Thomas v Mowbray & Ors

[2007] HCATrans 78

[2007] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M119 of 2006

B e t w e e n -

JOSEPH TERRENCE THOMAS

Plaintiff

and

GRAHAM MOWBRAY, FEDERAL MAGISTRATE

First Defendant

MANAGER, COUNTER‑TERRORISM – DOMESTIC, AUSTRALIAN FEDERAL POLICE

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 21 FEBRUARY 2007, AT 10.18 AM

(Continued from 20/2/07)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  Your Honours, I propose first to deal with three questions outstanding from yesterday, then to complete my submissions on the Chu Kheng Lim arguments, then deal with the Brandy argument and finally the Fardon argument. The first of the three matters outstanding from yesterday was a question asked by Justice Callinan at page 215, point 9 of the transcript where your Honour said to me:

The life of the order is initially 14 days, is it not?

And I said:

Initially, yes.

That is not accurate.  The section 104.5(1A) - - -

GUMMOW J:   I am sorry, what transcript line are you referring to, Mr Solicitor?

MR BENNETT:   Page 215.  The transcript line is 9534.

GUMMOW J:   Thank you.

MR BENNETT:   Your Honours see under paragraph (1)(e):

the interim control order, the order must . . . 

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

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

(ii)declare the interim control order to be void; or

(iii)revoke the interim control order –

that date must, by subsection (1A):

be as soon as practicable, but at least 72 hours, after the order is made.

There is no period of 14 days specified, it is “as soon as practicable, but at least 72 hours, after”.  In the present case it was five days.

The second matter is I was asked about similar legislation concerning a court taking into account the public interest.  I have not listed the sections but there are numerous examples in the Takeovers Code in the Corporations Law and in the Trade Practices Act where the public interest is taken into account in relation to concepts such as significant lessening of competition.  Those are two areas where courts regularly take into account the public interest as required by statute ‑ ‑ ‑

HAYNE J:   Could you at some later time provide me with a list of the provisions to which you refer and would you be good enough to relate what you would say about those provisions to what Justice Windeyer says in Tasmanian Breweries 123 CLR, particularly at 401 to 402, where his Honour fastened upon the reference to public interest as indicating that it was not the exercise of judicial power by the Tribunal.

MR BENNETT:   Yes, I will have that done, your Honour.  My recollection is that it was one of a number of factors which tended in that direction.

HAYNE J:   I understand that.

MR BENNETT:   Yes.

KIRBY J:   I do not think the question – I may be wrong – was directed to legislative provisions that refer to the public interest.  I think such provisions are known but it is really the collection of judgments that are contained in the current legislation that was more the focus and that is a more nuanced, or on one view less nuanced, collection of words than just referring to the public interest.  It is not all that uncommon to see references to public interest in legislation, federal and State.

MR BENNETT:   So far as we are aware, your Honour, there are no provisions which fall into that category in Commonwealth law.

HAYNE J:   I have in mind the disqualification powers of ASIC concerning directors which I think, if my memory serves me right, require consideration of public interest and were the subject of debate recently in the Court.

MR BENNETT:   Yes.  As I submitted yesterday, the area of professional and quasi‑professional discipline in relation to insurance executives, company directors, pilots and other people whose professions are controlled by Commonwealth legislation have been regarded as classic chameleon powers.

KIRBY J:   Yes, but they are in a context of professions or occupations where there are settled standards.  The problem in this area is that, as with the example you gave yesterday of prognostication of medical conditions, that is done according to a medical discipline and with enormous background of thousands of years of medical experience, whereas this is not really in the same category.

MR BENNETT:   I suppose the other example one could give is the example in a wrongful death case brought by a spouse where one of the matters the court takes into account in assessing damages is the prospects of remarriage.  That is an area, of course, where there is no expert evidence.  It is pure prognostication.  I was also asked thirdly about the provenance of the legislation.  Much of the material seems to have come from or at least be closely related to the United Kingdom legislation, but I will take your Honours in due course to that in some detail and also to the position in various other Commonwealth countries where legislation bearing some similarities to this has been enacted, but I will take your Honours to that when I come to it.

I was dealing yesterday, in relation to the Chu arguments, with the question of this not being detention in custody.  I have substantially finished my submissions on that.  I simply submit that requiring a person to stay at home between midnight and 5.00 am or at some other address which he chooses to notify is not the most onerous of conditions.  It might depend on one’s age perhaps.

CRENNAN J:   But the control order as a whole contains an element of surveillance, does it not?

MR BENNETT:   Yes, it does, your Honour, but the important thing is that his movements are partially inhibited but certainly not to the extent of being detained in custody.  There are no guards, there is no restriction on normal activities and, as I say, he chooses even where he will spend the night, certainly where he goes during the day.

KIRBY J:   Yes, but it is an inhibition on freedom which is a very important commodity in our form of society.

MR BENNETT:   I accept that, your Honour.  I am just dealing with the concept of detention in custody which is the concept on which the passage in Chu Kheng Lim deals.  The second aspect of the Chu Kheng Lim arguments is that the passage which I cited has been the subject of some subsequent criticism.  First, may I remind your Honours of what was said by Justice Gaudron in Kruger v The Commonwealth (1997) 190 CLR 1. At page 110, point 2, Justice Gaudron, having referred to the passage and having listed some of the exceptions about arrest and custody pending trial, detention by reason of mental illness or infectious disease, punishment for contempt of Parliament and breach of military discipline, and, of course, the aliens exception in Chu itself, her Honour goes on to say this:

At one level, the existence of so many acknowledged exceptions to the immunity for which the plaintiffs contend and the fact that those exceptions serve so many different purposes tell against the implication of a constitutional rule that involuntary detention can only result from a court order.  And that is so even if the supposed rule is one that is subject to exceptions.  Of greater significance, however, is that it cannot be said that the power to authorise detention in custody is exclusively judicial except for clear exceptions.  I say clear exceptions because it is difficult to assert exclusivity except within a defined area and, if the area is to be defined by reference to exceptions, the exceptions should be clear or fall within precisely confined categories. 

The exceptions recognised in Lim are neither clear nor within precise and confined categories.

That passage was endorsed by your Honour Justice Hayne with whom your Honour Justice Heydon agreed in Al Kateb 219 CLR 562 at paragraph 258 and Justice McHugh in Re Woolley, which is only reported so far in 210 ALR 369, and it is paragraphs [57] to [62]. I will not take your Honours to those. The second matter to note about it is that the plaintiff treats the exceptions as relevant only to executive detention, but there are two answers to that. The first is that there are examples involving courts. There is a long history of antecedence to apprehended violence orders and the writ of supplicavit. I am saved from having to deal with that history by the fact that it is dealt with in some detail in the South Australian submissions and my learned friend the Solicitor for South Australia is going to deal with that in some detail.

The history shows among other things that justices have power to issue orders even where no crime had been committed and, indeed, that the courts had powers in relation to those orders and had the primary powers where the defendant was a peer, in relation to whom it was apparently considered inappropriate that a justice should make the order.  But my learned friend will deal with those matters and I will not do so. 

There are other examples, of course, of courts causing people to be detained in custody other than as a consequence of criminal guilt.  The arrest of a witness who fails to attend or seeks to leave before being excused while giving evidence is one example.  Jury sequestration is an even stronger example where certainly there is no suggestion of anyone having committed any offence.  There are provisions in sections 25 and 33 - I will not take your Honours to them - of the Mental Health Act (NSW) 1990 under which, in certain circumstances, the court can order detention in a mental health situation.  So there are other examples where the exceptions are not confined to executive detention, the ones listed in Chu. 

The other aspect is this, that there is no reason, in our submission, to say that there should be a rule permitting executive non‑punitive detention, but prohibiting judicial non‑punitive detention.  Such a rule would defy logic.  It would be the reverse of any aspect of common sense or policy to the situation.  One cannot imagine that such a rule is implied in Chapter III.  There are a number of recent cases in which this Court has referred to this factor.  The first is Fardon v Attorney‑General of Queensland 223 CLR 575, where your Honour the Chief Justice at paragraph 2 said this:

As Charles JA pointed out in R v Moffatt . . . it might be thought surprising that there would be an objection to having detention decided upon by a court, whose proceedings are public, and whose decisions are subject to appeal, rather than by executive decision.  Furthermore, as Williams JA pointed out in this case, there is other Queensland legislation under which indefinite detention may be imposed at the time of sentencing violent sexual offenders . . . If it is lawful and appropriate for a judge to make an assessment of danger to the community at the time of sentencing, perhaps many years before an offender is due to be released into the community, it might be thought curious that it is inappropriate for a judge to make such an assessment at or near the time of imminent release, when the danger might be assessed more accurately.

Justice McHugh in the same case in paragraph 44 said:

On the contrary, the irresistible conclusion is that the Queensland Parliament has invested the Supreme Court of Queensland with this jurisdiction because that Court, rather than the Parliament, the executive government or a tribunal such as a Parole Board or a panel of psychiatrists, is the institution best fitted to exercise the jurisdiction.

HAYNE J:   The hypothesis for this branch of your argument is, is it not, that the defence power today would authorise executive detention without warrant?  If that be not so, the comparison you make falls down, I think, does it not?

MR BENNETT:   It would in a strong enough case, your Honour.  I have not taken your Honours to the authorities, which your Honours are familiar with, in the First and Second World War.

HAYNE J:   Just so, but am I right to say that the hypothesis for this branch of the argument is that the defence power would authorise executive detention by warrant of the Minister?

MR BENNETT:   Yes, your Honour, but with this addition, that – all I am doing at the moment is rebutting an argument based on the passage in Chu and I am seeking to demonstrate that the passage in Chu and my attack on it, and the exceptions to it, are equally applicable to judicial attention as to executive detention.  My learned friend criticises our arguments by saying that is only talking about executive detention, so the passages in the Court which have criticised the passage in Chu are inapplicable.  We submit that is not the case.

The only other passage I need to take your Honours to is the familiar passage in Grollo v Palmer 184 CLR 348 where at page 367 halfway down the page – this is just before the introduction of paragraph numbers - Chief Justice Brennan and Justices Deane, Dawson and Toohey said this:

Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today’s continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law’s protection of privacy and property . . . be authorised to control the official interception of communications.  In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other.

KIRBY J:   That has now to be read in the light of later observations in this Court, including in Wilson.

MR BENNETT:   Yes.  I will come to the Wilson issue separately, your Honour.  That is a matter I am dealing with as a separate topic, the issue arising out of Wilson and to a lesser degree the Fardon and Kable issue as to the appropriateness of judges doing certain things, and I will come to that.  These passages are of course relevant to that consideration of it as well.

GLEESON CJ:   What about at the top of 368?  What was that case of Klass about?

MR BENNETT:   Your Honour, the passage suggests it is the judicial issuing of a warrant to authorise secret surveillance of suspects in criminal cases.  It is in that context.  But it is a European human rights case and it is a general observation which we would submit is clearly appropriate.  It is convenient at this point to deal very briefly ‑ ‑ ‑

KIRBY J:   Is it inherent in the arguments you have so far put, quite apart from the defence power, there is in Australia under our Constitution an unlimited power of the Executive Government to arrest and detain people under any of the powers given to the Federal Parliament? Why put any limitation on it?  Detain them forever.  Just put them on an island off the coast.

MR BENNETT:   Your Honour, there may be limitations under some of the powers but the defence power is not one of them.  That is not an issue which needs to be investigated today.

KIRBY J:   You always say that but we do have to investigate these things. You have to look down the years and see where your theory of the Constitution leads. It is just common sense. That is the way you interpret a Constitution. I just cannot understand the argument that you ignore the extension of logic.

MR BENNETT:   Your Honour, the ‑ ‑ ‑

KIRBY J:   You have to have a theory of the nature of our governance and of the nature of the governance under the Constitution, which in the past has been a temperate one.

MR BENNETT:   There is no constitutional limitation, in my submission, in relation to the use of detention where that is appropriate for the purpose of exercising one of the Federal Government’s powers.  One can give numerous examples.  The example in Chu Kheng Lim itself, of course, in relation to aliens ‑ ‑ ‑

KIRBY J:   Yes, but they have always been regarded as exceptions and to be confined so that the general principle is that the Executive in our form of society does not have a power to lock people up, just take away their liberty, and that that is the theory on which the Constitution is built.

MR BENNETT:   Your Honour, that suggestion is one which is disputed by the passage I have cited in Kruger and the passages in Al Kateb which comment on it.

KIRBY J:   Well, Al Kateb is a very much debated case on which the Court was narrowly divided.

MR BENNETT:   One can easily imagine situations under almost any power where it may be necessary to have some form of executive temporary detention.  I suppose one could take an example of a law which said that if there was a room in the top of a lighthouse that to get out of one has to walk across the light, that one can be detained by the lighthouse keeper in that room until a ship has passed so one does not block the light.  That would be an example of short-term detention ‑ ‑ ‑

KIRBY J:   That is a very obscure head of power. If you take the other heads of power including the corporations power as lately expressed, your theory of the Constitution would give a huge power to the Executive of this country to arrest and detain people without the judiciary’s necessary intervention.

MR BENNETT:   Your Honour, it is something that just does not arise here.  This is a case about judicial power.  It is not a case about executive power and the Court has dealt with the question of executive power in a number of recent cases and the limitations on it and there is just no occasion to revisit that in this case.

KIRBY J:   You are the one who read the passage from Kruger and you say there are these exceptions for quarantine, exceptions for this and that and now you say that really they are not exceptions, it is just the general rule.  Well, that is an idea that I am resisting.

MR BENNETT:   Yes, but, your Honour, I am only doing it for the purpose of resisting the use of the passage in Chu against me.  That is the only purpose.  I am submitting in any event that the passage in Chu is concerned with executive detention.  It is a passage which, as I say, has been criticised in this Court.  Whether or not there is some other rule is one which can be considered when there is a case on executive detention.  I am really distinguishing it as something that does not affect the argument in this case where we are talking about something totally different.  We are talking about a restriction short of detention in custody imposed judicially, which is something very different indeed.

KIRBY J:   It is imposed judicially on the basis of an affidavit by the Australian Federal Police which is very difficult and may not be possible for the person the subject of it to challenge and test.

MR BENNETT:   He or she can challenge or test it in the same way as one can challenge or test anything else that is alleged against a person in a civil or criminal court.  Indeed, the legislation goes out of its way to facilitate that in a number of respects.  If one goes to section 104, first the police officer may not even request the order without the Attorney‑General’s consent.  That is 104.2(1), and there are procedures under which one goes to the Attorney‑General for that which includes in subsection (3)(b)(ii):

if the member is aware of any facts relating to why the order should not be made – a statement of those facts -

So there is a great deal of detail provided which is set out in subsection (3).  Then the court itself on the initial application has to take into account the impact of the restriction on the person’s circumstances.  That is 104.4(2).  In doing that the court under 104.4(1)(b) has to receive and consider such further information as it requires which can include information from the respondent.  Then, of course, it comes before the court on a day specified as soon as practicable after three days during which the control order can be challenged in various ways at a full hearing.

