Thomas v Mowbray

[2007] HCA 33
233 CLR 307

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(Decision by: Callinan J)

Thomas
vMowbray

Court:

Judges: Gleeson CJ
Gummow J
Kirby J
Hayne J

Callinan JHeydon J
Crennan J

Hearing date:
Judgment date: 2 August 2007

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Decision by:
Callinan J

[519] The plaintiff's liberty is restricted by an Interim Control Order ("ICO") made by a Federal Magistrate pursuant to s 104.4 of the Criminal Code (Cth) ("the Code"), enacted in the Criminal Code Act 1995 (Cth). The question which this case raises is whether the Code in its application to the facts of the case is constitutionally valid.

The nature of the challenged order

[520] There has as yet been no trial. The ICO, by reason of its temporary but urgent nature, may be compared to an interim or interlocutory injunction in civil proceedings, or a grant of bail on conditions in pending criminal proceedings. Legislation or Rules of Court usually provide a lower threshold of proof to ground orders of those kinds. ^[646] The counterweight to this, in the case of the former, is the requirement that the applicant give an undertaking to pay damages in the event that it turn out that the relief ought not to have been granted. An accused person however, receives no recompense in respect of restrictions imposed upon him, or indeed even incarceration pending trial, in the event of subsequent acquittal. The point, for present purposes is, if a person chooses to challenge a temporary or interlocutory order, usually by appeal, but here, by proceedings in the original jurisdiction of this Court, seeking prerogative and related relief pursuant to s 75(v) of the Constitution, ^[647] this Court (or any other whose jurisdiction is invoked) may only proceed upon the basis of the facts credibly alleged and proved according to a lower standard, compelled by the exigencies of the case, and accepted therefore only provisionally by the court making, and for the purposes only of, the interlocutory order.

[521] Section 104.28A of the Code is headed "Interlocutory proceedings" and expressly provides that on a request for an ICO, s 75 of the Evidence Act 1995 (Cth) is to apply. The latter permits the reception of hearsay evidence in interlocutory proceedings provided that the source be stated. I refer to other interlocutory proceedings because they are, in many respects, analogous to what has occurred here, and because, although this plaintiff has joined in the statement of the special case to this Court in the form that it bears, he does not unqualifiedly accept the truth of various of the facts stated, even perhaps for the limited purpose of the constitutional challenge. Indeed, the equivocal stance that the plaintiff adopts in relation to the facts alleged, requires that attention be directed to the evidentiary value and significance of them.

[522] It is on the basis of the evidence, uncontradicted by other evidence, much of which appears to have been before the Federal Magistrate, and therefore this Court, set out in the special case which incorporates the Magistrate's findings, notorious facts of which judicial notice may be taken, and constitutional facts to which I will refer, that I intend to proceed. Accordingly I do not need to resolve the tension between the plaintiff's participation in the stating of the special case to enable a timely disposition of the constitutional issues which it raises, and the ambiguous reservations ^[648] that he makes about the facts in it.

Establishment of constitutional facts

[523] It is necessary to examine and to characterize the relevant facts in general, and some in particular. At the outset this point must be made: however constitutional facts are to be established, each party must be accorded natural justice in relation to any proposed finding of, or inferentially from, them. Inevitably, in some cases, both historical and current affairs will be relevant. Judges need to be careful to ensure that they are not influenced by any preconceived, personal, or idiosyncratic views about these, ^[649] and that it is made clear to the parties, in any case of doubt, which of them may be of relevance. What I have just said applies with equal force to judicial notice: facts of which it may be taken do truly need to be notorious. Judges should keep in mind that distortion, bias, sensationalism, emotion and self-interest are at times common currency in ordinary social intercourse, and in the media. That does not mean that judges should disregard reliable reports and the genuine photographic depiction of, for example, relevantly here, the circumstances preceding, and after, the destruction of the Twin Towers in New York, the bombing of trains in Madrid, and of people and buildings in Bali, and the like.

[524] There is a modern tendency, of which I take judicial notice, to disparage the work of most, if not all historians, on the asserted ground that no-one, not even the most rigorous of scholars, can research and write without the intrusion of an inevitable, unintentional, personal bias. Whether this is categorically so, I cannot say. That it may be, however, provides reason for judges to be cautious, and to be especially diligent to ensure natural justice in cases in which recourse to historical writings is to be made.

[525] The internal content of statutes, including preambles, may themselves be useful, not simply by identifying the mischief to be corrected, but also, by providing an insight into the circumstances in which the mischief has occurred. Again, however, they require caution in their use as factual material. The utility of preambles, in particular, for factual purposes, is at best slight, as will plainly appear when I refer to the Communist Party Case. Explanatory memoranda and second reading speeches can have some utility. Provision for their use is expressly made by s 15AB of the Acts Interpretation Act 1901 (Cth). ^[650] Nothing can however compel this Court to act upon material that it does not think reliable, valid, relevant and useful when it comes to the interpretation and application of the Constitution.

[526] A comprehensive and satisfactory definition of constitutional facts is not easy to state. In my view, constitutional facts in cases of contested constitutional powers should be taken to be facts justifying, or calling for, the exercise of the relevant power, and as to which its exercise is reasonably capable of applying. They are, if in controversy, no less required to be established, than any other facts in issue. This means they must be proved in the same way as other facts are proved, or be sufficiently notorious to be within judicial notice, or ascertainable by reference to indisputably reputable and broadly accepted historical writings, or within a special category which I would describe as "official facts", being, for example, official published statistics, ^[651] scrupulously collected and compiled, information contained in parliamentary reports, explanatory memoranda, second reading speeches, reports and findings of Commissions of Inquiry, and, in exceptional circumstances, materials generated by organs of the Executive. A deal of care needs to be taken with respect to "official facts" which of course the Court will not be bound to accept in any or all cases.

[527] I have thought it appropriate to draw particular attention to these matters because, in the past, the use of materials not proved in evidence, or the subject of informed submissions on both sides has been controversial. An instance of this is the reliance by this Court in Clark King & Co Pty Ltd v Australian Wheat Board ^[652] upon general information on the wheat industry neither asserted in the pleadings nor proved in evidence. ^[653] Reliance upon that information was said to be justified by a passage in the joint judgment of Dixon, McTiernan and Fullagar JJ in Wilcox Mofflin Ltd v State of New South Wales, ^[654] even though the passage cited also deplored the failure of the parties to enter into "formal or full proof" of matters relevant to constitutional interpretation: ^[655]

Unfortunately the parties did not enter into formal or full proof of these and other matters which would have enabled us, at all events, to obtain an understanding which we felt more adequate of the real significance, effect and operation of the statutes, information of a kind that we have come to think almost indispensable to a satisfactory solution of many of the constitutional problems brought to this Court for decision; though we are bound to say that it is not an opinion commanding much respect among the parties to issues of constitutional validity, not even those interested to support legislation, who, strange as it seems to us, usually prefer to submit such an issue in the abstract without providing any background of information in aid of the presumption of validity and to confine their cases to dialectical arguments and considerations appearing on the face of the legislation. But from what appears in evidence, from the inferences to be drawn from the regulations and statutes themselves, from the statements made at the bar and from general knowledge and experience of Australian affairs, some picture of the industry can be constructed.

