Legal database - View: Cases: Thomas v Mowbray

Thomas v Mowbray
[2007] HCA 33
233 CLR 307

(Judgment by: Kirby J)

Thomas
vMowbray

Court:

High Court of Australia

Judges: Gleeson CJ
Gummow J

Kirby J Hayne J
Callinan J
Heydon J
Crennan J

Hearing date:
Judgment date: 2 August 2007

Judgment by:
Kirby J

[156] The further amended special case before the Court seeks orders which would invalidate provisions of the Criminal Code (Cth) ("the Code"). The provisions were enacted by the Federal Parliament in stated pursuance of the Commonwealth's response to "terrorism". ^[145] The case raises three substantive questions concerning whether Div 104 of the Code is a valid law of the Commonwealth. Division 104 was inserted into Pt 5.3 of the Code by the Anti-Terrorism Act (No 2) 2005 (Cth) ("the Act"). ^[146]

[157] In my view Div 104, as enacted, lacks an established source in federal constitutional power. It also breaches the requirements of Ch III of the Constitution governing the judicial power of the Commonwealth. Division 104 is therefore invalid. This Court should answer the questions stated accordingly.

INTRODUCTION

Terrorism and terrorist acts

[158] Terrorism is not a new phenomenon. ^[147] Conduct sharing features now associated with "terrorism" has occurred for centuries. Before the passage of the Act in 2005, the Federal Parliament had addressed "terrorism" on a number of occasions. The clearest example followed a bombing that occurred at the Sydney Hilton Hotel during a Commonwealth Regional Heads of Government Meeting in February 1978. In response to that event, the Prime Minister, Mr Malcolm Fraser, announced the establishment of the Protective Security Review. ^[148] Justice R M Hope was commissioned to conduct the review, which was to consider "the whole area of protective security in Australia, including measures to counteract terrorism" ^[149] ("the Hope Review").

[159] The report of the Hope Review was delivered in May 1979. It contained a number of conclusions on the subject of "terrorism". Specifically, it provided the following description of "terrorism": ^[150]

1.: Terrorism is a policy intended to strike with terror those against whom it is adopted, and a terrorist is anyone who attempts to further his views by a system of coercive intimidation.
2.: Although acts of terrorist violence may be indistinguishable in many respects from acts of violence carried out by irrational or other people, they can often be distinguished by their ferocity, by the difficulty of bringing them under control and by the national and international repercussions they may cause. Terrorist violence may also involve a greater risk to the general public.

[160] In Ch 2 of the Hope Review, which dealt explicitly with "terrorism", justice Hope explained the contemporary nature of the terrorist threat, as then appearing: ^[151]

Although terrorism has burgeoned in the last two decades, it is of course no new thing. ... Two features, superficially distinct but doubtless interconnected, distinguish contemporary terrorists from their precursors. First, there is the effect of recent technological developments, international travel giving terrorists world-wide mobility, improved mass communications providing them an access to a world-wide audience, the increasing availability of weapons and explosives, and vulnerabilities in a society increasingly dependent on changing technologies. Secondly, as J Bowyer Bell has pointed out, although:
there is not a single transnational conspiracy against order, and there is little likelihood that a viable world conspiracy will coalesce, there is a revolutionary medium or milieu that permits and encourages the exchange of aid and comfort between parties as diverse as Basques and Turks, Irish and Arabs. The prospect is that there will continue to be contacts and co-operation between groups.

[161] The Hope Review contained extracts from an opinion obtained from Sir Victor Windeyer, ^[152] a past Justice of this Court. The opinion addressed constitutional and legal questions: ^[153]

A crime ordinarily is a particular act, done voluntarily and with intent to perform it and, in some instances with also a specific purpose intended to be accomplished by it. But terrorism ... is not defined by reference to specific deeds, but in general terms, the 'use of violence'; and not with a specific intent, but with an ulterior object, 'for political ends', a most imprecise term -- or for 'the purpose of putting the public or a section of the public in fear'. This would appear to make criminal responsibility depend upon an ulterior intention or motive, an unusual ingredient of a criminal act. It could be difficult to establish it in some cases if 'political ends' do not include sectarian antipathy, private revenge or the promotion of some cause unrelated to any apparent political purpose.

...

[I]f 'terrorism' is to be a new entry in the list of crimes, and if putting the public in fear is a form of this crime, it would be better to provide that the offence consists of an act of violence that created such fear, or was calculated to do so, rather than making a 'purpose' the essential criterion. The result, or the probable result, of a deed is usually readily apparent: but the purpose of the doer may not always be discoverable. ^[154]

[162] In this regard, Sir Victor Windeyer's opinion repeated the old warning that law should primarily attach to acts because "the devil himself knows not the thought of man". ^[155]

The special case

[163] The present proceedings were commenced in the original jurisdiction of this Court by Mr Joseph Thomas (the plaintiff). ^[156] They followed a decision on 27 August 2006 by Mowbray FM (the first defendant) to issue an interim control order with respect to the plaintiff under Div 104 of the Code. The order was subject to a confirmation hearing, originally listed for 1 September 2006. That hearing was subsequently adjourned at the plaintiff's request pending the outcome of these proceedings. By order of Hayne J on 31 October 2006, a special case, agreed between the parties, was referred to the Full Court for hearing. As later amended, it is the case now before this Court.

[164] The questions raised by the special case challenge the constitutional validity of Div 104 and, consequently, the validity of the order to which the plaintiff is subject. First, the plaintiff complains that Div 104 is invalid because it confers non-judicial power on a federal court. Secondly, and alternatively, in so far as Div 104 confers judicial power, the plaintiff submits that it does so in a manner incompatible with Ch III of the Constitution. Thirdly, the plaintiff contends that Div 104 is not supported by any express or implied head of federal legislative power. If any of these submissions were made good, it would render Div 104 invalid under the Constitution and release the plaintiff from the constraints of the order.

[165] The questions were stated in the foregoing order. However, the third question is the proper starting point. Given that federal legislative power is read "subject to" the Constitution (including Ch III) it is first necessary, in point of logic, to determine whether Div 104 is supported by a head of power. Only if it is, do the questions of incompatibility with Ch III arise.

The legislation

[166] Origins of the laws: With the exception of some provisions in the law of the Northern Territory ^[157] and other minor instances, ^[158] prior to 2001 there was no substantial terrorism-related legislation, as such, in Australia. The legislative framework was fundamentally altered following events that occurred in the United States of America on 11 September of that year and subsequent bombings in Bali in Indonesia and other attacks, including those occurring in Madrid, Jakarta and London, attributed in each of these cases to Islamist terrorists. In response, in Australia, the Federal Parliament enacted comprehensive measures aimed at suppressing terrorist acts and punishing terrorists. ^[159]

[167] Evolution of Pt 5.3 of the Code: Part 5.3 of the Code, which deals with terrorism, was first inserted by Sch 1 of the Suppression of the Financing of Terrorism Act 2002 (Cth). Schedule 1 of the Criminal Code Amendment (Terrorism) Act 2003 (Cth) later repealed that Part and substituted a revised Pt 5.3. The new provisions followed a referral to the Federal Parliament by each of the Australian States, pursuant to s 51(xxxvii) of the Constitution, of certain powers relating to terrorist acts. ^[160] The reason for the referral of power was explained in the Explanatory Memorandum to the Bill that became the Terrorism (Commonwealth Powers) Act 2003 (Vic) ("the Referring Act"):

The Commonwealth Constitution does not give the Parliament express powers to regulate terrorist acts. It derives the authority to make such laws from a patchwork of constitutional powers. Using its existing powers the Commonwealth Parliament enacted a series of offences, in 2002, relating to terrorism which are all linked to the commission of a 'terrorist act'. These offences are located in Part 5.3 of the Commonwealth Criminal Code.

The patchwork of existing Commonwealth constitutional powers supporting these terrorism offences is extensive and complex but may result in unforeseen gaps in their constitutional support. The States may eliminate doubts about the extent of the Commonwealth's constitutional power to enact the terrorism offences by referring matters to the Commonwealth Parliament. ...

All other States have passed comparable Acts.

[168] Introduction of Div 104: Divisions 104 and 105 of the Code were inserted by Sch 4 of the Act. They commenced on 15 December 2005. Division 104 is headed "Control orders". Division 105 concerns "Preventative detention orders".

[169] The new Divisions followed discussions at a special meeting on counter-terrorism of the Council of Australian Governments (COAG), held in September 2005. ^[161] At that meeting, "COAG considered the evolving security environment in the context of the terrorist attacks in London in July 2005 and agreed that there [was] a clear case for Australia's counter-terrorism laws to be strengthened". It was COAG's view that "[a] terrorist attack in Australia continues to be feasible and could occur". The Act received the Royal Assent on 14 December 2005.

[170] The scheme of Div 104: The object of Div 104 of the Code is explained in s 104.1:

The object of this Division 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.

As the key provisions of Div 104 are set out or summarised in other reasons, it is unnecessary for me to repeat their terms. ^[162] It suffices to state again only the most significant provisions.

[171] Making an interim control order: The provisions relating to the making of a control order are contained in Subdiv B of Div 104. The critical provision is s 104.4. ^[163]

[172] Section 104.4 must be read alongside the definition of "terrorist act" provided by s 100.1 of the Code. This definition is also vital to an understanding of the issues. ^[164]

[173] An application for an interim control order may be made ex parte. Indeed, Div 104 assumes that ex parte proceedings will be routine. ^[165] Whilst the exercise of the judicial power of the Commonwealth is ordinarily performed in public in the presence of all parties and ex parte proceedings in private are comparatively rare, exceptional circumstances are not required by Div 104 for the making of such orders in private. Pursuant to s 104.5(1)(e), upon issuing the interim control order, the issuing court must "specify a day on which the person [subject to the order] may attend the court" for the court to either confirm (with or without variation) the interim order, declare the interim order void or revoke the interim order.

[174] Subdivision D of Div 104 contains the procedure to be followed in confirming an interim control order. It will be necessary to refer to aspects of this subdivision later. For present purposes, it is sufficient to notice that s 104.12(1) requires the interim order to be served by an Australian Federal Police ("AFP") member personally on the person subject to the order as soon as practicable after the interim order is made and at least 48 hours before the date specified for the confirmation hearing.

[175] The obligations, prohibitions and restrictions that may be imposed on a person by virtue of a control order are contained in s 104.5(3). Self-evidently, they are substantial impositions on the liberty of the person subject to the order. ^[166]

The facts

[176] On 25 August 2006, having obtained the consent of the Federal Attorney-General, Federal Agent Ramzi Jabbour (the second defendant) applied for an interim control order in relation to the plaintiff. In seeking the consent of the Attorney-General to make the application, the second defendant made the following representation: ^[167]

I consider on reasonable grounds that the interim control order in the terms requested in this affidavit would substantially assist in preventing a terrorist act and, in addition, I suspect on reasonable grounds that the person has received training from a listed terrorist organisation, namely Al Qa'ida. Al Qa'ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002 made under the Criminal Code Act 1995.

[177] The application was heard by Mowbray FM on 26 August 2006. His Honour delivered ex tempore reasons the next day and made the order issuing the interim control order. ^[168] He acknowledged that the critical paragraphs of s 104.4(1) of the Code were (c) and (d). ^[169] He had to be satisfied, on the balance of probabilities, that the order would substantially assist in preventing a terrorist act or that the plaintiff had provided training to or received training from a listed terrorist organisation. ^[170] If so satisfied on either one of these grounds, he had to also be satisfied, ^[171] on the balance of probabilities, that "each of the obligations, prohibitions and restrictions to be imposed" on the plaintiff was "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". ^[172]

[178] Mowbray FM noted that the second defendant was "directly responsible for the management and command of AFP national counter terrorism operations" and had "been involved in counter terrorism investigations since January 2002". ^[173] In his opinion, the second defendant could therefore "be taken to be an expert in matters relating to terrorism and terrorist acts". ^[174] After considering the evidence of the second defendant, Mowbray FM concluded: ^[175]

I am satisfied on the balance of probabilities in the terms of s 104.4(1)(c)(i) of [the Code] that a making of an interim control order would substantially assist in preventing a terrorist act.

[The plaintiff] has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist organisation ... under [the Code]. ...

It is therefore very clear that in the terms of s 104.4(1)(c)(ii) of [the Code] the [plaintiff] has received training from a listed terrorist organisation.

...

The controls set out in the interim control orders which I propose to make will protect the public and substantially assist in preventing a terrorist act. Without these controls the [plaintiff's] knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.

[179] The obligations, prohibitions and restrictions imposed on the plaintiff by Mowbray FM pursuant to the interim control order are described in other reasons. ^[176] I will not repeat them here.

[180] Mowbray FM elected not to include an obligation which would have required the plaintiff to attend specified counselling. ^[177] He did not accept that such an obligation satisfied the precondition outlined in s 104.4(1)(d) of the Code. ^[178] Mowbray FM also expressed concern about the number of individuals with whom, it was proposed, the plaintiff should be prohibited from communicating or associating. ^[179] As a result of this intimation, for the purposes of the interim order, the second defendant undertook to reduce the list to 50 names.

[181] For completeness, it should be observed that, in November 2004, the plaintiff had been arrested and charged with offences against Pt 5.3 of the Code and against the Passports Act 1938 (Cth). In the Supreme Court of Victoria, the plaintiff was tried and found guilty by a jury of one count of intentionally receiving funds from a terrorist organisation ^[180] and one count of possessing a falsified Australian passport. ^[181] The jury found him not guilty of other charges, ^[182] which related to allegedly providing resources to a terrorist organisation. ^[183] On 18 August 2006, the resulting convictions of the plaintiff were quashed by order of the Court of Appeal of Victoria (Maxwell P, Buchanan and Vincent JJA). That order was made on the basis that admissions, attributed to the plaintiff during an interview with AFP officers and others in Pakistan in March 2003, should not have been admitted in the trial. ^[184] The Court of Appeal adjourned for a further hearing the question of whether there should be an order for a retrial. ^[185]

[182] Pursuant to the Court of Appeal's order, the plaintiff was released from custody. The move to obtain the control orders against him followed within a week. This sequence of events inevitably gave rise to an appearance, in the plaintiff's case, of action by the Commonwealth designed to thwart the ordinary operation of the criminal law and to deprive the plaintiff of the benefit of the liberty he temporarily enjoyed pursuant to the Court of Appeal's orders. Subsequently, on 20 December 2006, and in the light of supervening events, the Court of Appeal directed that a retrial be had of certain charges against the plaintiff. ^[186]

The issues

[183] The questions reserved for the opinion of this Court are set out in other reasons. ^[187] Pursuant to those questions, three substantive issues arise for the decision of the Court. In the order previously explained, the issues are:

(1): The validity of Div 104 issue: Whether federal legislative power, either express or implied, exists to support the validity of Div 104. Specifically, whether Div 104 of the Code may rely for its validity either on the reference power (s 51(xxxvii)), the defence power (s 51(vi)), the nationhood power (s 51(xxxix) read in conjunction with s 61 of the Constitution), or the external affairs power (s 51(xxix));
(2): The conferral of non-judicial power issue: Whether Div 104 of the Code is invalid because it purports to confer power on a federal court that is not characterised as part of "the judicial power of the Commonwealth"; and
(3): The compatibility with Ch III issue: Whether, to the extent that Div 104 purports to confer judicial power on a federal court, it provides for the exercise of that power in a manner that is incompatible with the requirements for the exercise of federal judicial power provided for in Ch III of the Constitution.

LEGISLATIVE POWER

The referral of State powers

[184] The reference power: The primary source of legislative power for the enactment of Div 104, relied on by the Commonwealth and evident on the face of Pt 5.3, ^[188] was the power derived from the referral of legislative powers to the Federal Parliament by the relevant State Parliament. In this case that was the Parliament of the State of Victoria, acting pursuant to s 51(xxxvii) of the Constitution.

[185] For Div 104 to be supported by s 51(xxxvii), it must constitute an "express amendment" of Pt 5.3 of the Code. ^[189] The text of Pt 5.3, as substituted in the Code by the Criminal Code Amendment (Terrorism) Act 2003 (Cth), was referred pursuant to s 51(xxxvii) of the Constitution by s 4(1)(a) of the Referring Act and identical references by the Parliaments of all of the other States. The text of Pt 5.3, as then enacted by the Federal Parliament, was identical to that contained in Sch 1 of the Referring Act. However, significantly for the plaintiff's argument, that Schedule did not include reference to Div 104.

