed south of Pittsburgh when the passengers attempted to overpower the hijackers, killing 40 people. The fourth plane had been heading towards Washington, not its scheduled destination of San Francisco.
[84] Paragraph 35 of the Special Case lists major terrorist attacks occurring after 11 September 2001 which have resulted in significant numbers of civilian deaths. These include the simultaneous bombing of two locations in Bali on 12 October 2002 and the separate bombings in Bali on 1 October 2005, which together killed at least 222 civilians and injured many others; attacks on the transport network in Madrid on 11 March 2004, during which 10 bombs were exploded on four trains in three stations during the morning rush hour, in which 191 people were killed and at least 1,800 others injured; a car bomb detonated by a suicide bomber outside the Australian Embassy in Jakarta on 9 September 2004, which resulted in the killing of 11 people and injuring more than 160 others; attacks on the London transport system on 7 July 2005, in which three bombs were detonated by suicide bombers on underground trains, while a fourth later exploded on a double-decker bus, which killed 52 people and injured more than 770 others; and an attack in Mumbai in India on 11 July 2006 in which over 200 people were killed and at least 700 people injured.
[85] It is also a matter of general public knowledge that many of these attacks on major urban targets were carried out by persons with some training and skills in handling explosives and a willingness to die in the course of the attack. Many such attacks have been explained, by those claiming responsibility for them, by reference to jihad, a term encompassing bellicosity, based at least in part on religious considerations, the use of which is not confined to a single nation state. [79]
[86] Shortly after the attacks in the United States of America, on 28 September 2001 the Security Council of the United Nations unanimously adopted Resolution 1373, para 2(b) of which requires all States to "[t]ake the necessary steps to prevent the commission of terrorist acts".
[87] The mischief to which the legislation is directed has been apprehended both within, and beyond, the Commonwealth of Australia and has been dealt with by legislatures of other nation states.
[88] Courts are now inevitably involved on a day-to-day basis in the consideration of what might be called "policy", to a degree which was never seen when earlier habits of thought respecting Ch III were formed. Care is needed in considering the authorities in this field. The vantage point from which the issues were presented is significant. The issue may be whether a power reposed by statute in an administrative or regulatory body is invalid because there is an attempted conferral of the judicial power of the Commonwealth. Here, the presence of criteria which give a prominent part to considerations of policy points against an attempted conferral of judicial power, and so in favour of validity. An example is the importance attached by the Corporations and Securities Panel, whose functions and powers were upheld in Precision Data Holdings Ltd v Wills, [80] to the maintenance of an efficient competitive and informed share market. This appeared to this Court to be a manifestation of commercial policy and a matter which supported the validity of the legislation and the authority of the Panel.
[89] Earlier, in the Tasmanian Breweries Case [81] it had been argued, unsuccessfully, that the Trade Practices Tribunal was attempting to exercise judicial power because its functions were analogous to the development and implementation by the courts of public policy in the restraint of trade doctrine. It was in the course of rejecting that submission and upholding the validity of the powers of the Tribunal that Windeyer J said: [82]
I do not doubt that in considering the public interest the Trade Practices Tribunal should have regard, among other things, to the same general considerations of reasonableness in reference to the public interest as a court would if asked by a party to an agreement to declare it unenforceable because in unreasonable restraint of trade. Nevertheless, in applying the idea of public interest, as adumbrated by the [Trade Practices Act 1965 (Cth)], the Tribunal is more at large than is a court exercising the judicial power and asking what are the limits of reasonableness.
[90] Of the Builders' Labourers' Case Mason and Murphy JJ later (and with respect correctly) observed: [83]
True, it was said in that case that the discretion given by s 140 was not a judicial discretion but was based 'wholly on industrial or administrative considerations' (per Dixon CJ) [84] and involved 'considerations of industrial policy' (per Taylor J) [85] . We do not regard these observations as indicating that the mere requirement that a court take into account considerations of industrial policy in exercising a discretion is of itself enough to stamp that discretion with the character of a non-judicial function. The observations were made in a context in which there were other grounds supporting the conclusion reached by the Court.