[528] In Uebergang v Australian Wheat Board, ^[656] Barwick CJ expressed his views ^[657] about the absence of cogent evidence of constitutional facts in Clark King, and the need for it to have been adduced and proved in both of those cases. In Uebergang, Gibbs and Wilson JJ also referred to the need for proof of that kind. ^[658]

[529] In Woods v Multi-Sport Holdings Pty Ltd, ^[659] although it was not a constitutional case, I expressed my concern ^[660] that the statistics relied upon by McHugh J ^[661] were by no means probative of the state of affairs said to justify the conclusions of fact and law reached by his Honour, and the risk of unfairness to which their use gave rise. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd ^[662] I expressed a similar concern, this time as to the completeness of the facts assumed by the Court in Bryan v Maloney ^[663] as a basis for the statement of a rule of law about liability for defects in a residential building. ^[664] Problems of reliance are no less acute in constitutional cases.

The Communist Party Case

[530] The Communist Party Case ^[665] is instructive here for several reasons. First, it was concerned with legislation enacted, as here, to enhance national security. Secondly, reliance for its validity was placed in substance upon the defence power. Thirdly, it was enacted at a time when there was a perception that a particular ideology presented a current and future risk to the Australian polity and people. Fourthly, the legislation sought to make a factual connexion with the foregoing. Fifthly, it came to the Court by way of a form of stated case. Something more needs to be said about each of these.

[531] The Act there, the Communist Party Dissolution Act 1950 (Cth) ("the CPA"), was enacted with a preamble of nine paragraphs which indicate its objectives. They were summarized by Latham CJ: ^[666]

The first three paragraphs recite the terms of the Constitution, s 51(vi), s 61 and s 51(xxxix), to which reference has already been made. The other recitals are as follows: 4. 'And whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat:' 5. 'And whereas the Australian Communist Party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic industrial or political ends by force, violence, intimidation or fraudulent practices:' 6. 'And whereas the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King's dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble:' 7. 'And whereas certain industries are vital to the security and defence of Australia (including the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry and the power industry):' 8. 'And whereas activities or operations of, or encouraged by, the Australian Communist Party, and activities or operations of, or encouraged by, members or officers of that party and other persons who are communists, are designed to cause, by means of strikes or stoppages of work, and have, by those means, caused, dislocation, disruption or retardation of production or work in those vital industries:' 9. 'And whereas it is necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the Australian Communist Party, and bodies of persons affiliated with that Party, should be dissolved and their property forfeited to the Commonwealth, and that members and officers of that Party or of any of those bodies and other persons who are communists should be disqualified from employment by the Commonwealth and from holding office in an industrial organization a substantial number of whose members are engaged in a vital industry:' It will be observed that these recitals refer not only to the Australian Communist Party as a party operating in Australia, but also to the basic theories of communism, in accordance with which it is alleged that that Party engages in activities in order to bring about a revolutionary situation (par 4). The Party is stated to be an integral part of the world communist revolutionary movement (par 6). Persons who are communists are said to be engaged in activities designed to cause dislocation, disruption or retardation of work in vital industries (par 8). Thus the recitals are not limited to allegations with respect to the Australian Communist Party. They contain allegations with respect to communism generally and with respect to the association of the Party with communism, and with respect to persons who are communists. Paragraphs 4 to 8 consist of allegations of fact. Paragraph 9 expresses the opinion of the Commonwealth Parliament that it is necessary for reasons of defence and the maintenance of the Constitution to enact the provisions of the Act. (emphasis added)

[532] It is apparent from the preamble, as Latham CJ observed, that the Parliament regarded the Australian Communist Party, and its ideologies as seriously threatening the common weal in many ways. The ideology was political, and not, as is implicit here, both political and religious, but nothing turns on that.

[533] The timing of the enactment of the CPA is a point of departure from the timing of the legislation here. The Communist Party was part of an international political movement, but one which was not merely dominated, but almost entirely controlled by the Communist Party of the Soviet Union. Only five years before, the Soviet Union had been an important ally of Australia, and the other western democracies. There had certainly been manifestations of Soviet communist imperialism, ^[667] but it is probably right to say that it was only after the collapse of the Iron Curtain nearly forty years later, that all of the designs of the communist state upon the rest of the world, and the ruthlessness with which it was prepared to pursue them, were fully realized and acknowledged. ^[668] In short, much of what is now known and undoubted was not apparent in 1951, such that judicial notice would universally be taken of it. It may also be that some residual tenderness for a recent ally, and a naïvet é about Soviet grand imperial designs affected the thinking of the Court in the Communist Party Case. But whether that is so of that case, it is certainly not here because in this one there is an abundance of uncontradicted, cogent, factual and notorious matter, having the character of constitutional and other facts upon which this Court may and should act. This marks another important point of distinction between this case and the Communist Party Case. In the latter, the Commonwealth sought to rely, for the establishment of the constitutional facts justifying the invocation of the defence power, factually solely on the allegations made in the preamble to the CPA. It is one thing for a court to accord some respect to preambles, ^[669] but another entirely to regard them as conclusive or binding upon the court as the Commonwealth sought to do there, ^[670] especially when the Australian Communist Party, the plaintiff, joined issue on all of them by filing affidavits in contradiction of them. Those important issues had not been resolved by the time that the matter came before the High Court. By contrast, here, not only are the relevant facts proved and uncontradicted, but they are also the subject of provisional findings by the Court whose decision is sought to be challenged. It is a matter of speculation whether, had either of those circumstances obtained in the Communist Party Case, the result would have been different. Furthermore, for the purpose of testing of the constitutional validity of the legislation here, the plaintiff has actually joined in the stating of the special case which narrates the necessary constitutional facts. In the Communist Party Case, the stated case descended to much less particularity of fact: it did little more than recite the procedural history of the case and raise questions of the validity of the CPA, and of the admissibility of the plaintiff's evidence. ^[671] Indeed, it was essentially on the basis that the Commonwealth failed to provide the necessary evidentiary linkage between the CPA, and s 4 of it in particular, and the defence power, that Webb J held the Act to be invalid. ^[672] Dixon J thought it unnecessary to determine the facts because, in his opinion, the Commonwealth there had only argued that the preamble was conclusive as to the legislative opinions that it expressed. Even so, his Honour remarked upon the absence of any proposal by the Commonwealth to establish facts that might make a sufficient connexion between the defence power and the CPA. ^[673] And despite his Honour's disavowal of the need for factual proof to decide the case, he himself made repeated reference to facts and events not mentioned in the preamble: ^[674] for example, the Korean War then being fought; the principles of Communism, the Berlin blockade, and the "problem of Formosa". In short, his Honour did not consider the issues in a constitutional factual vacuum.

