Thomas v Mowbray
[2007] HCA 33233 CLR 307
(Judgment by: Gleeson CJ)
Thomas
vMowbray
Judges:
Gleeson CJGummow J
Kirby J
Hayne J
Callinan J
Heydon J
Crennan J
Judgment date: 2 August 2007
Judgment by:
Gleeson CJ
[1] The first defendant, a Federal Magistrate, on 27 August 2006 made an interim control order, under the Criminal Code (Cth) ("the Criminal Code"), against the plaintiff. The grounds on which the order was made were summarised in Sch 2 of the order as follows:
- 1
- Mr Thomas has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code Act 1995. Mr Thomas also admitted that while at the Al Qa'ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons.
- 2
- There are good reasons to believe that given Mr Thomas has received training with Al Qa'ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa'ida or related terrorist cells. Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.
- 3
- Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community. Mr Thomas's links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas's vulnerabilities.
- 4
- Furthermore, the mere fact that Mr Thomas has trained in Al Qa'ida training camps, and associated with senior Al Qa'ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.
- 5
- The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas's knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.
[2] The interim control order was made under Pt 5.3, Div 104, Subdiv B, s 104.4 of the Criminal Code. The order required the plaintiff to remain at his residence in Williamstown, Victoria, between midnight and 5 am each day unless he notified the Australian Federal Police of a change of address. It also required him to report to the police three times each week. It required him to submit to having his fingerprints taken. He was prohibited from leaving Australia without the permission of the police. He was prohibited from acquiring or manufacturing explosives, from communicating with certain named individuals, and from using certain communications technology. The order was made ex parte. In the ordinary course, a hearing in the Federal Magistrates Court would have taken place within a short time in order to decide whether to confirm or revoke or vary the order (s 104.5(1A), s 104.12, s 104.12A, s 104.14). In the events that have occurred, including the present challenge to the validity of the legislation, no such hearing has yet occurred. There are pending criminal proceedings against the plaintiff in the Supreme Court of Victoria, which may be part of the explanation for the delay in holding a hearing. It is not suggested by the parties that such delay has any bearing on the outcome of the proceedings in this Court. It is simply to be noted that the interim order has subsisted for a much longer time than is contemplated by the legislation.
[3] The plaintiff commenced proceedings in this Court to quash the interim control order on the ground that Div 104 of the Criminal Code is wholly invalid. The grounds of asserted invalidity are reflected in the questions asked in a special case, which are as follows:
- 1.
- Is Div 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
- 2.
- Is Div 104 of the Criminal Code invalid because in so far as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Ch III of the Commonwealth Constitution?
- 3.
- Is Div 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?
- 4.
- Who should pay the costs of the special case?
[4] As to question 3, the legislation itself (s 100.3(1)) invokes the powers directly conferred on the Parliament by s 51 of the Constitution, which include the defence power (s 51(vi)) and the external affairs power (s 51(xxix)), and, in addition, the powers that the Commonwealth Parliament has when matters have been referred to it by the Parliaments of States under s 51(xxxvii). The Parliaments of the States, in order to support a national scheme of anti-terrorist legislation, have referred matters to the Parliament of the Commonwealth, and a number of States have intervened in these proceedings to contend that those references sustain the challenged legislation. The plaintiff argues that they do not. The Commonwealth argues, among other things, that it is unnecessary to rely on them.
[5] All the powers referred to in s 51 are conferred subject to the Constitution and, therefore, subject to Ch III of the Constitution. This is the basis of questions 1 and 2, which appear to me to raise the principal issues in the case.
[6] I agree with Gummow and Crennan JJ that, subject to questions 1 and 2, the legislation is supported by the defence power and the external affairs power. It is therefore unnecessary to deal with the arguments concerning the references of matters by the States. The extent, if any, to which other anti-terrorist provisions of the Criminal Code depend upon the references by the States does not arise for consideration. I also agree with the reasons given by Gummow and Crennan JJ for their conclusion as to question 3, and would add only some brief points on that topic.