[91] The following statement by Professor Zines, made after a review of a number of the decisions in this Court, is in point: [86]
Any standard or criterion will have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre -- an area of choice and of discretion; an area where some aspect of policy will inevitably intrude. The degree of vagueness or discretion will be affected by what is conceived to be the object of the law and by judicial techniques and precedents. Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis. Rules and principles emerge which guide or direct courts in the application of the standard.
[92] The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether "making the order would substantially assist in preventing a terrorist act" (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.
[93] It is true that an interim control order may depend for its effectiveness upon activities of the police and intelligence services. However, the presence of these considerations in a predictive assessment which founds relief of a quia timet nature is not repugnant to the exercise of federal judicial power.
Conclusions respecting alleged inadequate criteria
[94] The plaintiff's argument sought, in effect, to sidestep the general significance of these remarks by stigmatising the exercise of the curial function under s 104.4 of the Code. The making of interim control orders was said to be so dominated, if not controlled, by the implementation of the legislative policy respecting the "response" by the Parliament to terrorist acts and apprehended acts of terrorism, that it limited to a constitutionally impermissible degree any judicial power to apply objectively determinable criteria. That view of the legislation should not be accepted.
[95] Section 104.4 is not so expressed as to be insusceptible of strictly judicial application. The context, discussed earlier in these reasons under the heading "The jurisdiction of issuing courts", indicates that issuing courts are intended to exercise judicially and not otherwise these powers with respect to interim control orders. The importance of these considerations in favouring validity appears in the passage from the judgment of Kitto J in the Amalgamated Engineering Union Case [87] which has been set out above.
[96] There are two matters identified in para (c) of s 104.4(1) as to at least one of which the issuing court must be satisfied on the balance of probabilities. The second matter, the receipt by the person in question of training from or the provision of training to "a listed terrorist organisation", presents issues of fact to be considered on the evidence presented. There is also a question of construction. This is whether the involvement with what is now a listed organisation must have occurred whilst it was so listed, or whether, as the Commonwealth submits, involvement at a time before the listing may suffice. The latter is the better view, given the subject, scope and purpose of Div 104. What is of immediate importance from a vantage point in Ch III of the Constitution is that the resolution of such issues of construction undoubtedly may be entrusted to a Ch III court.
[97] The first matter in para (c) of s 104.4(1) is that "making the order would substantially assist in preventing a terrorist act". It is true, as the plaintiff stressed in his submissions, that the person subjected to the order may be someone other than the prospective perpetrator of a terrorist act. The making of an order nevertheless may be of substantial assistance in preventing that act.
[98] It is true also that the definition of "terrorist act" is detailed and contains terms which may give an area of choice and discretion in evaluating the weight of the evidence tendered on the application of the interim control order. But, as explained in these reasons, that does not foreclose the exercise of strictly judicial techniques of decision-making.
[99] Judicial techniques must then be applied to each proposed obligation, prohibition and restriction. Section 104.4(1) requires in para (d) that each of these be measured against what is "reasonably necessary" and also against what is "reasonably appropriate and adapted" for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a "balancing exercise" (s 104.4(2)).
[100] The term "reasonable" which thus is a significant integer in s 104.4 is one with which courts are well familiar. This term has provided what is the great workhorse of the common law. One commentator has remarked, with some cogency, that this general concept, which draws its determinative force from the circumstances of each action on the case, yet has perhaps the most significant determinative role of all the general concepts which underpin common law doctrines. [88]
[101] In McCulloch v Maryland [89] the Supreme Court of the United States said of the term "necessary":
Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. ... [The word 'necessary'] has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.
[102] In para (d) of s 104.4(1) the phrase is "reasonably necessary" and is well apt for application as a legal criterion. That paragraph also uses the phrase "reasonably appropriate and adapted" to achieve the designated purpose. That phrase has its provenance in another well-known passage in McCulloch: [90]
The court, in inquiring whether congress had made a selection of constitutional means, is to compare the law in question with the powers it is intended to carry into execution; not in order to ascertain whether other or better means might have been selected, for that is the legislative province, but to see whether those which have been chosen have a natural connection with any specific power; whether they are adapted to give it effect; whether they are appropriate means to an end.
[103] This notion of sufficient connection between the desired end and the means proposed for its attainment may have its origins in constitutional law, but it is capable of judicial application elsewhere. Section 104.4(1) is an example. So also is the use made of notions of reasonable necessity and "reasonably appropriate and adapted" in the balancing exercise required of the issuing court by s 104.4(2).