The relevant constitutional and other facts

[534] On 25 August 2006, when the plaintiff was not subject to a conviction of any kind, the second defendant, an authorized federal police officer, with the consent of the Attorney-General, applied ex parte for the issue of the ICO. The second defendant has alleged, and caused to be set out in, or as annexures to, the special case many facts, some only of which will need reference. When I do refer to them, I will indicate their source and the basis for their reception and reliance upon them, although this is not strictly necessary in view of the plaintiff's participation in the stating of the special case, albeit with an ambiguous reservation. That does not mean of course that the plaintiff may not contest the facts, to the extent that they may be contestable, in other proceedings.

[535] The plaintiff is an Australian citizen. In March 2001 he travelled to Pakistan and to Afghanistan. There he undertook paramilitary training, which included training for three months in the use of firearms and explosives, at the Al Farooq training camp. He was subsequently arrested in Pakistan, in transit to Australia. In this country, in November 2004, he was arrested and charged with offences under Pt 5.3 of the Code and the Passports Act 1938 (Cth). (Not in issue for the purposes of this special case.)

[536] In February 2006, the plaintiff was tried in the Supreme Court of Victoria by a judge and jury. He was acquitted of two of the offences with which he was charged. ^[675] They related to the provision of resources to a terrorist organization. He was convicted however of intentionally receiving funds from a terrorist organization (Al Qa'ida), contrary to s 102.6(1) of the Code, and of having in his possession an Australian passport that had been falsified, contrary to s 9A(1)(e) of the Passports Act. (Not in issue for the purposes of this special case.)

[537] The plaintiff appealed against the convictions to the Court of Appeal of Victoria. On 18 August 2006 that Court set aside the convictions, ^[676] and on 20 December 2006 ordered that there be a new trial. The plaintiff has been admitted to bail pending the retrial, on less restrictive conditions than those imposed by the Federal Magistrate by the ICO. (Not in issue for the purposes of this special case.)

[538] Among the allegations made by the second defendant were these. The plaintiff was training at the Al Farooq training camp where he saw and heard Osama Bin Laden on several occasions, as well as other senior Al Qa'ida figures. It is an irresistible inference that the training was provided at Al Farooq by Al Qa'ida to equip him to undertake terrorist activities. After terrorist attacks by Al Qa'ida in New York and Washington on 11 September 2001, the plaintiff attempted to join the Taliban forces fighting the military forces of the United States of America in Afghanistan. I am prepared to take judicial notice of the fact that Bin Laden is the, or a principal, leader of Al Qa'ida, that Al Qa'ida is a terrorist organization and that it has either carried out, inspired or at least approbated vicious attacks on military targets, civilians and property in various countries, including those to which I have specifically referred. These are notorious matters. There has been video footage shown on many reputable television channels in many countries of Bin Laden advocating and claiming responsibility for terrorist activities.

[539] The Australian Security Intelligence Organisation ("ASIO") has prepared annual reports relating to the threat posed by terrorists to the people and property of Australia. One states this: ^[677]

The threat to Australian interests overseas has increased, particularly in the Middle East and parts of South and Southeast Asia. At home, we face a sustained high level of threat to US, UK and some other foreign interests, and overall threat levels have been raised in respect of civil aviation, national symbols and attacks involving Chemical, Biological, Radiological and Nuclear weapons.

[540] Other statements made were: "[n]ew intelligence obtained in 2002-03 confirmed that Australia was viewed by al-Qa'ida as a target prior to 11 September 2001 and continues to be viewed as a legitimate target"; ^[678] and, "[i]t is clear attacks on Australian interests here and abroad have been part of al-Qa'ida's strategic vision for some years". ^[679] The Federal Magistrate was right to have regard to the material put before him. Even though it was hearsay, to the extent, if any, that it was not admissible as opinion evidence, coming as it does, from a reputable source and being uncontradicted by other evidence, it should be accepted.

[541] What already emerges from the matters so far stated is that Al Qa'ida poses a threat to the nation, and that the plaintiff has aligned himself and had been trained with Al Qa'ida or an associated organization to undertake terrorism.

[542] In Shaw Savill and Albion Co Ltd v The Commonwealth, ^[680] Dixon J was concerned with proof in final proceedings. ^[681] He pointed out, even then, that "[t]he extent to which the Court should receive the statement of an officer of State as conclusive ... is not well defined". There the Commonwealth had denied liability in tort for damage arising out of a collision in which one of its warships was involved. An officer of the Commonwealth deposed that the warship was engaged in active naval operations, and that no liability for improper navigation should, or could attach to them. Dixon J was prepared to accept the first, but not the second of those claims. ^[682] His Honour thought irrelevant there, but did not discountenance for all purposes, the existence of an "exceptional rule giving conclusive effect to official statements". ^[683] Some of the statements to which I have referred which have been made under oath by officers of the Executive here are analogous to the first category of statements referred to, and accepted by Dixon J in Shaw Savill: they pertain to a state of affairs which may readily be accepted to exist, for example, the indiscriminate bombings, and the international co-operation that has occurred to apprehend the attackers and prevent further like events. In any event, the Federal Magistrate was entitled to take judicial notice of the notorious circumstances of international terrorism and the threats posed by them, and Al Qa'ida's claims of responsibility for them.

[543] Those circumstances include the activities of groups of zealots forming part of, or associated with Al Qa'ida, in many countries throughout the world, making common cause of hatred, against communities posing no threat to them, in which sometimes they reside, and by which they and their families have been given residence, naturalization, comfort and education, have been granted religious and ideological tolerance, and social security and other support. They have conspired with others, and independently planned, to undertake violent, literally suicidal attacks upon even the institutions and peoples of those communities. In order to effectuate those attacks they have shown a willingness and capacity to use whatever weapons they can obtain, and to inflict casualties upon many innocent persons and property, both private and public. (These are notorious facts.)

[544] Populations today are both more numerous and more concentrated. They, and property both personal and public, are more vulnerable. Modern weapons, and not just such horrific ones as nuclear bombs, germs and chemicals, are more efficient and destructive than ever before. The means of international travel and communication are more readily open to exploitation by terrorists than in the past. These matters too are blindingly obvious. ^[684] In argument, the plaintiff was asked to identify any historical precedent for this frightening combination of circumstances. It is not surprising that he was unable to do so. ^[685] The scale and almost inestimable capacity of accessible, modern, destructive technology to cause harm, render attempts to draw analogies with historical atrocities, as grave and frightening to their contemporary targets as they may have been, unconvincing.