[7] The power to make laws with respect to 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, is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public. Professor Greenwood wrote: [1]
Since the events of 11 September showed -- if, indeed, the matter were ever in any doubt -- that a terrorist organization operating outside the control of any state is capable of causing death and destruction on a scale comparable with that of regular military action by a state, it would be a strange formalism which regarded the right to take military action against those who caused or threatened such consequences as dependent upon whether their acts could somehow be imputed to a state. ... [T]he famous Caroline dispute, which is still regarded as the classical definition of the right of self-defence in international law, shows that an armed attack need not emanate from a state.
[8] The object of Div 104 is 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 (s 104.1). The definition of terrorist act (s 100.1) requires three elements for an action or threat of action to be a terrorist act. First, the action must fall within a certain description, and must not be of a kind excluded by another description. The inclusory aspect of the definition is that the action must (to put it briefly) cause death, serious physical harm, or serious damage to property, endanger life, create a serious risk to public health or safety, or seriously interfere with or disrupt certain vital systems. The exclusory aspect of the definition excludes advocacy, protest, dissent or industrial action that is (to put it briefly) not intended to cause death or serious injury, or endanger life or public safety. The second necessary element is that the action is done, or the threat of action is made, with the intention of advancing a political, religious or ideological cause. The third necessary element is that the action is done, or the threat of action is made, with the intention of coercing, or influencing by intimidation (to put it briefly), a government, or of intimidating the public or a section of the public.
[9] A control order has the purpose of protecting the public from a terrorist act. An interim control order, of the kind with which this case is concerned, may be requested only with the Attorney-General's written consent, and the person requesting the consent must either consider on reasonable grounds that the order sought would substantially assist in preventing a terrorist act or suspect on reasonable grounds that the person in relation to whom the order is sought has provided training to, or received training from, a listed terrorist organisation. The court's power to make an interim control order is conditioned on two matters (s 104.4). First, the court must be satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act, or that the person has provided training to, or received training from, a listed terrorist organisation. Secondly, the court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. Those words are important in the arguments relating to questions 1 and 2, and it will be necessary to come back to them. On the question of power, however, they repeat the legislative object: protecting the public from an apprehended terrorist act. That is not only the purpose of the legislation generally, it is the purpose to which the control order must be directed, and with which it must conform. This is in the specific context of prevention of a terrorist act, or dealing with a person who has trained with a terrorist organisation. The level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances. Assuming, for the moment, that the legislative criterion for the sufficiency of the connection between the control order and the protection of the public from a terrorist act is not otherwise invalid (a point to which I shall return), the existence of that criterion means that the legislation is supported by the defence power supplemented, where necessary, by the external affairs power.
[10] I turn now to questions 1 and 2. Since the arguments on these questions concern what may be described as separation of powers issues, it is convenient to begin with a passage from the joint judgment in the Boilermakers' Case: [2]
There are not a few subjects which may be dealt with administratively or submitted to the judicial power without offending against any constitutional precept arising from Chap III. It may be too that the manner in which they have been traditionally treated or in which the legislature deals with them in the particular case will be decisive ...
The point might be elaborated and many illustrations, particularly from the bankruptcy jurisdiction, might be given. But enough has been said to show how absurd it is to speak as if the division of powers meant that the three organs of government were invested with separate powers which in all respects were mutually exclusive.
[11] Their Honours went on to cite, as containing a statement of the "true position", a work by Professor Willoughby, [3] who wrote:
Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested.