My learned friend submitted that there was no room for challenging it on the basis that there had been nondisclosure, as in the case of an ex parte injunction.  We submit that is precisely one of the bases on which one could challenge it simply because all the ordinary procedures of the court are picked up when a jurisdiction is conferred upon it.  That is the Electric Light principle with which your Honours are familiar.  I will be referring to that case in a little more detail later on.

That clearly picks up the rule in relation to interlocutory injunctions, that they can be discharged if there is not full disclosure.  That applies to all interlocutory orders, not just interlocutory injunctions.  It can apply in relation to an abridgement of time made ex parte and leave to serve short notice, in effect.  In my respectful submission, this is a case where there are extensive precautions built into the legislation.  There is, of course, no requirement that even the original application be ex parte.  As a practical matter one can understand it frequently would be for fairly obvious reasons but there may be cases where it is not.

I should mention to your Honours some of the legislation in other parts of the common law world.  The Canadian Anti‑Terrorism Act introduced recognizance orders to the Code.  It is section 810.01 in Part XXVII of the Canadian Criminal Code.  It is in some supplementary materials your Honours have.  It bears a lot of resemblance to our legislation in some ways, not as much as the English legislation does:

(1)      A person who fears on reasonable grounds that another person will commit an offence –

under certain sections which include “a terrorism offence” as defined –

may with the consent of the Attorney General, lay an information before a provincial court judge.

(2)      A provincial court judge . . . may cause the parties to appear before a provincial court judge.

(3)      The provincial court judge . . . if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsection (5) –

where there are some specific things concerning items of property -

that the provincial court judge considers desirable for preventing the commission of an offence referred to in subsection (1).

(4)      The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

Then there are conditions about firearms and so on.  Reasons have to be provided – that is subsection (5.2).

GLEESON CJ:   Could you read again subsection (5)?

MR BENNETT:   Yes:

(5)      Before making an order under subsection (3), the provincial court judge shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period ‑ ‑ ‑

GLEESON CJ:   I just have a different version of it, that is all.

MR BENNETT:   Now, the definition of “terrorism offence” appears in the definition section.  It is page 8 of 10 and it includes a range of offences in relation to terrorist activity which is defined in section 83.01 and ‑ ‑ ‑

KIRBY J:   That is behind which tab in the collection?

MR BENNETT:   Tab 5, your Honour.  It has been inserted in the back, your Honour.  It is additional ‑ ‑ ‑

HAYNE J:   Interleaved.

MR BENNETT:   It is interleaved, yes.

KIRBY J:   I see, yes.

MR BENNETT:   There is a list of matters in other legislation but what is interesting for our purposes is paragraph (b) which refers to:

(b)      an act or omission, in or outside Canada,

(i)     that is committed

(A)in whole or in part for a political, religious or ideological purpose, objective or cause, and

(B)in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada,

Then there is the damage provision:

(A)     causes death or serious bodily harm to a person by the use of violence,

(B)endangers a person’s life,

(C)      causes a serious risk to the health or safety of the public or any segment of the public,

(D)     causes substantial property damage . . . 

(E)      causes serious interference with or serious disruption of an essential service, facility or system

GLEESON CJ:   In Australia now, do magistrates still bind people over to keep the peace?

MR BENNETT:   As I understand so, yes, your Honour.

GLEESON CJ:   And this concept of attaching conditions to recognizances of the kind that they have in Canada, could a magistrate in Victoria bind Mr Thomas over to keep the peace and could he attach to that order conditions of the kind that we are here concerned with?

MR BENNETT:   I do not have the provisions in front of me.  I can have those obtained.

GLEESON CJ:   Perhaps you could let us have a note on that in due course.

MR BENNETT:   Yes, I will, your Honour.  I will have that done.

KIRBY J:   Are there the equivalent of control orders in the Canadian legislation?

MR BENNETT:   Your Honour, that is what I have been taking your Honours to.  It is a little different.  It is called a recognizance but it can contain conditions ‑ ‑ ‑

HAYNE J:   An essential element of proof is suspicion that the person to be the subject of the order will or may commit an offence, and that is a marked difference from the legislation with which we are concerned, is it not?

MR BENNETT:   It is not absolutely clear, if one looks at section 810, that the defendant has to be the other person referred to in subsection (1), but it probably is the case.  It is not absolutely clear.

GLEESON CJ:   It is probably the case, is it not, because what you are doing to the person is binding the person to keep the peace and be of good behaviour.

MR BENNETT:   Yes.

HAYNE J:   The other person is the defendant, I would have thought, Mr Solicitor, but perhaps I read it too quickly.

MR BENNETT:   No, it seems to be the case, your Honour.

HAYNE J:   Is it a point of distinction that the Canadian legislation is directed to persons who are believed or suspected on reasonable grounds of themselves being likely to commit an offence?

MR BENNETT:   That seems to be a point of distinction, your Honour, although, of course, it is not a relevant point of distinction in this case, on the facts of this case.

HAYNE J:   Why?

GLEESON CJ:   You would need to know what a criminal organisation offence is as well as what a terrorism offence is, would you not?

MR BENNETT:   Section 423, the criminal organisation offence, seem to be separate categories.  The relevance of it for present purposes is the third alternative, a terrorism offence.

KIRBY J:   “Criminal organization offence” is defined on page 3 of the supplement.

GLEESON CJ:   I am sorry, I did not follow the last remark that you made, Mr Solicitor.  Can you be a person who commits a criminal organisation offence without actually committing any terrorist act yourself?

MR BENNETT:   Yes, your Honour, because there are three categories which seem to be quite separate.

GLEESON CJ:   The reason I asked you that was, can you be bound over to keep the peace and be made a subject of one of these recognizances with these conditions on the basis that it is feared that you will commit a criminal organisation offence rather than that you will commit a terrorism offence?

MR BENNETT:   Yes, your Honour, that seems to be clear from the wording of section 810.  There are three alternatives.  It deals with three different situations.

GLEESON CJ:   Would a criminal organisation offence consist of the kind of conduct that was described by the magistrate in this case as acting as a resource?

MR BENNETT:   It sounds like it because the definition of “criminal organization offence” is an offence under a number of listed sections or:

a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization –

which apparently is defined in section 467 –

(b)      a conspiracy or . . . being an accessory –

to any such offence.

KIRBY J:   That seems a little more specific than becoming a resource for an organisation.  It seems to contemplate the commission of a particular offence.

MR BENNETT:   It does, your Honour, but being a resource for an organisation is a colloquial expression which normally would involve, no doubt, the commission of an offence. 

HAYNE J:   Is it any part of the proofs under section 101.4 to demonstrate that the person to be restrained is, is likely to, is feared to, is suspected of, possibly committing an offence?

MR BENNETT:   Your Honour, the provisions of the Crimes Act in relation to attempts and aiding and abetting and so on are picked up.  The offences under section 101.4 would no doubt involve, because of the general provisions mens rea one would need to have some degree of knowledge or recklessness about whether the thing one had was intended to be used in a terrorist offence and so on.

GLEESON CJ:   I am sorry, Mr Solicitor, I am having a lot of difficulty in just putting my eyes on what is the relevant Canadian legislation.  I am concerned not with an offence under section 423.1 or with a terrorism offence but at the moment a criminal organisation offence.  Where can I read what a “criminal organisation offence” is?

MR BENNETT:   We do not have in the material the definition of “criminal organisation” but we do have the ‑ ‑ ‑

GLEESON CJ:   Section 423 looks to be a section about going around frightening journalists.

MR BENNETT:   I am sorry, your Honour, I ‑ ‑ ‑

GLEESON CJ:   What is a criminal organisation offence of the kind ‑ ‑ ‑

MR BENNETT:   It is defined, your Honour, as an offence under certain nominated sections that we do not have:

or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization ‑ ‑ ‑

GLEESON CJ:   What we need to know is the part that you said you do not already have.

MR BENNETT:   Yes.  Your Honour, I will have all of those provisions obtained.

GLEESON CJ:   The part before the word “or”.  If you could give us a note about that it would be convenient.

MR BENNETT:   Yes, I will have that done, your Honour.

KIRBY J:   Has there been any challenge in the Supreme Court of Canada by the standard of the Charter directed to this legislation?

MR BENNETT:   Your Honour, there was, as I understand it, one case which challenged the extent to which the definition contravened the anti‑discrimination provisions of the Charter because it required the act to be done for an ideological or religious cause.  There was a case discussing that issue.  I am not aware of anything other than that in Canada which discusses ‑ ‑ ‑

KIRBY J:   Does your written submission make reference to that case?

MR BENNETT:   No, your Honour.

KIRBY J:   If you have that if you would add that to the note.

MR BENNETT:   I will have that done.  The position in the United Kingdom is best seen by reference to a decision – I think your Honours have been given copies of this case or it has been referred to – the case of Secretary of State for the Home Department v MB. It is only reported so far in [2006] 3 WLR 839 which means, of course, that it will ultimately be in the authorised reports, in the Queen’s Bench Reports. The House of Lords has given leave to appeal. It did that on 29 January this year, so there is an appeal pending.

This was a case where there had been a declaration of incompatibility made by the trial judge between some provisions and the human rights legislation.  The Court of Appeal set aside that declaration of incompatibility and held that the legislation was not incompatible.

The English scheme - and I really go to the case less for the purpose of its findings than simply to demonstrate the legislation and the way it has been treated in England.  There seem to be two types of orders, as I understand the English legislation - the Prevention of Terrorism Act 2005.  They have what are called control orders, as here, but they are of two types:  non-derogating control orders which are intended to be not incompatible with the right to liberty under the Convention for the Protection of Human Rights, and derogating control orders which are inconsistent with that right.  There is a difference between the procedure for making a non‑derogating order and the procedure for making a derogating order.

This case concerned a non-derogating order which is made by the Home Secretary, but apparently the Home Secretary has to apply to the court for permission to make the control order.  So the court comes in at that stage.  If your Honours go to paragraph 58 on page 857, there is a discussion of the role of the court.  At paragraph 58 this appears:

Section 3(10)(a) of the PTA requires the court to consider whether the decision of the Secretary of State that there were reasonable grounds for suspecting that the subject of the order was involved in terrorism-related activity was flawed. Involvement in terrorist‑related activity, as defined by section 1(9) of the PTA, is likely to constitute a serious criminal offence, although it will not necessarily do so. This, of itself, suggests that when reviewing a decision by the Secretary of State to make a control order, the court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion.

Then paragraph 60:

Whether there are reasonable grounds for suspicion is an objective question of fact.  We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity.

61 Somewhat different considerations apply in respect of the second element in the Secretary of State’s decision. Section 3(10) requires the court to review the decision of the Secretary of State that it was necessary, for purposes connected with protecting the public from a risk of terrorism, to make the control order.

That is similar to our provision.

The court is further required to consider his decision on each one of the obligations -

as here.  Then they say:

63       Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality.  The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity.  The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected.  They may also depend upon the resources available to the Secretary of State and the demands on those resources.  They may depend on arrangements that are in place, or that can be put in place, for surveillance.

64       The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State.

That is rather like the margin of appreciation which is applied in European jurisprudence.

KIRBY J:   I wonder about that.  I mean, deference to the Minister in matters of security and so on is a common law country concept.  Margin appreciation is a European.

MR BENNETT:   Yes, it goes further than that concept, your Honour:

That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court -

He refers to a case that one would rather like to see called Ireland v United Kingdom.

65       Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so.  The exercise has something in common with the familiar one of fixing conditions of bail.  Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the same result.

So one has a structure involving the Executive and the court which is, while different, one which bears some resemblance to our structure.  You start with the Executive making the decision based on its resources and then the court having to look at the decision and review it and including the question of proportionality, which is one of the matters that is directly taken into account.

HAYNE J:   How, if at all, do questions of resources of the kind mentioned in paragraph 63G of this case play in the consideration by the court under 104.1(4)?

MR BENNETT:   They certainly are not given specific weight.  Your Honour is referring to 104.4(1), I think?

HAYNE J:   Yes.

MR BENNETT:   It probably does not, your Honour, because that would be something that would be determined, no doubt, by the senior AFP member in deciding whether to make the application and what to apply for.

HAYNE J:   How then does the court determine what is reasonably necessary for the protection of the public by the standards of reasonability shorn of any consideration of resources, surveillance and other methods available to the Executive to achieve the same end?

MR BENNETT:   So far as resources are concerned, there is no need for the court to consider it.  The court is concerned with protecting the individual and with the degree of risk. 

HAYNE J:   The court is concerned with protecting the public and the degree of risk.

MR BENNETT:   Yes, and with protecting the individual, your Honour.  That appears from subsection (2).

HAYNE J:   Yes, I understand that.

MR BENNETT:   The Act appears to assume that the AFP officer will not seek orders which require the use of resources which are not available.  So it is not going to arise.

HAYNE J:   No, it is the inverse, Mr Solicitor, whether the AFP seek orders that are unnecessary and the court is pressed into making an order on the footing that it is reasonably necessary to protect the public when it is not.

MR BENNETT:   That, your Honour, would squarely be dealt with by 104.4(1)(b).  The court can require further information.  That would be a matter, no doubt, the court would look at for the purpose of determining if something is reasonably necessary.  For example, if there are particular resources available which would enable some less intrusive procedure to be applied, then the court could inquire about that and take it into account.

HAYNE J:   The court is then put on the horns of a dilemma.  Does it cross‑examine for itself the AFP officer to have him or her reveal matters which, ordinarily speaking, security services are very anxious to keep secret, or does it simply take things at face value?  The questions are not captious, Mr Solicitor.  They are questions directed to the nature of the legal criterion that you say is bound up in this notion of “reasonably necessary to protect the public” or “reasonably appropriate and adapted to protect the public”.

MR BENNETT:   Yes.

HAYNE J:   Perhaps the point is sufficiently clear for you to deal with as you feel you need to, but you see the cause of my concern.

MR BENNETT:   Yes.  Your Honour, obviously it is an area where there may be inhibitions on the publicity given or the disclosure of certain types of evidence if that becomes necessary, but it is the duty of the court, as best it can, to obtain the information and satisfy itself in relation to possible alternatives.  The machinery is there for the court to do that.  The use of further machinery, which I think the Act deals with elsewhere, about confidentiality of particular information, for example, the nature of identity of informers and people who are available, numbers of resources in particular places, both plain‑clothes and uniformed, all those matters no doubt might, as in any other case, be the subject of some particular constraints in relation to evidence. 

That does not affect the construction of the section.  As far as the section is concerned, the court must look at alternatives and can obtain evidence for that purpose.  The Canadian legislation has a specific reference to the question of resources, but here it is merely implicit, implicit in the general obligations.

We have done some research in relation to other places.  We did not find any similar provisions in South Africa.  In the United States the Patriot Act 2001 has provisions for post‑release supervision of terrorists and there is provision for the President to make executive orders that designate terrorists and free certain items of property and so on, but otherwise there is nothing directly analogous to control orders. 

In New Zealand, again there is nothing directly similar, but under the Terrorism Suppression Act 2002 the Prime Minister can make interim and final designations of entities as terrorist entities and that can lead to restrictions on dealing with others. 