[545] Among published statements by persons associated with Al Qa'ida were these. On 23 February 1998, Bin Laden, Ayman al-Zawahiri and three other terrorist leaders issued a declaration under the banner of "The World Islamic Front". This formed part of the declaration:

On this basis, and in accordance with God's will, we pronounce to all Muslims the following judgment:

To kill the American and their allies -- civilians and military -- is an individual duty incumbent upon every Muslim in all countries, in order to liberate the al-Aqsa Mosque and the Holy Mosque from their grip, so that their armies leave all the territory of Islam, defeated, broken, and unable to threaten any Muslim. This is in accordance with the words of God Almighty: 'Fight the idolators at any time, if they first fight you'; 'Fight them until there is no more persecution and until worship is devoted to God'; 'Why should you not fight in God's cause and for those oppressed men, women, and children who cry out: "Lord, rescue us from this town whose people are oppressors! By Your grace, give us a protector and a helper!"?'

With God's permission we call on everyone who believes in God and wants reward to comply with His will to kill the Americans and seize their money wherever and whenever they find them. We also call on the religious scholars, their leaders, their youth, and their soldiers, to launch the raid on the soldiers of Satan, the Americans, and whichever devil's supporters are allied with them, to rout those behind them so that they will not forget it.

[546] There is no contradiction of this statement and its source. It is consistent with events that have elsewhere occurred. It is set out in an annexure to the special case.

[547] On 11 January 1999 , Time Magazine published an interview of Bin Laden by a journalist, Rahimullah Yusufzai. When asked about the use of chemical and nuclear weapons he said this: ^[686]

Acquiring weapons for the defense of Muslims is a religious duty. If I have indeed acquired these weapons, then I thank God for enabling me to do so. And if I seek to acquire these weapons, I am carrying out a duty. It would be a sin for Muslims not to try to possess the weapons that would prevent the infidels from inflicting harm on Muslims.

[548] Although this is hearsay material, it is uncontradicted and consistent with other statements attributed to this person, is also consistent with events that have happened, and therefore admissible for the purposes of, and to support the jurisdiction for the making of an ICO. It in any event forms part of the special case.

[549] Al Qa'ida has been identified as a terrorist organization by a Committee established by United Nations Security Council Resolution 1267 and by the governments of the United States, Canada, the United Kingdom and New Zealand. It is also listed by the European Union as an object of its anti-terrorism measures. In Australia, Al Qa'ida was first listed for the purposes of the definition of "listed terrorist organisation" in s 100.1(1) of the Code by regulations that were notified in the Gazette on 21 October 2002, and on 23 October 2002 were deemed by Sch 1, item 3 of the Criminal Code Amendment (Terrorist Organisations) Act 2002 (Cth) to have commenced on 21 October 2002. Al Qa'ida was re-listed as a "listed terrorist organisation" on 31 August 2004, and again on 24 August 2006. Before each listing, ASIO prepared a statement relating to Al Qa'ida, to which the Attorney-General of the Commonwealth had regard in determining his satisfaction for the purposes of s 102.1(2) of the Code. These are indisputable and notorious facts: they also form part of the special case.

[550] The evidence here linked an organization based in Indonesia, Jemaah Islamiyah ("JI") with Al Qa'ida and demonstrated that the aims of both were similar. Evidence was also produced that terrorist attacks in Bali, Madrid, Nairobi, Dar es Salaam, Aden, Mumbai and London, as well as New York and Washington, some directly resulting in loss of life to Australians, had been made in recent times by Al Qa'ida or other organizations linked to, or incited by, it. These again are notorious facts of which judicial notice may be taken: they also form part of the special case.

[551] In addition, in December 2001, state authorities in Singapore uncovered a plot to attack western targets in Singapore, including the Australian High Commission, by or on behalf of JI. ^[687] In June 2003 the police forces of Thailand uncovered a plan by JI to bomb the Australian Embassy in Bangkok, as well as the embassies of the United States and the United Kingdom. ^[688] This is hearsay, arguably admissible at this stage, but in any event uncontradicted and forming part of the special case.

[552] Already in Australia there have been persons convicted or charged of conspiring or planning to undertake terrorist activities in this country. Much of this is a matter of public record.

[553] There was other material in the special case which expressly made it clear, if it were not already obvious, that terrorism of the kind which gave birth to the attacks has engaged the attention of many nations and has moved them, including Australia, to co-operate with one another to combat it: in short that the relevant terrorism is a matter of international concern, that is to say, worry and fear. (These are both notorious and conventionally proved facts.)

The Interim Control Order

[554] The ICO made by the Federal Magistrate (Mowbray FM) and annexed to the special case, imposed these restrictions and obligations upon the plaintiff:

OBLIGATIONS

The following obligations form part of the interim control order and are imposed on you by virtue of subsection 104.5(3) of the Criminal Code:

Upon personal service of the interim control order and thereafter for the duration of this interim control order:--

1.

You are required to remain at your current place of residence in Williamstown, Victoria, between midnight and 5.00 am each day, unless you notify the Coordinator of the Australian Federal Police Counter Terrorist Team, Melbourne Office, 383 Latrobe Street, Melbourne (the AFP CT Coordinator) in writing of another address that you will be residing at between these times.

and

2.

You are required to report to the following specified persons at the following specified times and places:

(a)

a member of Victoria Police;

(b)

every Monday, Wednesday and Saturday, at any time between the hours of 9 am and 9 pm;

(c)

at any of the following Victoria Police premises (the 'specified premises'):

(i)

Werribee Police Station;

(ii)

Footscray Police Station; or

(iii)

Sunshine Police Station

(d)

or any other person, time and/or place agreed in writing by the AFP CT Coordinator.

and

3.

You are required to allow impressions of your fingerprints to be taken by the Victoria Police via the 'Fingerprint Live Scan' unit for the purposes of ensuring compliance with paragraph 2 of this interim control order:

(a)

within 24 hours following the issuing of this interim control order; and

(b)

where required by a member of Victoria Police, on any occasion you report at the specified premises.

and

4.

You are prohibited from leaving Australia except with the prior written permission of the AFP CT Coordinator.

and

5.

You are prohibited from carrying out the following specified activities:

(a)

acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form) regarding:

--

the manufacture or detonation of explosives;

--

weapons; and/or

--

combat skills;

(b)

manufacturing, acquiring, taking possession of or using or attempting to manufacture, acquire, possess or use any commercial, military or home made and/or improvised explosives or explosive accessories, initiation systems or firing devices;

(c)

subject to section 104.5(5) of the Criminal Code, communicating to any person, whether directly or indirectly (including via internet chat rooms, websites, media interviews, publications and group gatherings) in relation to:

--

methodology, tactics and other knowledge connected with, or likely to facilitate, terrorist acts, including explosives, weapons and/or combat skills.

--

names or contact details of persons you know to be associated with a listed terrorist organisation (see Schedule 3).

and

6.