[12] A familiar example of a governmental power that is sometimes exercised legislatively, sometimes administratively, and sometimes judicially is control of land use. In New South Wales, for example, such controls are sometimes dealt with directly by an Act of Parliament or delegated legislation, sometimes administratively by a Minister or by local government authorities, and sometimes by the Land and Environment Court. We are now accustomed to dissolution of marriage by court order, but there was a time when marriages were dissolved by statute. Compensating victims of accident or crime could be done administratively or judicially. In New Zealand, claims by accident victims, of a kind that for many years have formed a large part of the work of Australian courts, are dealt with by a no-fault compensation scheme outside the court system. Many penalties are imposed administratively, although there is usually a capacity for judicial review or litigious contest. Deciding whether a governmental power or function is best exercised administratively or judicially is a regular legislative exercise. If, as in the present case, Parliament decides to confer a power on the judicial branch of government, this reflects a parliamentary intention that the power should be exercised judicially, and with the independence and impartiality which should characterise the judicial branch of government.
[13] No one has argued that it is beyond the legislative capacity of any Australian Parliament, State or federal, to provide for the making of control orders where they are found to be necessary for the purpose of protecting the public from terrorist acts. For the reasons already given, subject to questions 1 and 2, it is within the power of the federal Parliament to do so. If it were only within the power of the State Parliaments, while no Ch III issue would arise, at least directly, [4] it would still be possible to ask whether the power is peculiarly or distinctively either legislative, or executive, or judicial. The essential nature of the power does not vary according to whether it is exercised by a State or federal Parliament, although the consequences may be different, and the manner in which powers have been traditionally treated by State, as well as federal, authorities may be significant.
[14] It will be necessary to deal with an argument that the particular legislative conditions established by the Criminal Code for making a control order are such that control orders cannot be made by a Ch III court in the exercise of the judicial power of the Commonwealth. There is, however, an anterior question to be resolved, which is whether the essential nature of control orders is such that the power to make them cannot be conferred by the legislature upon the judicial branch of government for the reason that such orders are distinctively legislative or executive.
[15] The plaintiff's written submissions contend that Div 104 confers non-judicial power on a federal court in that it confers upon the court the power to determine what legal rights and obligations should be created, rather than the power to resolve a dispute about existing rights and obligations by determining what those rights and obligations are, and the power to deprive a person of liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what that person has done. It is said that, by reason of those characteristics of a control order, the governmental power that is exercised when such an order is made is peculiarly or distinctively legislative or executive, and therefore not a power that may be conferred upon the judiciary. The power to restrict or interfere with a person's liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislatively, or only administratively. If it were otherwise, the federal Parliament would lack the capacity to confide an exercise of such power to the judicial branch of government. In Fardon v Attorney-General (Qld) [5] the Court was concerned with State legislation which conferred on the Supreme Court of Queensland a power to detain in custody certain prisoners who had served their sentences. The power of detention was "to ensure adequate protection of the community" [6] and a court was required to decide whether there was "an unacceptable risk that the prisoner will commit a serious sexual offence". [7] McHugh J said: [8]
[W]hen determining an application under the Act, the Supreme Court is exercising judicial power. ... It is true that in form the Act does not require the Court to determine 'an actual or potential controversy as to existing rights or obligations'. But that does not mean that the Court is not exercising judicial power. The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. The powers exercised and orders made by the Court under this Act are of the same jurisprudential character as in those cases. The Court must first determine whether there is 'an unacceptable risk that the prisoner will commit a serious sexual offence'. That is a standard sufficiently precise to engage the exercise of State judicial power. Indeed, it would seem sufficiently precise to constitute a 'matter' that could be conferred on or invested in a court exercising federal jurisdiction.
[16] Those observations apply to the legislation in question in this case. Two familiar examples of the judicial exercise of power to create new rights and obligations which may restrict a person's liberty are bail, and apprehended violence orders. The restraints imposed on the plaintiff by the order made against him are similar to conditions commonly found in a bail order. Of course, there are differences between bail and a control order, but the example of bail shows that imposition of restrictions of the kind imposed on the plaintiff is not foreign to judicial power. Apprehended violence orders have many of the characteristics of control orders, including the fact they may restrain conduct that is not in itself unlawful. For example, an apprehended violence order may forbid a person to approach another person, or to attend a certain place. As a matter of history, apprehended violence orders have their origin in the ancient power of justices and judges to bind persons over to keep the peace. Blackstone, in his Commentaries, wrote of what he called "preventive justice". He said: [9]
This preventive justice consists in obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behaviour. This requisition of sureties has been several times mentioned before, as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanours: but there also it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment.