[186] Pursuant to s 4(1)(b) of the Referring Act, the matters referred also included:

the matter of terrorist acts, and actions relating to terrorist acts, but only to the extent of the making of laws with respect to that matter by making express amendments of the terrorism legislation or the criminal responsibility legislation (emphasis added).

[187] It is in this context that the Referring Act defines "express amendment" as follows: ^[190]

'express amendment' of the terrorism legislation or the criminal responsibility legislation means the direct amendment of the text of the legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the legislation.

[188] The phrase "terrorism legislation" is defined in the Referring Act to mean: ^[191]

the provisions of Part 5.3 of [the Code] enacted in the terms, or substantially in the terms, of the text set out in Schedule 1 and as in force from time to time.

[189] The critical question therefore becomes whether the meaning of express amendment extends to the insertion of an entire new Division, in this case Div 104. During the course of argument, it was submitted that it was "clear" ^[192] that the Referring Act extended so far. I do not accept that submission. ^[193]

[190] The corporations legislation is distinguishable: To support its argument, the Commonwealth, with the support of the intervening States, relied heavily on one precedent said to be analogous, namely the reference of power from the State Parliaments to support the enactment of the Corporations Act 2001 (Cth). Relevantly, that reference of power included a Victorian statute: the Corporations (Commonwealth Powers) Act 2001 (Vic) ("the Corporations Referral"). It was suggested that the Corporations Referral contained provisions almost identical to s 4(1)(b) of the Referring Act relied on in this case, specifically in the definition of "express amendment". ^[194]

[191] Relevantly, s 4(1)(b) of the Corporations Referral refers:

the matters of the formation of corporations, corporate regulation and the regulation of financial products and services, but only to the extent of the making of laws with respect to those matters by making express amendments of the Corporations legislation ( emphasis added).

[192] In the same way, s 4(1)(b) of the Referring Act permits the making of "express amendments of the terrorism legislation". There is, however, one important distinction. This relates to the manner in which "terrorism legislation" and "Corporations legislation" are respectively defined. The definition of "terrorism legislation", set out above, ^[195] is to be contrasted with the definition of "Corporations legislation" in s 3 of the Corporations Referral:

'Corporations legislation' means Commonwealth Acts enacted in the terms, or substantially in the terms, of the tabled text and as in force from time to time (emphasis added).

[193] The "tabled text" in the Corporations Referral is also defined in s 3:

'tabled text' means the text of the following proposed Bills for Commonwealth Acts, comprised in two or more documents (each bearing identification as 'part of the tabled text') as tabled by or on behalf of the Attorney General of New South Wales in the Legislative Assembly of New South Wales at any time during the period between the giving of notice of motion for leave to introduce the Bill for the Corporations (Commonwealth Powers) Act 2001 of that State in that Legislative Assembly and the second reading of that Bill in that Legislative Assembly --

(a)
Corporations Bill 2001;

(b)
Australian Securities and Investments Commission Bill 2001.

[194] The point of distinction is thus clear. The "terrorism legislation" in issue in this case is specifically contained within the Referring Act, whereas in the Corporations Referral, the Victorian Parliament refers to provisions that had been tabled in the New South Wales Legislative Assembly. ^[196] The distinction affects the definition and specification of the State legislative power that was surrendered by referral to the Federal Parliament.

[195] Terms and context of the enactment: The Commonwealth accepted that the word "amend" in so far as it related to "express amendment" in s 4(1)(b) of the Referring Act "has to take its meaning from the context" in which it appears. ^[197] The context in which the Referring Act was enacted is decidedly different from that which existed when the Corporations Referral was enacted. In the latter case, the Victorian Parliament was content to define the "Corporations legislation" by reference to provisions that were tabled in the Parliament of another State. By way of contrast, the present Referring Act specifically included the "terrorism legislation" as a Schedule to the Act. It could not have been more particular or more explicit.

[196] Notwithstanding the identical terms of each referral ("the matter[s] of ... but only to the extent of the making of laws ... by making express amendments of the ... legislation") those terms take on a more confined meaning in the present case. Thus, "express amendment" is qualified not only by the matters referred in s 4(1)(b) but also by the form of the legislation defined in s 4(1)(b), by reference to which only express amendments may be made.

[197] In a constitutional referral of powers in the Australian federation, it is one thing to provide for the making of "express amendments" to identified legislation contained in the Schedule to the enactment constituting that referral. It is another thing altogether to provide in the referral for the making of "express amendments" to legislation not contained in the enactment constituting the referral, but rather, in documents tabled in another Parliament at some other time.

[ ^[198] ] In R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd, 198 this Court confirmed that, in referring constitutional power, "the Parliament of the State must express its will and it must express its will by enactment". ^[199] Indeed, it had earlier been speculated whether: ^[200]

State Parliaments could refer a matter 'not only with the limitation that the Commonwealth law should not do this or that, but even with the stipulation that the only law authorised by the reference should be a law in the exact form specified in the referring Act.

[199] The Victorian Parliament's Referring Act, applicable to the present case, has far greater specificity than the Corporations Referral. This is hardly surprising, given the nature of the subject-matter of the present referral. Counter-terrorism legislation, of its nature, seriously diminishes liberty. In this instance, there was thus an acute need to ensure greater clarity and precision in the Referring Act. The decision of the Victorian Parliament to include the entirety of the proposed Pt 5.3 of the Code as a Schedule to the enactment containing the referral was the way, with exactness, that such clarity and precision were achieved.

[200] The restricted nature of the referral from the Victorian Parliament is also apparent from the second reading speech of the Victorian Attorney-General in support of the Bill that became the Referring Act: ^[201]

The bill provides for safeguards to protect Victoria's interests while fully supporting the Commonwealth in securing effective national terrorism offences. The bill provides for a referral of power that is limited to only that necessary to enact terrorism offences in the same form, or substantially the same form, as the present commonwealth terrorism offences and to amend them as required.

[201] These observations are markedly different from the second reading speech of the Victorian Premier in 2001 in support of the Bill that became the Corporations Referral. That speech highlighted the substantially different context in which that Act was proposed and enacted, aimed at "achieving an effective, uniform system of corporate regulation across Australia". ^[202] As noted by the Premier, the Corporations Referral was specifically designed to support a "national scheme for the regulation of corporations, companies and securities". ^[203] The Premier also spoke about the capacity of the Victorian Parliament to terminate the reference and the resulting importance of the "corporations agreement". ^[204]

[202] A comparison of the respective purposes of the two referrals by the Victorian Parliament demonstrates the difference both in the context and in the precise terms of the enactment of the referrals. The Corporations Referral was designed to support a national corporations law and the enactment of two comprehensive federal statutes. It was accompanied by a detailed intergovernmental agreement. This was a wholly different background when compared to the present Referring Act. It concerned a particular Part of the Code, designed to create terrorist offences and to permit the prosecution of those committing terrorist acts. The intergovernmental agreement that facilitated the Referring Act makes this difference plain: ^[205]

The Prime Minister, Premiers and Chief Ministers agreed on 5 April 2002 to take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power so that the Commonwealth may enact specific, jointly-agreed legislation. It was agreed that the new Commonwealth legislation will incorporate roll back provisions to ensure that it does not override State or Territory law where that is not intended, and that the Commonwealth will have power to amend the new legislation in accordance with provisions similar to those which apply under Corporations arrangements. It was further agreed that any amendment based on the referred power will require consultation with, and agreement of, States and Territories, and that this will be contained in the legislation.

[203] Division 104 is not supported by s 51(xxxvii): It follows from these peculiarities of the referral of power that Div 104 is not supported by s 51(xxxvii). This is because of two limitations inherent in the definition given to the phrase "express amendment", read in the context of the terms of the Referring Act and the circumstances in which it was enacted.

[204] First, to be valid on this basis, Div 104 must constitute an express amendment of the "terrorism legislation", which is defined as that enacted in the terms, or substantially in the terms, of the text set out in Sch 1 of the Referring Act. Secondly, the express amendment must be a "direct amendment" of the "terrorism legislation", as so defined. Although this may include the "insertion" of text, that term should be construed ejusdem generis with the preceding words "direct amendment", read together with the requirement that the amendment be to the "terrorism legislation". This requires that a more restrictive meaning be given to the term "insertion".

[205] In the result, Div 104 did not amount to a direct amendment of the terrorism legislation. Rather, it was an addition to the scope and function of Pt 5.3 of the Code by federal law alone. The original text of the Referring Act referred matters relating to the regulation, definition and punishment of terrorist acts. However, Divs 104 and 105 relate to the prevention of terrorist acts and the control and detention of particular persons in order to protect the public from potential terrorist acts. The purpose and object underlying the Referring Act, in so far as it was directed at providing federal legislative power to prosecute perpetrators of terrorist acts, is therefore notably different ^[206] from the object and purpose of the added Divisions introduced by the Act. ^[207]

[206] To draw this conclusion is not to deny that this Court should construe s 51(xxxvii) of the Constitution "with all the generality which the words used admit" or to imply into para (xxxvii) "any implications concerning the ... reference". ^[208] It is merely to acknowledge that: ^[209]

[T]he Parliament of the State must express its will and it must express its will by enactment. How long the enactment is to remain in force as a reference may be expressed in the enactment. It none the less refers the matter. Indeed the matter itself may involve some limitation.

[207] Whilst the Referring Act extended to "actions relating to terrorist acts", it was explicitly stated that such a reference was limited only to making "express amendments of the terrorism legislation". ^[210] The legislative text, through the precise definitions of "express amendment" and "terrorism legislation", charted the boundaries of the express amendments to Pt 5.3 of the Code that will come within the terms of the reference. ^[211] The insertion of Div 104 exceeded those limitations. It follows that, absent a further reference of power, Div 104 cannot rely for its validity on s 51(xxxvii) of the Constitution. Division 104 was never supported by any further reference of powers from the State of Victoria.

[208] Presumption of not altering common law rights: The foregoing conclusion is based on no more than an analysis of the language and history of the Referring Act. However, in this case, the conclusion is confirmed by the presumption ^[212] that Australian legislation is not ordinarily taken to invade fundamental common law rights ^[213] or to contravene the international law of human rights, ^[214] absent a clear indication that this is the relevant legislative purpose. As explained below, Div 104 of the Code directly encroaches upon rights and freedoms belonging to all people both by the common law of Australia and under international law. ^[215]

[209] Given the uncertainties inherent in the Referring Act, its provisions should be given a narrower meaning than might otherwise be the case. Such an approach is necessary and appropriate given the nature of the legislation in question and the long-standing approach to such questions of construction, reaching back to the earliest days of the Court. ^[216] The Referring Act was enacted for the purpose of referring legislative power from the State Parliament of Victoria to the Federal Parliament. A failure on the part of this Court to adhere to established principles of interpretation would enlarge federal legislative powers at the expense of those of the States. ^[217] Through the provision for control orders and preventative detention, it would also result in the abrogation or diminution of rights and liberties ordinarily belonging to individuals in this country. While this may have been a purpose of the Federal Parliament in introducing Div 104 in the first place, ^[218] it is not apparent from the enactment of the original reference that the identical purpose was shared by the Victorian Parliament.

[210] The State of Victoria did not intervene in this Court to suggest otherwise or to support the Commonwealth's submissions. In so far as other States did so, and concurred in the Commonwealth's interpretation, their submissions are not conclusive. It is critical to the constitutional design apparent in s 51(xxxvii) that the referral of power there envisaged is made by the Parliament of the State concerned, not merely by the Executive Government. Parliament represents all the electors in the State. The fact that the Government of a State might be willing to accept a wider reference of power to the Federal Parliament than the State Parliament has enacted is not determinative of what that Parliament has done. That remains for decision, ultimately by this Court, having regard to the terms in which the will of the State Parliament concerned has been expressed and other relevant considerations.

[211] The relevance of s 100.8 of the Code: Section 100.8 of the Code should be noted:

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.

[212] Section 100.8 does not cause me to qualify the foregoing conclusions. The provision is expressed as a political undertaking. It is not a legally enforceable one. To the extent that s 100.8 purports to determine the outcome of these proceedings or control any future actions of the Federal Parliament, it is invalid. ^[219] The problem with the terms of s 100.8 was anticipated by the Victorian Attorney-General in his second reading speech on the Bill that became the Referring Act: ^[220]

Clause 100.8 of schedule 1 reflects the commonwealth's commitment to obtain the agreement of a majority of states and territories (including four states) to any amendment of its terrorism offences.

There is a continuing debate between the commonwealth and some states regarding the inclusion of a clause to the same effect as clause 100.8 in this bill or whether the consultation requirement is adequately expressed in an intergovernmental agreement. As the government has no wish to delay implementation of the national scheme, this bill conforms with the bills passed by the other states and does not include such a clause. Should agreement be reached between the states and the commonwealth in the future to incorporate such a provision, state legislation could be amended at that time.

[213] Reliance upon s 100.8 of the Code, both by the Commonwealth and by the intervening States, is not only unlawful. It is also circuitous. On the one hand, the Commonwealth and the intervening States argue that the original reference of power, specifically s 4(1)(b) of the Referring Act, supports Div 104 of the Code in its entirety. On the other hand, it would appear that a COAG meeting, with the affirmative support of a majority of the governments of the States, was to be a necessary political precondition to any significant amendments to Pt 5.3 of the Code. This was so despite the fact that s 51(xxxvii) refers to "matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States" and not to matters referred by the Executive Governments "of any State or States". The modern tendency of governments in Australia to identify themselves with the Parliaments, at the cost of the respect owed to those Parliaments, is of no effect when a matter comes before this Court. Our obligation is to give effect to the Constitution. As the language of the Constitution makes clear, the reference power belongs to the Parliaments of the States and only to those Parliaments.

[214] Curiously, s 100.8 of the Code and the COAG agreement purport to qualify s 4(1)(b) of the Referring Act. That is to say, "express amendments" appear to include ultimately only those amendments agreed to by the Executive Governments of the States. Yet this is not what s 51(xxxvii) of the Constitution provides. If the scope of s 4(1)(b) were as wide as the Commonwealth and the intervening States submitted, there would have been no requirement, legal or otherwise, for a fresh COAG meeting or agreement prior to enacting Div 104. Upon this theory, Div 104 was capable of enactment without any of the meetings, formal communiqu é s or other events occurring subsequent to the enactment of the Referring Act.

[215] It follows that the "consent" envisaged by s 100.8 of the Code, even when obtained inferentially by meetings and other such representations, is no substitute for a referral of constitutional power by a State Parliament. Such a referral is plainly a serious constitutional step. I have heard of legislation made effective by reference to a Ministerial press release. However, I decline to interpret the provisions of s 51(xxxvii) of the Constitution to permit the parliamentary reference of constitutional power to be achieved without any relevant parliamentary involvement, as by the use of communiqu é s by heads of government alone.

[216] Approval of a proposed text by COAG, by State Premiers and Territory Chief Ministers (or, as ultimately occurred in the case of Victoria, the Secretary of the Victorian Department of Premier and Cabinet), was apparently intended to convey the consent of the State or Territory concerned. These government officials must be reminded that constitutional power in Australia is derived ultimately from the people who elect Parliaments. The alteration of the allocation of constitutional powers must therefore either involve the people as electors directly (under s 128 of the Constitution) or, exceptionally, it must involve their representatives in the several Parliaments (as provided by s 51(xxxvii) and (xxxviii)). It cannot be achieved merely by the actions of governments and governmental officials.

[217] It follows that the insertion of Div 104 in Pt 5.3 of the Code is not supported by the initial reference of power by the Parliament of the State of Victoria, relevant to the case of the plaintiff. The insertion of that Division did not constitute an express amendment of the terrorism legislation, as defined in the Referring Act. Nor was there any subsequent referral of such power by the Parliament concerned.

[218] Relevance of termination and review: Although I accept that the Referring Act permits the termination of the reference by Victoria, ^[221] so long as the Governor in Council provides at least three months notice, ^[222] this does not affect the interpretation of the reference according to its terms. Obviously, a power to terminate a referral of constitutional power does not arise unless the power has been referred in the first place. ^[223] Nor is the interpretation of the Referring Act affected in any way by the fact that Div 104 contains a sunset provision ^[224] and is to be reviewed by COAG in 2010. ^[225] These are political, not legal, arguments.