In India, the Prevention of Terrorism Act 2002 was repealed in September 2004.  It gave extensive power to make rules to the High Court to regulate the conduct of persons in respect of areas, the control of which is considered necessary and there is power conferred on the central and state governments to make general or special orders to prevent or deal with terrorist acts.  Under the Indian National Security Act 1980, the central or state governments can make detention orders with respect to a person with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.

In Pakistan, there is the Anti Terrorism Act 1997 which has extensive definitions, but ‑ ‑ ‑

KIRBY J:   You tell us that the Prevention of Terrorism Act of India was repealed so that they do not have such legislation now.

MR BENNETT:   They still have the National Security Act 1980, as I understand it.

GLEESON CJ:   What is the position about control orders in Israel?

MR BENNETT:   I do not know the answer to that question, your Honour, but I can have it ‑ ‑ ‑

GLEESON CJ:   Can you find that out and let us know and in particular let us know whether there has been any litigation in relation to those orders.

MR BENNETT:   Yes, I will have done.

KIRBY J:   Is the detention of prisoners in Guantanamo Bay performed under the Patriot Act, so‑called.

MR BENNETT:   I do not know the answer to that, your Honour.  I do not think so, but I do not know the answer to that.

GUMMOW J:   I think you might find that the Israeli system goes back to the British Mandate.

MR BENNETT:   Yes, it very well may.

GUMMOW J:   And the turbulent events of the 1940s.

MR BENNETT:   Yes.  Pakistan as I say does have legislation about terrorism, but it does not seem to have anything corresponding to control orders.  There is a provision – section 10(5) which has this provision:  “Where in a case triable by an anti-terrorism court an accused has been released from police custody under the Code or has been remanded to judicial custody, the anti-terrorism court may, on good grounds being shown by a public prosecutor or a law officer of the government, for reasons to be recorded in writing, make an order placing him in police custody for the purpose of further investigation of the case.”  So there is a provision for interim custody in the Pakistani terrorist legislation.

KIRBY J:   That is about the closest we have to our legislation.  The police can have the person arrested although acquitted of any criminal charge.

MR BENNETT:   Yes, apparently.

HAYNE J:   Apropos of comparative matters, A.W.B. Simpson in an article called “Round up the usual suspects, a Legacy of British Colonialism and the European Convention on Human Rights” in 41 Loyola Law Review 629 gathers together the numerous British colonial templates available for detention without trial.  Amongst them he considers the position in Palestine v State of Israel.

MR BENNETT:   I am indebted, your Honour.

KIRBY J:   I think some of those laws are still in force in Singapore, Malaysia and some other countries of the Commonwealth of Nations.

MR BENNETT:   Yes.  We have not attempted an exhaustive trawl so far but I will certainly endeavour to have it taken a lot further than we have taken it.

The final matter in relation to the Chu argument is that it does seem clear that if the criminal guilt proposition in Chu is good law, that there is an exception to it in relation to the defence power and that is suggested by Justice McHugh in Al-Kateb at paragraphs 60 to 61 where Justice Hayne in Al-Kateb at paragraph 259, a judgment with which Justice Heydon agreed at paragraph 303.  Your Honour Justice Kirby expressed a different view at paragraphs 163 to 165 in that case so I should give your Honours those references.

We would submit that the categories of exception are, in any event, not closed.  The underlying rationale of the existing exceptions, or most of them, is the protection of the public and that is said in Al‑Kateb by your Honour the Chief Justice at paragraph 4, by Justice McHugh at paragraph 44, by Justice Hayne at paragraphs 263 and 267 and Justice Callinan at 287 and 294. The object of Division 104, of course, is to protect the public from terrorist acts. That is a non‑punitive purpose that should be held to be an exception to the criminal guilt implication if that implication is good law.

The plaintiff relies on the statement by your Honour Justice Gummow in Fardon at paragraph 85 that if a federal regime provided “for detention without adjudication of criminal guilt” that would be impermissible even if it followed “a judicial process of some refinement”.

We say two things about that passage.  First, it relates to detention and we would submit detention in custody which is simply not involved in the present case and, secondly, we would submit, with respect, it is a minority position.  The majority position, we would submit, is that a protective purpose is sufficient to take detention outside any Chapter III implication.

The next major topic is the Brandy argument.  My friend’s submission seems to be that because there is no power in the Court to enforce its own order it is not acting judicially.  Your Honours, we say a number of things about that.  The first is that Brandy does not go so far as to say that the inability to enforce its own order prevents the body being judicial.  In New South Wales, for example, contempts of the District Court are dealt with in the Supreme Court.

Secondly, we submit that the ordinary contempt power exists.  As a matter of construction, there is no reason why that power should be excluded.  We rely on the familiar passage in Electric Light and Power Supply v Electricity Commission of New South Wales (1956) 94 CLR 554 at 559 and 560. I will not take your Honours to it. It is familiar. It is a passage which says that, as one would expect, as a general matter, State or federal, where legislation confers a new power on a court, to the extent that it does not deal with it it accepts all the existing powers and procedures of that court, including rights of appeal from it. There is absolutely no reason why one would assume that the ordinary power of dealing with contempt here would - by disobedience – be excluded.

That passage, by the way, has been applied more recently in Mansfield v Director of Public Prosecutions (2006). It is still only in 228 ALR 214 and the computer version is [2006] HCA 38, not yet in the Commonwealth Law Reports. That demonstrates the importance of the proposition as a general one. That was in a State context where a power was conferred on a court in relation to proceeds of crime and the court’s general power to alter its orders was held to be applicable.

There is nothing in section 104.27 of the present Act which excludes the ordinary contempt powers of issuing courts or provisions which make it an offence to contravene a court order.  Such provisions often co‑exist with contempt powers.  We have dealt with that in paragraph 69 of our submissions.

We point out in aid of this that there would be a real question of power if there were an attempt to exclude the contempt powers of the Federal Court or Family Court which are created under section 71 of the Constitution as superior courts of record and their powers in relation to contempt are drawn from Chapter III itself. Your Honours will be familiar with Re Colina 200 CLR 386 which discusses that issue. I will not take your Honours to it, but it was held that a charge of contempt did not involve an offence against a law of the Commonwealth because the provisions that purport to confer contempt powers on Federal Courts are merely declaratory of the effect of Chapter III of the Constitution.

The views of the judges in that case, which are the Chief Justice and Justice Gummow at paragraph 16 and Justice Hayne at paragraph 113, appear to have been accepted in later cases, particularly DJL v Central Authority 201 CLR 226 at paragraph 27 where five Justices of this Court said that a federal court has:

as incidents arising by necessary implication from Ch III, the power to punish for contempt –

The same appears in Batistatos v Roads and Traffic Authority [2006] HCA 27 where your Honour the Chief Justice and Justices Gummow, Hayne and Crennan at paragraph 13 appeared to accept the same proposition. As the provisions cannot be construed as excluding contempt powers in the Federal Court or Family Court, it is hard to see how they can be a code in the sense used by my learned friend.

I do not propose to go into detail on the interesting questions as to whether the associated jurisdiction would permit two matters to be heard together if they were both brought, a contempt proceeding and a prosecution for an offence.  That does involve questions about the Federal Magistrates Court sitting with a jury. 

It involves the construction of a rule of the Federal Magistrates Court which picks up the rules of the Federal Court where no rules apply and a rule of the Federal Court which says, if there is no rule available the court should devise one, and there may be questions as to whether they would enable a jury trial to be held or not.  But your Honours do not need to go into those questions and we simply say that those difficulties do not prevent the Court dealing with contempt in the ordinary way.

It also has to be pointed out that even if an issue in court cannot enforce its own order, that would not prevent conferring judicial power.  My learned friend relies on Luton v Lessels but that was a case of a chameleon power conferred on the Executive and the judgments are concerned with explaining why it was not exclusively judicial power.  The case says nothing about the situation where power is conferred on a court.  In any event, my learned friend conceded at 4225 of the transcript that what mattered is enforceability, not enforceability by the court that makes the order.  Of course, even if the control order is treated as the factum for another order, that does not stop it being judicial power.  A judgment of a court awarding a sum of money can be the factum for a bankruptcy notice.  That does not make the judgment something not done in the exercise of judicial power.  So for those reasons we submit that the Brandy argument simply does not assist. 

Those, if the Court pleases, are our submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Mr Burmester.

MR BURMESTER:   Your Honours, my task is to talk about the reference of powers and external affairs. In relation to the reference of powers the Commonwealth says that Division 104 is wholly supported by the reference of powers. Could I invite you to have the legislation materials volume which the Commonwealth provided on the last occasion in front of you. This has some of the explanatory memoranda and in particular the reference Act from Victoria.

There are two principal issues in relation to the reference of power. Firstly, what is the scope of the express amendment referral? Does it only allow internal amendment of the original referred text or does it allow addition of new divisions like Division 104. Secondly, even if Division 104 is an express amendment within the terms of the reference, was the consent of the States an essential requirement and, if so, was that consent effectively given? If your Honours would go to tab E in that volume, which is the Victorian reference, and to section 4 on page 2, we are concerned with section 4(1)(b):

(1)      The following matters are referred to the Parliament of the Commonwealth . . . 

(b)the matter of terrorist acts, and actions relating to terrorist acts -

so that is the subject matter that is referred.  Then there is a qualification:

but only to the extent of the making of laws with respect to that matter by making express amendments of the terrorism legislation -

“Terrorism legislation” is defined in section 3:

the provisions of Part 5.3 in the terms . . . set out in Schedule 1 –

and that is the legislation as it was originally enacted based on the reference. “Express amendment” is also defined in section 3 and you will see it says:

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 -

Your Honours, I also need to draw your attention to section 4(2) which says that:

The reference of a matter under subsection (1) has effect only –

(a)      if and to the extent –

not otherwise with the Commonwealth power.  Subsection (3) is also important:

The operation of each paragraph of subsection (1) is not affected by the other paragraph.

The express amendment reference is not affected by the text reference.

GLEESON CJ:   The “terrorism legislation” is that which we find in Schedule 1 to this, that pre‑existed this Terrorism (Commonwealth Powers) Act?

MR BURMESTER: There was a Part 5.3 in the Commonwealth Criminal Code. Once the references were given, that version was repealed and it was re-enacted in the form of the schedule and since then there have been approximately eight amending Acts to Part 5.3, including the Act which inserted Division 104. Once the references were given Schedule 1 was enacted and since then there have been a number of amendments including the provisions we are concerned with, Division 104.

KIRBY J:   The problem was that Divisions 104 and 105 were not included in the express legislation that are scheduled.

MR BURMESTER:   They were not in the original version of the legislation, your Honour, that is correct.

KIRBY J:   So the issue is whether under the Constitution and in accordance with legislative steps the power being in the Parliament to refer the State powers, that reference occurred.

MR BURMESTER: Yes, your Honour, but Parliament does not have to refer the text of any Commonwealth law, it can refer a matter and we say that is what it has done in 4(1)(b), it has referred “the matter of terrorist acts, and actions”, and then it goes on to indicate the way in which that reference should be implemented. We say all that is required is that the amendment can take the form of the insertion of “matter” into Part 5.3 of the Criminal Code but it cannot take the form of enacting a new Act, for instance, it is completely freestanding, so if the Commonwealth Parliament had enacted a Protected Control Order Act, then that would not be supported by the reference. To be supported by the reference it was important that it be located within Part 5.3. That was done deliberately.

We say that was done in order to bring it within the scope for the reference in the same way that the Corporations Act references which are in similar terms - and that is set out in tab G of this volume – similarly provide in section 4 for a reference of a text, which was the Corporations Law, and then in 4(1)(b) a reference of:

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

The same wording is used.  What we have had since, and based on the corporations reference, is we have had whole new divisions such as the divisions inserted in the Corporations Act by the Financial Services Reform Act being included.  There were other significant new divisions inserted in 2004 by the Corporate Law Economic Reform Program Act. We say they were supported by the amendment reference given in relation to corporations in the same way as the insertion of Division 104 was supported by the express amendment reference in relation to terrorist acts.

GLEESON CJ: Is the way it works that section 4(1)(a) gets the original legislation in place and section 4(1)(b) says you can amend the original legislation?

MR BURMESTER:   That is the purpose, your Honour, yes.

GUMMOW J:   The question is what “amend” means.

MR BURMESTER:   That is correct, your Honour, but otherwise every amendment from a minor comma or full stop to new sections would have to go back to the State Parliament.  In the corporations context and here, the way that has been overcome is to say we give a defined subject matter reference, and that is here the matter of terrorist acts, but we say it has to be then enacted by the Commonwealth in a particular form, namely as part of the original Act.  So based on the corporations ‑ ‑ ‑

GUMMOW J:   That is enough.

MR BURMESTER:   That is enough.

GUMMOW J:   You put it in the original Act.

MR BURMESTER: Or in this case in the original part, Part 5.3. The purpose, your Honour, is obvious. It was designed to stop the Commonwealth, for instance, enacting the Work Choices Act based on the references of power with respect to corporations. It was designed to allow the States to know what laws the Commonwealth was enacting, where it might purport to rely on a reference of powers by requiring it to be identified and located in a particular place and then there were intergovernmental political agreements which put in place provisions for consent as a political requirement.

GUMMOW J:   Yes, without going back to the State Parliaments.

MR BURMESTER:   But, your Honour, what the State Parliaments have done is refer a subject matter reference.

GUMMOW J: Yes, I know. It comes down to two words, really, what “matter” means in the Constitution and then what “amendment” means in this particular piece of legislation, does it not?

MR BURMESTER:   Yes, your Honour, and we say there is an identified subject matter.  It is the matter of terrorist acts and actions relating to terrorist acts.  So it is not simply a reference to allow the Commonwealth to amend the legislation without any subject matter, to put a law about dogs and cats in the Criminal Code.  It is not in that sense unconfined.  Then there is this reference to “by making express amendment”. 

KIRBY J: Was not the argument to the contrary in this case, that what was originally referred and was included in the legislation was dealing with terrorist acts and that what was added by Division 104 was control orders and Division 105 preventive detention orders and that that generically is not dealing with acts, but is dealing with predicted or prospective conduct in the future. I think this is the argument, is it not?

MR BURMESTER: Your Honour, that is not as I understand the argument. I did say the original Act dealt with criminal offences and control orders are not criminal offences. However, we would submit that applying the ordinary rules of characterisation the law with respect to the matter of terrorist acts and actions relating to terrorist acts would clearly embrace laws dealing with the prevention of terrorist acts or control orders to prevent terrorist acts. So as a matter of characterisation we contend that Division 104 clearly falls within the subject matter, the matter of terrorist acts, and I did not understand the plaintiffs directly to dispute that. Rather, their concern was that the amendment power surely cannot be so broad that you can add completely new divisions.

GLEESON CJ:   I understood the argument to be that these new divisions, because of the nature of what they are aimed at, go beyond amendment of what was originally there in Schedule 1.