[17] These analogies are not exact, but the argument for the plaintiff is that the power involved in making anti-terrorist control orders is exclusively non-judicial and, in its nature, antithetical to the judicial function. Put another way, the argument is that, even assuming it is within the power of the federal Parliament to legislate for such restraints upon the liberty of individuals, the power to make control orders cannot be given to judges. The corollary appears to be that it can only be exercised by the executive branch of government. The advantages, in terms of protecting human rights, of such a conclusion are not self-evident. In Fardon, [10] I indicated that the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided. An argument, as a matter of policy, that legislation for anti-terrorist control orders ought to be subject to some qualification in aid of the human rights of people potentially subject to such orders is one thing. An argument that the making of such orders should be regarded as totally excluded from the judicial function is another. At all events, to return to the passage from the Boilermakers' Case cited earlier, powers relevantly similar to those given by Div 104 traditionally have been, and are, exercised by the judiciary. They are not exclusively or distinctively administrative. To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights.
[18] Alternatively, it was argued that the restriction on liberty involved in the power to make a control order is penal or punitive in character, and the governmental power involved exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. In a sense this is the reverse of the earlier argument, but with an added qualification: according to this argument, only courts may impose restraints on liberty of the kind here involved, but they may do so only as an incident to deciding or punishing criminal guilt. In Chu Kheng Lim v Minister for Immigration, [11] it was said that it would be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody. The reason given was that the involuntary detention of a citizen in custody by the state is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Exceptions were acknowledged. Examples of executive detention pursuant to statutory authority include quarantine, and detention under mental health legislation. [12] It may be accepted that control orders may involve substantial deprivation of liberty, but we are not here concerned with detention in custody; and we are not concerned with executive detention. We are concerned with preventive restraints on liberty by judicial order . Fardon was an example of preventive detention in custody pursuant to judicial order. Apprehended violence orders made by judicial officers also involve restrictions on liberty falling short of detention in custody. It is not correct to say, as an absolute proposition, that, under our system of government, restraints on liberty, whether or not involving detention in custody, exist only as an incident of adjudging and punishing criminal guilt. It is true that the circumstances under which restraints on liberty may be imposed by judicial order other than as an incident of adjudging and punishing criminal guilt are carefully confined, both by the Parliament and by the courts, but we are here dealing with a different argument. The proposition on which the plaintiff's argument depends is too broad.
[19] A narrower argument for the plaintiff turns upon the Criminal Code's criteria for the making of a control order. This argument looks at the legal incidents of the power as expressed in the Criminal Code, and asserts that such power is antithetical to the judicial function and cannot be conferred on the federal judiciary consistently with Ch III. In particular, the argument points to the stipulation that a control order may be made only if the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. The court is required to make findings that may relate to whether one or more persons are contemplating a terrorist act, whether or not a person has skills, information or other resources that could be employed by the persons who are contemplating a terrorist act to achieve their purpose, and whether the subject of the proposed order has received terrorist training. The court must make inferences and predictions as to whether the skills, information or other resources of the subject of the proposed order are capable of facilitating the commission of the contemplated terrorist act, whether the persons planning a terrorist act are likely to be able to make use of those skills or other resources, and whether the making of a control order would substantially assist in preventing the terrorist act. The requirement that a court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality. [13] Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.
[20] Much attention was given in argument to the expression "reasonably necessary". That expression is commonly used both by judges and in legislation. It is useful to consider examples, because they show the kinds of judgmental evaluation which are commonly undertaken in the judicial process.
[21] A well-known example of judicial use of "reasonably necessary" is in the common law doctrine of restraint of trade. In McEllistrim v Ballymacelligott Co-operative Agricultural and Dairy Society, [14] Lord Birkenhead LC said:
A contract which is in restraint of trade cannot be enforced unless (a) it is reasonable as between the parties; (b) it is consistent with the interests of the public.