[219] Conclusion: reference unavailing: The Commonwealth's reliance on the reference power therefore fails. Division 104 of the Code cannot derive its validity from that head of constitutional power. This is an important conclusion because, manifestly, the Division was drafted upon the assumption that, in practice, it would secure its constitutional validity and effect from State referrals of power to the Commonwealth. ^[226]

The defence power

[220] Ambit of the defence power: The foregoing conclusion obliges this Court to consider the alternative heads of federal legislative power invoked to determine whether they support Div 104 in its entirety. ^[227] Foremost amongst these is s 51(vi), the defence power. Save for one exception, that power has traditionally been viewed in this Court against the backdrop of war, that is, the traditional armed conflicts that arise between nation-states.

[221] The question is posed as to what extent, and subject to what limitations, the purposive nature and elasticity of s 51(vi) affords legislative power to the Federal Parliament to enact laws providing for the prevention of terrorist acts. ^[228] Clearly, the defence power is stated in very broad terms. It empowers the Federal Parliament 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.

[222] Given the absence of a formal declaration of war at the time the Act was given Royal Assent, ^[229] the reasoning of this Court in Australian Communist Party v The Commonwealth ( "the Communist Party Case ") ^[230] is particularly apposite to the present case. In many respects, the contemporary concerns about "terrorism" are analogous to the fears earlier expressed about communism leading to the enactment of the Communist Party Dissolution Act 1950 (Cth) ("the Dissolution Act"). ^[231]

[223] Suggestions were made during argument that, at its core, this Court's decision in the Communist Party Case was limited to the facts and evidence adduced in that matter and did not establish any general principle relevant to these proceedings. ^[232] Nothing could be further from the truth. As the report shows, two questions were stated for the opinion of the Court in the Communist Party Case. The first asked whether the validity of the Dissolution Act depended upon a judicial determination or ascertainment of the facts stated in the recitals to that Act. The Court held that it did not. The second question then asked whether the Dissolution Act was invalid in whole or in part as that Act affected the plaintiffs in those proceedings. That question was answered "Yes". The Act was held to be invalid in its entirety. Specifically, it was held to fall outside the defence power. ^[233]

[224] A notable omission ?: This Court's reasons in the Communist Party Case held that the Federal Parliament could not "'recite itself' into power". ^[234] Yet it is notable that s 51(vi) was not specifically relied on as the source of power on which the validity of the provisions in question were to be sustained. ^[235] To the extent that Div 104 is not supported by the s 51 powers, including s 51(vi), the reference power was intended to provide the necessary legislative power for the Federal Parliament. ^[236] Indeed, the Code contemplates a reduced operation for Pt 5.3 in non-referring States. ^[237] This is in stark contrast to the preamble to the Dissolution Act. That law contained nine preambular legislative recitals, several of them referring explicitly to matters of defence. ^[238] Despite such specificity, those recitals were found insufficient to engage the defence power. By invoking the reference power to support the validity of the law that is now challenged, might it not be inferred that the Federal Parliament doubted the capacity of its other sources of legislative power (including the defence power) to support the measures provided for in the Act? Had it intended to rely on the defence power would it not have said so? Was it necessary to calibrate the provisions of the Code more carefully for non-referring States if the defence power was always there and available to sustain Pt 5.3 in its entirety? ^[239]

[225] The need for constitutional facts: In the Communist Party Case, Williams J observed: ^[240]

[I]t is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation.

The nature of the inquiry demanded in this passage had earlier been explained by Dixon J in Andrews v Howell in the particular context of reliance upon the defence power: ^[241]

The existence and character of hostilities, or a threat of hostilities, against the Commonwealth are facts which will determine the extent of the operation of the power. Whether it will suffice to authorize a given measure will depend upon the nature and dimensions of the conflict that calls it forth, upon the actual and apprehended dangers, exigencies and course of the war, and upon the matters that are incident thereto.

[226] In Sue v Hill, ^[242] Gleeson CJ, Gummow and Hayne JJ affirmed that "the determination of constitutional facts is a central concern of the exercise of the judicial power of the Commonwealth". That is, "neither Parliament nor the Executive [can] make a conclusive determination on an issue, factual or legal, on which constitutionality depend[s]". ^[243] Ultimately, that determination is the responsibility of this Court. It remains so where the constitutionality of a law is in question, despite the tender of certificates issued by the Executive of the Commonwealth on which this Court would otherwise ordinarily rely. So much was confirmed recently in Attorney-General (Cth) v Tse Chu-Fai: ^[244]

In Shaw Savill & Albion Co Ltd v The Commonwealth, Dixon J spoke of 'the exceptional rule giving conclusive effect to official statements' and to those matters of fact 'which the Executive is authorised to decide', such as 'the existence of a state of war, the recognition of a foreign state, the extent of the realm or other territory claimed by the Crown, or the status of a foreign sovereign'.

There is a fundamental question under Ch III of the Constitution of the competence of the Executive (even with respect to those facts identified by Dixon J) to determine conclusively the existence of facts by certificate where they are disputed constitutional facts.

[227] The purposive nature of the power referred to in s 51(vi) of the Constitution ensures that the demonstration of sufficient constitutional facts is paramount for its engagement. ^[245] In Stenhouse v Coleman, ^[246] Dixon J affirmed that the phrase "'a law with respect to the defence of the Commonwealth' is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed". That is: ^[247]

[H]owever it may be expressed, whether by the words -- 'scope', 'object', 'pith', 'substance', 'effect' or 'operation', the connection of the [law] with defence can scarcely be other than purposive, if it is within the power. ... For apparently the purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth. ... They are considerations arising from matters about which, in case of doubt, courts can inform themselves by looking at materials that are the subject of judicial notice.

[228] It is important to understand the distinction that may arise, in this context, between facts of which this Court may take "judicial notice", and "constitutional facts": ^[248]

If the form of the power makes the existence of some special or particular state of fact a condition of its exercise, then, no doubt, the existence of that state of fact may be proved or disproved by evidence like any other matter of fact. But ordinarily the court does not go beyond matters of which it may take judicial notice. This means that for its facts the court must depend upon matters of general public knowledge. It may be that in this respect the field open to the court is wider than has been commonly supposed.

[229] This Court is the guardian of the Constitution and the final arbiter of legislative constitutionality. ^[249] The validity of the legislation now presented, specifically Div 104, must be judged in the normal way. For this, I derive guidance from what was said by Fullagar J in the Communist Party Case: ^[250]

If the great case of Marbury v Madison had pronounced a different view, it might perhaps not arise even in the case of the Commonwealth Parliament; and there are those, even to-day, who disapprove of the doctrine of Marbury v Madison, and who do not see why the courts, rather than the legislature itself, should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs.

[230] The general conception of s 51(vi): The defence power has two aspects (or limbs). The first speaks of the "defence of the Commonwealth and of the several States". The second is directed towards the "control of the forces to execute and maintain the laws of the Commonwealth". This second aspect, either on its own, or in conjunction with the implied nationhood power (s 51(xxxix) and s 61 of the Constitution), purportedly gives s 51(vi) a wider application to protect "[t]he continued existence of the community under the Constitution". ^[251] This aspect of s 51(vi) is of special importance when the power is invoked during "peacetime". In such cases, this Court must decide whether "the secondary aspect of the defence power [has], in the circumstances ... arisen in sufficient degree to authorise" the measure in question. ^[252] The Court recognises that: ^[253]

[A] situation falling short of actual war may so expand the scope of the defence power as to enable the Parliament to legislate with respect to subject matters which have ex facie no relation to naval and military defence.

[231] Almost three decades ago, justice Hope suggested the potential of the second aspect of s 51(vi) to support some federal laws directed at combating and preventing terrorism: ^[254]

[T]he second limb of s 51(vi) may be an important source of legislative power for the Commonwealth in law and order matters generally, and countering terrorism in particular.

[232] The critical requirement is therefore for an "objective test" by which the "connection, or want of connection, with the defence power may be seen or ascertained" judicially. ^[255] It will be necessary in due course to consider the nature of the test contained within Div 104 and whether it validly engages this aspect of the defence power. ^[256]

[233] The Commonwealth characterised the second aspect of s 51(vi) as supporting the Commonwealth's "power to protect the nation". ^[257] Such a power, it argued, arose either by virtue of a constitutional implication, a combination of s 51(xxxix) and s 61 or a combination of those constitutional provisions with s 51(vi). ^[258] A question arises as to the extent to which such a power extends beyond the defence power. The Commonwealth argued that, in this case, where the suggested threat involved a "very clear physical threat by human beings to cause damage", ^[259] that fact could, if proved, fall within s 51(vi). It is unnecessary to decide whether a wider national protective power exists to defend the nation against other threats and dangers, for example, pandemics, drought, social or even health issues (obesity was mentioned). For the Commonwealth, the dangers presented in this case were of a more conventional, less esoteric, kind. Clearly, the defence power expressed in the Australian Constitution is to be read, limited by the conventionally narrow functions ascribed to defence forces in most polities that trace their constitutional tradition to that of Britain. The constitutional culture of such countries has long been properly suspicious of any notion that defence forces are available to be deployed at the government's will in civilian tasks and to safeguard the nation from itself. Not since Cromwell has our constitutional tradition seen the military taking a leading part in civilian affairs. The Australian Constitution keeps it that way. Although the law challenged in these proceedings does not contemplate the domestic deployment of the military, the interpretation of the ambit of the defence power adopted in this case must be consistent with the foregoing principle.

[234] Reading the defence power in context: The plaintiff submitted that, in its context, s 51(vi) was to be read with the other provisions of the Constitution in which the words "naval and military" appear. I agree with that submission. It is consistent with the established doctrine of this Court that the heads of federal legislative power are "intended to be construed and applied in the light of other provisions of the Constitution". ^[260] It follows that several provisions of the Constitution must be considered:

(1): s 51(xxxii), which empowers the Federal Parliament to make laws with respect to "the control of railways with respect to transport for the naval and military purposes of the Commonwealth";
(2): s 68, which vests the command in chief of the naval and military forces in the Governor-General;
(3): s 69, which provided for the transfer of State departments to the Commonwealth, including naval and military defence;
(4): s 114, which prohibits the States from raising naval or military forces without the consent of the Federal Parliament; and
(5): s 119 of the Constitution should also be noticed. It says: "The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence."

[235] Finally, and most critically, s 51 requires that para (vi) be read, like other legislative powers, "subject to [the] Constitution". This includes Ch III. Irrespective of how wide s 51(vi) is found to be, it remains part of the "one coherent instrument" ^[261] that is the Constitution. Even if Div 104 of the Code were supported by the defence power, it would nonetheless be invalid if it infringed the requirements of Ch III.

[236] The defence power waxes and wanes: ^[262] In assessing whether the facts of the present case enliven either of the two aspects of s 51(vi), it is useful to recall what Brennan J said in Polyukhovich v The Commonwealth: ^[263]

In times of war, laws abridging the freedoms which the law assures to the Australian people are supported in order to ensure the survival of those freedoms in times of peace. In times of peace, an abridging of those freedoms ... cannot be supported unless the Court can perceive that the abridging of the freedom in question is proportionate to the defence interest to be served. What is necessary and appropriate for the defence of the Commonwealth in times of war is different from what is necessary or appropriate in times of peace.

[237] This Court has upheld laws deemed incidental, or preparatory, to the "war effort". However, such laws have had to bear a clear and recognisable link to a war potentially to be fought against foreign nation-states. ^[264] When a war threatens the very existence of the Commonwealth the defence power may emerge as "the pivot of the Constitution". The power then becomes the " ultima ratio of the nation". ^[265] However, "[w]hen actual hostilities have ceased the scope of application of the defence power necessarily diminishes". ^[266] In R v Foster, only four years after the end of the Second World War, this Court said: ^[267]

The effects of the past war will continue for centuries. The war has produced or contributed to changes in nearly every circumstance which affects the lives of civilized people. If it were held that the defence power would justify any legislation at any time which dealt with any matter the character of which had been changed by the war, or with any problem which had been created or aggravated by the war, then the result would be that the Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject. ...

On the other hand, this Court ... should be careful now and in the future ... not to take a narrow view of the problems with which the Commonwealth Government has to deal when it is entrusted with the supreme responsibility of the defence of the country.

The solution of the difficulties thus presented cannot be achieved by the application of any mechanical hard and fast rule. It is not possible to do more than lay down general principles and to apply them to the circumstances, varying in time and place, which are to be found in a modern community.

These remarks apply to the present case.

[238] The first aspect of s 51(vi): " naval and military defence ": The first aspect of s 51(vi) refers to laws with respect to "the naval and military defence of the Commonwealth and of the several States". This limb assumes the existence of hostilities directed against the Commonwealth or the States. Traditionally, the existence of such hostilities would involve a war or some other analogous conflict involving a foreign nation-state. The purpose for which this aspect of the power was originally conceived was the use of force to defend Australia against a foreign nation-state.

[239] Over time, the defence force has come to be used in a variety of other circumstances, including international peacekeeping and peace enforcement and in the provision of humanitarian assistance. ^[268] This represents a natural accretion to the understanding of the legislative powers of the Federal Parliament, included within the language of the text and as appropriate to the application of that text to contemporary conditions. It is a basic mistake of constitutional interpretation to confine the text of the Constitution to the meaning it was thought to convey at the time when it was originally adopted. ^[269] Of its nature, as a basic instrument of government, a constitution adapts to new and unforeseen circumstances -- to the full extent that the specificities of the text permit.

[240] No state of " war " existed at the time Div 104 was enacted: The operation of s 51(vi) is "not confined to time[s] of war". ^[270] It is nevertheless important to characterise the environment existing at the time Div 104 was enacted in order to identify properly the reach of the defence power in this case. ^[271]

[241] As at 14 December 2005, when the Act here in question received Royal Assent, there had been no relevant formal declaration of war. ^[272] The special case notes that since 2003, the Executive Government has placed Australia at what is described as a "medium" level of alert. A "medium" level of alert is taken to signify that a terrorist attack "could" occur within Australia. This is distinct from a "low" (terrorist attack is "not expected"); "high" (terrorist attack is "likely"); or "extreme" (terrorist attack is "imminent or has occurred") classification. However, neither these classifications, nor the "terrorist attacks" occurring in other countries before, on, and after 11 September 2001, constituted a war-like environment for the purposes of s 51(vi). The language of war might be deployed for reasons of political rhetoric. But it cannot convert the subject-matter of legislation into a character that it does not, in fact, possess. Without more, the identified events did not call forth the first limb of s 51(vi).

[242] The date on which the Bill that became the Dissolution Act was introduced into Federal Parliament was the first day on which Australian forces landed in Korea during the Korean War. ^[273] This was one of the hostilities in which Australian forces were engaged during the Cold War. Yet it is apparent from the reasons of Dixon J in the Communist Party Case that this fact was regarded as insufficient to enliven s 51(vi): ^[274]

At the date of the royal assent Australian forces were involved in the hostilities in Korea, but the country was not of course upon a war footing, and, though the hostilities were treated as involving the country in a contribution of force, the situation bore little relation to one in which the application of the defence power expands because the Executive Government has become responsible for the conduct of a war. I think that the matter must be considered substantially upon the same basis as if a state of peace ostensibly existed.

[243] The analysis of s 51(vi) in the present case should proceed on a parallel footing, consistent with Dixon J's approach, but adapted to such new circumstances as fall within the proved "constitutional facts" or other facts of which the Court may take judicial notice.

[244] With all respect, I do not accept that Latham CJ's dissent in the Communist Party Case gains latter day authority because his political and diplomatic experience exceeded that of his colleagues. ^[275] Dixon J too had very considerable diplomatic experience both during and after the War, working in wartime in close collaboration with Allied war leaders. ^[276] He was to prove more aware of the lessons of history involving the misuse of executive powers. ^[277] He also proved more capable of approaching the issue, as this Court should, as a legal and constitutional one -- as guardian of the abiding values that lie at the heart of the Constitution.

[245] " Defence " as defence of bodies politic: Unquestionably, s 51(vi) speaks of "defence of the Commonwealth and of the several States" or "the control of the forces to execute and maintain the laws of the Commonwealth". Both aspects of para (vi) assume that it is "the Commonwealth" or "the several States" that are being defended -- the bodies politic. It is not, as such, individual persons or their property or other interests.

