Alqudsi v The Commonwealth of Australia; Alqudsi v The Queen

[2016] HCATrans 32

[2016] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S259 of 2015

B e t w e e n -

HAMDI ALQUDSI

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry
  Sydney  No S260 of 2015

B e t w e e n -

HAMDI ALQUDSI

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2016, AT 11.55 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR D.P. HUME, for the applicant in both matters.  (instructed by Zali Burrows Lawyers)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR C.L. LENEHAN for the Commonwealth in the first of those two matters.  (instructed by Australian Government Solicitor)

MR D.G. STAEHLI, SC:   May it please the Court, I appear with my learned friend, MS J.M. SINGLE, on behalf of the Crown in the second matter.  (instructed by Commonwealth Director of Public Prosecutions)

BELL J:   Yes.

MR KIRK:   May it please the Court.  Your Honours, the indictment is at pages 2 to 4 of the application book, but I need not take your Honours to it straightaway, save to note that there are seven charges against my client, all materially identical, save for the identity of the person said to have been provided with services.  Can I turn straight to the impugned provisions, which your Honours will find at page 150 of the application book?  This is, of course, in the Crimes (Foreign Incursions and Recruitment) Act 1978. If your Honours turn first, actually, to page 152, the offence – and just focusing on the offence as it is charged against my client – is, looking at the chapeau of section 7(1):

A person shall not . . . within . . . Australia –

because the indictment relates only to conduct occurring within Sydney, Australia.  Then, one jumps to (e) at the top of page 153, and it is relevantly:

perform services for, any other person –

there being seven named persons –

with the intention –

That is the intention of my client, allegedly –

of supporting or promoting the commission of an offence against section 6 –

That then takes your Honours back to section 6 at page 150.  Looking at subsection (1), there are two variants, and it is only (a) which is relevant:

A person –

This is the person that Justice Leeming usually calls “the militant”, so I will adopt that terminology –

A person [the militant] shall not:

(a)enter a foreign State with intent to engage in a hostile activity in that foreign State –

and then, engaging in a hostile activity in that foreign State is expanded on in subsection (3) at the bottom of page 150:

For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act –

This is the so‑called militant doing an act –

with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved) –

and then, relevantly, it is just (aa) –

engaging in armed hostilities in the foreign State –

Your Honours would appreciate there are at least two, perhaps three, levels of intention operating here.  It is not necessary for my brief argument today to get bogged into exact issues of construction in that regard.  Suffice it to say, there needs to be an intention in the claimed supporter, the person in the position of my client, relating to a section 6 offence, which itself has at least one, if not two, aspects of intention in the militant.

GAGELER J:   Is your challenge just to the validity of section 7(1)(e), or do you also challenge the validity of section 6(1)?

MR KIRK:   The former.  In fact, our challenge ultimately is to the indictment based on the invalidity of that application of section 7(1)(e) to my client.  We accept, to pick up on a point your Honour has raised with me, that section 6(1)(a) requires some physical act outside Australia by the so‑called militant, namely entering a foreign State with a particular intent.  But section 7(1)(e) does not.

Now, as to the fault element of the supporter, the relevant intent of the supporter is, in Justice Leeming’s words, a state of mind about the state of mind of the militant.  That state of mind of the militant relates to potential activities, not activities yet undertaken.  Clearly, section 7 deals with preparatory or supportive acts.  The section 7 offence may be made out whether or not any section 6 offence is made out or committed, and Justice Leeming accepted that – I do not think it is in dispute – there need be no actual entry into the foreign State by the so‑called militant.

The point is brought home usefully, with respect, by the trial judge.  If your Honours go to page 43 of the application book, at paragraph 127 – in a sense, this also perhaps indicates how her Honour the trial judge would propose to direct the jury as to the nature of the offence.  Her Honour accepts various submissions put by my learned junior about things the Crown need not establish – so, first:

That any person for whom the accused performed services . . . actually entered a foreign State –

That ties to the point I have just made.  Second, and importantly –

That the persons for whom the accused is alleged to have performed services themselves intended to enter into the foreign State –

Pausing there, the so‑called militant may be a charlatan.  It is quite possible seeing some particular person who is gullible and wanting to go and support some foreign activities may be prepared to splash around money or so forth, and might be exploited; or it is possible that the supporter may simply be mistaken, thinking “I give this money for this purpose; it will be used for that”.  They have got the intent, but it is unrelated to the intent in the third party.  Going back to subparagraph (3), it is unnecessary –

That any physical event outside Australia actually occurred –

That applies to points already made.  Subparagraph (4), it is not necessary that there be any –

particular consequences . . . to advance either the interests of a foreign government –

or damaging those interests.  It is not necessary –

That entry into the foreign State was imminent or likely –

et cetera.  It is not necessary –

That the putative offender –

that is the supporter –

knew the essential elements of the hostile activities said to be intended –

It is not necessary that –

the putative offender is alleged to have performed services were themselves Australian citizens or residents –

It is not necessary –

That any of the requirements for derivative offences such as attempt, conspiracy or incitement were met.

