Commonwealth v Morton

The Commonwealth of Australia (the Commonwealth) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had granted a writ of habeas corpus to the respondent, Morton. Morton had been arrested and detained under a warrant issued by the Attorney-General of the Commonwealth, pursuant to section 6 of the *National Security Act 1939* (Cth) (the Act). The dispute concerned the validity of Morton's detention and the scope of the Attorney-General's powers under the Act.

The High Court was required to determine whether the Attorney-General had acted within his statutory authority in issuing the warrant for Morton's detention. Specifically, the Court had to consider whether the grounds upon which the Attorney-General purported to act, namely that Morton had been concerned in acts prejudicial to the public safety or the defence of the Commonwealth, were sufficiently established or whether the Attorney-General was required to have a belief that Morton had been concerned in such acts. The Court also considered the nature of the power conferred by section 6 of the Act and whether it was subject to any implied limitations.

The Court held that the power conferred by section 6 of the *National Security Act 1939* (Cth) was a discretionary power vested in the Attorney-General, and that the exercise of this power was not subject to review by the courts. The Chief Justice, Barwick C.J., stated that the Attorney-General was not required to establish the truth of the grounds upon which he acted, but merely to form a belief that the person detained had been concerned in acts prejudicial to the defence of the Commonwealth. The majority of the Court found that the Attorney-General had acted within the scope of his statutory authority, and that the Supreme Court of New South Wales had erred in granting the writ of habeas corpus.

Consequently, the High Court allowed the appeal, set aside the order of the Supreme Court of New South Wales, and discharged the writ of habeas corpus. Morton's detention was therefore upheld as lawful.