[246] This is a fundamental distinction grounded in the constitutional text. It does not mean that s 51(vi) never extends to the defence or protection of individual persons and their property. However, it recognises that a law, supported by s 51(vi), must, of its general character, be addressed to protecting the identified bodies politic in some way or other, directly or indirectly. ^[278]

[247] Arguably, s 119 of the Constitution signposts the limits to the ambit of s 51(vi). That section has never been specifically invoked. ^[279] It would seem that the closest the Commonwealth came to acting under s 119 was following the Hilton Hotel bombing in 1978. In the event, the defence forces eventually became involved but following an Order-in-Council of the Governor-General. ^[280]

[248] While s 119 is properly characterised as a provision imposing a special duty and, of itself, does not exhaust federal legislative power or require that such power be read down where otherwise available, ^[281] the section remains instructive when considering s 51(vi) in the context of the one coherent constitutional instrument. Irrespective of its characterisation, ^[282] s 119 assumes that, ordinarily, the reach of federal legislative power, including the defence power, excludes areas of civil government and matters usual to "police powers", including those of the States. ^[283] Section 119 provides that the Commonwealth may protect a State against "domestic violence" on "the application of the Executive Government of the State". ^[284] However, the maintenance of civil order and individual internal security otherwise ordinarily rests with the States and their agencies, normally the police. ^[285]

[249] To permit s 51(vi) to extend to the protection of all persons and all property would therefore sit uncomfortably with s 119. It is only where "invasion" or "domestic violence" threatens not only a State or States, but the operation of the Federal Government itself, that federal legislative powers are enlivened in the absence of an application by a State under s 119. ^[286] The failure to confine s 51(vi) to protection of the bodies politic would expand the reach of the defence power in an effectively unlimited way. ^[287] Consistent with the Constitution's overall design, such an interpretation should be rejected if the Constitution is to retain any semblance of an instrument of defined and limited government.

[250] " Defence " beyond purely external threats: Traditionally, the defence power has been concerned with a "response to hostile activity, actual or potential, from external sources". ^[288] Today, it is clear that s 51(vi) is not limited to defence against a foreign nation-state or even necessarily against external threats. The circumstances enlivening s 51(vi) are constantly changing and evolving. As both McHugh J and Gummow J acknowledged in Re Aird; Ex parte Alpert, ^[289] "internal forces" or "domestic violence" may, exceptionally, threaten the security of the Commonwealth. ^[290] For some time, it has been recognised that "there are many ways, short of war, 'in which a country can be weakened and the overthrow of its government planned and organised by clandestine activity of a wholly or substantially domestic origin'". ^[291]

[251] For the purposes of s 51(vi), I will therefore accept that there need not always be an external threat to enliven the power. However, the threat, in whatever way it is characterised, must be directed at the bodies politic. This is the characteristic that lifts the subject-matter of s 51(vi) of the Constitution to a level beyond that of particular dangers to specific individuals or groups or interests within the bodies politic so named. It is a vital constitutional distinction. Its origin is found in the text. But it is reinforced by the strong constitutional history involving the strictly limited deployment of defence personnel in domestic affairs which was the background (and shared assumption) against which the constitutional text was written and intended to operate. This Court should maintain and uphold that historical approach. It should do nothing to undermine it. Any departure invites great danger, as the constitutional history of less fortunate lands, including some that once shared our tradition, has repeatedly demonstrated.

[252] First aspect of s 51(vi) does not support Div 104: The words "naval and military" in the first limb of s 51(vi) are not, of course, frozen in time. ^[292] Self-evidently, such "forces" would include the naval, army and now air forces. They would now also include peacekeeping forces deployed overseas. Nevertheless, unquestionably, the first aspect of s 51(vi) speaks of the "naval and military defence of the Commonwealth and of the several States". It assumes that it is the Commonwealth and the several States that are being defended -- again not individuals or groups or their interests or property. It follows that the concern of the first aspect of s 51(vi) is defence, not security. In the present case, therefore, the first aspect of s 51(vi) is not enlivened by Div 104. By its terms, that Division is not directed towards the protection of the bodies politic of the Commonwealth and the States. It is directed at the protection of people and of property within the bodies politic. It therefore falls outside the first aspect of s 51(vi).

[253] Is Div 104 supported by the second aspect of s 51(vi) ?: The Commonwealth submitted that there were nine "factors" which, taken together, demonstrated something "new and evil which Australia has to defend [itself] against". ^[293] These factors were said to constitute a particular vulnerability for modern civilisation, notably Western civilisation, including Australia. Of necessity, they called forth either the second aspect of s 51(vi) or that power in conjunction with the implied power to protect the security of the nation. The nominated factors were as follows:

(1): The ready availability of explosive substances, highly toxic poisons, germs and other weapons or things that can be used as weapons;
(2): The proximity of cities with very large localised populations with people concentrated in a small area;
(3): The very high value Australian society places on human life;
(4): The dependency of modern Australian society on a variety of types of infrastructure;
(5): The value placed by Australian society on a number of "iconic" structures;
(6): The fact that infrastructure and "iconic" structures, including water supplies, can be easily destroyed by explosives or poisoned;
(7): The particular vulnerability of aviation, and, to a lesser degree, ships, buses and trains;
(8): The growth of fanatical ideological movements which compass the destruction of Western civilisation and, in particular, Australia, or elements of it; and
(9): The archetypical examples of the combination of these factors, which include the events of 11 September 2001 (in the United States) and recent terrorist events in Bali, Madrid, London, Nairobi and Dar es Salaam, and Jakarta.

[254] In light of these factors, the threat in the present case was said to come both from outside and from within Australia, from a force that may not be organised as a nation but certainly has cross-national operations. That force threatened violence and it had specifically mentioned Australia. To this extent, the suggested threat was said to be analogous to the types of activity that the defence of Australia has traditionally involved. ^[294] So conceived, the threat has both an external and potentially internal element. It is organised to some degree. It involves violence. All of these elements represented potential dangers to Australia's constitutional system which, in given circumstances, this country would be entitled to protect and defend itself from.

[255] The constitutional fact difficulty: Although the "threat" to which Div 104 of the Code was said to respond might conceivably be characterised as the Commonwealth argued, the critical question remaining is whether, in the circumstances of the special case, sufficient constitutional facts were established to sustain the enactment of a federal law in the form of the Act on this basis. This was an issue repeatedly stressed by members of the Court during argument. In many respects, it arose because of the way in which the facts were stated by the agreement of the parties in the special case. Thus, the parties agreed on the following paragraph in relation to "Interpretation":

2. In this Special Case, unless otherwise expressly stated it is agreed by the parties that:

(a)
any statements stated in paragraphs 3 to 47 to have been made were made or were likely to have been made as stated or alleged but there is no agreement between the parties as to the truth of the matters stated; and

(b)
any documents referred to in paragraphs 3 to 47 were or were likely to have been published as stated or alleged but there is no agreement between the parties as to the truth of the matters contained in the documents.

[256] Paragraphs 3 to 47 of the special case include background materials in relation to the plaintiff, the control order made in respect of him, the world security environment, material related to the reference of power, and sundry international materials. The disclaimer referred to in para 2 presents a substantial difficulty in isolating "agreed facts" that demonstrate the likelihood of an established threat being carried into effect. This is a technical point in the proceedings as they stand at this time; but it is a vital one. The special case is not an appeal. The facts have not been found. They are not recorded in a judicial decision reached in an earlier trial. They have not been re-determined by an intermediate court. The special case is an adjunct to proceedings involving the original jurisdiction of this Court. The parties (including the Commonwealth) have been content to invite this Court to decide important constitutional questions on the basis of agreed facts. However, when they are examined, those facts are not agreed to be true. They are only agreed as being asserted. ^[295] This is not the Court's fault. It represents nothing more than the state of the Court's record.

[257] There is a further difficulty of giving weight to the findings made by Mowbray FM in his reasons for issuing the interim control order against the plaintiff. That difficulty arises from the one-sided nature of the information presented to the Federal Magistrate at that stage of proceedings. A like difficulty caused the Supreme Court of Canada, in Charkaoui v Canada (Citizenship and Immigration), ^[296] to hold unanimously that certain "certificates" of the Executive Government of Canada, forbidding entry of persons into Canada on security grounds, were constitutionally invalid. That Court pointed out that the arrangements for hearings in camera and ex parte and without the person whose liberty was affected (or that person's lawyer) having access to relevant evidence, meant that the subject of the order was not able to know the case he had to meet. The Court said: ^[297]

Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?

[258] In the present case, this Court has not been provided with a copy of the affidavit containing the information sworn by the second defendant that was reportedly annexed to the request seeking the interim control order in the first place. ^[298] That affidavit, presented both to the Attorney-General and to Mowbray FM, contained all of the information relied on by the second defendant in seeking the order. Moreover, the findings of Mowbray FM do not, of themselves, provide any constitutional facts for the purposes of determining the validity of Div 104. As agreed by all parties, the findings could not be given effect without first ascribing validity to all or part of Div 104. I would not challenge or doubt the agreement of the parties, all of whom were well represented. Nor would I impose on the facts the taxonomy of categories which Heydon J favours. ^[299] The anterior question of validity thus first remains to be answered.

[259] In determining whether, in addition to any evidence presented by the parties, constitutional facts exist to call forth s 51(vi) to support Div 104, this Court may "inform [itself] by looking at materials that are the subject of judicial notice". ^[300] That is, this Court may have regard to "matters of general public knowledge". ^[301] While from such knowledge I am satisfied, in a general way, that a "threat" exists that might enliven s 51(vi) of the Constitution, I am not convinced that the actual provisions of Div 104 are appropriate and adapted (that is, proportionate) to meet this threat. Div 104, in my opinion, travels far beyond responding to such a threat. It intrudes seriously, and as I would find without any valid reference of the constitutional powers that would otherwise be applicable to such matters, upon the police powers of the States. It also intrudes upon areas of civil governance normally regulated under our Constitution by State law. It is the overreach of Div 104 that ensures that the Division is not supported by para (vi) of s 51.

[260] In drawing this conclusion, I am confined to the constitutional facts presented to this Court. They illustrate, once again, the need for greater clarity in the way such facts may be derived by courts in constitutional adjudication. ^[302] Such facts have to be ascertained in the serious duty of resolving a constitutional challenge affecting the liberty of a litigant. They cannot be invented by courts out of thin air. In the original jurisdiction of this Court, unless facts or opinions are conceded, they have to be proved. Where their proof is necessary to support the validity of a federal law which is challenged, it is not unreasonable to expect that the Commonwealth will, in default of agreement, prove the necessary constitutional facts. The Commonwealth is the best-resourced litigant in the nation. It has access to lawyers of the highest talent. It has reason to uphold legislation, where it chooses to do so. ^[303] It is always supposed to act as a model litigant, in the tradition of the Crown. There has been some attention to this topic elsewhere. ^[304] This Court's approach to constitutional fact ascertainment in this case sits rather uncomfortably with the constitutional role that the Court is expected to perform ^[305] and with the practice of comparable courts. ^[306]

[261] Given the changing character of "war" and "defence" of the Commonwealth and the States in Australia and the contemporary threats and vulnerabilities that s 51(vi) may conceivably respond to, the deficiencies in the proof of the necessary facts leave a gap in these proceedings. In adversarial litigation the initiative to bridge that gap cannot come from the court. It is up to the parties to tender any evidence that they allege is relevant to the proper determination of the constitutional question in the case. If they fail to do this and cannot sufficiently invoke judicial notice (general knowledge) they must face the consequences. ^[307] Those consequences may include the failure to establish what might otherwise have been provable, namely the existence of threats to the polities of Australian government that render laws such as Div 104 of the Code necessary, appropriate and adapted (ie proportionate) to the provisions enacted by the Federal Parliament.

[262] The invalid overreach of Div 104: The plaintiff submitted that the definition of "terrorist act" in s 100.1 of the Code extended beyond protection of the Australian polities as such to address protection of sections of the Australian public and the public of foreign countries and even sections of the public of such other countries, and property and electronic systems whether in Australia or not. There is force in this submission. Clearly, Div 104 is not directed exclusively towards the defence of the institutions of government of the Commonwealth and the States. It is designed to protect persons and property, both foreign and domestic. Whether such protection of persons and property is necessarily within, or incidental or proportionate to, the protection of the Australian units of government, as such, is not established in these proceedings by the evidence before this Court. It is not a matter upon which I would be prepared to guess or speculate or to rely on judicial notice which would necessarily be dependent on the sometimes coloured, emotional and disputable public media coverage of such issues.

[263] It may be accepted that, in certain instances, "terrorist acts", as defined, could indeed threaten the bodies politic of the Commonwealth and the States, accepting that as the requisite criterion. ^[308] The Commonwealth argued that the object of "terrorist acts" against the public, individuals and their property, was for the ultimate purpose of attacking and destroying the polity. ^[309] According to this argument, targeting innocent civilians was intended to reduce popular support for the government, to create instability amongst the political parties, to threaten the economic sustainability of the country and, ultimately, to force the government either to change its policies or be overthrown. Depending on the evidence or matters proper to judicial notice, that might sometimes be the case. Nevertheless, Div 104 is not a properly calibrated law, drafted with the essential constitutional limitation provided by s 51(vi) in mind. Doubtless this was because, as drafted, Div 104 was expected to draw its constitutional validity from a referral of State powers -- an attempt which was ventured but, as I would hold, has failed.

[264] As drafted, Div 104 proceeds outside the proper concerns of s 51(vi) and into areas of ordinary civil government. The plaintiff was correct to say that, if the Constitution were intended to empower the Commonwealth to make laws for the general safety and protection of the Australian public, irrespective of the source of danger and its targets, it could readily have said so. These being within the essential "police powers" of the States, the rubric of "naval and military defence" is a singularly inapt expression to use to attribute such powers to the Commonwealth.

[265] Numerous examples spring to mind that fall within the statutory definition of a "terrorist act" but which demonstrate the overreach of Div 104 in this respect. Any number of actions that have hitherto been lawful and would be regarded as non-terroristic might be done with the intention of "intimidating the public or a section of the public". Moreover, drawing a line between acts designed to coerce or intimidate an Australian government for a political, religious or ideological cause (thus falling within the definition) and pure advocacy, protest, dissent or industrial action (falling outside of the definition) could be difficult. ^[310] In the latter case, such acts nevertheless remain "terrorist acts" if they are intended to "endanger the life of a person" or "create a serious risk to the health or safety of the public or a section of the public". ^[311]

[266] It follows that the plaintiff was correct in saying that the scope of Div 104 is far broader than the preservation of the constitutional structure and the institutions of government, or the maintenance and execution of the laws of the Commonwealth. As drafted, Div 104 is a law with respect to political, religious or ideological violence of whatever kind. Potentially, it is most extensive in its application. Even reading the Division down to confine it to its Australian application, it could arguably operate to enable control orders to be issued for the prevention of some attacks against abortion providers, attacks on controversial building developments, and attacks against members of particular ethnic groups or against the interests of foreign governments in Australia. In the past, Australia, like other, similar countries, has seen attacks of all of these kinds. All of them are potentially the proper matter of laws. However, under the Constitution they are laws on subjects for which the States, and not the Commonwealth, are responsible except, relevantly, where the specific interests of the Commonwealth or the execution and maintenance of federal laws are involved. Division 104 exhibits a seriously over-inclusive operation. It does not purport to be a law with respect to the interests of the Commonwealth or for the execution or maintenance of federal laws, or about the maintenance of the nation's system of government. Division 104 is a federal law with respect to a far wider and more general subject. It is one with large consequences for individual liberty. It therefore attracts strict scrutiny from this Court.

[267] To uphold the strictly limited internal deployment and engagement of the defence power in Australia (which historically dates back to the constitutional memories of the military rule of Cromwell), this Court should reject the Commonwealth's emotive arguments. It should adhere to long-established and textually reinforced notions obliging the containment of the defence power. There is no reason to conclude that the deployment of State police power is insufficient. If federal direction is required, it can, subject to the Constitution, be lawfully secured by a valid reference of such powers by the State Parliaments.

[268] Conclusion: outside defence power: For these reasons, Div 104 of the Code is not supported by either aspect of s 51(vi) nor by the implied nationhood power. In so far as the Commonwealth relied on those heads of power, its arguments should be rejected. On such constitutional facts as have been proved and such general knowledge as the Court can properly rely on, the invocation of s 51(vi) is not sustained.