You are prohibited from communicating or associating with:

(a)

up to 50 individuals listed by the Department of Foreign Affairs and Trade pursuant to Part 4 of the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth), as notified to you in writing by the AFP CT Coordinator, with such prohibition to take effect from notification; and

(b)

any individual that you know to be a member of a listed / specified terrorist organisation (see Schedule 3).

and

7.

Following the expiration of 48 hours after this control order is served upon you, you are prohibited from accessing or using the following specified forms of telecommunications or other technology:

(a)

any mobile telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one mobile telephone service is nominated in total and sufficient details to identify the service to be used are provided;

(b)

a telephone service card, SIM card or account, incorporating a credit or 'top up' facility that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one telephone service card, SIM card or account, incorporating a credit or 'top up' facility is nominated in total and sufficient details to identify the service to be used are provided;

(c)

any fixed or landline telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one fixed or landline telephone service is nominated in total and sufficient details to identify the service to be used are provided or is required in the case of an emergency;

(d)

any public telephone except in the case of an emergency;

(e)

any satellite telephone service;

(f)

any Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service is nominated in total and sufficient details to identify the service to be used are provided;

(g)

any internet service provider account that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one internet service provider account is nominated in total and sufficient details to identify the account to be used are provided;

(h)

any electronic mail (e-mail) account that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one electronic mail (e-mail) account is nominated in total and sufficient details to identify the account to be used are provided.

and

8.

You are prohibited from having in your possession, custody or control or using any firearm or ammunition except during the 48 hours after this control order is served upon you during which you must arrange for the surrender to police of any firearm or ammunition in your possession, custody or control.

[555] Pursuant to the Act, in a schedule to the ICO the Magistrate summarized the grounds for it:

SUMMARY OF THE GROUNDS ON WHICH THIS ORDER IS MADE

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.

Procedural history

[556] On 28 August 2006, the ICO was served on the plaintiff.

[557] On 29 August 2006, the second defendant, acting pursuant to s 104.12A of the Code, elected to confirm the ICO and gave written notification of that election to the Federal Magistrates Court.

[558] On 30 August 2006, an Australian Federal Police ("AFP") officer served the plaintiff personally with the material specified in s 104.12A(2)(a) of the Code. Identifying information in relation to some persons was omitted in reliance upon s 104.12A(3) of the Code.

[559] The hearing before the Federal Magistrates Court under s 104.14 of the Code to determine whether the ICO should be confirmed was originally listed for 1 September 2006. Following resolution of various interlocutory issues, the confirmation hearing was subsequently adjourned at the plaintiff's request until 29 June 2007, with the parties being given liberty to apply, to await the outcome of the proceedings in this Court.

[560] On 30 September 2006, the Attorney-General of the Commonwealth gave notice in writing to the parties, and the Federal Magistrates Court under s 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), that it applied in relation to the confirmation hearing.

The plaintiff's case in outline

[561] The plaintiff advances these propositions. Division 104 of the Code is invalid because it confers on a court non-judicial power contrary to Ch III of the Constitution or, alternatively, it purports to confer judicial power on a federal court exercisable in a manner contrary to Ch III of the Constitution. Division 104 is invalid also because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution. The last of these propositions involves claims that neither the defence power, ^[689] the external affairs power, ^[690] the reference power, ^[691] the incidental power, ^[692] nor the implied nationhood power, ^[693] is sufficient to support Div 104.

[562] In developing his first argument, the plaintiff made the submission that Div 104 impermissibly conferred a power upon a federal court to create future legal rights and obligations, rather than a power, truly judicial, to determine a dispute about existing rights and obligations. The former, relevantly here, is a power to deprive a person of liberty on the basis of a prediction, essentially a prediction by the Executive, about a person's future behaviour rather than his conduct in the past. Further indications that what is involved is not an exercise of judicial power are: that an ICO may be made ex parte; that the power may extend to the deprivation of, or restriction upon personal liberties; that the order may be made on proof of relevant matters on the balance of probabilities only; and the absence of a power of enforcement by the issuing court.

The legislation

[563] I go now to the Code.

[564] Chapter 5 of the Code is concerned with the security of the Commonwealth, and Pt 5.3 in particular with terrorism. Division 101 creates offences in connexion with terrorist acts, Div 102 offences in connexion with terrorist organizations, and Div 103 offences in connexion with the financing of terrorism.

[565] Section 100.1 is the definition section for Pt 5.3, which is headed "Terrorism". A "listed terrorist organisation" is defined as "an organisation that is specified by the regulations for the purposes of para (b) of the definition of terrorist organisation in s 102.1".

[566] The Code defines ^[694] "terrorist act" very broadly:

terrorist act means an action or threat of action where:

(a)

the action falls within subsection (2) and does not fall within subsection (3); and

(b)

the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)

the action is done or the threat is made with the intention of:

(i)

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; or

(ii)

intimidating the public or a section of the public.

Subsection (2) of s 100.1 provides:

Action falls within this subsection if it:

(a)

causes serious harm that is physical harm to a person; or

(b)

causes serious damage to property; or

(c)

causes a person's death; or

(d)

endangers a person's life, other than the life of the person taking the action; or

(e)

creates a serious risk to the health or safety of the public or a section of the public; or

(f)

seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)

an information system; or

(ii)

a telecommunications system; or

(iii)

a financial system; or

(iv)

a system used for the delivery of essential government services; or

(v)

a system used for, or by, an essential public utility; or

(vi)

a system used for, or by, a transport system.

[567] The conduct excepted by subs (3) is as follows:

Action falls within this subsection if it:

(a)

is advocacy, protest, dissent or industrial action; and

(b)

is not intended:

(i)

to cause serious harm that is physical harm to a person; or

(ii)

to cause a person's death; or

(iii)

to endanger the life of a person, other than the person taking the action; or

(iv)

to create a serious risk to the health or safety of the public or a section of the public.

[568] Sections 100.4(4) and (5) contemplate the possibility that the Code might, in some circumstances, be read down:

(4)

Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:

(a)

if the conduct is itself a terrorist act -- the action or threat of action that constitutes the terrorist act; or

(b)

if the conduct is a preliminary act -- the action or threat of action that constitutes the terrorist act to which the preliminary act relates.

(5)

Without limiting the generality of subsection (4), this Part applies to the action or threat of action if:

(a)

the action affects, or if carried out would affect, the interests of:

(i)

the Commonwealth; or

(ii)

an authority of the Commonwealth; or

(iii)

a constitutional corporation; or

(b)

the threat is made to:

(i)

the Commonwealth; or

(ii)

an authority of the Commonwealth; or

(iii)

a constitutional corporation; or

(c)

the action is carried out by, or the threat is made by, a constitutional corporation; or

(d)

the action takes place, or if carried out would take place, in a Commonwealth place; or

(e)

the threat is made in a Commonwealth place; or

(f)

the action involves, or if carried out would involve, the use of a postal service or other like service; or

(g)

the threat is made using a postal or other like service; or

(h)

the action involves, or if carried out would involve, the use of an electronic communication; or

(i)

the threat is made using an electronic communication; or

(j)

the action disrupts, or if carried out would disrupt, trade or commerce:

(i)

between Australia and places outside Australia; or

(ii)

among the States; or

(iii)

within a Territory, between a State and a Territory or between 2 Territories; or

(k)

the action disrupts, or if carried out would disrupt:

(i)

banking (other than State banking not extending beyond the limits of the State concerned); or

(ii)

insurance (other than State insurance not extending beyond the limits of the State concerned); or

(l)

the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

(m)

the threat is one in relation to which the Commonwealth is obliged to create an offence under international law.