MR BURMESTER:   Yes, your Honour, and their focus was on the word “amend”.  Now, I need to take you back to the definition of “express amendment” and it says:

by the insertion . . . of words or matter –

and then there are some other words –

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 -

We say when one construes the substance of that provision, it would be a very technical reading to say that adding new divisions does not fall within the matter, the scope of the amendment power.  It seems that ‑ ‑ ‑

KIRBY J:   The use of the word “express” rather suggests that the Parliament of Victoria had its eye on the Commonwealth and contemplated that amendments would have a high particularity and be directed to the particular legislation which they had enacted ‑ ‑ ‑

MR BURMESTER:   Well, your Honour, the – no, I think the word “express” is there so that an enactment in some other piece of legislation could not be said to be an implied amendment of the terrorism law and based on the reference.  Everything had to be upfront and put in the terrorism legislation itself, as it is put in the Corporations Act itself, but the State concern was not to prevent significant amendments, provided they dealt with the broad subject matter, laws relating to terrorist acts ‑ ‑ ‑

KIRBY J:   This is legislation that diminishes liberty and, therefore, would one not construe the Victorian reference of power and the constitutional objectives with a fair degree of precision here, that if you are going to have the reference of power from the State Parliament to the Federal Parliament with diminution of liberty so as to assign political responsibility for those that do it, it will be done with a fair degree of clarity and precision.

MR BURMESTER:   Your Honour, I do not think that argument should be adopted.  It is a constitutional reference which could cover all sorts of forms of legislation dealing with terrorist acts, not all of which would necessarily be restrictions on liberty.  The plaintiff’s argument, as I understand it, somehow needs to distinguish between amending a subsection – and there have been amendments to a whole range of subsections since the original scheduled Act was referred – the addition of new sections and, for instance, section 100.8, the associating offences have been enacted separately after the original reference in reliance on the express amendment power.

KIRBY J:   They went to the State Parliament or they were taken as within the original ‑ ‑ ‑

MR BURMESTER:   They were treated as if they were covered by the express amendment.

KIRBY J:   Did they involve textual amendment to the federal legislation?

MR BURMESTER:   They involved the insertion, for instance, in the associating offences, a whole new section: 100.8. If you look at the schedule to the Victorian Act you will not find section 100.8. There is a different section 100.8 – sorry, 101.8. Sorry, there are now new sections in 101 which were not in the original scheduled Act and those offences have been treated as express amendments, but it seems, the plaintiffs would say, but adding a new Division 104 is somehow to be treated as different from the insertion of completely freestanding sections because ‑ ‑ ‑

GLEESON CJ:   Is section 5 of the Victorian Act, and in particular section 5(2), relevant to the interpretation of sections 3 and 4?

MR BURMESTER:   Well, your Honour, it is relevant in this sense; it shows that there is no reason to read the reference of power unduly narrowly or technically, because the States always have a remedy.  They can always terminate the reference ‑ ‑ ‑

GLEESON CJ:   It is terminable on three months notice.

MR BURMESTER:   That is right.  So if the Commonwealth does not behave itself in the eyes of the States, then the States can withdraw, terminate the reference.

KIRBY J:   That might be an argument but I do not think it is a very heavy argument because the question is whether it is referred in the first place, which is not an unimportant issue in a Federation. I know the Commonwealth takes the view that it is not so concerned about State powers - there are not all that many left now - but it is a matter which requires some precision because it is an exceptional procedure under our Constitution. It does shift the political accountability from the State Parliaments to the Federal Parliament.

MR BURMESTER:   Your Honour we say the reference is properly constrained in identifying a subject matter imposing as a requirement that it take a certain form and there is then the ability of the States to terminate the reference if they are unhappy if the Commonwealth misuses the power referred and there is also, underpinning both the corporations reference and the terrorism reference, an intergovernmental agreement.  In the case of the terrorism reference there is a section 100.8, which I will come to shortly.

GLEESON CJ:   Before you pass from section 3, what is the significance of the words after “but” in the definition of “express amendment”? What is that aimed at?

MR BURMESTER:   Your Honour, the significance of that is as I have been saying.  It is designed to prevent the Commonwealth enacting a freestanding piece of legislation and based on the subject matter referral saying that it is supported by that subject matter referral.  So the example I gave was the Commonwealth by enacting the Work Choices Act was not relying or could not rely on the references of power with respect to corporations because it had a substantive effect in a Commonwealth Act other than as part of the text of the, in that case, corporations legislation. 

The purpose of those words, your Honour, is clear if you go to tab H in the volume and across to page 5 - this is the explanatory memorandum accompanying the corporations reference.  At the top of page 5, the last sentence of the indented words:

This ensures that the matters covered by the second reference cannot be the source of power for other Commonwealth legislation.

We say that is the sole purpose of the qualification on the express amendment power, but it is not designed to prevent amendment of the referred text whether that amendment take the form of simply repeal of the subsection and substitution of the new subsection, the insertion of the new sections or the insertion of new divisions, such as occurred here, provided the law can still be characterised as coming within the subject matter referred. We say that this broad reading of the express amendment power is supported by the words of section 4(3) which says that the operation of each paragraph of the reference is not affected by the other paragraph.

KIRBY J:   I do not quite understand subsection (3).  What do you say it means?

MR BURMESTER:   Your Honour, it means that one should not read the express amendment power, the reference given in the express amendment part of the Act, down by reference to or constrained in a way that limits, for instance - you do not have to derive some additional character from the content of the original text referral.  I think my friends sought to say the original text referral dealt with criminal offences, therefore that in some way limits the express amendment power.  We say no, you read the express amendment referral as a separate referral defined by its own subject matter and the conditions expressed within it.

KIRBY J:   But…..still has that qualifier at the close of its expression.

MR BURMESTER:   It is qualified in a sense that it is qualified to making laws with respect to those - by making express amendments so it comes back to what those words mean.

KIRBY J:   Your argument would be very strong if you did not have that qualifier.  You would then just say ‑ ‑ ‑

MR BURMESTER:   Then it would be an unlimited referral of the subject matter without any qualification.  That is right, your Honour.  So it is a question of what the words “express amendment” mean.  We say if you have regard to the definition and the legislative history of these sorts of provisions, if one looks for the substance and not the form, then one would give it the meaning, the operation for which the Commonwealth contends.

KIRBY J:   Substance and form is one way to put it, but you are, after all, having the shifting of constitutional powers from the State Parliaments to the Federal so that there would be to some extent a need, if there is any doubt, would there not, to make sure that it has been granted in the face of the express requirement given in the State legislation of the need for making express amendments of the terrorism legislation or the criminal.  You did not make an amendment, you added a division.

MR BURMESTER:   Your Honour, if this argument of the plaintiff’s is correct, then it will require the States to refer a subject matter without limitation so they would have to refer as an express amendment the powers to make laws with respect to terrorism without any qualification.

KIRBY J:   This is the way the State Parliament has kept control of what it is losing, which is not an unreasonable thing to do.

MR BURMESTER: It has kept control by requiring what is enacted by the Commonwealth to take a particular form, namely, an express amendment to Part 5.3 and provided it is there and they can see it is in Part 5.3, we say it comes within the reference, in the same way that the corporations reference has supported the addition of complete new slabs of legislation such as the financial services provisions, further provisions in 2004 which were not just minor tidying up or textual changes, they were the addition of complete new parts and divisions.

KIRBY J: Does the corporations reference of power have a provision similar to what is in section 4(1)(b)?

MR BURMESTER:   Yes, your Honour, if you go to tab G in the volume over to page 4, one sees the amendment part of the corporations reference is almost identical except the subject matter.  If you go back to page 2 of that Act you see the definition of “express amendment” is in exactly the same terms as the “terrorist act”.  So that the States and the Commonwealth both thought when they were enacting the reference of power with respect to terrorist acts that they were doing the same thing as had worked effectively, they believed, in relation to corporations.  We say when one looks at the legislative context, one looks at the language used, one seeks to ask what is the substance over form, then rather than, as my learned friend Mr Merkel suggested, one would read it down, one rather gives it the broad interpretation contended for by the Commonwealth. 

KIRBY J:   You said you were going to take us to something to give meaning to “express amendment”.  Is there any holding or discussion of what that phrase means?

MR BURMESTER: Your Honour, there is no holding, but we say one should read the words. My friends took your Honours to the second reading speech, I think, of the Victorian Attorney‑General which talked about a power to amend offences. We say the explanatory memorandum is certainly not so confined, and that is tab F in this volume. At page 2 point 3 it simply talks about a power to amend Part 5.3. It does not talk about amend by changing the offences within Part 5.3. So, your Honour, all I can point to is the legislative history which we say supports a broad meaning and, in particular, the Corporations Law precedents. 

We say there is nothing in Marquet 217 CLR 545 which my friend Mr Merkel relied upon which supports a narrow reading. The word “amend” has to take its meaning from the context. We say you look at the substance, the context, and here there is no reason to read it as allowing commas and full stops and possibly subsections to be changed, but not new divisions to be inserted provided the new divisions fall within the subject matter.

KIRBY J: In your submission, how does the legislation work most appropriately in the constitutional context of the power to refer State powers which belongs not to the Executive Governments but to the Parliament? I mean, you put before us the various communiqués, as they are called, and so on, but they are the agreements of Executive Governments. They are not the action of the State Parliaments to whom is reserved under the Constitution the power of reference.

MR BURMESTER:   Your Honour, we say the State Parliaments have had their appropriate role protected in the sense they have defined the subject matter and identified the form in which the Commonwealth can legislate. It is not as if the reference was simply to make such other laws amending Part 5.3 as the State Governor or the State Premiers agree. That is not the terms in which the reference is given. The reference is for the subject matter with laws based on it to be enacted in a particular form, namely, located in a particular spot on the statute book.

CALLINAN J:   You do not say the references are irrevocable, do you?

MR BURMESTER:   No, your Honour, section 5 makes it clear Parliaments ‑ ‑ ‑

CALLINAN J:   So State Parliaments could intervene subsequently at any time.

MR BURMESTER:   At any time, so if they are not happy with the Commonwealth exercise in reliance on the reference, then the States have the power to terminate the reference either by repealing the Act or by their Executive under section 5 terminating reference.

KIRBY J:   The problem with the section 5 argument is that it assumes a reference of the power and that is the question that is before us.  You terminate what has been conferred, you do not terminate it if it has never been conferred, so the question is what is the meaning of “express amendments” and the limitation that has been imposed in those terms, which are fairly strongly expressed.  I do take the point about the comparison with the Corporations Act but, on the other hand, when one looks at that Act, it does not have the same elements of legal and constitutional controversy as this legislation does nor the same impact on individual liberty.

MR BURMESTER:   No, your Honour, but the words are the same and the definition of “express amendment” has been carefully worded, we say, in a very expansive way.  So it is not simply the word “amend” and a need to construe that.  You have to construe the definition of “express amendment” which does talk about “insertion” of matter and we say that can only mean the insertion of new divisions and the fact that there is the further qualification that they cannot operate other than as part of the text of the original legislation. 

KIRBY J:   Would you say that under paragraph (b), the Federal Parliament could, after the referral of power, insert a whole new section saying that all persons of a particular religion, say, in Australia should be arrested and detained?

MR BURMESTER:   If it was a law with respect to terrorist acts because there was some basis for suggesting that was necessary to prevent terrorism, but then the question would be whether that was a law with respect to terrorist acts or relating to terrorist acts. 

KIRBY J:   And that answer takes us back to the question whether, conceptually, the insertion of new divisions which deal with things that are prospective, as distinct from criminal acts, are so different in kind that they require an express amendment so that the State Parliaments, and not just the State Executive Governments, should pass on them.

MR BURMESTER:   Yes, your Honour, that depends on construing the subject matter, the matter of terrorist acts and actions relating to terrorists acts, we say, in a narrow way that the ordinary principles of characterisation would not support. The words “actions relating to terrorist acts”, if that was an independent head of power in section 51 and one applied ordinary principles of characterisation, we would say that those words would support provisions like Division 104. They may not support a provision like your Honour suggested to me but that, I agree, is the question, “What is the scope of those words in terms of the subject matter that is referred?”

KIRBY J:   I think the issue is crystallised.

MR BURMESTER:   Your Honour, the second aspect of the reference of power is this requirement for the consent of the States.  My friend made quite an argument that there had not been consent and in particular the Premiers of the States could not provide the necessary consent.  I need to explain how this issue of consent may arise.  In the original schedule of text on page 13 of tab E one sees 100.8 set out in that referred text.  That has now been enacted by the Commonwealth Parliament as 100.8 in the Criminal Code.

KIRBY J:   Which page, I am sorry?  Page 8 of the ‑ ‑ ‑

MR BURMESTER:   In tab E, page 13.  This is the schedule to the Victorian Act, 100.8.  It appeared in the referred text reference. The Commonwealth then enacted it as a Commonwealth law.  Our principal contentions in this area are that the necessary consent under that section is given, the States assumed that they were giving it and we say the necessary consent was given.  However, we say, as a matter of law, the requirement for consent does not qualify or act as a condition on the express amendment power, the second limb of the referral given by the States, nor is it a binding Commonwealth law.  It can be no more than a political statement not intended to be capable of legal consequences.

GUMMOW J:   I am sorry, what does not have this character?

MR BURMESTER:   Section 100.8 as a provision on the Commonwealth statute book cannot be a binding Commonwealth law.  The reason for that is that it would purport to alter the way in which the Commonwealth Parliament exercised its legislative powers.  It would be an invalid manner and form qualification on Commonwealth legislative power, so we say it cannot be valid as a Commonwealth law.  Your Honour, it is akin to provisions in other Commonwealth legislation such as in the GST legislation which are referred to in paragraph 104.

GUMMOW J:   And also in the Flags Act, I think.

MR BURMESTER:   And the Flags Act, that is right. Paragraph 104 of our submissions, footnotes 185 and 186. It is no more than a political statement as a matter of Commonwealth law. Otherwise, one would be changing the powers, redefining the legislative procedure set out in the Constitution and clearly no Commonwealth law can do that.

GUMMOW J:   This would have significance for any proposed so-called Bill of Rights legislation in the Commonwealth, would it not?

MR BURMESTER:   Yes, your Honour.  So we say as a purported Commonwealth matter and form it cannot possibly operate in the same way as the provision of the GST legislation to which we referred in our submissions, and to have a provision on a statute book that is no more than hortatory or a political statement is not necessary unusual or unprecedented.  The Project Blue Sky Case recognises that there can be provisions on the statute book which are not intended to invalidate provisions done under them if there has not been compliance with a particular statutory provision.

GUMMOW J:   There are two questions really.  Is it a valid law in the first place?  You say it is, but it is not a law.

MR BURMESTER:   The only other way in which it could be a valid law is if it somehow qualifies the State reference of power, which is the next question.

GUMMOW J:   Yes, I understand the conundrum.

MR BURMESTER:   My answer to that is, well, it is in the original scheduled text, but it does not qualify the express amendment power.  It is not referred to, it does not stand as a qualification expressly on that express amendment referral.

KIRBY J:   Is it a question of whether it is within the matter referred and therefore qualifies the resource of the federal legislative power?