Just on that point, to drive home that issue, as your Honours would well appreciate, under the Criminal Code – in fact, there is also derivative liability possible here, but just picking up on what ‑ ‑ ‑

BELL J:   But this is a distinct preparatory offence.

MR KIRK:   Correct, that is quite so, your Honour.  But in terms of the differences from – and this feeds into my argument, but it is convenient to deal with it now – for complicity in the sense of aiding, abetting, counselling or procuring either under the Code or the common law, it would be necessary to show that the service performed rendered more likely the commission of the primary offence, and that the primary offence was actually committed.  Neither is necessary here.  For conspiracy, it would be necessary to show an agreement linking in the supposed militant; not here.  For incitement, it would be necessary to show the accused urged, sought, promoted the commission of the offence; not necessary here.

Our argument at its core is that the link to matters external is simply the fact that the supporter believes something about the supposed militant’s state of mind being a state of mind relating to matters outside Australia, where that may be mistaken; there may be in fact no link to anything occurring outside Australia, and in any event, the link is too tenuous.

There are two key steps in the constitutional argument.  One is about whether it is within perhaps what we used to call the central operation of the power – let us call it the direct legal operation of the power.  The Court of Appeal held it was, and I will deal with that momentarily.  We say it is not.  We then say you come to an incidental or purposive assessment.  It is just not close enough.  The link is too tenuous, and that brings in notions of “reasonably appropriate and adapted”.

Before I go through those two steps, I should just remind your Honours of how it was dealt with below.  Her Honour Justice Adamson found it supported on four bases of the external affairs power.  The Court of Appeal took a narrower view and upheld it only based on the so‑called geographic externality, or extraterritoriality aspect of it, established by Polyukhovich and picked up in XYZ.

Now, I recognise that one must not be too didactic about cutting up the external affairs power into little bits.  There is one power - I accept that - relating to external affairs.  Nevertheless, it has proved useful in this Court’s analysis to recognise different aspects of the operation of the power and, as it happens here, the Court of Appeal founded it only on externality.  That is what my argument is addressed to.  But my argument would not necessarily be all that different if we were talking about external relations, effect on international governments, and so forth.

GAGELER J:   Mr Kirk, at page 125, about line 50, there is what Justice McCallum states to be a “relatively simple proposition”.  What is wrong with it?

MR KIRK:   Because, for the reasons I have sought to explain by reference to paragraph 127 of her Honour the trial judge’s judgment, there may in fact be no link to matters external.  There may in fact not be any link, save that what the supporter believes about some third person’s intent.  Now, can one make a plausible argument that that is still sufficient – yes, as her Honour shows, and as the Court of Appeal shows.  But it is a classical argument in this Court, in our respectful submission, to assess what, as Chief Justice Dixon recognised in Burton v Honan, is an issue of fact and degree. 

So if your Honour puts to me it is clearly on a spectrum linking to power, yes, it is.  But we say it is so far along the spectrum as just to cut the link.  Just to illustrate that is well within the established line of argument of this Court, we have handed to your Honours a copy of Re Dingjan; Ex parte Wagner.  Of course, that is a corporations power case, I accept that, but the fundamental principles are much the same. 

I think your Honours are about to be given copies of that case.  I just want to take your Honours to one portion of Justice McHugh’s judgment – recognising, too, it was a 4:3 judgment holding invalid a particular aspect of the then Industrial Relations Act, thus illustrating how these are matters of degree.

Briefly, to remind your Honours, if your Honours look at the headnote on the cover page, there was a section of the Industrial Relations Act which empowered the Commission to review unfair dismissals, in effect, or review unfair contracts.  If your Honours go down about 10 or 12 lines, it extracts section 127C, which provided that the operative provisions:

applied only “(a) in relation to a contract to which a constitutional corporation is a party” –

No challenge there; but (b) –

in relation to a contract relating to the business of a constitutional corporation –

Four members of this Court held that just was a step too far.  If your Honours go to the third last page, 370, in Justice McHugh’s judgment – Justice McHugh’s judgment in Dingjan is often cited about constitutional characterisation – in the second paragraph, third line, his Honour said:

If a law regulates conduct that has no significance for s 51(xx) corporations, it is not a law with respect to those corporations even if that conduct is connected to or even based on what a corporation does –

It is just a step too far.  Then at page 371, at about point 5, eight lines into the second paragraph:

But the jurisdiction conferred by s 127C(1)(b) is not dependent upon the contract having any effect on, or any other significance for, the corporation.

It is an analogy, it is a different power, but it is a similar case, in our respectful submission, about just reaching too far.

GAGELER J:   Well, is the test of reaching too far that identified by Justice McHugh at the top of page 369, by reference to the language of Justice Dixon in Melbourne Corporation?