Non-justiciable?
[104] In the end, the plaintiff's case respecting the failure to confer upon the issuing courts the exercise of the judicial power of the Commonwealth must come down to a proposition that s 104.4 seeks to draw the issuing court into adjudication of non-justiciable matters.
[105] "Non-justiciable" is a slippery term of indeterminate reference. It may be used with respect to Ch III of the Constitution in identifying the absence of the constitutional competence of this Court to restrain or otherwise intervene in some of the activities entrusted to the Parliament by Ch I and the Executive by Ch II. The special position accorded in R v Richards; Ex parte Fitzpatrick and Browne [91] to the privileges of the Senate and the House of Representatives established by s 49 of the Constitution is one example. Another is the holding in R v Governor of South Australia [92] that mandamus cannot lie to compel exercise by State Governors of powers conferred by the Constitution, specifically with respect to Senate elections.
[106] The term "non-justiciable" may be applied in a more particular sense. Even if the plaintiff has standing in respect of the controversy sought to be agitated in a Ch III court, nevertheless there will be no "matter" if determination of the controversy would require adjudication of obligations and undertakings which depend entirely on political sanctions and understandings. [93] Examples are agreements and understandings between governments in the Australian federation [94] and between Australia and foreign governments. [95]
[107] It is not for an issuing court to enter upon any dispute as to the assessment made by the executive and legislative branches of government of the "terrorist threat" to the safety of the public before the enactment of the 2002 Act, the 2003 Act and the 2005 Act. [96] But to the extent that this assessment is reflected in the terms of legislation, here Div 104 of the Code, and questions of the interpretation and application of that law arise in the exercise of jurisdiction by an issuing court, no violence is done to Ch III of the Constitution. The issuing court is concerned with a "matter" arising under a law which was preceded by a political assessment, but is not itself making or challenging that assessment.
[108] The question of what is requisite for the purpose of protecting the public from a terrorist act may found a political assessment and lead to the enactment of legislation. That legislation may confer jurisdiction upon a federal court and stipulate as a criterion for the making of an order the satisfaction of the issuing court, on the balance of probabilities -- a distinctively judicial activity -- that each proposed obligation, prohibition and restriction would be reasonably necessary and appropriate and adapted -- other familiar terms of judicial discourse -- for that purpose of public protection.
[109] The protection of the public as a purpose of decision-making is not alien to the adjudicative process. For example, it looms large in sentencing after the determination of criminal guilt. In Veen v R [No 2] [97] Mason CJ, Brennan, Dawson and Toohey JJ observed:
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
[110] The objection by the plaintiff to the engagement of issuing courts in the assessment of risk to the public is a restatement of the objection to conferral of jurisdiction in terms said to be too broad to found the exercise of the judicial power of the Commonwealth. That submission should not be accepted.
Exercise of power in a manner contrary to Ch III
[111] The plaintiff sought to extract from remarks of Gaudron J in Nicholas v R [98] support for something like a "due process" requirement from the text and structure of Ch III. The decisions of the Court have not gone so far. [99] But it may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III. Do the provisions of the Code concerning interim control orders oblige issuing courts to act in a manner inconsistent with the essential character of a court or with the nature of judicial power? It then becomes necessary in the present case to consider the complaints which the plaintiff makes respecting the processes and outcome of applications for interim control orders.
[112] First, the plaintiff points to the ex parte nature of such applications. But ex parte applications are no novelty, and the scheme of the legislation, as already noted, is to provide in the very short term for a contested confirmation hearing if the person in question wishes to proceed in that way.
[113] Secondly, the plaintiff complains that the standard of proof stipulated in s 104.4(1) is no more than satisfaction on the balance of probabilities. The Commonwealth, correctly, accepts that this does require application of the principles in Briginshaw v Briginshaw. [100] Further, the choice of the standard or burden of proof may be fixed by the Parliament without it being repugnant to Ch III. [101]
[114] Thirdly, complaint is made of the restrictions imposed upon personal liberty quia timet and without adjudication of criminal guilt. In Fardon v Attorney-General (Qld) [102] Gummow J rejected a submission by the Commonwealth and accepted the proposition that, "exceptional cases" aside, "the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts"; [103] Gummow J distinguished from committal to custody to await trial (one of the "exceptional cases") detention by reason of apprehended conduct and upon a quia timet judicial determination as being equally offensive to Ch III. [104]
[115] The plaintiff sought to transmute what was said in Fardon ( to which we adhere) into the broader proposition that any deprivation of liberty entailed by the terms of an interim control order could not be imposed by a court exercising the judicial power of the Commonwealth.