MR BURMESTER:   One needs to find something in the Victorian reference Act that makes clear that 100.8 in the text reference in some way qualifies the “express amendment” reference. One reason we say there is no qualification in section 4(3) of the Victorian Act which makes it quite clear that you read the text reference and the “express amendment” reference separately, not affected by each other, so we say the mere fact that 100.8 appears in the original schedule text has no legal consequence in terms of the power referred in the “express amendment” reference. We say that is not necessarily surprising because the States well understood, we submit, that the ultimate safeguard was their ability to terminate and, more particularly, the intergovernmental political undertaking by the Commonwealth to consult, to get consent before making amendments.

KIRBY J:   That is a very typical submission of Executive Government. The power to terminate does not arise unless the power has been referred. So far as the cosy agreements of Executive Governments are concerned, I am afraid I have to remind you again the Constitution refers to Parliaments.

MR BURMESTER:   Yes, your Honour, we say Parliament has exercised its role by identifying the subject matter and the form in which the legislation based on that subject matter should take.

HAYNE J:   The significance of the power to terminate is surely also limited, is it not?  For the power to terminate would have the State pull down the structure that it has agreed should be built because there has been added to that structure an outhouse of which it does not approve.  Yes, you can pull the whole temple down around your ears if you want and if there is political will to do so – I understand that argument – but it is a rather quaint argument, is it not, to say that having agreed to the construction of a particular house, if you add an outhouse to it, “Oh well, we’ll pull the whole house down”.  That is the argument, is it not, Mr Burmester?

MR BURMESTER:   Your Honour, they have agreed to the construction of a particular house, including a power to construct additions, provided those additions take certain forms ‑ ‑ ‑

HAYNE J:   I knew the metaphor would get out of hand.

MR BURMESTER:     ‑ ‑ ‑and if the grantee is unhappy with the form of those additions, thinks they go beyond what they originally granted, sure, they have to terminate the whole reference but that not to be discounted as a significant matter.

GUMMOW J:   There is a fundamental question about 51(xxxvii) involved perhaps. It may be whether the matter “referred to the Parliament of the Commonwealth by the Parliament . . . of any State” may be a matter which then founds authority for a law of the Federal Parliament which has characteristics, namely entrenchment, which fly in the face of the general structure of the Constitution as to our Federal Parliament not being able to bind its later successors.

MR BURMESTER:   Yes, your Honour, that is certainly one response that not only if the Commonwealth has itself sought to enact 100.8 would it be invalid but, because it is contrary to the Constitution, no State reference can override the Constitution and so on that basis it is also invalid as a binding legal consequence.

GUMMOW J:   Yes, that is what I am trying to get at. 

KIRBY J:   Yes, but then you have to find the other source of power.  I mean, we have had the arguments, the defence power and so on, but you cannot then rely surely on the reference of power from the State.  You cannot get the reference and then merrily go away and do what you want to do with it because of the power of the Federal Parliament unless there is power other than the reference power.

MR BURMESTER:   We say the reference covers what we have done here.  If it does not, then yes, there will be a need to consider other powers, but we say the reference power does cover what was done here, that the consent requirement does not operate as an effective constraint whether as a Commonwealth law or as a constraint on the express amendment referral and it was essentially designed and reflects a political undertaking.  In the corporations context there is simply an intergovernmental agreement about consulting and getting consent of a majority of the States before altering the Corporations Act.  In the terrorism context there was a political commitment to at least express something along these lines on the face of the legislation, but it was understood ‑ ‑ ‑

KIRBY J:   This is political commitment between the Executive Governments.

MR BURMESTER:   Yes, your Honour.

KIRBY J: The Constitution refers to Parliaments. The Constitution protects the people.

MR BURMESTER:   To which the Parliaments were aware at the time that they enacted the referring Acts.  I think your Honours were taken last time to the second reading speech in the Victorian Parliament dealing with the reference and if I could take your Honours back to that, the speech of Mr Hulls, the Victorian Attorney‑General.  It was, I think, contained in a loose bundle of papers the plaintiffs handed up.  On 25 March 2003 Mr Hulls in his second reading speech over on the second page at about point 8 says:

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.

So, in our submission, this shows that the States were cognisant that unless they in some way expressly qualified the reference given to the Commonwealth, 100.8 just being included in the schedule text may well be ineffective.  The only way would be to put something explicit in their own referring legislation or to rely on intergovernmental agreements.  The States did not put anything explicit in their agreement and therefore decided to rely only on the intergovernmental agreement.

GUMMOW J:   Mr Burmester, what is the current state of the decisions of the Court construing 51(xxxvii) as to revocation by the States?

MR BURMESTER:   Your Honour, in R v The Public Vehicles Licensing Appeal Tribunal, (1965) 113 CLR 207, this Court has upheld the validity of a condition allowing the Governor to terminate a reference along the lines of section 5 in the Victorian Act, but there has been little other learning on the subject.

GUMMOW J:   That is the last case.

MR BURMESTER:   I think that is the last case, your Honour.  Your Honour, if consent is required ‑ ‑ ‑

GUMMOW J:   That Tasmanian legislation did not have anything like 100.8 in it?

MR BURMESTER:   I do not think so, no, your Honour.  No, this is the first time that I am aware of 100.8 has appeared in a reference.  As I said, in the corporations context there is no equivalent.  It was simply the intergovernmental agreement.  In the terrorism context I think as a result of political undertakings it was included on the face of the Commonwealth legislation.  But the passage I read out from Mr Hulls suggests the States were conscious of its possible limitations.

Your Honour, even if consent was legally effective and a requirement, we say the necessary consent was given, and in the amended special case we have set out the form in which that consent was given, namely by letters by the State Premiers or Chief Ministers, and we say this is the manner in which the consent was envisaged to be given both pursuant to the intergovernmental heads of government agreement, which is set out in the special case book at pages 550 to 556.

KIRBY J:   Was it laid before Parliament?

MR BURMESTER:   Your Honour, no, the intergovernmental agreement did come along later but it was an agreement that existed before the references of powers were given.  The formal agreement was not executed until 2004.

KIRBY J:   This is again agreement between the Executive Governments.

MR BURMESTER:   It is, your Honour, and we have dealt with, in our submissions at 101 to 105, with that but we say it is not unusual or unexpected that the Premiers of a State would speak on behalf of the State in a provision which requires the consent of the State.  Normally, if one saw a provision saying the consent of the State, one would not read that to mean the Parliament but, rather, the relevant bodies politic acting through their appropriate executive officers.  We say there is no reason why if 100.8 were to be construed as a requirement to be met, that consent could not be given in its terms by the relevant Premiers and Chief Ministers.

KIRBY J:   There is no reason except that the Constitution reserves the reference of power to the Parliaments.

MR BURMESTER:   Your Honour, as we have said, it does not, in our submission, qualify the terms of the reference.  I understand your Honour’s argument but it is not one we embrace.

KIRBY J:   It is just the text, it is not my argument, it is the text of the Constitution.

MR BURMESTER:   We say the State Parliaments have referred the subject matter with a condition as to form but not as to consent.  We say New South Wales v Bardolph (1934) 52 CLR 455 at 507 Justice Dixon says Premiers are assumed to speak with authority of the government and also Justice McTiernan at 518 and Justice Gavan Duffy agreeing with Justice Dixon at 493.

KIRBY J:   Who would dispute that? Of course they can speak for the government. The question is who speaks for the Parliament other than Parliament? The Parliament, you see, in the theory of our Constitution is all the people. The government is Ministers who have been elected by the majority.

MR BURMESTER:   Yes, your Honour, we say that the Parliament has done its part in framing the terms of the reference.  If this is a qualification on the terms of that reference, then the consent was given in its terms by the Premiers.  It is not defining the matter referred to the Commonwealth Parliament, it is rather the qualification, if it operates at all, on the way in which the Commonwealth exercises that power.  It does not define the subject matter or even the form of that subject matter.  So we say, on the basis of Bardolph’s Case, the exchange of communications at Premier and Prime Minister level would mean there was effective consent within the terms of 100.8.

GLEESON CJ:   Section 100.8(2) assumes that an express amendment could be made within the contemplation of 100.8(2) to which Victoria objected.

MR BURMESTER:   Yes, your Honour, that is a possibility and if they thought it was one they could not agree to and they felt strongly enough about it, then ‑ ‑ ‑

GLEESON CJ:   They could be simply outvoted at COAG on that subject.

MR BURMESTER:   Yes, your Honour, and their remedy is to terminate the reference.  It is at least a political commitment to try and get consensus, but when it comes to the formal approval, yes, there is a requirement of only a majority and at least four States.  But, yes, there could be one State that did not agree and yet, based on the reference while it remained enforced to that State, that State would be bound by the Commonwealth legislation if it was otherwise supported by the reference.  Your Honours, that completes the reference of powers unless there is further argument.  I was then going to move to external affairs.

GUMMOW J:   Yes, you were going to get us into matters of international concern.

MR BURMESTER:   Your Honour, I hope to say little on international concern because there are all these other aspects of external affairs.

HAYNE J:   It is just starting to look worried, very international.

MR BURMESTER:   Your Honour, in discussion with my learned friend, Ms Walker, on the last occasion, the issue of the use of the geographically external aspect of the external affairs power was raised.  In our written submissions and in most of the debate to date, we have been seeking to uphold the validity of the law generally based on particular heads of power but we say there is no reason why particular aspects of the legislation could not be upheld under some powers like, in particular, the geographically external aspect of the external affairs power.

So, your Honours, it is our submission that if a control order was directed at preventing a terrorist act done to the public, or directed at the public outside Australia, then there would be no reason not to uphold that sort of control order on the basis of the geographically external aspect.  That is not this case, but the definition of “public” in section 100.14 clearly picks up the public outside Australia and we say there is no reason why a control order in that case would not be supported.

KIRBY J:   It would require a lot of surgery on the legislation, would it not?  Just assume against your argument that the other heads of power fell away to sustain the whole of the legislation on the basis of the external affairs power, would it be difficult?

MR BURMESTER:   Your Honour, we say, not necessarily, that there is no reason, applying a distributive approach why, provided the factual situations are there.  The form of this legislation would preclude its application in a particular case in that way.

KIRBY J:   There are foreign elements in this case in the facts asserted or found.

MR BURMESTER:   There are, your Honour.  My next proposition was in this case, because there was training overseas with a terrorist organisation, then that was one of the bases relied upon in order to get the control order, that that also means that this particular order is supported by the geographically external aspect of the external affairs power.  The imposition of controls on a person to protect the Australian public, based on past overseas behaviour relevant to concerns for which the control order is sought, we say, is in substance no different from a law punishing in Australia a person for actual conduct overseas and that the principles set out in Polyukhovich and, most recently in XYZ, support the validity of such a law.

This was the basis on which the offence of training with a terrorist organisation was upheld in the Ul-Haque Case in which special leave was refused just recently.  There was training with an overseas terrorist organisation and the geographically external aspect upheld that particular offence. 

KIRBY J:   What was the Ul-Haque Case, what was that about?

MR BURMESTER:   That was a prosecution in New South Wales for the offence of training with a terrorist organisation.  The terrorist organisation was overseas.  This was based on the Criminal Code as enacted prior to the reference of power so there was no question of reference of powers, but the New South Wales Court of Criminal Appeal upheld the conviction on the basis of the geographically external aspect and my understanding is that this Court a couple of weeks ago refused special leave ‑ ‑ ‑

GUMMOW J:   There has not been a trial yet.

HAYNE J:   No conviction.

GUMMOW J:   That is the point.

MR BURMESTER:   Pardon?

GUMMOW J:   There was an attempted fragmentation of the trial by taking these issues which got as far as the Court of Criminal Appeal but which did not get here on the basis they would go back and have a trial.

MR BURMESTER:   I apologise, your Honour, yes.

GLEESON CJ:   We said we are not interested in interfering with the progress of criminal trials generally.  A person might win on some other ground.

MR BURMESTER:   I understand.  I place no reliance on the refusal of special leave.  I had not appreciated that.  But, your Honour, we say the principles for which XYZ most recently stands is that a law with respect to places, persons, matters or things outside the geographic limits of Australia is supported by the external affairs power.  Here, the overseas conduct by the plaintiff in the form of one of the criteria for getting a control order, include the satisfaction that the plaintiff had received training overseas - here Al‑Qa’ida in Pakistan - and so attaching consequences to that overseas conduct we say is relevant and supports the obtaining of a control order directed at preventing further terrorist acts, the same sort of conduct in relation to which the person was being trained overseas. 

The question will always be, is there a sufficient connection between the overseas conduct and the consequences being applied as a matter of Australian law?  We would dispute what your Honour Justice Kirby said in XYZ at paragraph 116 that the geographically external aspect would mean there is almost no limit on Commonwealth power because there will always need to be a sufficient connection between the consequences in Australian law and the overseas conduct.

So, for instance, a Commonwealth law that said any person who has ever travelled overseas shall never drive a car, we would say was not supported by the geographically external aspect because there is not a sufficient connection between the travelling overseas and the driving of the car in Australia.  But here it is training with a terrorist organisation overseas and the control order relates to preventing terrorist acts. 

More broadly under the external affairs power, your Honour, we say this legislation is supported based on the existence of a treaty obligation or the equivalent of a treaty obligation derived from Resolution 1373 of the Security Council.  I am told Mr Thomas trained in Afghanistan not Pakistan, so I am sorry, but there was overseas training.  I do not think that is in dispute.

Turning to the treaty obligation limb of the external affairs power, in the special case book at pages 681 to 687 we have set out the provisions of the United Nations Charter, in particular, Articles 25 and 48 which deal with when decisions of the Security Council give rise to an obligation on member states to give effect to them.  We say that those articles support the fact that Resolution 1373 gives effect to a binding obligation. 

The fact that Resolution 1373 is a binding obligation is reflected in the wording of the Australia ASEAN declaration set out at 803 of the special case book where they refer to it as a binding obligation, but it can also be quite clearly determined that it is a binding obligation from its own terms and the terms of Articles 25 and 48 of the UN Charter.  Your Honours, I can take you to the relevant resolution.  It is at special case book page 701.

KIRBY J:   I do not think I have ever heard an argument before of a source of Commonwealth power based on a Security Council resolution.  It is something new.

MR BURMESTER:   No, your Honour, I do not think it has directly arisen.

KIRBY J:   There is no end to this.

MR BURMESTER:   I think maybe in Bradley’s Case dealing with sanctions against Rhodesia it was touched upon, but I think this is the first case where we directly rely on a Security Council resolution.  We have in the Charter of the United Nations Act 1945 provisions to make regulations to give effect to binding Security Council Resolutions and that is the mechanism used regularly to give effect, for instance, to sanctions resolutions to prohibit imports or exports and so on against particular countries. Here we have enacted control orders, but we say it depends on construing the particular Security Council resolution and seeing whether it does in fact, properly construed, impose an obligation on Australia.

KIRBY J:   What is the page of the special case book?

MR BURMESTER:   It is 701, page 700 the start of it.  Just reading some of the preambular paragraphs, the fifth one:

Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts –

In fact, the third paragraph:

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

So certainly the United Nations has singled out terrorism, international terrorism, as a threat to peace and security.  The second last preambular paragraph on page 700:

Recognizing the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism . . . 