[569] Providing or receiving training connected with terrorist acts is an offence, as is possessing things connected with terrorist acts, and other acts done in preparation for, or planning terrorist acts. ^[695] Section 102.1 defines a "terrorist organisation":

terrorist organisation means:

(a)

an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs); or

(b)

an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

[570] A specification of a "terrorist organisation" may only be made after various preliminary steps are taken: ^[696]

Terrorist organisation regulations

(2)

Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that the organisation:

(a)

is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or

(b)

advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

(2A) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

(3)

Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

(a)

the repeal of those regulations; or

(b)

the cessation of effect of those regulations under subsection (4); or

(c)

the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

[571] Section 102.3 makes it an offence knowingly to be a member of a terrorist organization. Similar provision is made in respect of directing a terrorist organization, ^[697] recruiting or training, or being trained by one, ^[698] being funded by or providing funds for one, ^[699] supporting such an organization, ^[700] associating with one, ^[701] and, financing terrorism or a terrorist. ^[702]

[572] A person in the position of the second defendant may only apply for an ICO upon satisfaction of several conditions. Section 104.4 which is of central importance here provides as follows:

Making an interim control order

(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.

[573] Section 104.5(1) requires an issuing court to state a number of matters:

(1)

If the issuing court makes the interim control order, the order must:

(a)

state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and

(b)

specify the name of the person to whom the order relates; and

(c)

specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and

(d)

state that the order does not begin to be in force until it is served personally on the person; and

(e)

specify a day on which the person may attend the court for the court to:

(i)

confirm (with or without variation) the interim control order; or

(ii)

declare the interim control order to be void; or

(iii)

revoke the interim control order; and

(f)

specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and

(g)

state that the person's lawyer may attend a specified place in order to obtain a copy of the interim control order; and

(h)

set out a summary of the grounds on which the order is made.

[574] It is not suggested that the order here is defective for want of any relevant formal or statutory requirements. So too, it is not argued that the restrictions imposed upon the plaintiff by the ICO fall outside the expansive language of s 104.5(3). ^[703]

[575] After an ICO is made several steps are obligatory under s 104.12. They are intended to acquaint the subject of an order with its nature, and an understanding of it. In Queensland, the public interest monitor of the State must be given a copy of an ICO. Before an ICO expires, the applicant for it must elect whether to confirm it, and if he or she does, serve prescribed materials on the person bound by it, but not materials the disclosure of which would be likely to prejudice national security, risk compromising operations by law enforcement or intelligence interests, or the safety of persons.

[576] Under s 104.14, a person in the plaintiff's position may contest the confirmation of an ICO by cross-examining, adducing evidence and making submissions. An applicant may, at any time, apply to the issuing court for the revocation or variation of the order. ^[704]

[577] Section 104.27 makes it an offence to contravene a control order. By s 104.32, an order ceases to have effect ten years after its making. The Code also sets up ^[705] a statutory regime for temporary detention to prevent an imminent terrorist act, or to preserve evidence relating to a recent terrorist act.

[578] If an ICO is confirmed, an application may be made, by either the person affected ^[706] or the AFP Commissioner, ^[707] for revocation or variation of that (confirmed) control order. The court may revoke or vary the order, or dismiss the application for its revocation or variation: ^[708]

104.20 Revocation or variation of a control order

(1)

If an application is made under section 104.18 or 104.19 in respect of a confirmed control order, the court may:

(a)

revoke the order if, at the time of considering the application, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or

(b)

vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of considering the application, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or

(c)

dismiss the application if, at the time of considering the application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).

(2)

A revocation or variation begins to be in force when the court revokes or varies the order.

(3)

An AFP member must serve the revocation or variation personally on the person as soon as practicable after a confirmed control order is revoked or varied.

[579] Thus, an issuing court may revoke a confirmed control order if the court is not satisfied, on the balance of probabilities, that the order would substantially assist in preventing a terrorist act, or is not satisfied that the person has provided training to or received training from a terrorist organization. ^[709]

[580] An issuing court may vary a confirmed control order if it is not 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. ^[710] A control order must accordingly have a degree of proportionality for its making or variation, but proportionality is irrelevant for its revocation.

[581] Proceedings for the confirmation of an ICO, or for the revocation or variation of a confirmed control order, may be the subject of an appeal ^[711] as with any other decision of the relevant issuing court. ^[712]

Constitutional power

[582] The first of the powers said by the Commonwealth to support the Division is the defence power. And, as I have foreshadowed, the submission to that effect is correct. That being so, no other head of power needs detailed consideration.

[583] Defence is not something of concern to a nation only in times of a declared war. Nations necessarily maintain standing armies in times even of apparent tranquillity. Threats to people and property against which the Commonwealth may, and must defend itself, can be internal as well as external. With respect, insufficient critical attention to these matters was given by the majority in the Communist Party Case. The references by Dixon J to "ostensible peace" ^[713] and protection against external enemies as the "central purpose" ^[714] of the defence power evince both a preoccupation with the events of the recent past, of a declared war, uniformed, readily distinguishable external enemies, generally culturally, ethnically, ideologically and religiously homogenous states, and an incomplete appreciation, despite Hiroshima and Nagasaki, of the potential of weaponry for massive harm.

[584] In saying that, I do not question the result in the Communist Party Case or the particular principle, properly identified and understood, for which it stands, and its importance which Fullagar J emphasized, ^[715] that it is for the courts, and not the Parliament to have the final say on whether legislation is within constitutional power or not. That does not mean that any of the separate judgments in the Communist Party Case should be uniquely immune to critical examination and analysis. Nor does it mean that subsequent events which might tend to falsify some of the factual assumptions upon which parts of the reasoning were based, should be ignored. In that respect it is revelatory history itself, which gives rise to questions about aspects of the case.

[585] The facts established here, are, in my view facts in respect of which the Commonwealth may legislate under s 51(vi) of the Constitution. That conclusion is so right and obvious that reference to authority is really unnecessary. Even in the Communist Party Case itself there are statements which lend some support to the conclusion that I reach. McTiernan J ^[716] contemplated that had the activities of the Australian Communist Party been more substantially threatening, either in peace, or time of declared war, members of, and the Party, might have been amenable to the legislation there. Although Williams J was of the view that the defence power could be invoked if the proved facts made it "reasonably necessary in order to prepare for the defence of Australia", ^[717] later his Honour was to say: ^[718]

The defence power in peace time authorizes any legislation which is reasonably necessary to prepare for war ... Any conduct which is reasonably capable of delaying or of otherwise being prejudicial to the Commonwealth preparing for war would be conduct which could be prevented or prohibited or regulated under the defence power.