[116] Detention in the custody of the State differs significantly in degree and quality from what may be entailed by observance of an interim control order. Moreover, as the Commonwealth and several of the interveners emphasised, some analogy is provided by examples in the English legal tradition of the imposition by curial order of preventative restraints. One such was the power of justices of the peace, on the application of the person threatened to bind over to keep the peace those whose activities threatened to break it, and on the justices' own motion to bind over generally to be of good behaviour. This species of "preventative justice" to maintain order and preserve the public peace was part of the legal inheritance of the Australian colonies and is discussed with much learning by Bray CJ and by Zelling J in R v Wright; Ex parte Klar. [105]
[117] Section 81 of the Judiciary Act 1903 (Cth) provides:
The Justices of the High Court, and the Judges and magistrates of the several States and Territories who are empowered by law to authorize arrests for offences against the laws of the Commonwealth, shall have the like authority to hold to security of the peace and for good behaviour in matters arising under the laws of the Commonwealth as may be lawfully exercised by any Judge or Magistrate of the respective States and Territories in other cases cognisable before them.
[118] A more severe preventative remedy was that provided in Chancery on the grant of the writ of supplicavit. This might be granted upon complaint by a suitor of abuse and threats to life by another suitor; the contemnor was taken into custody, subject to release upon provision of security for good behaviour. [106] The use of the term "contemnor" is indicative of the affinity to the law respecting contempts of court.
[119] The plaintiff emphasised that the breaches of the peace apprehended under the old law were breaches by the person subjected to the order. That is true also of the injunctive remedy for the personal protection of a party to a marriage now provided by s 114(1)(a) of the Family Law Act, but not necessarily of the power to grant an injunction "in relation to the property of a party to the marriage" (s 114(1)(e)).
[120] The assistance provided by historical considerations may not, and does not here, furnish any immediate analogy to the modern legislative regime which is now under challenge. However, it is worth noting that the jurisdiction to bind over did not depend on a conviction and it could be exercised in respect of a risk or threat of criminal conduct against the public at large. [107] In asking a court to exercise the preventative jurisdiction it was necessary to place before the court material which enabled it to conclude that in the absence of an order there was a risk of a breach of the peace. [108]
[121] The matters of legal history relied upon do support a notion of protection of public peace by preventative measures imposed by court order, but falling short of detention in the custody of the State. The plaintiff's submission that such legislation is repugnant to Ch III should be rejected.
[122] The fourth submission by the plaintiff on this branch of his case is that Div 104 authorises issuing courts to disregard the requirements of procedural fairness. Subdivision D of Div 104 provides for confirmation of interim control orders. Section 104.12A imposes a requirement upon an AFP member to disclose to the person in question details required for that person to understand and respond to the case to be put for confirmation of the order (s 104.12A(2)(a)(iii)). However, s 104.12A(3) excludes from that requirement any information the disclosure of which "is likely ... to prejudice national security" within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ("the Security Information Act"). That expression is so defined in that statute as to require a real and likely, not merely a remote, possibility of prejudice by the disclosure to the defence, security, international relations or law enforcement interests of Australia; the latter three expressions are then further defined.
[123] The plaintiff submits that the exclusion made by s 104.12A(3) of the Code is invalid as repugnant to the exercise of federal jurisdiction.
[124] To meet that submission the Commonwealth refers to authorities, in particular the passage in the joint judgment of Gibbs CJ, Wilson, Brennan and Dawson JJ in Alister v R [109] as follows:
The disposal of any point in litigation, without the fullest argument on behalf of the parties, is a course to which every court reacts adversely, however untenable the point in issue may first appear, and however unlikely it is that argument will assist it. The present case evokes the same reaction. But it is the inevitable result when privilege is rightly claimed on grounds of national security.