The external affairs power

[269] Propounded elements of the power: The Commonwealth next submitted that Div 104 was supported by the external affairs power in s 51(xxix) of the Constitution. That submission was advanced on the bases that Div 104 of the Code:

(1): Implements a treaty obligation;
(2): Affects Australia's relations with other countries;
(3): Deals with the broader subject of "terrorism", which is a matter of international concern; and
(4): Is supported, in part, by the geographic externality principle.

[270] Treaty obligation: Security Council Resolution 1373: The Commonwealth's principal submission in relation to s 51(xxix) was that Div 104 implemented a binding treaty obligation. Relying on the authority of the Court, ^[312] it argued that there was an obligation of "sufficient specificity" contained in United Nations Security Council Resolution 1373 ("Resolution 1373"), to which Div 104 gave effect so as to bind Australia and to support federal laws enacted to give effect to that obligation.

[271] The Charter of the United Nations ^[313] ("the Charter"), signed on 26 June 1945, established the Security Council as the body within the United Nations Organisation ("the UN") with "primary responsibility for the maintenance of international peace and security". ^[314] By virtue of Art 25 of the Charter, Member States of the UN "agree to accept and carry out the decisions of the Security Council in accordance with the present Charter". ^[315] Australia is such a Member State.

[272] As the institution with primary responsibility for the maintenance of international peace and security, ^[316] the Security Council has extremely broad powers. ^[317] Thus, Ch VII of the Charter permits the Security Council to take collective measures, including the use of force, in response to threats to or breaches of the peace. By virtue of Art 103 of the Charter, decisions made by the Security Council, including any obligations imposed by it, prevail over inconsistent treaty obligations otherwise owed by States under international law. ^[318]

[273] On 28 September 2001, the Security Council unanimously adopted Resolution 1373. That Resolution constituted a response to the attacks in the United States on 11 September 2001, including in New York, the seat of the UN itself. The preambular clauses to the Resolution reflect the strong disapproval of the attacks and the felt need to take steps to combat terrorism:

The Security Council,

...

Reaffirming ... its unequivocal condemnation of the terrorist attacks which took place in New York, Washington, DC and Pennsylvania on 11 September 2001, and expressing its determination to prevent all such acts,

Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security,

...

Acting under Chapter VII of the Charter of the United Nations.

[274] The first paragraph of Resolution 1373 deals with the financing of terrorist acts. It requires States to adopt a number of measures in this respect. The Commonwealth's submission relied principally on the second paragraph, specifically para 2(b). To understand para 2(b), it is necessary to recite the paragraph in full:

2 . Decides also that all States shall:

(a)
Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;

(b)
Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;

(c)
Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

(d)
Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;

(e)
Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;

(f)
Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;

(g)
Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.

[275] It is para 2(b), which requires States to "[t]ake the necessary steps to prevent the commission of terrorist acts", ^[319] that is said to impose the relevant obligation attracting the external affairs power in the Constitution to support Div 104 ^[320] of the Act. If this is correct, it will remain necessary to consider whether Div 104 is appropriate and adapted (proportionate) to implement this international treaty obligation so as to be supported by s 51(xxix). However, before considering this question, several observations should first be made about Resolution 1373 itself.

[276] The process within the Security Council that led to the adoption of Resolution 1373 has been described, in uncontroversial terms, as follows: ^[321]

Soon after the terrorist attacks of 11 September 2001, the Security Council exercised its enforcement powers under Chapter VII of the UN Charter to compel all States to adopt wide-ranging counter-terrorism measures. Yet, terrorism was not defined in resolutions after 11 September, nor were lists of terrorists established. The lack of definition was deliberate, since consensus on key Resolution 1373 depended on avoiding definition.

Not only is the phrase "necessary steps to prevent the commission of terrorist acts" in para 2(b) of Resolution 1373 extremely broad. The phrase is contained within a Resolution that itself contains no definition of "terrorism". ^[322]

[277] In October 2004, Security Council Resolution 1566 ("Resolution 1566") recalled that the following acts are "under no circumstances justifiable": ^[323]

[C]riminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.

[278] Although not expressly framed as a definition of "terrorism", Resolution 1566 represents one of many efforts of the international community to define acts constituting "terrorism". The efforts have not as yet produced an internationally agreed definition. Nevertheless, the definition of "terrorist act", within Div 104 of the Code, is clearly broader than that apparently mandated by the Security Council either in Resolution 1373 or Resolution 1566. ^[324]

[279] Resolution 1373 established a Counter-Terrorism Committee ("CTC") to monitor State compliance with its terms. ^[325] By para 8 of the Resolution, the Security Council expressed "its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with its responsibilities under the Charter". Resolution 1373 called upon Member States to report to the CTC on the steps taken by them to implement the Resolution. ^[326] According to Dr Ben Saul, a study of State reports to the CTC indicates wide divergences in the responses to the Resolution: ^[327]

Analysis of State reports reveals three main patterns in national criminal responses to terrorism: 87 States lack special terrorism offences and hence use ordinary offences; 46 States have simple generic terrorism offences; and 48 States have composite generic terrorism offences.

[280] Dr Saul notes that, of those States that have "composite generic terrorism offences", Australia is one of few States that "define terrorism as violence for a political or other motive, aiming to (a) coerce a government or international organization, or (b) intimidate a population or civilians". ^[328] The other States in this category were said to be Belize, Canada, Pakistan, the United Kingdom (investigative powers only), and New Zealand (emergency powers only). ^[329] Dr Saul also notes that 86 States "prosecute terrorism as ordinary crime, without any special terrorism offences". ^[330]

[281] Various restrictions on compliance with resolutions of the Security Council need to be noted. While the Security Council's powers are broad, the Charter is itself authority for the proposition that the Security Council is not exempt from international law. Relevantly, the Council's decisions must comply with the Purposes and Principles of the UN. ^[331] These include the requirement to maintain international peace and security "in conformity with the principles of justice and international law" ^[332] and the need to ensure "respect for human rights and for fundamental freedoms". ^[333] This qualification to the Security Council's powers is reinforced by the text of Art 25 of the Charter. By that Article, Member States agree to carry out only those decisions of the Security Council made "in accordance with the present Charter".

[282] Does Div 104 implement a treaty obligation ?: Resolutions adopted by the Security Council may undoubtedly contain obligations binding on Member States, such as Australia. By virtue of Art 103 of the Charter, they assume a higher status than most other obligations owed under international law. ^[334] Through its enactment under Ch VII of the Charter, and its use of mandatory language in paras 1, 2, 5, 6 and 9, Resolution 1373 was one such resolution. Clearly, it is binding on Australia as a party to the Charter but subject always, within Australia, to any relevant limitations or restrictions of the Australian Constitution. ^[335]

[283] For the purposes of s 51(xxix) of the Constitution, under which Div 104 may be deemed a valid law of the Federal Parliament if it properly implements an obligation owed by Australia under international law, it is obviously necessary to keep in mind that "it is a constitution we are expounding". ^[336] Nevertheless, the intended obligation must be characterised as one possessing "sufficient specificity" so as to attract a relevant head of the municipal legislative power. ^[337]

[284] The words relied upon in Resolution 1373 fail the "specificity" requirement previously explained by this Court. ^[338] It may be conceded that "[i]nternational agreements are commonly 'not expressed with the precision of formal domestic documents as in English law'". ^[339] Yet where, as here, the supposed obligation is "stated in general and sweeping terms" and a large number of means "might be adopted to give it effect", ^[340] it is doubtful that it can support specific legislation enacted by the Federal Parliament as a treaty obligation by virtue of s 51(xxix). That paragraph does not afford the Federal Parliament a plenary power over the subject-matter of a treaty to which Australia is a party. ^[341] Professor Zines explains, in terms that I would endorse: ^[342]

Accepting ... that the agreement by nations to take common action in pursuit of a common objective amounts to a matter of external affairs, the objective must, nonetheless, be one in relation to which common action can be taken. Admittedly, this raises questions of degree; but a broad objective with little precise content and permitting widely divergent policies by parties does not meet the description. (emphasis in original)

[285] These words, written primarily by reference to the obligations derived from a treaty on a given subject-matter, normally drafted with a degree of precision over an extended time and subject to formal provisions of signature and ratification, apply with even greater force in the case of a resolution, even one of the Security Council, which (as here) lacks the features of specificity, particularity, definitions and express obligations such as are common in most treaties. The requirement to "[t]ake the necessary steps to prevent the commission of terrorist acts", arising out of Resolution 1373 and Art 25 of the Charter, is a phrase of almost limitless reach. It provides no guidance for this Court to "ascertain whether [Div 104] is [a law] giving effect to it". ^[343] The requirement does not provide a specific constitutional basis for the Commonwealth to pursue any goal that it might regard as preventative. ^[344] As Dixon J observed in R v Burgess; Ex parte Henry: ^[345]

[U]nder colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates.

[286] The response of different countries to Resolution 1373, together with the reports made by Australia to the CTC, are proof of the variety of possible reactions by Member States to the "obligations" imposed by that Resolution. ^[346] In enacting Div 104 of the Code, there was no indication to, or by, the Federal Parliament that the Division or the Act was purporting to implement obligations said to derive from Resolution 1373. ^[347]

[287] The conclusion that the words in para 2(b) of Resolution 1373 are insufficiently specific to support the validity of Div 104 is reinforced by the fact that other operative provisions of the Resolution expressly require States to criminalise specific conduct under domestic law. ^[348] Indeed, Resolution 1373 has been interpreted by the General Assembly as being principally concerned with the "criminalisation" of nominated terrorist acts. ^[349]

[288] In its submissions on this aspect of its argument, the Commonwealth referred to a decision of Brooke LJ in R (Al-Jedda) v Secretary of State for Defence. ^[350] The decision was cited as authority for the proposition that, in certain instances, by virtue of Art 103 of the Charter, Security Council obligations might prevail over the observance of fundamental human rights. The case concerned the internment of Mr Al-Jedda, a person of dual British and Iraqi nationality, initiated by British forces operating in Iraq. Brooke LJ held that Mr Al-Jedda's right to due process under Art 5(1) of the European Convention on Human Rights was qualified by Security Council Resolution 1546 (2004) ("Resolution 1546"). The decision was mainly addressed to questions not relevant in these proceedings, namely, the application of the European Convention on Human Rights in the context of Resolution 1546. It contains some observations which I would respectfully doubt, to the effect that, in given cases, resolutions of the Security Council may override the requirements of international human rights law to which the Charter arguably subjects such resolutions. In any case, the decision concluded that a specific provision in Resolution 1546, relied on by the United Kingdom Government, had "qualified" the usual requirement for "due process" before a person's "important right to liberty" is removed (or intentionally diminished). ^[351]

[289] In Resolution 1373 and other resolutions contained in the materials annexed to the special case, the Security Council has not expressly sanctioned the elements of Div 104 so far as they may contravene established principles of international law. ^[352] The reasons of Brooke LJ do not therefore assist in the resolution of the Australian constitutional question now before this Court.

[290] It follows that reliance on Resolution 1373 to support the constitutional validity of Div 104 of the Code under s 51(xxix) fails. Paragraph 2(b) of Resolution 1373 did not amount to an obligation of sufficient specificity, such as might sustain the validity of Div 104 based on s 51(xxix) of the Constitution. Consequently, it is unnecessary to consider whether Div 104 was appropriate and adapted (proportionate) to para 2(b). However, in my view, the Commonwealth would have faced serious difficulties in establishing constitutional proportionality having regard to the considerations identified above that would be relevant to that question.

[291] Other limbs of s 51(xxix) do not support Div 104: The Commonwealth acknowledged that the geographic externality aspect of the external affairs power, in so far as it applies, would, if proved, only uphold particular aspects of Div 104. The relevant provisions would be those involving control orders aimed at preventing a terrorist attack done to the public, or directed at the public , outside Australia. Given that the geographic externality principle, to the extent that it exists, ^[353] would not sustain the whole (or most) of the Act, I will not consider it in this case. Self-evidently, the provisions of Div 104 of the Code addressed to conduct outside Australia were not intended to operate separately from the remaining provisions addressed to internal activities. Separate consideration of that issue is therefore unjustified.

[292] The Commonwealth argued, however, that the Act was supported by the recognised attribute of s 51(xxix) of the Constitution concerning matters that affect Australia's relations with other countries. Whilst I do not doubt that "terrorism" is a matter of concern to the community of nations, I do not accept that declaring Div 104 invalid, if that result were otherwise required, would affect Australia's international relations. Courts in other countries have considered, or are considering, questions similar to those raised in these proceedings. Those courts have not refrained from declaring invalid laws that purport to deal with "terrorism" where such laws are found to offend municipal constitutional requirements. ^[354] Neither should this Court. This conclusion is reinforced by the divergence already described in international State practice in response to Resolution 1373 and to terrorism generally.

[293] The doctrine of "international concern" was not specifically argued as a basis for the validity of the Act under s 51(xxix) of the Constitution. The Commonwealth indicated that there was no reason to rely on that limb in this case given that its arguments would sustain reliance of s 51(xxix) on other aspects of that power. However, in the event that the doctrine of international concern would independently sustain Div 104, the Commonwealth invoked the same reasons proffered in respect of the limb concerning Australia's relations with other countries. For the reasons that I have already advanced, it is unnecessary for me to consider the operation of the doctrine of international concern. ^[355] It lends no additional, specific support to the constitutionality of Div 104.

[294] Conclusion: external affairs power unavailing: The invocation of the external affairs power to support the impugned law should also be rejected.

General conclusion: Div 104 of the Code lacks constitutional support

[295] The result of the foregoing analysis is that each of the constitutional sources nominated by the Commonwealth to sustain the validity of Div 104 of the Code fails. The reference power might, subject to what follows in relation to Ch III of the Constitution, have afforded a valid source of constitutional power to the Federal Parliament. However, in the circumstances, by the way in which the reference of power was attempted, the insertion of Div 104 did not fall within the relevant power to make express amendments to the terrorism legislation, as defined in the Referring Act. There was no further referral of power from the State Parliament concerned. Significantly, that State did not intervene in this Court to argue the contrary.

[296] Subject to what follows, the defence power might indeed have sustained a federal counter-terrorism law of a particular kind. However, the provisions of Div 104 were not drafted in a way appropriate and adapted to the preservation and defence of the Commonwealth and State polities, as required by the terms in which that constitutional power is expressed. Division 104 extends beyond the ambit of the defence power into matters concerned with police powers. In default of a valid referral or express amendment of the Constitution, those powers remain generally the subject-matter of diverse State, not federal, laws. As well, the constitutional facts to invoke the defence power were not established in this case by the agreement of the parties recorded in the special case. Nor were they otherwise proved by evidence adduced by the Commonwealth or established by judicial notice. For analogous reasons, the implied nationhood power fails to provide a valid source of legislative power to enact Div 104. The external affairs power will not do the necessary constitutional work, principally for lack of specificity in the propounded sources.

[297] The result is that the Division fails in its entirety for the lack of an established head of constitutional power to support its enactment by the Federal Parliament. That conclusion is consistent, in the context of this new legislation, with the approach and conclusion of the majority of the Court in the Communist Party Case, where similar heads of power and like arguments were deployed, without success. ^[356] The applicable question in the special case should thus be answered in favour of the plaintiff. It is fatal, without more, to the validity of the interim control order which the plaintiff challenges.

JUDICIAL POWER: NON-JUDICIAL FUNCTIONS

Non-judicial functions cannot be exercised by Ch III courts

[298] The first judicial power issue: The foregoing conclusion is a minority one. However, as the case is unquestionably important, it is proper that I should express my opinion on the remaining two issues that arise out of the plaintiff's arguments based on the requirements of Ch III of the Constitution.

[299] What follows assumes, contrary to the conclusions that I have expressed on the first issue, that on one or more of the propounded bases, Div 104 was made within federal legislative power. Such power remains "subject to [the] Constitution", including Ch III. Does the Division conform to the provisions and requirements of that Chapter? First, is it an impermissible attempt to confer non-judicial functions on a federal court?