[586] His Honour did not however define "war". We cannot know how he would have regarded the facts with which the Court is confronted here.

[587] Fullagar J was in no doubt that the defence power was not confined in its exercise to times of war. ^[719]

[588] The language of s 51(vi) of the Constitution is itself expansive. Under it, the Parliament may enact laws for the control of the forces to execute and maintain the laws of the Commonwealth. The real question in every case will be, is the Commonwealth or its people in danger, or at risk of danger by the application of force, and as to which the Commonwealth military and naval forces, either alone or in conjunction with the State and other federal agencies, may better respond, than State police and agencies alone. If the answer to that is affirmative then the only further questions will be, are the enacted measures demonstrably excessive, or reasonably within the purview of the power, or, to use the language of s 104.4(1)(d) itself, "reasonably necessary" or "reasonably appropriate and adapted" to protection against terrorism. With respect to the meaning and application of that language, and the relevance of the time of listing of relevant terrorist organizations, it is unnecessary to add to what has been stated by Gummow and Crennan JJ. ^[720]

[589] I have commented on aspects of the judgment of Dixon J in the Communist Party Case which time, to say the least, as well as the facts proved here, make questionable: the drawing by his Honour of a distinction, as if there were a clear line between them for constitutional and all practical purposes, between times of peace and serious armed conflict, and internal and external threats. ^[721] Perhaps it was the country's recent emergence from a prolonged and costly declared war during which liberties had been curtailed and rights suspended, that influenced his Honour's responses to the CPA. Latham CJ, although in dissent, was in a sense more perceptive and alive to the gravity of direct and indirect internal threats inspired externally, and the different manifestations of war and warfare in an unsettled and dangerous world. To regard war as a declared war only, to assume that a nation's foes would all identify themselves, and rarely act covertly, that they would act logically, and that they would not be people drawn from the Australian community was even then however to be somewhat naïve. As Latham CJ, well informed no doubt by his far reaching and diverse experience as head of Naval Intelligence during the First World War, member of the Australian delegation to the Versailles Peace Conference after it, busy counsel, parliamentarian, attorney-general, leader of the opposition, first minister to Japan, and Chief Justice, ^[722] said: ^[723]

Any Government which acts or asks Parliament to act against treason or sedition has to meet the criticism that it is seeking not to protect government, but to protect the Government, and to keep itself in power. Whether such a criticism is justified or not is, in our system of government, a matter upon which, in my opinion, Parliament and the people, and not the courts, should pass judgment. The contention that such an argument affects the validity of a law reminds me of the decision of a court in another country, when I was there, in a case of alleged treasonable conspiracy. The Court held that the accused did not intend to destroy government, but only to bomb public offices and assassinate ministers and generals and others. As they intended to take over the task of governing the country themselves, they were not guilty. I did not then, and do not now, agree with such a decision.

...

Actual fighting in the Second World War ended in 1945, but only few peace treaties have been made. The Court may, I think, allow itself to be sufficiently informed of affairs to be aware that any peace which now exists is uneasy and is considered by many informed people to be very precarious, and that many of the nations of the world (whether rightly or wrongly) are highly apprehensive. To say that the present condition of the world is one of 'peace' may not unfairly be described as an unreal application of what has become an outmoded category. The phrases now used are 'incidents', 'affairs', 'police action', 'cold war'. The Government and Parliament do not regard the present position as one of perfect peace and settled security, and they know more about it than the courts can possibly know as the result of considering legally admissible evidence. I have already referred to the authorities which show that neither the technical existence of war nor actual fighting is a condition of the exercise of the defence power. At the present time the Government of Australia is entitled, in my opinion, under the defence power to make preparations against the risk of war and to prepare the community for war by suppressing, in accordance with a law made by Parliament, bodies believed by Parliament to exist for the purpose (inter alia) of prejudicing the defence of the community and imperilling its safety. It is immaterial whether the courts agree with Parliament or not. (emphasis in original)

[590] It could not be sensibly suggested however that too ready and ill-considered an invocation of the defence power, does not have the capacity to inflict serious damage upon a democracy. It is for this reason also that courts must scrutinize very carefully the uses to which the power is sought to be put. There will always be tensions in times of danger, real or imagined. They were present throughout the serious armed conflict of the Second World War as the numerous challenges to the National Security Regulations which were decided by this Court in those years and afterwards, show. They will no doubt continue while terrorism of the kind proved here remains a threat. The courts will simply have to do the best they can to ensure the proportionality that the Code itself admits must be applied in each and every case. The Commonwealth has however demonstrated that Div 104 of the Code, in its application to the plaintiff, is within the defence power.

Judicial power and its exercise

[591] Justiciability and the exercise of judicial power are closely related and overlapping topics.

[592] The plaintiff attacks the whole of Div 104 of the Code on the basis that it requires federal courts impermissibly to exercise non-judicial power. He does not present any argument in the alternative singling out any particular provision of it. Accordingly, there is no occasion for this Court to embark on any exercise of severance. He does, however, argue that even if the power in question might be regarded as judicial power, the Division, on its proper reading would compel its exercise non-judicially. In one sense these are curious submissions. If, as I have held, the Division is within the defence power in its application to this case, the submission might, if made out, have the consequence, subject to the application of s 75(v) of the Constitution, that the executive power rather than judicial power might be exercisable in respect of the plaintiff, thereby denying him access to the normal judicial process, including to appellate courts. It could also conceivably produce the consequence that a person in the plaintiff's position might be subjected to a form of administrative detention.

[593] I have already set out the key provisions specifying the matters for proof on the making of an application, essentially, and relevantly here, that the person has received training from a listed terrorist organization, and that the order is reasonably necessary, appropriate and adapted to the purpose of protecting the public from a terrorist act.

[594] In their judgment Gummow and Crennan JJ make five points with respect to the jurisdiction conferred by the Code upon the federal courts to issue ICOs. ^[724] I agree with each of those points.

[595] The plaintiff argues that the issues raised by s 104.4 are political issues unsuited for judicial determination. I disagree. The making of orders by courts to intercept, or prevent conduct of certain kinds is a familiar judicial exercise. Every injunction granted by a court is to that end. And every application for an interlocutory injunction requires the court to undertake a balancing exercise, that is to say of the convenience of the competing interests, and the efficacy and necessity of the orders sought. Injunctions to restrain public nuisances require the same approach. Orders to prevent apprehended violence, to bind people over to keep the peace, and, more recently, as in Fardon v Attorney-General (Qld), ^[725] to approve curially continued detention as a preventative purpose to protect the public, are exercises undertaken, and, in my view, as here, better so undertaken by the courts. Protection of the public is frequently an important, sometimes the most important of the considerations in the selection of an appropriate sentence of a criminal. That too is necessarily both a balancing and a predictive exercise. It is one that necessarily takes account of the role of the police and other officials in preventing crime, and even of further criminal conduct on the part of the offender to be sentenced, as well as his personal circumstances.