Nevertheless, there may remain a question whether in the terms used in the Security Information Act the Parliament has sought to over-reach the bounds of the understanding of "national security" in passages such as that from Alister.
[125] There is no challenge in this proceeding to the validity of the provisions of the Code which pick up the definitions in the Security Information Act just mentioned. To rule now upon the validity of s 104.12A(3) of the Code could embarrass the operation of the Security Information Act. Further, s 104.12A(3) (and the other provisions of Subdiv D) is yet to be engaged in respect of the plaintiff and no concrete case respecting the operation of the "national security" provision in that sub-section is presented. In these circumstances, no relief of a declaratory nature respecting the validity of Subdiv D of Div 104 should be made. The preferable course is to limit any such relief to the validity of the provisions which have been immediately engaged, those in Subdiv B, respecting interim orders. [110]
[126] Subject to these qualifications, the attack on validity based upon Ch III of the Constitution should be rejected.
Section 51 of the Constitution
[127] There remain for consideration the grounds upon which the plaintiff denies any support for Subdiv B of Div 104 in the heads of legislative power found in s 51 of the Constitution.
[128] Schedule 1 to the 2003 Act introduced s 100.3 which is said to identify the constitutional basis for the operation of Pt 5.3. Division 104 was later inserted in Pt 5.3 by the 2005 Act. Section 100.3 is accepted by the parties as applicable to Div 104.
[129] Subsection (1) of s 100.3 states:
The operation of this Part in a referring State is based on:
- (a)
- the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and
- (b)
- the legislative powers that the Commonwealth Parliament has in respect of matters to which this Part relates because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.
The plaintiff resides in Victoria and that State answers the description of "a referring State": Terrorism (Commonwealth Powers) Act 2003 (Vic).
[130] Section 51(xxxvii) of the Constitution provides that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.
[131] It is convenient to defer consideration of the reliance placed upon the reference power to a consideration of the other heads of legislative power upon which the Commonwealth relies. These are the defence power (s 51(vi)), the external affairs power (s 51(xxix)) and what is identified as the "implied power to protect the nation".
The defence power
[132] The essential elements in the definition of "terrorist act" in s 100.1 of the Code include the advancement of a political, religious or ideological cause by coercing Australian governments or by influencing them by intimidation, or by intimidating the Australian public or a section of it. Does this proceed upon too wide a view of the defence power?
[133] Paragraph (vi) of s 51 reads:
The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.
[134] The use of the term "defence" invites further inquiries, first, who or what is to be defended; secondly, against what activity; and thirdly, by what means is the defence to be provided?
[135] In the decisions of this Court concerning s 51(vi), it has been said from time to time that the power is purposive in nature and that a notion of proportionality is involved in relating ends to means. This is because para (vi) of s 51 is considered to be one of the few instances, referred to by Dawson J in Leask v The Commonwealth, [111] where power is conferred by s 51 not "by reference to subject matter" but by reference to "aims or objectives". In that regard, what has been said in this Court respecting the defence power was foreshadowed, with respect to the Constitution of the United States, by Alexander Hamilton. In No 23 of The Federalist, Hamilton wrote: [112]
This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained." (original emphasis)
[136] In the same issue of The Federalist Hamilton also made sapient observations respecting what was involved in the notion of defence; these should be set out because they provide a backdrop for consideration of the limitations upon the reach of the defence power in the Australian Constitution for which the plaintiff contends. Hamilton wrote [113] that one of the principal purposes to be answered by the Union was "the common defence of the members; the preservation of the public peace, as well against internal convulsions as external attacks" and went on:
The authorities essential to the common defence are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation , because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defence. (original emphasis)
[137] In a not dissimilar vein, during World War I Griffith CJ said in Farey v Burvett: [114]
As to the suggested limitation by the context, the words 'naval' and 'military' are not words of limitation, but rather of extension, showing that the subject matter includes all kinds of warlike operations. The concluding words cannot have any restrictive effect, unless they are read as an exhaustive definition of all that may be done, which is an impossible construction. In my opinion the word 'defence' of itself includes all acts of such a kind as may be done in the United Kingdom, either under the authority of Parliament or under the Royal Prerogative, for the purpose of the defence of the realm, except so far as they are prohibited by other provisions of the Constitution.