...
My Lords, so much guidance has been given by this House in recent decisions to those whose duty it is to understand the criteria by which one tests the meaning of 'reasonableness between the parties', that little need be added upon this point. The real test is, as your Lordships have so often pointed out, does the restriction exceed what is reasonably necessary for the protection of the covenantee? To make the matter particular your Lordships have to reach a conclusion as to whether [the restriction] impose[s] upon the appellant a greater degree of restraint than the reasonable protection of the respondents requires.
[22] That passage has been adopted and applied by this Court in many cases, including Heron v Port Huon Fruitgrowers' Co-operative Assn Ltd, [15] and Buckley v Tutty. [16] It must be one of the most familiar passages in judicial statements of common law principle. It uses "reasonably necessary", and explains what that means. Translating it to the present context, the court has to consider whether the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires. So familiar was the principle stated by the Lord Chancellor that when the United Kingdom Parliament, and later the Australian Parliament, legislated with respect to restrictive trade practices, they applied the concept of reasonable necessity of restrictions. [17] The Trade Practices Act 1974 (Cth) uses the concept of reasonable necessity in ss 44ZF, 51AB, 51AC, 65C, 65D, Pt X Div 6 s 10.29, Div 7 s 10.41, Div 9 s 10.52, and s 152DB. For example, in s 51AB, the court may consider what conditions are reasonably necessary for the protection of the legitimate interests of a particular corporation. In s 65C, the question is whether requirements are reasonably necessary to prevent or reduce risk of injury to any person.
[23] The defence of lawful justification for inducing a breach of contract was summarised by Jordan CJ in Independent Oil Industries Ltd v The Shell Co of Australia Ltd. [18] He said that "an act which would in itself be wrongful as infringing some legal right of another person may be justified if shown to be no more than reasonably necessary for the protection of some actually existing superior legal right in the doer of the act". This Court recently considered and applied that statement in Zhu v Treasurer of New South Wales. [19] In particular, it discussed what it referred to as "the 'reasonably necessary' test". In doing so, it referred to an English decision [20] concerning s 21(1) of the Restrictive Trade Practices Act 1956 (UK) which was about whether restrictions were reasonably necessary to protect the public against injury. There, Devlin J referred to an earlier decision of Buckley J, [21] who interpreted "reasonably necessary or proper" in the Settled Land Act 1890 (UK) to include conduct which although not absolutely necessary was consistent with what a reasonable and prudent person would do.
[24] In Australian constitutional law, reasonable necessity has been adopted as a legal criterion of validity of legislation. In North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW, [22] Mason J said that regulation of interstate trade to protect the public from health risks would not contravene s 92 of the Constitution so long as the detriment to interstate trade was reasonably necessary to protect public health and safety. In Australian Capital Television Pty Ltd v The Commonwealth, [23] Mason CJ said of restrictions on certain forms of communication that the court had to determine whether the restrictions were reasonably necessary to serve the public interest which the restrictions sought to serve. In Levy v Victoria, [24] Toohey and Gummow JJ expressed their conclusion by saying that there was no greater curtailment of the constitutional freedom of communication than was reasonably necessary to serve the public interest in the safety of citizens, and that the curtailment was reasonably capable of being seen as appropriate and adapted to that end.
[25] In the law of real property, the concept of reasonable necessity is familiar. The grant of an easement carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. [25] The Conveyancing Act 1919 (NSW) in s 88K provides that the court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. The expression was construed in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123. [26]
[26] In stating the powers of the legislature, courts have spoken in terms of reasonable necessity. In Egan v Willis, [27] Gaudron, Gummow and Hayne JJ referred to the established principle that the Legislative Council of New South Wales has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. The Privy Council, in Barton v Taylor, [28] in 1886 said: "Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority."