[300] The governing principle: In arguing his first contention based on Ch III of the Constitution, the plaintiff relied on the second limb of the constitutional principle stated by this Court in R v Kirby; Ex parte Boilermakers' Society of Australia ( " Boilermakers "): ^[357]

Chap [ter] III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it. ^[358]

[301] The ruling, encapsulated in the foregoing principle, was a long time in gestation. It was pronounced over three strong dissenting opinions in this Court. ^[359] The principle was adopted despite an acknowledgment of "the very evident desirability of leaving undisturbed assumptions that [had] been accepted as to the validity" ^[360] of the powers hitherto exercised by the Commonwealth Court of Conciliation and Arbitration. This Court emphasised that convenience, history and common assumptions could not relieve it "of its duty of proceeding according to law in giving effect to the Constitution which it is bound to enforce". ^[361] The applicable principle was ultimately based on a view as to the separation of the judicial power to which the Constitution gives effect. ^[362]

[302] On appeal to the Privy Council, the principle stated in Boilermakers was unequivocally endorsed. Their Lordships explained: ^[363]

[I]n a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive. To vest in the same body executive and judicial power is to remove a vital constitutional safeguard.

[303] Whatever doubts have existed, ^[364] and may persist, about the limits of this rule, its central idea is part of the settled doctrine of this Court. ^[365] There are recognised qualifications. The rule is necessarily indeterminate to some extent, given the difficulty of affording a precise content to the judicial power of the Commonwealth in particular cases. ^[366] The exclusivity of federal judicial power, and its separation from executive and legislative power, is also obscured by the so-called "chameleon doctrine". These difficulties arise in the instant case. However, no party to these proceedings challenged the principle expressed in Boilermakers. ^[367] It is the duty of this Court to apply the doctrine and to characterise Div 104 so as to determine whether it confers power that is neither part of "the judicial power of the Commonwealth" nor ancillary or incidental to that power. ^[368] If it does, the law is, to that extent, constitutionally invalid. In addition, even if Div 104 properly confers "judicial power", the Court must determine whether the incidents of the power, so conferred, are otherwise incompatible with Ch III. This is the second contention based on Ch III of the Constitution.

[304] The nature of judicial power: The starting point for consideration of the first Ch III issue is the oft-cited definition of "judicial power" expressed by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead: ^[369]

[T]he words 'judicial power' as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.

[305] As I observed in White v Director of Military Prosecutions, ^[370] this formulation contains three primary elements. They are the existence of a controversy, ^[371] concerning existing legal rights and duties, ^[372] and a capacity to reach a conclusive determination about such rights and duties. ^[373] I agree with Hayne J that the "notion of 'arbitrament upon a question as to whether a right or obligation in law exists' lay at the centre of the conception that was described" by Griffith CJ. ^[374]

[306] The definition of Griffith CJ in Huddart Parker is not an exhaustive one. Judicial power has been described as an "amorphous" notion. ^[375] In Brandy v Human Rights and Equal Opportunity Commission, four members of this Court explained: ^[376]

Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not. ^[377] ... One is tempted to say that, in the end, judicial power is the power exercised by courts and can only be defined by reference to what courts do and the way in which they do it, rather than by recourse to any other classification of functions. But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive.

... Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law. That is to say, it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion.

[307] Despite the difficulty, sometimes, of identifying with precision the features and limitations of the judicial power, there can be no doubt that the doctrine requires its separation, once identified, from other governmental powers and, as well, its deployment in federal cases only by courts as envisaged by the Constitution. Such separation serves vital constitutional purposes. They are purposes protective of liberty and defensive of the right to have important decisions decided, and decided only, by courts acting in court-like ways. ^[378]

[308] With these considerations in mind, I turn to the functions purportedly conferred on federal courts by Div 104 of the Code.

[309] The power to be exercised under Div 104: As already described, s 104.4 states the functions of the issuing court in making an interim control order. ^[379] No new criterion is to be applied by the court when extending or confirming the order. ^[380] Section 104.4 thus supplies the substantive content of the power to be exercised at all stages during the life of the order. Pursuant to s 104.4(1)(d), federal courts are asked ultimately to determine:

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 ( emphasis added).

[310] Before determining this question, the federal court concerned must be satisfied, also on the balance of probabilities, that: (1) the making of the order would substantially assist in preventing a terrorist act; ^[381] or ( 2) the person (proposed to be subject to the order) has provided training to, or received training from, a listed terrorist organisation. ^[382] These are alternative requirements. For an interim order to be made, it is sufficient that the court is satisfied (1) that it would substantially assist in preventing a terrorist act (s 104.4(1)(c)(i)); and (2) that the measures imposed are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act (s 104.4(1)(d)). In determining that those conditions exist for such an order to be granted, the issuing court is not required to direct attention to the person to be subject to the order. Section 104.4 does not require an individual subject to a control order to have been "trained by terrorists". ^[383] The court must merely be satisfied that each aspect of the order is reasonably necessary to protect the public.

[311] As in the facts in this case, an issue may arise about the particular form of training with which s 104.4(1)(c)(ii) is concerned. ^[384] There is also a serious question as to whether s 104.4(1)(c)(ii) speaks of training with an organisation that is listed as a terrorist organisation at the time in which the training is said to have taken place. ^[385] It is unnecessary to decide these questions. Concerning the plaintiff, Mowbray FM arguably based his ultimate decision on the footing that the order would "substantially assist in preventing a terrorist act". ^[386] Although it was asserted that the involvement of the plaintiff in training with Al Qa'ida was one of the grounds on which the interim control order was made, ^[387] this is not an established fact. In any event, the plaintiff's challenge is to the validity of Div 104. If the Division is invalid, it necessarily follows that the order made by Mowbray FM is invalid.

[312] Is there an ascertainable judicial standard ?: By virtue of s 104.4(1)(d) of the Code, the Federal Parliament has given to the judiciary the task of determining what is reasonably necessary for the protection of the public from what is inferentially held to be a threat to one or more of the polities of the Australian Commonwealth. In a context such as the present and with the stated consequences, there are serious problems with the standard so expressed.

[313] The phrase "reasonably necessary, and reasonably appropriate and adapted" appears elsewhere in the federal statute book. ^[388] Thus, s 3ZQO(2)(b) of the Crimes Act 1914 (Cth) allows a Federal Magistrate to issue a notice requiring the production of documents where the Federal Magistrate is satisfied, on the balance of probabilities, that this is "reasonably necessary, and reasonably appropriate and adapted", for the purpose of investigating a serious offence.

[314] The formulation is also used in s 4 of the Quarantine Act 1908 (Cth), which defines "quarantine". By s 4(2) of that Act, that definition is not intended to limit directions or actions arising from Ministerial authorisation or authorisation by the executive head of a national response agency that is "reasonably appropriate and adapted" either to "the control and eradication of the epidemic" or "to the removal of the danger of the epidemic". In that context, it is for the Minister, or a delegate of the Minister, first to determine what is "reasonably appropriate or adapted" to countering the epidemic or danger at hand.

[315] Likewise, by s 90AE(3) of the Family Law Act 1975 (Cth), the Family Court's power to make orders under s 90AE(1) or (2) of that Act is limited, relevantly, to those orders that are "reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage".

[316] However, leaving aside the difficulties inherent in the words "reasonably necessary", ^[389] and that most unlovely and opaque phrase "reasonably appropriate and adapted", ^[390] federal courts are asked by s 104.4(2) of the Code to perform an indeterminate balancing exercise. On the one hand, the courts are required to have regard to whether each obligation sought to be imposed is "reasonably necessary, and reasonably appropriate and adapted" for the purpose of protecting the public from a terrorist act. On the other hand, they 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)". At the same time, by legal principles binding on them, such courts are effectively required to choose measures that will cause the least incursion upon the civil liberties of the person who is to be subject to such an order. ^[391]

[317] Critically, the relevant federal court is asked to determine what is reasonably necessary for the protection of the public. This is not a court's normal function. Traditionally, it is a function performed by the executive or legislature by expressing, with greater precision, any norms or standards which the judiciary may later be asked to enforce, directed to that end. In the Communist Party Case, ^[392] Kitto J explained:

This Court has always recognized that the Parliament and the Executive are equipped, as judges cannot be, to decide whether a measure will in practical result contribute to the defence of the country, and that such a question must of necessity be left to those organs of government to decide.

[318] It is true that courts "must frequently apply vague and indeterminate criteria which involve imprecise conclusions, moral judgments, evaluative assessments and discretionary considerations". ^[393] However, it is essential that such activities as are assigned to courts "are nonetheless proper to their functions as courts". ^[394]

[319] In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, ^[395] in a constitutional context analogous to that presented by the present proceedings, Windeyer J explained why federal legislation, at least since Boilermakers, has, almost without exception, refrained from attempting to confer powers and discretions upon federal courts by reference solely to criteria as nebulous as "the public interest": ^[396]

The public interest is a concept which attracts indefinite considerations of policy that are more appropriate to law-making than to adjudication according to existing law. The [Trade Practices] Act directs the Tribunal as to matters it is to 'take into account' in considering what the public interest requires. The generality of these matters prevents their providing objectively determinable criteria. In the result the jurisdiction of the Tribunal to make determinations and orders depending upon its view of where the public interest lies and what the public interest requires seems to be an exercise of a legislative or administrative function of government rather than of the judicial power.

[320] Writing in the context of the United States Constitution, which in this respect bears comparison to our own, Professor Frederick Green, as long ago as 1920, explained the point succinctly: ^[397]

To grant a right because it is expedient to grant it is to make law. A statute which directs a court to grant a right upon proof that it ought to be granted is void as attempting to confer legislative power. A court cannot be empowered to incorporate a city upon finding that the city ought to be incorporated, or 'that the interests of the inhabitants will be promoted'; but may have power to create a drainage district on petition and proof that the drains will be useful. It may determine what location has been granted a street-railway and enter an order fixing it; but it is not within judicial power, as has been held, to determine what location, motive power and track will be the proper ones, and issue license to use them. Power to issue licenses to fit persons has generally been upheld. The principle is clear, but matters of fact and of expediency blend.

[321] Bearing these considerations in mind, it is clear to me that, in its context, s 104.4 of the Code does not afford an ascertainable test or standard. ^[398] The unsuitability of the stated standard for judicial ascertainment is not remedied by s 104.4(1)(b). Under that provision, a court may only issue a control order if it has "received and considered such further information (if any) as [it] requires". This role also sits uncomfortably with the ordinary procedures followed in the adversarial system of justice observed in Australian courts. Although a federal court "might constitutionally be vested" with the power to make or review an order, such courts are not ordinarily required "to collect [ the] evidence" that determines, at the outset, whether the order is to be either promulgated or reviewed. ^[399]

[322] I accept that considerations of the "public interest" or "public policy" are sometimes applied in legal, including judicial, contexts. However, such considerations can easily be distinguished from the judicial standard that federal courts are asked to exercise in giving effect to s 104.4(1)(d) and (2) of the Code. ^[400] The court in question here is not asked to take into account considerations of public policy. It is asked to determine what is necessary for "protecting the public". This criterion is not merely one of the factors to be considered. It is the only factor. The role of determining what is "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act", balanced against the individual rights of the person subjected to the order, is at odds with the normative function proper to federal courts under the Constitution. I agree with Hayne J that the stated criteria "would require the court to apply its own idiosyncratic notion as to what is just". ^[401] The court would be required to make its decision without the benefit of a stated, pre-existing criterion of law afforded by the legislature. In the present context and with the consequences that follow, the stated criteria attempt to confer on federal judges powers and discretions that, in their nebulous generality, are unchecked and unguided. In matters affecting individual liberty, this is to condone a form of judicial tyranny alien to federal judicial office in this country. It is therefore invalid.

[323] The creation of rights and responsibilities: In Precision Data Holdings Ltd v Wills, ^[402] in unanimous reasons, this Court stated: ^[403]

[I]f the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power.

[324] This statement reflects one facet of the historical conception of "judicial power". It is concerned with existing legal rights and duties. ^[404] Put another way, it involves the process of determining whether a right or obligation exists in the particular circumstances, not whether it should exist or should be judicially imposed. ^[405] I accept that: ^[406]

It is simply not the case that the creation of new rights and duties is necessarily outside the concept of judicial power ... The issue is rather when ... it is permissible to confer on courts functions of that nature.

[325] So much was also acknowledged in another critical passage of this Court's reasons in Precision Data: ^[407]

The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. ... This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett. ^[408] Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power.

[326] The absence of norms in Div 104: The difficulty encountered when evaluating s 104.4 of the Code against the foregoing criteria is that it is not merely concerned with the prevention of "terrorist acts", in so far as they constitute criminal offences (including those offences arising under secondary forms of liability) of committing "terrorist acts" against the Code. The width of the term "terrorist act", as used in s 104.4, extends far beyond acts that would constitute existing criminal offences. It thus exceeds existing rights and obligations ^[409] under the Code. One cannot simply say that there is a legislative requirement that these rules be observed and that the court has jurisdiction to act on a complaint to enforce the rules. ^[410] Division 104 of the Code is thus not ancillary to a recognised or traditional judicial function.

[327] Most critically, the "jurisdiction" of a federal court to issue an interim order arises only if "each of the obligations, prohibitions and restrictions to be imposed on the person ... is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". The "matter" ^[411] involved, and the "jurisdiction" conferred, ^[412] are therefore intimately interconnected. ^[413]

[328] There are several difficulties in relying on R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett ^[414] to sustain the validity of the jurisdiction and power conferred by s 104.4 of the Code. First, to utilise the "trick" of drafting upheld in that case, the legislation must fall within "one of the subjects of the legislative power of the Federal Parliament". ^[415] I have already explained my view that this requirement is not fulfilled in the present case. Yet even if that conclusion could be overcome, any conferral on a Ch III court of the power to "bring a new set of rights and obligations into existence" must be "'exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to [unspecified] policy considerations'". ^[416]

[329] Finally, the "subject matter and prescribed procedures" must be "consistent with the nature and functions of a court". ^[417] The difficulties inherent in s 104.4, in so far as it fails to prescribe an ascertainable legal standard, have already been identified. The role of determining what is necessary for the protection of the public from a terrorist act, where that is the sole consideration, is atypical of the functions reposed in courts. There are also powerful reasons for rejecting the submission that the given powers are consistent with historical or contemporary judicial functions and procedures. ^[418] In this case it is therefore apparent that a combination of the subject-matter involved, together with the procedure employed, renders s 104.4 incompatible with the exercise of the judicial power of the Commonwealth. ^[419]

Distinguishing analogies from history and other courts

[330] Historical considerations: Much attention was directed during argument, and in the written submissions, to deciding whether functions analogous to those stated in Div 104 have historically been exercised by the courts so as to support their deployment here. In my opinion, all of the historical analogies cited by the Commonwealth and the intervening States to support Div 104 are distinguishable.

[331] First, many of the examples nominated involve orders that are ancillary to other proceedings. That is, the orders are subsidiary to the determination of the existing rights and duties of parties in other litigation. ^[420] That is not this case. Secondly, other orders said to be analogous are directly related to the past conduct of the person subject to the order, ^[421] or are issued specifically to restrain a breach of the law. ^[422] Thirdly, other suggested examples concern orders that are directed at protecting a particular or identifiable person, rather than society at large. ^[423] Fourthly, where obligations are similarly created in some of the examples cited, they are imposed based on evidence of what the person who is to be subject to the order may do, and not on what the person subject to the order and/or other third parties not subject to the order might otherwise do. ^[424] These are not insignificant distinctions. They help to confirm what is, in any case, apparent of the face of Div 104 of the Code -- its provisions are unique. They are exceptional. They involve an attempt to break new legislative ground.

[332] Binding over orders: The Commonwealth next argued that, historically, the use of binding over orders bore strong similarities to control orders issued under Div 104. It was suggested that such orders were the "clearest analogy" or precedent for s 104.4(1)(d) of the Code.

[333] The nature of binding over orders was described by Lord Parker CJ in Sheldon v Bromfield Justices: ^[425]

It is well known that justices have power pursuant to their commission or pursuant to the Justices of the Peace Act, 1361, to bind over all persons brought before them. It is a very important jurisdiction and is in the nature of preventive justice. No offence need be proved at all.

A contemporary equivalent to such orders may be found in s 126A of the Magistrates' Court Act 1989 (Vic).