[138] The plaintiff prefers the statement by Gavan Duffy and Rich JJ in their dissenting judgment in Farey: [115]
The words 'the public safety and the defence of the realm' are very different from the words 'the naval and military defence of the Commonwealth': the one phrase clearly suggests defence by means of naval and military operations, while the other is as broad and general as could be devised for the purpose of embracing all means for securing the safety of the community.
But that view of s 51(vi) should not be accepted.
[139] In the Communist Party Case, Dixon J said that the "central purpose" of the power is "the protection of the Commonwealth from external enemies", [116] and Fullagar J said of the defence power: [117]
[I]t is concerned with war and the possibility of war with an extra-Australian nation or organism.
Is the defence of the Commonwealth and the several States of which s 51(vi) of the Constitution speaks concerned exclusively with defence against external threats to those bodies politic, typically by the waging of war by nation states, as occurred in 1914 and 1939?
[140] Such a limited view of the power is not reflected in the recent discussion in the joint judgment in New South Wales v Commonwealth. [118] Further, there was a long history in English law before the adoption of the Constitution which concerned defence of the realm against threats posed internally as well as by invasion from abroad by force of arms. [119] Thus, the law of treason fixed among other things upon the "levying of war" against the sovereign in his or her realm. [120] In this context, the levying of war in the realm required an insurrection accompanied by force, for an object of a public or general nature. [121] In the report in Douglas of the trial at Bar in the Court of King's Bench of Lord George Gordon, after the Gordon Riots, the following appears: [122]
The case, on the part of the prosecution, was; that the prisoner, by assembling a great multitude of people, and encouraging them to surround the two Houses of Parliament, and commit different acts of violence, particularly burning the Roman Catholic Chapels, had endeavoured to compel the repeal of an Act of Parliament.
Lord Mansfield[ [123] ], when he began to sum up the evidence, stated to the jury, that it was the unanimous opinion of the Court, that an attempt, by intimidation and violence, to force the repeal of a law, was a levying war against the King; and high treason. (footnotes omitted)
The analogy with the essential elements of the definition of "terrorist act" in s 100.1 of the Code will be apparent.
[141] It is against this background that the plaintiff (with some support from New South Wales on this branch of the case) nevertheless makes the following submissions respecting the defence power. The first, that s 51(vi) is concerned only to meet the threat of aggression from a foreign nation, should not be accepted, for the reasons given above.
[142] Next, the plaintiff points to the words "the Commonwealth and the several States" as indicative of that which is being defended. This is said to be those "collective" bodies politic rather than the citizens or inhabitants of the Commonwealth or the States and their property. That submission should not be accepted. The notion of a "body politic" cannot sensibly be treated apart from those who are bound together by that body politic. That has been so in English law for centuries. For example, the preamble to The Ecclesiastical Appeals Act of 1532 [124] stated that the realm of England was:
governed by one supreme head and King ... unto whom a body politic compact of all sorts and degrees of people ... be bound and owe to bear, next to God, a natural and humble obedience.
The obverse of that obedience and allegiance was the sovereign's obligation of protection. This notion of a compact sustaining the body politic cannot be weakened and must be strengthened by the system of representative government for which the Constitution provides. [125]
[143] The terms of the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) [126] supply a link between Tudor conceptions of the State and those of the modern system of representative government. The preamble states that what is to be established will be "under" the Crown and the Constitution, but identifies this as coming about upon agreement of the people of the Australian colonies "to unite in one indissoluble Federal Commonwealth". That is to say, the creation of this new body politic implemented, by Imperial statute, popular agreement. This emphasised, as Harrison Moore wrote, [127] that:
[T]he Commonwealth of Australia, being a union of the people and not of their governments, is no mere confederacy.