[27] It is not difficult to see where Parliament found the language of s 104.4(1)(d) of the Criminal Code. The language is taken from a long line of decisions of this Court, and of English courts, and from local and foreign statutes. [29] Against this background of judicial and legislative usage it cannot plausibly be suggested that the standard of reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public is inherently too vague for use in judicial decision-making.
[28] Is there, nevertheless, something about the threat of terrorism, or the matters of inference and prediction involved in considering terrorist threats and control orders, that renders this subject non-justiciable, or in some other way inherently unsuited to be a subject of judicial decision? What has been said above as to the variety of contexts in which courts have addressed issues of reasonable necessity, and of proportionality, seems to suggest otherwise. Furthermore, predictions as to danger to the public, which are commonly made against a background of the work of police, prison officers, public health authorities, welfare authorities, and providers of health care, are regularly part of the business of courts. In Veen v R [No 2] [30] this Court spoke of the role of protecting the public involved in sentencing. The topic was considered in a different context in Fardon, [31] where it was pointed out that the standard of an unacceptable risk of harm, used in the Queensland legislation there in question, had been used by this Court in M v M, [32] a case about parental access to children. Reference was earlier made to apprehended violence orders, and to the restraints on liberty which they may involve. I am unable to accept that there is a qualitative difference between deciding whether an angry person poses an unacceptable risk to his or her family, or to the community or some section of the community, or whether a sexually dysfunctional man poses an unacceptable risk to women, and deciding whether someone who has been trained by terrorists poses an unacceptable risk to the public. The possibility that the person will do what he or she has been trained to do, or will be used as a "resource" by others who have been so trained, is capable of judicial evaluation. I do not accept that these issues are insusceptible of strictly judicial decision-making.
[29] It was argued that the power conferred, or purportedly conferred, by Div 104 was not judicial because orders made by an issuing court were said not to be enforceable by that court. In my view, the ordinary powers of Ch III courts to punish contempt are not excluded by Div 104. The relevant principle is that stated in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW: [33]
When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.
[30] Finally, it was argued that, even if Div 104 confers judicial power, it purports to require that power to be exercised in a manner inconsistent with the essential character of a court or inconsistent with the nature of judicial power. This argument fails. We are here concerned with an interim control order which was made ex parte, pursuant to Subdiv B, but, as has been pointed out, in the ordinary case a confirmation hearing would have been held before now. Applications for control orders are made in open court, subject to the power to close the court under the court's general statutory powers. The rules of evidence apply. The burden of proof is on the applicant. Prior to the confirmation hearing, the subject of a control order is given the documents that were provided to the Attorney-General for the purpose of seeking consent to the application for the interim order, together with any other details required to enable the person to respond (s 104.12A). The confirmation hearing involves evidence, cross-examination, and argument (s 104.14). The court has a discretion whether to revoke or vary or confirm the order (s 104.14). An appeal lies in accordance with the ordinary appellate process that governs the issuing court's decisions. The outcome of each case is to be determined on its individual merits. There is nothing to suggest that the issuing court is to act as a mere instrument of government policy. On the contrary, the evident purpose of conferring this function on a court is to submit control orders to the judicial process, with its essential commitment to impartiality and its focus on the justice of the individual case. In particular, the requirements of s 104.4, which include an obligation to take into account the impact of the order on the subject's personal circumstances, are plainly designed to avoid the kind of overkill that is sometimes involved in administrative decision-making. Giving attention to the particular circumstances of individual cases is a characteristic that sometimes distinguishes judicial from administrative action.
[31] We are not concerned in this case with particular issues as to procedural fairness that could arise where, for example, particular information is not made available to the subject of a control order or his or her lawyers. Issues of that kind, if they arise, will be decided in the light of the facts and circumstances of individual cases. We are here concerned with a general challenge to the validity of Div 104. That challenge should fail.
[32] I would answer questions 1, 2 and 3 by holding that Subdiv B of Div 104 is valid. I would answer question 4: "The plaintiff".