[334] Leaving aside other distinctions arising from this "ancient power", ^[426] there are four important differences between binding over orders and orders issued under s 104.4 of the Code. First, binding over orders are related directly to what the person subject to the order has already done. ^[427] Secondly, binding over orders are only directed at the future conduct of the person who is the subject of the order. Thirdly, the person subject to the order has the right to be fully heard on the allegations propounded to justify the order before it is made. Fourthly, such historical orders did not support additional conditions in the form of specific obligations, prohibitions and restrictions imposed by an interim control order. ^[428] The differences from the control orders for which Div 104 provides are made plain by the observations of Lord Alverstone CJ in R v Wilkins: ^[429]

Justices have a general power under their commission to bind over any person if it appears that that person has been guilty of violent conduct tending to a breach of peace, even though there is no proof of a threat towards any particular person, provided, of course, that the person bound over has had a reasonable opportunity of knowing the nature of the charge brought against him and of making his answer to it.

[335] Binding over orders are therefore of little assistance in providing the suggested historical analogy for the "judicial power" said to be exercised pursuant to Div 104 of the Code. In any event, not every order that has historically been made by courts in England or in the Australian colonies and State courts in Australia will necessarily pass muster under the requirements established by the Constitution. In every case it is for the courts, ultimately this Court, to say whether the posited order is one that is compatible with the exercise of the judicial power of the Commonwealth provided for in the Constitution. In making that judgment in the present case, it is appropriate to note the defects of binding over orders and the misuse to which they have sometimes been subject. Such criticisms may be apt to a consideration of whether any like jurisdiction should be accepted in the case of Australian federal courts as part of the judicial power of the Commonwealth: ^[430]

Magistrates have ... bound over where there was no breach of law of any kind actual or threatened. They have bound over for transvestism, and for prostitution of a character that does not amount to a breach of law. It is extraordinary that the humblest judicial functionaries should thus be able to indulge their fancy by formulating their own standards of behaviour for those who come before them. True, the power may be employed in a beneficial way. It was used to meet the problem, experienced in both world wars, of young girls who haunted military camps for the purpose of promiscuous associations. ... Beneficent though the result was, it is a notable infringement of civil liberty that persons should be brought before a court for conduct that is not the breach of any legal rule.

[336] In a belated response to such criticism, the Home Office in Britain has recently suggested a tightening up of the law on binding over orders in the United Kingdom. ^[431] A paper recommends that the standard of proof should become the criminal standard ^[432] and that the proposed subject of the order should be permitted to call evidence at all stages. ^[433] These developments suggest recognition of the need for considerable caution on the part of this Court in treating binding over orders as any guide for what is constitutionally accepted conduct on the part of Australian federal courts. As Callinan and Heydon JJ remarked in Fardon v Attorney-General (Qld): ^[434]

Federal judicial power is not identical with State judicial power. ... Not everything by way of decision-making denied to a federal judge is denied to a judge of a State.

[337] Two other forms of judicial order were nominated as analogous to the provision for "protecting the public" in Div 104 of the Code. Thus, it was suggested that courts take similar considerations into account in bail proceedings, undoubtedly a conventional judicial task. In addition, s 38 of the Restraining Orders Act 1997 (WA) was raised as a specific example permitting the making of an order for the protection of the public generally. ^[435]

[338] Conclusion: analogies fail: Each of the propounded analogies is distinguishable from the orders for which Div 104 provides. Each is decided on the basis of the past conduct of the person to be subject to the order and each is directed against what that particular person might do in the future. ^[436] They are not directed, as orders under Div 104 may be, at what third parties not subject to the order might do. In the case of bail proceedings, ^[437] the court may consider the protection and welfare of the community. However, it will only do so having regard to the nature and seriousness of the offence with which the accused is charged with having committed and any other offences that may be taken into account. ^[438] The court may only consider possible future offences in defined circumstances. ^[439] The protection of the community is only one of a great number of otherwise strict and ascertainable criteria to be considered in bail proceedings. It is not the only factor. In Fardon I observed: ^[440]

The Bail Act expressly provides for consideration, in bail decisions, of whether there is an unacceptable risk that, whilst released, the accused will commit an offence, that is, a future offence. ... It is enough to point to the great difference between refusal of bail in respect of a pending charge of a past offence and refusal of liberty, potentially for very long intervals of time, in respect of estimations of future offending, based on predictions of propensity and submitted to proof otherwise than by reference to the criminal standard of proof.

The unconvincing invocation of the "chameleon doctrine"

[339] The chameleon doctrine: The Commonwealth then relied, as it usually does in this connection, on the "chameleon doctrine" to sustain the validity of Div 104 of the Code. With this "doctrine" the Court has fashioned a rod for its own back. The "doctrine" has recently been the subject of re-examination. ^[441] Gaudron J expounded the conventional explanation in her reasons in Re Dingjan; Ex parte Wagner: ^[442]

[S]ome powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch III of the Constitution, ^[443] while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses. ^[444]

[340] The Commonwealth submitted that Div 104 was a classic example of a "double aspect" or innominate power that acquires its constitutional character from the body in which it is vested. ^[445] Indeed, the Commonwealth submitted that the chameleon doctrine explained why it had not, in this or other cases, urged that Boilermakers be overruled. Putting it bluntly and with chilling candour, the Commonwealth submitted that Boilermakers "does not matter much any more". ^[446]

[341] If this submission were to be accepted, there would be little point in the foregoing discussion or in any of the Court's careful analysis of the Boilermakers doctrine since it was expounded and upheld. The separation of the judicial power would be a chimera. But how could that be?

[342] I accept that some functions are neither exclusively judicial nor exclusively non-judicial. I accept that the performance of some functions may be consistent with the exercise of judicial power as well as the exercise of executive or legislative power. ^[447] However, simply because a function is reposed in Ch III courts does not mean it becomes automatically cloaked with the attributes of the judicial power of the Commonwealth. ^[448] In Pasini v United Mexican States, I explained why this was so: ^[449]

[T]he assignment of a function to a court cannot, without more, finally determine, for constitutional purposes, the character of the function so assigned. Were it so, the identification by the Parliament of the repository of the function would conclusively determine its constitutional nature. That could not be. By the Constitution, the function of characterisation belongs, finally, to this Court. ^[450]

[343] The foregoing is not to deny the established authority that the nature of the body in which a function is reposed may assist in determining the "judicial character" of that function. ^[451] However, necessarily, this fact cannot eliminate the judicial duty to characterise the function. The most that the "chameleon doctrine" provides is one way of resolving a doubt about the essential nature of the function. ^[452] In R v Spicer; Ex parte Australian Builders' Labourers' Federation, ^[453] Kitto J explained why this was the correct approach:

[S]ometimes a grant of power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial. But it by no means follows that whenever a power which has some similarity to an acknowledged judicial power is given to a judicial person or body there is a grant of judicial power. The reason for concluding in some such cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities. That is not a necessary inference, however, in every case of this kind.

[344] Although I accept that there may be instances involving functions in some ways similar to those envisaged by Div 104 of the Code and that, carefully prescribed, these might validly be performed by federal courts, the functions provided for in s 104.4 are not judicial. ^[454] The chameleon doctrine, whilst occasionally useful, must not be elevated so far that it overwhelms all other considerations referred to in this Court's decisions on the point. To permit this to happen would be to debase the Court's doctrine, to surrender its constitutional function to the choices made by other branches of government, and to ignore the important constitutional purposes that the separation of the judicial power upholds.

[345] Appropriateness of enacted function: That useful constitutional principle reflects an overriding, and fundamental, concern -- the "desirability or appropriateness" ^[455] of federal courts performing functions of the kind purportedly conferred by s 104.4 of the Code.

[346] This issue was helpfully explained by Jacobs J in R v Quinn; Ex parte Consolidated Foods Corporation: ^[456]

The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example. But there are a multitude of such instances.

[347] Control orders undoubtedly impinge upon the basic rights to liberty of those made subject to them. This Court's duty under the Constitution is to guard against unwarranted departures from fundamental rights and freedoms which the Constitution and applicable law defend. ^[457] Yet Div 104, in its present form, undermines the judicial power of the Commonwealth by attempting to deploy federal judges upon tasks that are non-normative and that are performed in accordance with procedures that seriously depart from the basic rights normal to judicial process. ^[458] Once again, I agree with, and would apply, the analysis of Professor Zines: ^[459]

From the point of view of the Australian Constitution, the issue is not, of course, whether in the opinion of the High Court it is desirable that judges deal with a particular matter, but whether it may reasonably be thought desirable, that is, whether it is appropriate for a court. A particular function will only be appropriate if its exercise is consistent with the 'professional habits' and techniques practised by the judiciary. Judicial reasoning, of course, requires a high degree of consistency; it involves the formulation of principles, and decisions based on those principles. But above all it works best in concrete situations.

[348] As is often the case, the point was also expressed succinctly and vividly by Windeyer J in Tasmanian Breweries: ^[460]

This Court has the duty of keeping the Parliament within its constitutional bounds. But it is equally its duty itself to keep within the province marked out for it as the judicial power of the Commonwealth. The Court, no less than the Parliament, must observe the separation of powers.

[349] My decision on this issue should not be interpreted as indicating that I would uphold the validity of Div 104 if the powers therein were conferred on a Minister or other officer of the Commonwealth outside the Judicature. I agree with what Hayne J has said in that connection. It is unnecessary for me to elaborate it. ^[461]

The special case of judicial deprivation of liberty

[350] Deprivation of liberty and criminal guilt: There is one final consideration on this issue. It reinforces the conclusion just expressed. The hypothesis evident in Div 104 assumes a deprivation of liberty in consequence of a judicial order. In Fardon, ^[462] this Court considered related questions, although within a State constitutional context. ^[463] There, and in other cases, the Court has noticed tangentially principles found in Ch III of the Constitution affecting the exercise of jurisdiction by federal courts. While it is unnecessary to revisit those cases in any detail in the present context, observations made in Fardon by members of the majority are pertinent to the resolution of the present proceedings.

[351] In issue here is not solely what "obligations, prohibitions and restrictions" have been imposed on the plaintiff. Rather, this Court is concerned to examine the scope of measures that may be imposed under Div 104. ^[464] In determining the validity of a challenged provision, the Court "is always obliged to test a novel law by what would occur if the novelty became common or repeated or is taken to its logical extent". ^[465]

[352] In this case, as in Fardon, what is ultimately involved is "the loss of liberty of the individual" by a judicial order. ^[466] As stated by Gummow J in Fardon, citing some of my own remarks in an earlier case, "that loss of liberty is 'ordinarily one of the hallmarks reserved to criminal proceedings conducted in the courts, with the protections and assurances that criminal proceedings provide'". ^[467] To similar effect, in Fardon, I reaffirmed that: ^[468]

Although the constitutional setting in the United States is different from that operating in Australia, our legal tradition shares a common vigilance to the dangers of civil commitment that deprives persons of their liberty.

[353] In Fardon, Gummow J formulated a principle, derived ultimately from Ch III of the Constitution, which holds that, save for recognised exceptions, the involuntary detention of persons in custody is permitted conformably with that Chapter "only as a consequential step in the adjudication of criminal guilt of that citizen for past acts". ^[469] In enunciating this principle, Gummow J avoided a discussion of whether the detention "is penal or punitive in character". ^[470] By inference, this course was adopted so as to emphasise "that the concern is with the deprivation of liberty without adjudication of guilt rather than with the further [and different] question whether the deprivation is for a punitive purpose". ^[471] Gummow J went on to say: ^[472]

[D]etention by reason of apprehended conduct, even by judicial determination on a quia timet basis, is of a different character and is at odds with the central constitutional conception of detention as a consequence of judicial determination of engagement in past conduct.

[354] The uniqueness of Div 104: In the plaintiff's case, Div 104 of the Code contemplates the possibility of the loss of liberty, potentially extending to virtual house arrest, not by reference to past conduct or even by reference to what that person himself might or might not do in the future. It is based entirely on a prediction of what is "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act", a vague, obscure and indeterminate criterion if ever there was one. The judicial process, said to be enlivened by s 104.4, is not therefore refined. On its face, it is capable of arbitrary and capricious interpretation. This invites the question: if the community of nations, with all of its powers and resources, cannot agree on what precisely "terrorism" is (and how it can be prevented), how can one expect a federal magistrate or court in Australia to decide with consistency and in a principled (judicial) way what is reasonably necessary to protect the public from a terrorist act? ^[473] How can such a decision be regarded as one proper to a court limited, as such, to the application of a pre-existing norm and especially in decisions critical to the liberty of the person affected?

[355] This Court has accepted that, in "strictly limited circumstances, the judiciary permits 'executive interference with the liberty of the individual' where 'the purpose of the imprisonment is to achieve some legitimate non-punitive object". ^[474] However, in Australia, Judges in federal courts may not normally deprive individuals of liberty on the sole basis of a prediction of what might occur in the future. Without an applicable anterior conviction, they may not do so on the basis of acts that people may fear but which have not yet occurred. Much less may such judges deprive individuals of their liberty on the chance that such restrictions will prevent others from committing certain acts in the future. ^[475] Such provisions partake of features of the treatment of hostages which was such a shameful characteristic of the conduct of the oppressors in the Second World War and elsewhere. It is not a feature hitherto regarded as proper to the powers vested in the Australian judiciary. In Australia, we do not deprive individuals of their freedoms because doing so conduces to the desired control of others.

[356] By its terms, Div 104 requires no attention to be directed towards the person subject to the order prior to determining that the conditions exist for a control order to be granted. If that is done it will only be done incidentally. It is not obligatory. ^[476] The satisfaction of the requirements of s 104.4(1)(c)(ii) of the Code, referring to the past conduct of the person to be subject to the order, is not a condition precedent to the issue of a control order. There are alternative limbs. ^[477] Ultimately, the federal court must merely be satisfied, on the civil standard of proof, that each aspect of the order is "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". Such an order is to be issued on the basis of evidence presented by the AFP, the nature of which a federal magistrate or federal judge would be most unlikely to contest. ^[478] I remain of the view that I expressed in Fardon: ^[479]

The focus of the exercise of judicial power upon past events is not accidental. It is an aspect of the essential character of the judicial function. Of its nature, judicial power involves the application of the law to past events or conduct. ^[480] Although, in discharging their functions, Judges are often called upon to predict future happenings, ^[481] an order imprisoning a person because of an estimate of some future offence is something new and different.

[357] Even more novel and offensive to principle is the judicial order contemplated by Div 104 of the Code. It provides for the deprivation of liberty because of an estimate of some future act, not necessarily one to be committed by the person subject to the proposed order. To uphold the validity of that type of control order for which Div 104 of the Code provides would be to erode the well-founded assumption that the judiciary in Australia under federal law may only deprive individuals of their liberty on the basis of evidence of their past conduct. It would seriously undermine public confidence in federal courts for judges to subject individuals to any number of "obligations, prohibitions and restrictions" for an indeterminate period ^[482] on the basis of an estimate that some act, potentially committed by somebody else, may occur in the future. ^[483] To do this is to deny persons their basic legal rights not for what they have been proved to have done (as established in a criminal trial) but for what an official suggests that they might do or that someone else might do. To allow judges to be involved in making such orders, and particularly in the one-sided procedure contemplated by Div 104, involves a serious and wholly exceptional departure from basic constitutional doctrine unchallenged during the entire history of the Commonwealth. It goes far beyond the burdens on the civil liberties of alleged communists enacted, but struck down by this Court, in the Communist Party Case. Unless this Court calls a halt, as it did in that case, the damage to our constitutional arrangements could be profound.

[358] Division 104 effectively enlists federal courts in making a choice as to which deprivations of liberty they consider to be necessary or appropriate for the future protection of the public, independent of any ancillary conduct or liability. The "thin veneer of legality" which s 104.4 of the Code seeks to create by vesting this power in federal courts "cannot disguise the reality" that it is not judicial power. ^[484]

[359] It is in cases such as the present that the Court is tested. When the test comes, it is not to be answered by endorsement of grave departures from long-standing constitutional history and judicial tradition. Least of all is it to be answered in terms of the emotional appeals by the Commonwealth and its supporters to notions of legal exceptionalism which this Court firmly rejected in its decision in the Communist Party Case.

Conclusion: Div 104 invalidly confers non-judicial powers

[360] It follows from these reasons that the plaintiff has established his second constitutional attack on the validity of Div 104 under which the interim control order was made in his case.

[361] Even if, contrary to my earlier conclusion, the provisions of Div 104 of the Code are otherwise sustained by the legislative power of the Federal Parliament, the attempt in that Division to vest federal courts with the power to make interim control orders, in the manner prescribed, amounts to a purported conferral of non-judicial power on such courts. This is contrary to Ch III of the Constitution. It is therefore invalid on this additional basis. The question in the special case should be answered accordingly.