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

and that is significant because Chapter VII, we say ‑ ‑ ‑

GUMMOW J:   That takes us back to 684, does it not, the text of Chapter VII?

MR BURMESTER:   Chapter VII of the Charter, that is right, and 684.  Your Honour, I am probably rushing more than I would have liked, so I am sorry that I have not taken you in detail to the provisions of the Charter, but Article 25 says:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 41 in Chapter VII says:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.

We say that is what it has done here.  It has acted under Chapter VII.  It has decided what States should do to give effect to its decisions in relation to breaches of the peace and security.  If one then goes to the middle of page 701, operative paragraph 2, it “Decides”, uses that word:

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 . . . 

(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 –

So we say 2(b) is a clear decision obliging States to take the necessary steps to prevent the commission of terrorist acts.

GLEESON CJ:  What did “necessary” mean in that context?

MR BURMESTER:  Your Honour, clearly one would have to judge what was appropriate and adapted to that end of preventing terrorist acts.  It does not mean that States can adopt any law or any measure whatsoever and say it is supported by the Security Council.  It comes down, as any external affairs law question does, to whether it is reasonably appropriate and adapted keeping effect to that purpose, here the purpose of preventing terrorist acts.  So there will be judgments involved just as there were in reliance on the World Heritage Convention when this Court had to decide whether certain prohibitions were reasonably appropriate and adapted to giving effect to the particular obligations there.

GLEESON CJ:  Well, in McCulloch v Maryland where Chief Justice Marshall discussed at great length the meaning of the word “necessity” there in a constitutional context, he gave as a synonym “conducive”.

MR BURMESTER:  Yes, your Honour, that is how we would read it but in terms of whether particular measures in a law were conducive to preventing the commission, then as I said it is a question as in Tasmanian Dams Case, Richardson v Forestry Commission, Industrial Relations Case and so on, looking to see whether the particular can be said to be reasonably appropriate and adapted, capable of being reasonably appropriate and adapted to that end, to that purpose of being conducive to prevent the commission of terrorist acts.

Finding the obligation we acknowledge is only step one. The second step is then to ask is the particular law appropriate and adapted to achieving that obligation and we would say that Division 104 can be properly characterised in that way.

HAYNE J:  Does the resolution record anywhere what it is identifying as “terrorist act”?

MR BURMESTER:   Your Honour, there is a series of United Nations resolutions which have sought to define “terrorist act” or “terrorism”.  There is no comprehensive, universal, internationally agreed definition.  There are definitions in particular treaties such as the suppression of terrorist bombings or the suppression of terrorist financing, but we say there is a well‑recognised core in the international instruments indicating what amounts to terrorism – if I am able quickly to turn one up for your Honours.  I think it is more in the General Assembly Resolutions.  Maybe, your Honours, I can come back to that.

HAYNE J:   Yes.

MR BURMESTER:   Your Honour, that is the principle obligation on which we rely in the Security Council Resolution.  In terms of working out what might be conducive to prevent the commission of terrorist acts there were identified by the plaintiff a number of conventions that deal with particular aspects of terrorism such as the Terrorist Bombing Convention or Nuclear Terrorism.  If I can take your Honours briefly to page 636, which is the Terrorist Bombing Convention, and Article 15 at the bottom of that page says:

States Parties shall cooperate in the prevention of the offences . . . particularly:

(a)      By taking all practicable measures, including, if necessary, adapting their domestic legislation, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories -

In the plaintiff’s submissions I think there are references to the equivalent provisions in a number of other conventions.

The adoption, whether by treaty or by the Security Council of an obligation on States to take measures to prevent either particular terrorist acts, where particular terrorist acts have been made offences, or, as happens in Resolution 1373, more generally to prevent terrorist acts, we say is not unprecedented and one gets from those other conventions a clear recognition of what States had in mind by a call to prevent terrorist acts.  They had in mind taking practical measures, including by altering domestic law, to prevent the commission of those particular terrorist acts.

So they support, in our view, those particular treaties, the view that the Security Council resolution is a real obligation which Australia is obliged to implement.  In that regard, your Honour, we reject the submission by the plaintiffs that an obligation to take the necessary steps to prevent the commission of terrorist acts can be equated with a mere hortatory act such as an undertaking or a statement that States agree to eliminate poverty.

There was some discussion with your Honour Justice Gummow on the last occasion about what the views of Professor Zines were in this regard.  In our written submissions at paragraph 152 we referred to Professor Zines and his discussion of obligations and whether they were sufficiently specific.  This was on page 290 of Professor Zines’ book.  Professor Zines only refers to drug trafficking.  He did not refer specifically to terrorism and there was some confusion in our submissions, and we apologise for that, but the distinction Professor Zines drew was between an agreement on drug trafficking consisting mainly of an undertaking to bring the traffic under control in the interest of humanity, and he was saying that it is difficult to see why on grounds of general principle the Commonwealth could not implement such a convention by laws dealing with production, trafficking and consumption.  It is not just because it is a broad statement to prevent or eliminate a particular activity, therefore, merely a hortatory statement which would not support Commonwealth legislation.

Your Honours, the issue of hortatory statements as opposed to obligations was carefully examined in the Tasmanian Dam Case (1983) 158 CLR 1. I will not take your Honours to those passages, I will just give your Honours references to particular pages. It was discussed by Justice Mason at 132 to 134, by Justice Murphy at 177 to 178, Justice Brennan at 224 to 228, Justice Deane at 261 to 263 and we quoted the passage from Justice Deane, in particular, in paragraph 7 of our written reply. Justice Gibbs at 90 to 92, of course in dissent, and Justice Wilson at 189 to 193 in dissent, and Justice Dawson did not deal with the issue, he rather assumed a convention imposed obligations and dealt with the issue on that basis.

Your Honour, this issue was also something that arose in the Industrial Relations Case 187 CLR 416, particularly at 486 to 487 – if I could take your Honours to that volume, in the middle of 486:

When a treaty is relied on . . . it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal.  The law must prescribe a regime that the treaty has itself defined with sufficient specificity . . . But, as Judge Dillard observed . . .  the point at which ideals merge into legal obligations “constitutes one of the most delicate and difficult problems -

Then there is a reference to Justice Deane.  Going over to the top of page 487, it says:

To be a law . . . reasonably capable of being considered appropriate and adapted to implementing the treaty.  Thus, it is for the legislature to choose the means . . . But that is not to say that an obligation imposed by treaty provides the outer limits of a law enacted to implement it.

That is on 487, about point 2 –

The term “purpose” has been used to identify the object for the advancement or attainment of which a law was enacted . . . external affairs power has “a purposive aspect”.

That purposive aspect, the Court is there saying, defines whether the law is in fact one with respect to external affairs.  At the bottom of the page:

In this context, purpose is not something found in the head of power.  Rather, it is a test for determining whether the law in question is reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs.

Now, in that particular case, Victoria v The Commonwealth, the Court upheld provisions dealing with parental leave, on 522 to 524 of the judgment, based on very general provisions in the Family Responsibilities Convention, and it was prepared to say that the creation of a parental leave regime came within the broad obligation in that particular convention. We say similarly here, Division 104 is capable of being seen as appropriate and adapted to giving effect to this broad obligation.

KIRBY J:   The international obligation is sourced from the resolution of the Security Council and the International Convention for the Suppression of Terrorist Bombing?

MR BURMESTER:   No, your Honour.  I was using the Suppression of Terrorist Bombing simply as an example of one of a number of treaties that had identified – had imposed a similar obligation on States to prevent particular terrorist acts, where preventing terrorist acts more generally and so I was really using those treaties as examples of which the more general Security Council decision is broader but it is really, if you like, taking the specific prevention obligations in particular treaties that much further, so it is not confined to particular types of terrorist acts like terrorist bombings.  It may be that if there was evidence that a particular terrorist act that was to be prevented by a control order involved a terrorist bombing, that treaty may well support it ‑ ‑ ‑

KIRBY J:   And the other treaties in the special case are the treaties you are referring to, are they?

MR BURMESTER:   The other treaties are attached to the special case.

KIRBY J:   Such as the Convention on the Physical Protection of Nuclear Material, and so on.

MR BURMESTER:   Yes, your Honour, they are at the beginning of that third volume of the special case, the treaties. 

KIRBY J:   The Convention against Taking of Hostages.

MR BURMESTER:   Yes, they are all there.  Apart from time pressures, I could take your Honours to them.  So, your Honours, we say, based on Tasmanian Dams, Industrial Relations Case, there is an obligation of sufficient specificity and it would be a mistake to focus on those words and say because there is not a detailed regime set out as to how States should prevent terrorist acts, that therefore there is no basis on which to enact a regime such as Division 104. That did not prevent the Parliament enacting the world heritage legislation nor the parental leave regime or the minimum wages regime based on very broad and general conventions dealing with those particular subject matters.

As the Industrial Relations Case emphasises, at page 487, it is a mistake to focus too much on precise obligation rather than asking what is the purpose of the law.  Your Honours, Richardson v The Forestry Commission (1988) 164 CLR 261 also deals with these issues as to what particular measures can be seen as appropriate and adapted to carrying out, in that case, an obligation to protect a particular world heritage. Your Honours, if I can move more generally to external affairs based on ‑ ‑ ‑

GLEESON CJ:   Is that a convenient time, Mr Burmester?

MR BURMESTER:   Yes, your Honour, I can stop there.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ:   Yes, Mr Burmester.

MR BURMESTER:   Your Honour, before moving on to the other aspects of the external affairs power, can I first deal with some of the international material and if I could start in answer to Justice Hayne’s question about international definitions of “terrorism”.  If I could give your Honours some examples from the material in volume 3 of the special case, at page 671 there appears “Article 2” in what is the draft Convention being worked upon by the United Nations, a draft comprehensive Convention.  This draft is attached to a note that starts back on page 633, but you will see in Article 2 the elements identified there as a terrorist offence and one will see that there are high degrees of similarity between the elements of that offence and the definition of “terrorist act” in the Australian legislation.  This definition is really an elaboration of things that have been said by the United Nations for quite a few years. 

If I can take you over to page 773, this is a General Assembly Resolution dating from 1997.  In paragraph 2 of that resolution 51/210:

Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them –

Those same words can be found in other resolutions over on page 788.

KIRBY J:   Does the United Nations legislation of the Commonwealth provide for obligations to give effect to General Assembly Resolutions?

MR BURMESTER:   No, your Honour, I am not saying there is an obligation to give effect to General Assembly Resolutions.  I am pointing to international understandings of what amounts to terrorism.  That is the purpose of these definitions.

KIRBY J:   The problem is that it is all at a relatively high level of generality, of course.

MR BURMESTER:   Of course, your Honour.

KIRBY J:   That leaves it to each country to fulfil its obligations in accordance with its constitutional norms, but also its constitutional traditions and the way in which it normally operates.  It does not take us very far really.

MR BURMESTER:   Yes, your Honour, but one sees in these definitions, we say, the common elements which one can see reflected in the Australian definition of “terrorist act”, the United Kingdom legislation and so on.  So the other reference, your Honours, page 788, paragraph 3 which uses the same language as I read out, and there are other instances where that sort of language is used.  For more detailed elaboration of international attempts to define and identify terrorism there is, of course, the chapter in the recent book by Dr Ben Saul called Defining Terrorism in International Law and there is a chapter there on international attempts to deal with the definition of “terrorism”.

KIRBY J:   Of course, all United Nations Resolutions, including of the Security Council and the General Assembly, are given against the background of the United Nations framework of human rights obligations and I noticed that in one of the documents there was an assurance that the Australian legislation was conformable with those obligations.  Is there any specific mention in the legislation - I could not find it – that refers to the obligations of the international covenants or other international human rights treaties?

MR BURMESTER:   No, your Honour. There is nothing explicit in the legislation in Division 104 that refers to any of those international instruments, but there are in the United Nations resolutions quite often recognition that the measures that are taken against international terrorism should still have regard to international human rights instruments but, as I understand it, there is no suggestion that this law would be invalid. Certainly the plaintiffs have not articulated an argument that this law would be invalid because it breaches some international human rights standard. The United Nations itself – and I do not seek to contend otherwise – recognises that the taking of measures against international terrorism should still occur against the background of international human rights standards. They are not necessarily incompatible.

KIRBY J:   In the United Kingdom legislation there are provisions, for example, for the special advocate.  It is referred to in some of the English case law, and also for, I think, annual reviews of the legislation which have been conducted by Lord Lloyd.  Are there any equivalent provisions in our legislation either for a special advocate to assist the person accused by access to all of the government’s documentation?  I could not find any such provisions.

MR BURMESTER:   Your Honour, the closest is probably a special provision that refers to the public interest monitor in Queensland and as part of the negotiations with Queensland there is special provision for a public interest monitor which exists under Queensland law to have a role in relation to orders sought in Queensland, but apart from that there is no similar provision.  Then I think there is a requirement that the provisions be reviewed within a certain period.  I think certainly there is a political undertaking to that effect.  I am not sure it appears ‑ ‑ ‑

KIRBY J:   There is nothing in the federal law?

MR BURMESTER:   I would have to check that, your Honour.

KIRBY J:   I could not find it.

MR BURMESTER:   It was certainly, I think, a political undertaking that it be reviewed as part of the, I think, the communiqué of COAG which approved the introduction of these provisions.  There is a reference there which is set out in the special case book.  I think there is a reference there to a review, but I cannot immediately put my hands on that, your Honour.  Your Honour did ask about human rights obligations.  Under Article 103 of the Charter, decisions of the Security Council have precedence over obligations under other treaties.  The British Court of Appeal in Al‑Jedda v Secretary of State for Defence [2006] 3 WLR 954 had to deal with the issue of whether the obligations ‑ ‑ ‑

GUMMOW J:   Sorry?  2006?

MR BURMESTER: (2006) 3 WLR 954. This dealt with detention in Iraq and the question was whether something was compatible with the Security Council Resolutions dealing with the governing force in Iraq or whether it was incompatible with the English human rights treaties and so on and the European Convention on Human Rights.

The court there said that obligations of the Security Council would prevail over human rights treaties and I think the European Court of Justice, certainly at first instance - there has been some recent cases dealing with listing of terrorist organisations and the compatibility of the provisions adopted with the international law obligations versus the European human rights obligations.  Your Honour, maybe I could give the Court a note on those European cases dealing with this issue.

GLEESON CJ:   Thank you.

MR BURMESTER:   In the time available, I will not take your Honours to the various international materials that are contained in volume 3.  There are the general international treaties, then we have set out a number of Security Council Resolutions and then General Assembly Resolutions dating from the mid-1990s up until the present.  The most recent General Assembly statement on this issue, which is referred to in our footnote 256, was the adoption of a global counter-terrorism strategy and, your Honours, I might make this available separately to the Court.  It is not in the papers made available but this was the latest statement by the General Assembly on terrorism headed, “The United Nations Global Counter-Terrorism Strategy” and I particularly draw your attention to II, paragraph 1 which has the States undertaking:

the following measures to prevent and combat terrorism, in particular by denying terrorists access to the means to carry out their attacks . . . 