[144] One consequence of a restrictive view of the scope of the defence power, exemplified by statements that it is concerned with wars waged by external enemies, has been the assertion of a power, stemming from s 61 and the incidental power in s 51(xxxix), to legislate "for the protection of [the Parliament] and the Constitution against domestic attack". This was how Fullagar J put it in the Communist Party Case. [128]
[145] The interim control order system may be said to be directed to apprehended conditions of disturbance, by violent means within the definition of "terrorist act", of the bodies politic of the Commonwealth and the States rather than to violent conditions which presently apply. But three things should be said here. First, restrictions aimed at anticipating and avoiding the infliction of the suffering which comes in the train of such disturbances are within the scope of federal legislative power. Secondly, in that regard the defence power itself is sufficient legislative support without recourse to any implication of a further power of the kind identified by Fullagar J in the Communist Party Case. ( It is unnecessary to consider the scope of the "nationhood" power discussed by Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth. [129] )
[146] Thirdly, much attention has been given in various decisions, concerned particularly with the waging in World War I and World War II of "total war" and the "mobilisation" of economic resources, to the fluid nature of the defence power. The plaintiff emphasises the concentration in such decisions upon the judicial assessment, as matters of constitutional fact, of facts said to be sufficient to connect the legislation in question with the head of power in s 51(vi). This approach to validity is readily understood in considering laws fixing the price of bread in 1916, [130] regulating in 1945 the manufacture of fly-spray [131] and protecting tenancies for residential accommodation in 1951. [132] But this concentration upon sufficiency of connection is not called for when dealing with the interim control order system. This turns upon the operation of the definition of "terrorist act". What is proscribed by that definition falls within a central conception of the defence power, as explained in these reasons. Protection from a "terrorist act" as defined necessarily engages the defence power.
[147] The vice of the Communist Party Dissolution Act 1950 (Cth), that it was, as Dixon J put it, "not addressed to suppressing violence or disorder" and did not "take the course of forbidding descriptions of conduct" with "objective standards or tests of liability upon the subject", [133] does not appear in the interim control order regime.
[148] The plaintiff's submissions respecting the defence power should be rejected.
The external affairs power
[149] What has been said above respecting the application of the interim control order system for the purpose of protection from a terrorist act requires qualification. As remarked earlier, when describing the definition in s 100.1 of the Code of "terrorist act", the object of coercion or intimidation may be the government of a foreign country or of a part thereof and "the public" includes reference to the public of a country other than Australia.
[150] There may be limits to the defence power which are crossed by the inclusion of governments of foreign states and expanded notions of "the public". However that may be, here the external affairs power (s 51(xxix)) comes into play.
[151] The pursuit and advancement of comity with foreign governments and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs. In XYZ v Commonwealth, [134] Gleeson CJ noted (with evident approval) that it was accepted that the external affairs power at least includes power to make laws in respect to matters affecting Australia's relations with other countries. The commission of "terrorist acts" in the sense defined in s 100.1 of the Code is now, even if it has not been in the past, one of these matters.
[152] In Suresh v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada said: [135]
It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid.
The Court added: [136]
First, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada's national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism.
[153] Further, in XYZ, Gummow, Hayne and Crennan JJ [137] referred to the important statement by five members of the Court in the Industrial Relations Act Case: [138]
Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth. [139] Dawson J expressed the doctrine in these terms: [140][T]he power extends to places, persons, matters or things physically external to Australia. The word "affairs" is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs".
Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; [141] Deane J; [142] Gaudron J; [143] and McHugh J. [144] They must now be taken as representing the view of the Court.
The legislative scheme in Div 104 of the Code for prevention through the interim control order system of "terrorist acts" done or threatened with the intention of coercing or influencing by intimidation the government of a foreign country or part thereof or intimidating the public or a section of the public of a foreign country is a law with respect to a "matter or thing" which lies outside the geographical limits of Australia. The "matter or thing" is the apprehended intimidation or injury to the government or public of a foreign country.
Conclusion
[154] When what has been said above respecting the defence power and the external affairs power is taken with the earlier treatment in these reasons of the judicial power of the Commonwealth, the conclusion is that Subdiv B of Div 104 of the Code, which deals with the making of interim control orders, is valid. This makes it unnecessary to consider the degree to which the legislation may be further supported by reliance on the reference power in s 51(xxxvii) of the Constitution.
[155] As earlier noted, the Special Case asks whether Div 104 as a whole is invalid. An answer should be given that Subdiv B of Div 104 is valid and that it is inappropriate to give any broader answer to the question. The plaintiff should pay the costs of the Commonwealth of the Special Case.