MR KIRK:   First, there is the classical reference to looking:

to the rights, powers, liabilities, duties and privileges which it creates ‑ ‑ ‑

GAGELER J:   Then it is said –

If a connection exists between the law and a s 51 head of power, the law will be “with respect to” that head of power unless the connection is, in the words of Dixon J, “so insubstantial, tenuous or distant” that it cannot sensibly be described as a law “with respect to” the head of power.

So you have to go that far?

MR KIRK:   Yes, but in a way the four members of this Court in Dingjan were prepared to do.  There are two steps, without being too didactic about it, but as I articulated earlier, there are two steps in the argument.  The first is to say it is not within the direct legal operation of the power to say this affects matters external.  The Court of Appeal was against us on that, and that comes out clearly at – pages 108 to 109 of his Honour’s judgment is the nub of the argument against us as found by Justice Leeming.  First, at paragraph 111, his Honour says it is artificial to separate out the physical and mental elements of the offence.  At 113, first sentence, he says –

Fundamentally, I cannot accept Mr Alqudsi’s submission that the only external element is an offender’s state of mind.

Then at 114, third line, and the next two sentences, “I think that conduct” and “It is the combination of the external aspect”.  Then one gets to the end of the paragraph –

On the view I take, questions of incidental power, purposiveness and proportionality simply do not arise.

Then, for completeness, at 115, he says “but if they do, I am still not persuaded”, and the fourth last line –

And I would also reject Mr Alqudsi’s submission that a proportionality analysis would be required –

Just to deal with that, in relation to 111, it is not us who are dividing out the physical and mental elements.  You cannot divide them.  The mental element – the fault element – relates, as your Honours will appreciate, to what is in the state of mind when someone is doing something.  The criminality is doing something with a particular state of mind.  That is all done here on this indictment in Sydney.  In Justice Leeming’s words, the link is a state of mind about a state of mind which is the external link.  It is the Commonwealth which relies on a division, not us, between the physical and fault elements.

As to the analysis in paragraph 114, when one accepts the point I have just put, that does not grapple with, with respect, the fact that all the conduct with that mental state is occurring here.  You simply cannot say, in our respectful submission, that providing some support in Sydney to other people in Sydney in its legal operation – by reference to the rights, duties, powers and liabilities it changes – is external to Australia.  That is only the first step in my argument.  That does not mean it is necessarily beyond power, but it means it is not in the direct or legal operation.

Then, one has to come to an incidental argument.  It has long been established in this Court, going back to Burton v Honan before, that in assessing incidental questions, purpose is a relevant consideration of different formulations.  I know there has been criticism of those formulations, but a purposive analysis is relevant.

In undertaking that purposive analysis, even if the power is not otherwise purposive, one looks to whether it is reasonably appropriate and adapted to achieve a particular end.  That brings in the issues of fact and degree which Chief Justice Dixon spoke about in Burton v Honan.  It also brings in, in our respectful submission, issues of proportionality – not necessarily in the McCloy three‑step analysis, and so forth, but in the way articulated by Justice Deane in the Tasmanian Dam Case.  As we refer to in our reply submissions, Professor Zines saw no great radicalness in that sort of argument, understanding it as a fairly removed form of proportionality assessment.

Now, how does that fit into our argument here?  In our respectful submission, the offence applies to conduct which in fact may have no connection to Australia.  It is just that step too far.  It depends on the state of mind of a person like my client having a state of mind about others ‑ ‑ ‑

BELL J:   The state of mind that your client has is a state of mind of intention, meaning to produce a result.  What is meant to be produced is the

promotion of an offence by the militant in a foreign State involving engagement in hostilities.

MR KIRK:   That is true, and that is obviously the high point of the case put against me ‑ ‑ ‑

BELL J:   Indeed.

MR KIRK:   ‑ ‑ ‑ and it picks up on what Justice Gageler quoted to me from Justice McCallum.

BELL J:   It does.

MR KIRK:   I accept that.  But the fact remains, in the way I have sought to articulate by reference to paragraph 127, in fact there may be no such connection.  Does it have some indirect link – yes, in the same way as in Dingjan the law might be relevant to corporations, but it did not actually operate on corporations in a sufficiently meaningful way.

Your Honour, might I end up losing the argument, were your Honours to be good enough to grant special leave - of course I might, but there is also a decent argument, we would respectfully put, to say that when one is assessing that spectrum, it is an issue of fact degree and this just goes too far.  Unless I can assist your Honours any further.

BELL J:   Yes, thank you.  Mr Solicitor and Mr Staehli, we do not need to hear from you.

We are of the opinion that the decision of the Court below was plainly correct.  Special leave in each matter is refused, with costs in the matter of Alqudsi v The Commonwealth.

MR GLEESON:   May it please the Court.

BELL J:   The Court will now adjourn to reconstitute.

AT 12.15 PM THE MATTERS WERE CONCLUDED