1.To refrain from organizing, instigating, facilitating, participating in, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that our respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts intended to be committed against other States or their citizens.

The United Nations has spoken as one in formal documents like a global counter-terrorism strategy about the importance of States taking measures to prevent terrorism.

Your Honours, when it comes to the limb of the external affairs power dealing with matters that affect relations with States, in our submission, international terrorism is clearly an issue where relations with other States would be directly affected.  The consistent calls by the United Nations and by regional bodies for States to take preventative measures in relation to terrorism, in our submission, demonstrate that terrorism, by its nature, is such that it directly affects relations with other States.

The United Nations consistently recalls that terrorism threatens peace and security.  It is one of the most serious threats.  It is not just a matter of international concern but a matter on which the international community has repeatedly called on States to take actions.  If a State was not to take action to prevent terrorism, was to harbour terrorists, this is clearly likely to affect relations with other countries.  If terrorist acts are allowed to occur, this may weaken the resolve of other States to resist terrorists and may seriously threaten global stability and the impairment and enjoyment of human rights.

We have in paragraph 159 of our submission quoted from the Canadian case of Suresh about the nature of international terrorism and we say when one has regard to the nature of international terrorism, the consistent international calls on States to take action, one could not properly contend that international terrorism was not a matter that affects relations with other States and one can in this regard distinguish it quite clearly from simply a subject matter on which individual States might have chosen to legislate such as in XYZ, the child sex tourism laws.  We would submit that the subject matter of terrorism is in a quite different category from simply subject matter where a number of States individually and in their own way have chosen to enact laws on a particular matter.  Here there is a complex and comprehensive body of international calls for action in the form of treaties, the United Nations action, including by the Security Council, numerous regional declarations and in volume 3 of our materials we have set out much of that material.

KIRBY J:   We looked at Suresh in another case, did we not, a few years back?  I thought we looked at Suresh.  What is it that you get out of Suresh?

MR BURMESTER:   Out of Suresh, your Honour, we get the paragraph - the principal reason for referring to it is the paragraph of the judgment quoted in paragraph 159 of our written submissions which points to the nature of terrorism.  As they said in that case:

It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries.  But after the year 2001, that approach is no longer valid.

Then the court went on and explained its reasons for that and we would adopt the reasoning in that case, or that discussion, of the nature of terrorism to support the view that international terrorism is a matter of international relations affecting relations with other countries and on that basis would support the law in the form of Division 104 which we say, for the reasons already given, is reasonably appropriate and adapted to dealing with the impact that international terrorism could have on our relations with other countries if we did not take appropriate steps to prevent terrorist activities in our own territory. It is really an extension of the sort of thought that Justice Dixon had in the Burgess Case (1936) 55 CLR 608 at 669, that taking actions within Australia could prevent actions that might harm or damage other countries.

Now, your Honours, there is this final category of law supported by the external affairs power that is often mentioned, that is the category of international concern.  We say there is no reason or necessity to rely on that here because, for all the other reasons we have already articulated, the external affairs power would support a law of this nature and, in any event, if anything could be of international concern and if international concern was to be recognised as a separate limb of the external affairs power, we would say that terrorism would clearly fall within it.  There is the same reasons we have dealt with in relation to the limb of relations with other countries and the effect on relations with other countries, this myriad of international action.  It is not simply a question of international interest.  One can clearly, therefore, distinguish the international law and the international requirements on States in relation to terrorism from something like global warming or some ideal in relation to which there may well be international declarations.

This is an entirely different set of concerns and the measures taken by the international community are much more extensive and far reaching, so for all those reasons we would contend that Division 104 can be supported by the external affairs power under one of the various limbs with which I have dealt.

GLEESON CJ:   Thank you.  Yes, Mr Solicitor for Western Australia.

MR MEADOWS:   May it please the Court. Of course, we adopt our written submissions and at the outset I wish to make it clear that Western Australia’s support for the Commonwealth in this matter is limited to its reliance on the reference of power from the States. In this regard I refer to paragraph 22 of our submissions where we submit that it is unnecessary for the Court to consider whether the provisions of Division 104 are capable of being supported by the other heads of power relied on by the Commonwealth. I would therefore stress that Western Australia should not be taken to be agreeing with everything that the Commonwealth has said about the other heads of power. Indeed, there may be resonances in what the plaintiff has said about the defence power, the external affairs power and the implied nationhood power with what the Attorney-General for Western Australia might want to argue on some other occasion.

Western Australia recognises that other powers may support Division 104 of the Criminal Code, at least to some extent.However, we submit it is not necessary to explore those niceties because whatever gaps may exist have been filled by the reference. This was recognised by both the Commonwealth and the States at the time the reference was made. This is evident from the explanatory memorandum for the Criminal Code Amendment (Terrorism) Bill 2002 which is extracted at tab D of the legislation materials put in by the Commonwealth where it was stated that:

The patchwork of existing Commonwealth constitutional powers is extensive but it is also complex.  It is impossible to rule out unforeseen gaps in constitutional support and consequent gaps in the coverage offered by offences based on existing powers.  Any legal complexity or uncertainty may become a focus for litigation about the effectiveness of the new federal terrorism offences. 

Problems of this kind may be avoided by removing doubts about the extent of the Commonwealth’s constitutional power to enact the new federal terrorism offences. States can remove those doubts by means of constitutional ‘references’ to the Commonwealth Parliament in accordance with section 51(xxxvii) of the Commonwealth Constitution.

KIRBY J:   But this does not really help us.  The question is whether within the terms of the legislation there has actually been a reference relevant to the division which is in question.

MR MEADOWS:   Quite so, your Honour, and I am about to address that.  What I am seeking to point out is that provided the referral has the effect that we say it has, there is no need to examine the other heads of power.

KIRBY J:   That is self-evident.

MR MEADOWS:   In fact, if you look at the note to section 100.3, paragraph (1), it is asserted at least that the State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament. 

If I might then turn to the scope of the amendment referral and we would adopt the Commonwealth’s submissions, in particular what my learned friend Mr Burmester has put to the Court. What we would observe is that it may be accepted that the States could have enacted legislation in terms of Division 104 of the Criminal Code to apply within its own geographical boundaries or in other circumstances where the States had a constitutional connection with the event.  But it can be accepted that one thing is obviously clear, and that is that no State would be capable of legislating in that respect for the whole nation.  Only the Commonwealth Parliament would be capable of doing this and, by virtue of the reference of power from the States - and by that I mean all of the States – the Commonwealth clearly has the power to enact this legislation for the protection of the nation and its people.  So, while it might be problematic whether other heads of power would support the legislation once you have this reference, then, in our submission, it is clear that the Commonwealth can enact this legislation. 

Now, if the substantive referral had been a referral of power to make laws with respect to the matter of terrorist acts and actions relating to terrorist acts, which is the wording of the amendment referral, there would have been no doubt that the Commonwealth could have enacted a law in terms of Division 104. Furthermore, there would have been no doubt that the Commonwealth could have enacted a law in terms of the text scheduled to the Terrorism (Commonwealth Powers) Act 2003 of the various States. In our submission, it must follow that in terms of the amendment referral, which is precisely in the terms that I have mentioned, the Commonwealth has the power to enact a provision such as Division 104 subject to the limitation relating to the form the amendment must take. The scope of the matters referred is not, in our submission, influenced by the requirement that it must be an amendment to the text which is scheduled to the referral Act.

HAYNE J:   I am sorry, what was that last proposition, Mr Solicitor?  Put it again, would you.

MR MEADOWS:   The fact that is required to be an amendment to the text of the legislation that is scheduled to the referral Act cannot affect the scope of the power that is the subject of the amendment referral, that is, to enact legislation with respect to terrorist acts and actions relating to terrorist acts provided they are an amendment to the text.

HAYNE J:   Thus you read “only to the extent of” as in effect equivalent to “but only by”?

MR MEADOWS: Yes, your Honour. In this regard it is important to look at the interplay between the referral Act and the Code, because if you look at section 3 of the Terrorism (Commonwealth Powers) Act 2003 (Vic), for example, you see that there is a definition of “terrorist act” in section 3 where it is said to have, “the same meaning it has in the text set out in Schedule 1”. If you go to Schedule 1 you see, of course, the definition of “terrorist act” which is now in the Criminal Code Act.  This means that the matter referred, that is, in relation to a terrorist act, includes all of those matters that are set out in the definition in section 101.1(2) as qualified by section 101.1(3).  So that includes all of the matters listed there:

Action falls within the subsection if it:

(a)     causes serious harm that is physical harm to a person –

et cetera, et cetera.  So the scope of the matter is expanded, we would say, by reference to those provisions.  If I might then just turn to the issue of preventive justice.

KIRBY J:   Could I just ask you to help on the phrase which is, in a sense, the stumbling block of that argument.  In 4(1)(b) it contemplates the making of “express amendments of the terrorism legislation or the criminal responsibility legislation”.  So it focuses attention on the actual legislation itself which is the matter in 4(1)(a) and then it requires that any expansion should be only made by express amendments.  Now, what do you say is the purpose of that confinement and why does it not restrict something which takes the legislation from the genus of dealing with criminal acts to the genus of dealing with prospective predictions which are notoriously difficult?

MR MEADOWS:   Your Honour, if I could just put it this way.  An order which sought to prevent the happening of any of the events set out in 101.1(2) would clearly be made under a law which related to actions relating to terrorist acts.

KIRBY J:   I do not quite get the point.  I mean, if you look at 101.2, they are specific acts of actions which, by inference, have already occurred, whereas the purpose of the added divisions is to deal with control orders against the possibility that acts will occur in the future.

MR MEADOWS:   I appreciate that.

KIRBY J:   And therefore the suggestion that is urged on us is that this is a new genus and does not fall within the meaning of “making express amendments of the terrorism legislation or the criminal responsibility legislation” that already exists, but is introducing a new species and a new dynamic which is different in kind and therefore, to safeguard the respect that is due by the Constitution to the Parliaments of the States, that that really requires their separate agreement and concurrence in a reference.

MR MEADOWS:   We would not support that proposition, your Honour, because, in our submission, any law which allowed for orders to be made to prevent the happening of these events would be a law with respect to terrorist acts or actions relating to terrorist acts.

KIRBY J:   But they are not terrorist acts, are they, until they are performed?

MR MEADOWS:   They will not be terrorist acts until they are performed, but a law which sought to prevent those things happening would still be a law which relates to terrorist acts.

KIRBY J:   If there is an ambiguity here, would one not, defensive of the constitutional powers of the State Parliaments, construe the ambiguity in a way that upholds the right of a State Parliament to give the Parliament’s concurrence in the reference of power? After all, that is what the scheme of the Constitution seems to envisage.

MR MEADOWS:   I hear what your Honour says and Western Australia would be the first to assert that proposition ‑ ‑ ‑

KIRBY J:   That is what I thought, but you do not speak for the Parliament, you see.  You speak for the Executive Government.

MR MEADOWS:   Indeed I do.

KIRBY J:   That is the problem.  The only ones who are going to defend the Parliament round here are us.

MR MEADOWS:   I am sure they would be encouraged to hear that, your Honour.  We say it is just simply a matter of construction that any order which prevented the happening of any of those events is something which is related to terrorist acts or actions relating to terrorist acts.

GUMMOW J:   This word “express,” Mr Solicitor, in 4(1)(b) of the Victorian Act - I am not sure where this leads, but the word “express” may reflect what was said in Kartinyeri 195 CLR 337 at 375 to 376, paragraphs 67 to 68 about amendments by other means. There are all sorts of amendments that are not express.

MR MEADOWS:   Yes.  But, of course, what your Honours Justice Hayne and Justice Gummow said in Kartinyeri about the meaning of “amendment” is that it is something which simply changes the legal meaning of the Act and, in our submission, it could not be argued otherwise than that the insertion of Division 104 has changed the meaning of the Act. That is at page 375 of the ‑ ‑ ‑

KIRBY J:   It is not just amendment though, you see.  Parliament has taken the pains to restrict it by the requirement that it be an express amendment which rather ‑ ‑ ‑

MR MEADOWS:   With respect, your Honour, I cannot think of anything more express than inserting a new division, particularly where the definition of “amendment” includes the insertion of something.

KIRBY J:   Well, the question is not whether there has been a major insertion of a new division but whether within a limitation that there is a necessity for express amendment that is reserved to the State Parliament, that there is a need to do that clearly by express language addressed to the legislation as it already exists.

MR MEADOWS:   I do not think I can really add to what I have just said, that an insertion of a new division is an express amendment.

GLEESON CJ:   The concept of “express amendment” goes beyond textual alteration.

MR MEADOWS:   Yes.  Indeed, if that is what the States had wished to impose, they could have actually said that, that it could only be a change to the actual text.

KIRBY J:   Yes, but the problem with your submission is that it is as if the words that followed “the matter of terrorist acts and actions relating to terrorist acts” had been omitted.  Why bother to enact them?  On your submission it is just enough that it falls within that.  Read that with subsection (3), no problem.  The problem is presented by the fact that the Parliament of Western Australia added these added words which are words of restriction and limitation to which meaning must be given.

MR MEADOWS:   I think, as my learned friend Mr Burmester suggested, all that was intended to do was to require it to be an amendment to this particular Act so that you could not put in something which was extraneous to the issue of terrorist acts or actions relating to terrorist acts.

KIRBY J:   But he agreed that to insert, say, the Work Choices legislation in the reference of power on corporations would be to introduce a different genus.

MR MEADOWS:   Except that with the corporations referral there was a specific exclusion of industrial relations.

KIRBY J:   That, therefore, makes his analogy rather inapplicable because there was the express limitation, but the issue is really one of whether it is a different genus or not and I suppose that is a matter of judgment in each case.

GLEESON CJ:   The alternative possibility is that we are dealing with species and that the genus is “actions relating to terrorist acts”.

MR MEADOWS:   Yes, and that is where we are coming from on this, your Honour.

KIRBY J:   But you cannot then give no meaning to words “but only to the extent” and the words that follow.  They are words of limitation, defensive of the powers of the Parliament of your State.

MR MEADOWS:   Yes, but then you have to look at the word “amended” and see how it is defined and see that it includes the insertion of something.  I am not sure I can take that any further.  On the issue of preventive justice, I am going to defer to my learned friend the Solicitor-General for South Australia on that and the comprehensive paper that they are going to hand up to the Court, but could I just refer to two other cases which are not referred to.  One is R v The Justices of Cork (1882) 15 Cox CC 149 and to what Justice Fitzgerald says in that case at pages 153 to 155 where he speaks of the jurisdiction to make binding‑over orders to keep the peace and to be of good behaviour as being judicial discretionary powers, and also to the case of Willes v Bridger 106 ER 368 at 371 to the remarks of Chief Justice Abbott where he referred to:

The authority of a justice of the peace to require, upon due complaint made to him in his judicial character, sureties for the keeping of the peace -

We rely on both those authorities for the contention that in making such orders judges and justices are acting in a judicial capacity.