[596] I do not doubt that s 104.4 is concerned with justiciable controversies. It raises for trial issues on which evidence may be led and contested, the prospect of a terrorist act or otherwise, and whether an order would substantially assist in preventing it. Other familiar issues affecting the crafting of the order are similarly justiciable, these being as to its duration and other necessary, appropriate and reasonable components of it. The words of s 104.4 do state sufficient criteria for the resolution in a judicial way of the questions they raise. Whether an applicant for equitable relief comes to the court with clean hands, whether it would be just and equitable to make an order sought, whether conduct has been and might in the future be unconscionable, indeed a great deal of the jurisdiction of the courts, particularly in equity and much of it in common law, as well as under statute, is concerned with the balancing of interests and the assessment of past, current and future behaviour and circumstances. Examples of many of these are given in the joint judgment of Gummow and Crennan JJ and need no repetition by me. All legislation is, in a sense a "response" by Parliament to events and circumstances. The legislative response will frequently provide, as one of the criteria for the exercise of any judicial power conferred, the possibility or likelihood of an occurrence or its recurrence.

[597] The court, in applying the Code looks to, and makes a determination about past conduct, for example, relevant training, and, in moulding the order has regard to both the prospective conduct of the subject of it in relation to future terrorist activities, and also possibly of others. Past and prospective conduct, well capable of being the subject of evidence, provide norms or standards for the making of orders of the kind made here. In this connexion, that the defence power is a purposive power is relevant: for its effective exercise it is not surprising that it is employable against a person or persons to serve its purpose.

[598] The Code does not seek to impose upon the courts an obligation to exercise power contrary to Ch III of the Constitution. Urgent applications necessarily made ex parte are often made by courts. A requirement of proof beyond reasonable doubt might be preferable, but substitution of the balance of probabilities does not convert the judicial into the non-judicial.

[599] Chapter III of the Constitution is not infringed by s 104.4. Division 104 makes and implies the usual indicia of the exercise of judicial power: evidence, the right to legal representation, cross-examination, a generally open hearing (subject to a qualification with respect to some sensitive intelligence material), addresses, evaluation of the evidence, the ascertainment and application of the law to the found facts, and in all other respects as well, the application of orthodox judicial technique to the making of a decision which may be the subject of an appeal on either or both fact and law. This is not the way that any arm of the Executive conventionally operates. Risks to democracy and to the freedoms of citizens are matters of which courts are likely to have a higher consciousness. That the material upon which the courts may be forced by the exigencies to rely, may be incomplete, fragmentary and conflicting does not deprive the process which the Code requires them to undertake of its judicial character, or mean that the issues are not justiciable. If courts could only decide cases in which the materials were complete and the facts not in conflict, there would be little work for them to do and many controversies left unquelled. The necessity and obligation to decide on what is available is well settled. Recently this Court reaffirmed the "best evidence rule". ^[726] It and the principle restated in Vetter v Lake Macquarie City Council, ^[727] that courts must evaluate the evidence having regard to the capacities of the respective parties to adduce it, reflect the necessary pragmatism and experience of the common law with respect to human affairs and evidence about them.

[600] Subject only to what I have said in relation to justiciability and Ch III, I also agree generally with the reasoning and conclusions of Gummow and Crennan JJ on those matters. The arguments of the plaintiff as to them should be rejected.

Other matters

[601] What I have said makes it strictly unnecessary for me to consider suggested heads of constitutional power, other than the defence power, and any other issues raised by the parties. I would however make these reservations about the referral power.

[602] These reservations are as to the constitutional validity of the provisions in the Code for the making of changes to Pt 5.3 of it, that is, their supportability under the referral power. ^[728] For example, s 100.8 provides for the implementation of amendments to Pt 5.3 in circumstances in which a majority of the States and Territories approve the changes. Section 100.8 provides:

Approval for changes to or affecting this Part

(1)

This section applies to:

(a)

an express amendment of this Part (including this section); and

(b)

an express amendment of Chapter 2 that applies only to this Part (whether or not it is expressed to apply only to this Part).

(2)

An express amendment to which this section applies is not to be made unless the amendment is approved by:

(a)

a majority of the group consisting of the States, the Australian Capital Territory and the Northern Territory; and

(b)

at least 4 states.

[603] Section 100.8 might arguably therefore purport to bind a State that did not agree with an amendment, to accept it simply because a majority of States approves it. The referral power is as follows: ^[729]

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

...

(xxxvii)

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.

[604] This provision contemplates a class of subjects that remained within the power of each of the States at Federation, but which in the future it might, from time to time, and by no means necessarily permanently, be considered best to be delegated to the Commonwealth.

[605] Nowhere in the Convention Debates, ^[730] nor in commentary upon the Constitution, is there any basis for a proposition that s 51(xxxvii) could validly be used to establish a regime in which a State might renounce or forgo its power in the future over a subject to a majority decision of the other States, and indeed also the Territories. The Constitution specifically states that the referral may be to the Commonwealth: it does not say that referral may be to the decision of a majority of States and Territories. Nor does it suggest that one State may refer its power to legislate on a particular matter to another State or Territory. Such an outcome was not within the intention, or even the contemplation, of the drafters of the Constitution. To construe s 51(xxxvii) as operating in this sense would be to effect a change to the plain meaning of the words of the Constitution. It is not to be used as a means of amending the Constitution without the approval of the people under s 128, a possibility against which Dr Quick spoke during the Convention Debates: ^[731]

My principal objection to the provision [as it is proposed] is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution.

[606] Nor, as Mr Symon said, may the States relieve themselves of their constitutional powers and obligations: ^[732]

But here we are giving to any state the power of sending on to the Federal Parliament, for debate and legislation, some matter which it is purely for themselves to deal with, and I do not think we ought to put it in the power of states to relieve themselves from their own responsibilities in legislation or administration by any such easy contrivance as this might turn out to be.

[607] In my tentative view, to construe s 51(xxxvii) to support the mechanism in s 100.8 of the Code could well be erroneous.

[608] In any event, there is a further possible solution, and again my view on it is tentative only, that the States might themselves enact anti-terrorism laws, better able to be maintained and enforced by the military forces and other federal agencies than State agencies, and seek to have them maintained and carried into effect by and with the concurrence of the Commonwealth as an aspect of the "naval and military defence ... of the several States" within the meaning of s 51(vi) of the Constitution.

[609] I agree with the answer and orders proposed by Gummow and Crennan JJ.