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Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

Case [2014] HCATrans 120 11 June 2014

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Statutory Interpretation

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[2014] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S36 of 2014

B e t w e e n -
SLEIMAN SIMON TAJJOUR
Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant

Office of the Registry
Sydney No S37 of 2014

B e t w e e n -
JUSTIN HAWTHORNE
Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant

Office of the Registry
Sydney No S38 of 2014

B e t w e e n -
CHARLIE MAXWELL FORSTER
Plaintiff
and
STATE OF NEW SOUTH WALES
Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 JUNE 2014, AT 10.15 AM

(Continued from 10/6/14)

____________________

FRENCH CJ: Yes, Mr Solicitor.

MR DONALDSON: If your Honour please. Could we make one or two short submissions in respect of the construction of the relevant provision, without wishing to cut across the submissions that have been made by New South Wales, particularly

in relation to construction which we understood to be to the effect that as a matter of construction section 93X can be construed as excluding or not applying to consorting for the purpose of political communication. Likewise, your Honour, our submissions or short observations in relation to construction are not intended to cut across my learned friend’s reading down submission, both of which, of course, the construction submission and reading down submission get to the same end point.

In relation to construction, your Honours, it is clear from the second reading speech for this legislation, and we refer to that in our written submissions at footnote 38, that the meaning of “consort” for the purpose of section 93X was intended to be the meaning ascribed by Johanson. I will not take your Honours to the second reading speech but there is express reference made there to Johanson. What one gets from Johanson in relation to the meaning of the term “consort” can be distilled, in our respectful submission, to this. It is essentially the formulation of Justice Hayne yesterday morning and it comes from the judgment of Sir Anthony Mason and Justice Aickin.

In our submission, what comes from Johanson is the meaning of consort as follows, that consort involves association and keeping company – sorry, if I can pause there – it is not, in response to some of Justice Keane’s questions yesterday, a coincidental, being in the same room as; it is, in terms of Johanson, involved an association and keeping company where the defendant seeks out or accepts the association – so again, a deliberate process of seeking out or accepting the association – with criminals.

It cannot be seen from Johanson that in relation to consorting offences historically in Australia there was any purposive limitation. Can I ask your Honours to turn to Johanson to illustrate that please? That is (1979) 143 CLR 376. Can I ask your…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales [2014] HCATrans 120
Case: [2014] HCATrans 120
Decision Date

CaseChat Overview and Summary

These three cases, heard together, concerned challenges to the constitutional validity of certain provisions of the *Crimes Act 1900* (NSW) and the *Terrorism (Police Powers) Act 2002* (NSW). The applicants, Tajjour, Hawthorne, and Forster, were all charged with offences under these Acts. The central dispute revolved around whether these provisions, which permitted the police to stop, detain, and search individuals and their belongings without a warrant, were consistent with the implied freedom of political communication protected by the Australian Constitution. The High Court of Australia was tasked with determining this constitutional question.

The primary legal issue before the High Court was whether the impugned provisions of the *Crimes Act 1900* (NSW) and the *Terrorism (Police Powers) Act 2002* (NSW) impermissibly infringed the implied freedom of political communication. Specifically, the Court had to consider whether the powers granted to police to stop, detain, and search persons and their property, even in the absence of reasonable suspicion, were reasonably appropriate and adapted to serve a legitimate purpose in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

The High Court, by majority, found that the provisions of the *Crimes Act 1900* (NSW) and the *Terrorism (Police Powers) Act 2002* (NSW) were invalid. The majority reasoned that the broad powers conferred by these Acts, which allowed for arbitrary detention and search without any requirement for reasonable suspicion, went beyond what was reasonably appropriate and adapted to serve the legitimate purpose of preventing terrorism or serious crime. The Court applied the established test for determining the validity of laws that might infringe the implied freedom of political communication, requiring that such laws be reasonably appropriate and adapted to serve a legitimate purpose in a manner compatible with the system of representative and responsible government. The powers in question were found to be disproportionate and to unduly burden the implied freedom.

Consequently, the High Court declared the relevant provisions of both Acts to be invalid.

Orders