JUDICIAL POWER: INVALID EXERCISE

Compatibility of Div 104 with Ch III of the Constitution

[362] The third issue: If, contrary to the foregoing conclusion, Div 104 of the Code were to be characterised as conferring judicial power, there are several features of the legislation that are nonetheless incompatible with the way in which judicial power may be exercised under Ch III of the Constitution. In Leeth v The Commonwealth, Deane and Toohey JJ pointed out that the provisions of Ch III: ^[485]

not only identify the possible repositories of Commonwealth judicial power. They also dictate and control the manner of its exercise.

[363] Invalid exercise of judicial power: The conclusions that I have already stated are sufficient, twice over, to entitle the plaintiff to succeed in these proceedings. To explore at any length the third issue is not therefore essential to the outcome of the special case. Nevertheless, on the assumption (contrary to my conclusion) that Div 104 validly confers judicial power on federal courts, there are several features of the Division that appear to depart from the requirements of the Constitution for the valid exercise of the judicial power of the Commonwealth.

[364] Offending features: The offending features of Div 104 in this respect include, individually and cumulatively, the following:

(1)

Ex parte determinations: Interim control orders are to be issued ex parte in all cases and not just in exceptional circumstances where that course is necessary or essential for particular reasons. Under Div 104 it is routine for individuals to be subjected to "obligations, prohibitions and restrictions" without a hearing from the time the interim order is issued until it is confirmed. ^[486] Self-evidently, this is itself a very serious departure from the norm ordinarily, and desirably, observed by federal courts (and other courts) in Australia. ^[487] It institutionalises the exception of court decisions behind closed doors as the rule;

(2)

Uniform minimisation of rights: The individual subject to the interim order is guaranteed no more than 48 hours notice of that order before a confirmation hearing. ^[488] Moreover, the individual is only entitled initially to receive a summary of the grounds on which the interim order is issued. ^[489] The full reasons are not provided, whatever the circumstances or need. Once again, these provisions constitute a serious and, so far as I am aware, unique departure from the way federal courts exercise the judicial power of the Commonwealth. The procedures are not left to the federal court concerned to adapt and vary according to the particular needs of the individual circumstances. Division 104 mandates a uniform procedure. It is one seriously at odds with the way federal courts in this country have hitherto performed their functions in accordance with the Constitution. The Constitution itself incorporates the basic features of openness and equality of arms that are such important features of our legal tradition; and

(3)

Withholding evidence: Specifically, the individual subject to an application or order may not be informed of particular evidence raised in the case against them. Thus, s 104.12A of the Code relevantly provides:

(1)

At least 48 hours before the day specified in an interim control order [for a confirmation hearing], the senior AFP member who requested the order must:

(a): elect whether to confirm the order on the specified day; and
(b): give a written notification to the issuing court that made the order of the member's election.

(2)

If the senior AFP member elects to confirm the order, an AFP member must:

(a)

serve personally on the person in relation to whom the order is made:

(i): a copy of the notification; and
(ii): a copy of the documents mentioned in paragraphs 104.2(3)(b) and (c); and
(iii): any other details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order; and; ...

(3)

To avoid doubt, subsection (2) does not require any information to be served or given if disclosure of that information is likely:

(a): to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b): to be protected by public interest immunity; or
(c): to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d): to put at risk the safety of the community, law enforcement officers or intelligence officers.

The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information.

[365] Alternative systems: Other countries with legal systems generally similar to those of Australia have either legislated for, or required the availability of, special advocates in circumstances where accused persons are not entitled to access to the full case against them on grounds, asserted by the executive, of national security. ^[490] There is no similar facility in Div 104 of the Code for an independent person to have access to the executive's material or to controvert the veracity of the evidence relied upon. To expect a court to rely for its decisions solely upon the evidence supplied by the very officers seeking to secure or uphold the control order, is fundamentally inconsistent with the adversarial and accusatorial procedures, observed by the Australian judiciary until now in serious matters affecting individual liberty, as contemplated by Ch III of the Constitution. ^[491]

Conclusion: Div 104 involves exercise of powers inconsistent with Ch III

[366] It follows that Div 104 of the Code is at odds in important respects with the features of "independence, impartiality and integrity" that are implied or assumed characteristics of the federal courts for which Ch III of the Constitution provides. Requiring such courts, as of ordinary course, to issue orders ex parte, that deprive an individual of basic civil rights, on the application of officers of the executive branch of government and upon proof to the civil standard alone that the measures are reasonably necessary to protect the public from a future terrorist act, departs from the manner in which, for more than a century, the judicial power of the Commonwealth has been exercised under the Constitution.

[367] What has hitherto been regarded as wholly exceptional, within the grant or refusal of a judge and adaptable to particular needs in very special circumstances, is rendered by Div 104 the universal norm. This change seriously alters the balance between the State and the individual whose liberties are potentially affected by the federal court's orders. It reduces, and in some cases destroys, the capacity of federal courts to be, and to appear to be, independent and impartial as between the executive and the individual. The resulting legislative scheme is therefore incompatible with the postulate upon which the federal Judicature is created by the Constitution.

[368] In an attempt to deal with a particular problem the legislative scheme does so in a heavy handed, uniform and exceptional way. It risks squandering for all cases the precious reputational capital of federal courts which the separation of powers doctrine serves to defend. Legislatures and executive governments may not always be as conscious as courts are of the difficulty, once lost, of regaining such reputations. If the courts are seen as effectively no more than the pliant agents of the other branches of government, they will have surrendered their most precious constitutional characteristic. This Court should not allow that to happen.

[369] The foregoing is especially relevant because there is no legal requirement in Div 104 for the court concerned to consider the past conduct of the individual in question. There is no opportunity for an independent person to controvert the evidence relied upon. There are no countervailing procedures to ensure that the federal courts concerned can perform their functions neutrally and effectively. In effect, and in substance, the federal courts are rendered rubber stamps for the assertions of officers of the Executive Government. They, and those whose liberties are most affected, are deprived of any effective means to test and contradict the executive's assertions.

[370] The exercise of serious powers affecting individual liberty by judges is indeed ordinarily a good thing and sometimes it is constitutionally obligatory. ^[492] But it becomes a bad thing if the powers are granted in vague and inappropriate terms, for that engages judges in the exercise of powers that are in truth unbridled discretions, governed by the most nebulous of criteria. And it is a very bad thing if the judge concerned is required to act in exceptional ways in private and subject to constraints not normal or proper to the judicial office. These are consequences against which the federal separation of powers doctrine stands guard in Australia.

[371] It follows that the provisions of Div 104 of the Code contravene the postulates of the judiciary for which Ch III of the Constitution provides in this country. Terrorist acts are indeed, potentially, serious dangers to the Australian body politic. Effective laws to respond to such dangers are possible, consistent with the Constitution and specifically with Ch III. However, the lesson of the past responses of this Court to new challenges to the nation and its security is that fundamental features of the Constitution are preserved or compatibly adapted. They are not abandoned. Division 104 of the Code attempts an unbalanced and unequal departure from the Constitution's guarantee of equal justice to all who come before the independent federal courts of the nation. It is therefore invalid on this further ground.

Overseas legislation and precedents

[372] Canadian measures: The foregoing conclusion on the third issue is strengthened by a consideration of the legislative approaches to analogous issues in other jurisdictions with legal systems similar to Australia's and judicial responses to cases involving such legislation.

[373] There are clear differences between Div 104 of the Code and the now expired provisions of the Canadian Criminal Code, ^[493] whereby a court was empowered to order an individual to enter into a recognizance to keep the peace and be of good behaviour. ^[494] Such orders could only be made if a "peace officer" ^[495] believed on reasonable grounds that a terrorist activity would be carried out and suspected on reasonable grounds that the imposition of a recognizance (with conditions) was necessary to prevent the carrying out of the terrorist activity. ^[496] The issuing court needed to be "satisfied by the evidence adduced" that the peace officer had "reasonable grounds for the suspicion". ^[497] A person to be subject to the order was generally entitled to be heard before the order was made. ^[498] The conditions capable of being imposed were also not as extensive. ^[499] Notably, the Canadian laws have now expired because of a statutory sunset clause. ^[500]

[374] United Kingdom measures: The Prevention of Terrorism Act 2005 (UK) ("the PTA") ^[501] allows the Home Secretary in the United Kingdom to issue non-derogating control orders against individuals if the Home Secretary has "reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity" and considers that "it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual". ^[502]

[375] A derogating control order is made on application to a designated court by the Home Secretary. ^[503] Except in urgent cases, ^[504] the Home Secretary must obtain the permission of the court to make a non-derogating order. ^[505] In the case of non-derogating orders, the court is asked to determine whether the Home Secretary's decision that there were grounds to make that order "was obviously flawed", ^[506] applying the principles applicable in applications for judicial review. ^[507] Control orders, whether derogating or non-derogating, may impose any obligations the Home Secretary or the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity. ^[508]

[376] Critically however, both types of orders require specific consideration of whether the individual to be subject to the order has been involved in terrorism-related activity. This is not a mandatory feature of Div 104 of the Code in Australia. The Home Secretary is also required to consult the chief officer of the police force about whether there is evidence available that could realistically be used to prosecute the individual for an offence relating to terrorism before applying for or making a control order. ^[509]

[377] In the United Kingdom, a number of control orders issued by the Home Secretary have been successfully challenged. Leaving aside the role of the European Convention on Human Rights and the Human Rights Act 1998 (UK) in the context of these orders, such cases have raised a number of concerns about the nature of the control order regime in the United Kingdom that are apposite to Div 104. ^[510] Nevertheless, the role of the special advocate has proved instrumental in ensuring that the tribunals and courts established by law can discharge their functions at least with a minimum of informed scrutiny of executive allegations which have in this way sometimes been found unsustainable. ^[511]

[378] United States measures: Although the recent decision of the United States Supreme Court in Hamdan v Rumsfeld ^[512] did not concern "control orders", the reasons of the majority shed some light on the meaning attributed in that country to the phrase "regularly constituted court". Four of the Justices stated that Art 75 of Protocol I to the Geneva Conventions would be regarded by the United States "'as an articulation of safeguards to which all persons in the hands of an enemy are entitled'". ^[513] The detainees at Guantanamo Bay could expect therefore to enjoy the rights of an accused to be present at their trial and to be privy to all the evidence against them. Equivalent rights are not extended to those individuals in Australia like the plaintiff made subject to interim control orders under Div 104. Such orders may deprive those individuals of their liberty or seriously restrict it despite the absence of any proved or even alleged criminal wrongdoing and without any attention being directed to their past actions.

Confirmation by reference to the international law of human rights

[379] One final aspect of these proceedings should be mentioned. International law, ratified by and binding on Australia, protects the rights of individuals to be free of arbitrary detention and the unlawful deprivation of liberty. ^[514] International law also safeguards individual rights to privacy and respect for family life; ^[515] to freedom of expression and association; ^[516] to freedom of movement; ^[517] and to a fair hearing in the determination of one's rights and obligations. ^[518] Clearly, the "obligations, prohibitions and restrictions" that might be imposed by an order made under s 104.4 of the Code will potentially infringe any, or all, of these rights.

[380] The foregoing principles of international law have not been incorporated by municipal law into federal law in this country. However, that does not mean that the principles are irrelevant to the functions of the courts. An Australian statute must be interpreted and applied, as far as its language admits, so as not to be inconsistent with established rules of international law. ^[519] This Court will also refuse to uphold legislation that abrogates fundamental rights, recognised by civilised countries, unless the purpose of the legislature is clear, evidenced by unambiguous and unmistakable language. ^[520] These principles are not just aspirational statements. This was made clear by Gleeson CJ in Al-Kateb v Godwin: ^[521]

A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

Although dissenting as to the result in that case, what the Chief Justice said is settled doctrine in this Court.

[381] Given its overall nature and context, Div 104 suggests a possible purpose to abrogate several of the foregoing rights and freedoms. However, this intention is neither clear nor explicit, particularly in light of s 104.4(2). That sub-section invites an issuing court to identify the extent of incursion of the "obligations, prohibitions and restrictions" into individual rights and freedoms. It then asks the court to determine whether this incursion is justified, that is, whether it is "reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act". Without further guidance, it is extremely difficult, to say the least, for a judge to discern the application, if any, of any statutory presumption of conformity to the rules of international law and fundamental rights and freedoms. Viewed against the range of "obligations, prohibitions and restrictions" that may be imposed by an interim order, ^[522] s 104.4 provides little clarification of the practical role to be played by such basic rights in an actual case. Effectively, this is so because the coercive provisions of the Division as a whole, and the procedures for which it provides, necessitate serious departures from the fundamental rights of persons affected by an application for a control order. The specificities risk the drowning out of the functions of the general statements about rights and freedoms.

[382] To the extent that, under the Constitution, there is ultimately any uncertainty about the ambit of the federal legislative power to sustain the validity of Div 104 of the Code, or any uncertainty about the requirements of Ch III of the Constitution governing the necessities of the exercise of judicial power in Australia's federal courts, such uncertainty should be resolved in favour of the plaintiff's arguments. ^[523] The Australian Constitution should be read, so far as the text allows, in a way that is harmonious with the universal principles of the international law of human rights and not destructive of them. Australia has ratified and accepted those principles. They are upheld by other civilised nations. ^[524] They are available to assist our understanding of the contemporary limits and requirements of the Australian Constitution. As such, they confirm the constitutional conclusions that I have already expressed.

CONCLUSIONS AND ORDERS

[383] General conclusions: For the reasons I have expressed, Div 104 of the Code was made without any applicable federal legislative power. It is therefore invalid as lacking a valid constitutional source. Should this conclusion be wrong, the Division invalidly purports to vest non-judicial power in federal courts. And if this conclusion is wrong, the Division is invalid because any judicial power that it does vest in federal courts is to be exercised under the Code in ways that are incompatible with the fundamental requirements applicable to such courts as independent repositories of the judicial power of the Commonwealth.

[384] Upon the fundamental requirements so stated, the Australian Constitution and the international law of human rights speak, in my view, with a consistent, clear voice and in identical terms. Courts must be independent and impartial. ^[525] They must treat with essential equality all parties who come before them. This Div 104 fails to do. The failure does not appear as a rare exception, capable of being judicially confined to very special and particular circumstances. It is stated as a systemic norm to be applied universally, whatever the facts of the given case. On these three bases, therefore, Div 104 is invalid when measured against the requirements of the Constitution. This Court should so declare.

[385] Constitutional values: In the past, lawyers and citizens in Australia have looked back with appreciation and gratitude to this Court's enlightened majority decision in the Communist Party Case. ^[526] Truly, it was a judicial outcome worthy of a "free and confident society" ^[527] which does not bow the head at every law that diminishes liberty beyond the constitutional design.

[386] I did not expect that, during my service, I would see the Communist Party Case sidelined, ^[528] minimised, doubted and even criticised and denigrated ^[529] in this Court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing.

[387] Whereas, until now, Australians, including in this Court, have generally accepted the foresight, prudence and wisdom of this Court, and of Dixon J in particular, in the Communist Party Case ( and in other constitutional decisions of the same era) ^[530] , they will look back with regret and embarrassment at this decision when similar qualities of constitutional wisdom were demanded but were not forthcoming.

[388] In the face of contemporary dangers from terrorism, it is essential that this Court should insist on the steady observance of settled constitutional principles. It should demand adherence to the established rules governing the validity of federal laws and the deployment of federal courts in applying such laws. It should reject legal and constitutional exceptionalism. Unless this Court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia.

[389] The wellspring of constitional wisdom lies in legal principle. Its source is found in the lessons of constitutional history. When these elements are forgotten or neglected by a court such as this, under the passing pressures of a given time, the result is serious error. The consequences for the constitutional design, as for individual liberty, can be grave. It must then be left to a future time to return to that wisdom and to rediscover its source when the mistakes of the present eventually send this Court back to the wise perceptions of the past.

[390] Orders: It follows from these reasons that Div 104 of the Code is not a valid law of the Commonwealth. The questions stated in the special case should be answered as follows:

1.: Yes;
2.: Yes;
3.: Yes; and
4.: The Commonwealth.

The plaintiff's proceedings should be returned to a single Justice of this Court for determination, consistent with these answers.

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