If I could just advert to one other matter before I sit down, I would like to make reference to the Restraining Orders Act 1997 (WA). Your Honour Justice Hayne called for an example of legislation which permitted the making of an order for the protection of the public generally and we have that, we would submit, in this legislation from Western Australia. If one looks at section 38, and I think we have made a copy of the Act available, in the section of the Act dealing with misconduct restraining orders, it says:

An application for a misconduct restraining order may be made in person by –

among others –

(b)a police officer on behalf of that person.

But in subsection (3) it says:

If there is no particular person seeking to be protected an application for a misconduct restraining order may be made by a police officer on behalf of the public generally.

HAYNE J:   Does this find its origin in the English antisocial behaviour legislation which I think is of relatively recent origin?

MR MEADOWS:   It may do, your Honour.  I really do not have the answer to that. 

HAYNE J:   Where apparently the courts are pressed into service to say of certainly people, commonly young people, “Your behaviour’s antisocial, stop it”.

GUMMOW J:   They tag them, too.

HAYNE J:   Just to add a little flavour to it.

MR MEADOWS:   If I could just go on and refer to section 34(a)(iii) and 34(b) which provides for the making of such orders if the court is satisfied that:

unless restrained, the respondent is likely to . . . 

(iii)behave in a manner that is, or is likely to lead to, a breach of the peace;

and

(b)granting a misconduct restraining order is appropriate in the circumstances.

Section 35(2) sets out the matters to which the court is to have regard, including in paragraph (a):

the need to ensure that the public is protected from breaches of the peace -

Section 36 provides in relation to the making of a misconduct restraining order, that:

a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent . . . 

(c)behaving in a manner that is, or is likely to lead to, a breach of the peace.

If I can refer to section 36(3) which talks about the conditions that may be imposed and finally to section 44A which relates not so much to misconduct restraining orders but to violence restraining orders where, in the case of an ex parte application:

(b)a court may inform itself on any matter in such manner as it considers appropriate -

I present that as an illustration of what your Honour was looking for.  There is one other matter though I wanted to ‑ ‑ ‑

HAYNE J:   Just before you leave it, is it drawing too long a bow to think that in the second reading speech there might have been reference to being tough on crime?

MR MEADOWS:   I am sure there was, your Honour.

HAYNE J:   Is the legislation 2004?

MR MEADOWS:   Let us say, I would not be surprised. With reference to Canada, my learned friend the Solicitor-General for the Commonwealth did refer to some provisions but he did not refer to section 83 of the Canadian Criminal Code which does deal with terrorism.  I think that might have been part of the Act that your Honour the Chief Justice was looking at when my learned friend was addressing you.  But that provides that:

a peace officer may lay an information before a provincial court judge if the peace officer

(a)     believes on reasonable grounds that a terrorist activity will be carried out –

and there is the opportunity to require the person to enter into a recognizance subject to conditions. 

That is legislation which is somewhat akin to the legislation we are dealing with here. Mind you, I should mention that section 83.32 does provide for a sunset clause which would make these provisions cease to apply at the end of the 15th sitting day of Parliament after 31 December 2006 unless it has been extended. I am afraid I am not in a position to say whether it has been extended or whether Parliament has sat for 15 days since then but I will certainly make some inquiries in that regard.

GLEESON CJ:  You can let us know. 

MR MEADOWS:   If it please the Court, they are our submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Solicitor for New South Wales.

MR SEXTON:  If the Court pleases. We propose to make oral submissions only in relation to the referral legislation. That matter has been largely covered by Mr Burmester and also by Mr Meadows. We adopt those submissions and we make three additional comments. The first is that, in our submission, there is only one limitation on the kind of amendment that can be made by the Commonwealth Parliament under the State referral legislation. That is the limitation of subject matter, that it must be concerning terrorist acts or actions relating to terrorist acts. There is, in our submission, no limitation on the form or the size of the amendment that may otherwise be made to Part 5.3 of the Commonwealth legislation and, as we understand it, it is not put against us that the limitation on the subject matter is in issue here. What my learned friends for the plaintiff seemed to say is that there is some limitation on perhaps the size or the form of the amendment that might be made but what the legislation refers to is simply the insertion of words or matter to Part 5.3.

KIRBY J:   I did not take it as addressed to the size or the bulk or the quantity or the length but as to the kind, that it is dealing with a different topic.

MR SEXTON:   But that is not a limitation that is set out in the legislation, your Honour.

KIRBY J:   Yes, but it was not set out in the original legislation and the question before us is whether it is within the referral.  Then we go to (b) and (b) appears to contemplate – if your submission is right, you did not need all those other words at the end of (b) – just have the opening words.

MR SEXTON:   But, your Honour, that is the limitation of “subject matter” that has to be met and, as we understand it, there is no dispute about that.  Our learned friends for the plaintiff seemed to say it is the fact that the amendment does not relate to offences as the original legislation did but it relates to a different, as it were, set of materials in this case, the notion of control orders, but that is not a limitation that is imposed.

KIRBY J:   No, it is because qualifying by reference to the subject matter is not enough because of the exclusion “but only to the extent of the making of laws”, so you get the subject matter which is “terrorist acts and actions relating to terrorist acts” but then you cut out from that apple what is not “the making of laws with respect to that matter by making express amendments” to what ‑ ‑ ‑

MR SEXTON:   But, your Honour, all that is needed for an express amendment, once the subject matter limitation has been met is the insertion of words or matter in Part 5.3.

KIRBY J:   That is the question.

MR SEXTON:   It is the question, your Honour, but we say that the legislation is perfectly clear on its face.

KIRBY J:   You say that but you are the Executive Government.  It is the Parliament and only the Parliament that can refer powers.

MR SEXTON:   Yes, and it has done so here, your Honour.  The question is what has it done but we say that the words are clear; they could not be, we say, any clearer.

KIRBY J:   I do not know why we bother to come to work.  If everything is so clear why not pack our bags.

MR SEXTON:   This point is clear, your Honour, that is all we say.  Now, on that subject, and this is the second point, that there has been reference to the second reading speech by the Victorian Attorney-General.  Some parts of that refer more broadly than others to amendments but we would only say about that that whatever it says it cannot detract from what we say is the plain meaning, the plain words of the legislation which I have just referred to.

The third point, your Honours, is section 100.8 of the Commonwealth legislation, that is the provision that requires the approval of the States.

GUMMOW J:   No, at least four States.

MR SEXTON:   Yes, four States, your Honour, and there is another combination that can be – as your Honour Justice Gummow has suggested today, there may be some difficult questions about the validity of such a provision in Commonwealth legislation but that is probably, we would say, not something that needs to be decided in this case because in this case it would seem that the relevant approvals have been given.

We would say that those approvals could be given in a range of ways not necessarily exhaustively but certainly by a letter from the Premier of the relevant State or the Chief Minister of the relevant Territory or even by, for example, the secretary or the director‑general of the relevant Premier’s department because under the Westminster system we would say that such a letter could not be written and sent without, in a sense, reflecting the fact that the State or the Territory was agreeing to the amendments in question.  So that there is a range of ways in which that approval could be given but it seems that in this case the approval has been made in a number of those ways.

KIRBY J:   Can you help me here.  The print that I have of the Criminal Code goes up to 101.6 but in the Victorian referral statute in the schedule there is 100.8.

MR SEXTON:   I am sorry, your Honour, it is in the schedule.  I am looking at the Commonwealth’s legislation materials.  Is your Honour looking for 100.8?

KIRBY J:   Yes, it is in section 100.8.

MR SEXTON:   Yes, which is behind tab E at page 13 of that ‑ ‑ ‑

KIRBY J:   Not really, that is the State Act with the schedule, but the actual federal legislation we have separately, but it seems to follow the same language.

MR SEXTON:   Yes, your Honour.  Unless there are any other matters, your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Solicitor for South Australia.

MR KOURAKIS:   If the Court pleases, before picking up the ball that has been bounced down to me, I have some brief submissions to make on the construction of both the referral legislation and the Code itself.  As to the referral legislation, the general approach to construction, in my submission, should be one that does not involve any presumption either as to a narrow or a wide reading; rather, a purposive construction is most appropriate.  That must start with an identification of the mischief.  In my submission, plainly the mischief is the lack of any comprehensive power on the part of the Commonwealth to deal with terrorist threats.  The purpose of the legislation then is to ensure effective and comprehensive dealing with those threats at a national level and, indeed, that is what the explanatory memorandum to the Bill explains at the very outset.  That is under tab F and in the third paragraph.

KIRBY J: The purposive construction has been adopted generally by the Court in other areas, but may there not be different considerations in construing the Constitution given the political, in the broad sense, governmental governance issues which are involved? To the extent that you have a reference by a Parliament of the State to the Commonwealth, it is both exceptional and intended to be exceptional and it is intended to follow certain forms and to be done by the Parliament and not the Executive Government of the State.

MR KOURAKIS:   No, and this referral ‑ ‑ ‑

KIRBY J:   That puts a bit of a limitation on the purposive approach.  It has to be purposive but within the compass of the constitutional function of the reference of powers provision.

MR KOURAKIS: Your Honour, the relative constitutional positions of the State and Commonwealth must be properly understood in determining the purpose of the referral by a State Parliament. That plainly must be so. But ultimately, your Honours, bearing that constitutional context in mind, the purpose is as good a starting point for a referral statute, not the Constitution. We are not talking about the Constitution itself, the referral statute, particularly in this context. That purpose, in my submission, is evident on the face of the referral and there is support for the proposition in the explanatory memorandum.

Your Honours, the other observation I make is that section 4(1) in fact refers to quite separately defined subject matters. Section 4(1)(a) refers “the matters to which the referred provisions relate”. So the matters, and it is the matter that must be referred, can only be identified by going to the referred provisions, but subparagraph (b) refers quite a different matter. It is a matter that one can understand just by reading subparagraph (b) without going to the referred provisions. It is “the matter of terrorist acts and actions relating to terrorist acts”.

The referral in (a) is spent once the referred provisions are enacted, and the referral in (b) can only come into effect after that enactment. But, in my submission, there is no reason – indeed, it would be contrary, as Mr Burmester pointed out - to subsection (3) to read the referral in (b) down by reference to the referral in (a). Your Honours, I simply adopt the submissions that have already been made about the effect of simply reading the extended definition or the definition of “express amendment” into section 4(1)(b), and the effect is that any enactment relating to a terrorist act can be enacted by the Commonwealth simply by inserting the words into Part 5.3 which exists and exists by reason of the Commonwealth acting on the referral which is apparent in 4(1)(a).

Your Honours, as to the problem with section 100.8, my submission is that as it appears in the schedule to the referral act, it cannot be read into the Act itself as some further limitation on section 4(1)(b). As it exists in the Commonwealth Act it is best regarded as something akin to a recital or a preamble which pronounces the intention of the Commonwealth as to the future exercise of its powers.

Your Honours, can I now turn to the Code itself to make some submissions about the construction of Division 104.4. Turning to (1)(c), clause (i) is not directly in issue, of course, in this particular case but it must be considered in determining the validity of the legislation generally. I make this submission about that subparagraph, that, for it to be determined by the court, the court must first make findings that there is a person or are persons who are contemplating or intend a terrorist act, and some factual findings about this contemplated or intended terrorist act must be found. It might not be possible to be very particular about it, but some findings about it must be made before it could sensibly be concluded that the making of the order would substantially assist in preventing it.

That inquiry, in my submission, has a level of particularity that is amenable to determination by the use of the judicial method, the actual proof on the part of the applicant, and, after all, the applicant has the onus.  It may be difficult, but that is what must be proved and what must be found before any order can be made.  Your Honours, I make a similar submission with respect to subparagraph(d) that requires that:

the court is satisfied on the balance of probabilities that each of the obligations . . . are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.

Some finding about a terrorist act contemplated or intended - again, a level of particularity may be difficult - must be ‑ ‑ ‑

HAYNE J:   Can I test that against this?  Would it be open under 104.1 to make an order against a rural supplier of fertiliser that that supplier shall not supply any person with ammonium nitrate in any quantity greater than two kilos, four kilos, whatever?

MR KOURAKIS:   Your Honour, would it be possible for such an order to be made?

HAYNE J:   Would it be within 104.1?

MR KOURAKIS:   Your Honour, such an order could be made.  Whether the evidence justified it is quite another question, but it could be made.

HAYNE J:   That, without any particular would-be manufacturer of explosives using ammonium nitrate in mind?

MR KOURAKIS:   Sorry, without?

HAYNE J:   That, without any particular person, organisation, event in mind?

MR KOURAKIS:   No, your Honour, and the reason for that is the court could not find as a matter of fact that the making of the order would substantially assist in the prevention of a terrorist act. 

HAYNE J:   I would have thought that you had to look only at Oklahoma and you would draw some conclusions from that, but do not stay with the particular example.

MR KOURAKIS:   Your Honour, the submissions I make are based on giving that phrase “substantially assist” considerable work to do or some work to do, but if it is given that work, then say it is simply a question of applying the judicial method to making the determination.  Your Honours, if that construction is adopted, then the protection of the public from a terrorist act, which is the test in subparagraph (d), is very different from a general test of public interest such as that that the Trade Practices Commission had to apply in the Tasmanian Breweries Case.  This is not a question of a court making decisions about competition policy; rather it requires a court to focus on the evidence led to show that particular connection to which I have referred.

Your Honours, in my submission, nor can it be any objection that the making of the order creates new obligations that were not expressly provided for by the legislation in the past.  Section 80 of the Trade Practices Act is an example of legislation that authorises, empowers, a court to impose obligations such as remedial advertising that did not exist before.  Admittedly, with section 80 there is a clear breach of a legal rule that must be shown before that discretion arises but the submission I make is that the simple fact that new obligations are created is not an objection to this being an exercise of judicial power.

On the question of the balancing exercise that appears to be required by subsection (1)(d) and (2), in my submission, that is unknown.  It is not dissimilar to the balancing exercise that a court must undertake in deciding whether to issue a quia timet injunction on the application of the Attorney to prevent a public nuisance.  The balance between the restriction on the liberty of the person sought to be restrained and the risk to others in the likelihood of the nuisance taking place are all matters which are balanced by a court in those circumstances.

Your Honours, on the question of the width of the function that is conferred on the court by Division 104, I make this submission. The very focus on that question, that is the width of the function shows that we are not here concerned with a provision which abrogates the, if you like, high constitutional purpose in the separation of powers that that is of ensuring that only Chapter III courts conclusively determine questions of law. That principle is in no way abrogated by what is happening here - plainly the court is given this power of making conclusive and binding orders - nor is the Chapter III principle and the separation of powers undermined by giving a court a function which does not result in a conclusive or binding order, an order which people are free to ignore or at least to challenge collaterally.

So we are not here concerned with those essential features of judicial power. Rather, the argument that the function given by Division 104 is not one or the dispute that is submitted to the court by Division 104 is not one that is apt to resolution by application of the judicial method and, for the reasons that I have submitted, on a proper construction the division gives the court a fairly particular and relatively narrow task.

Your Honours, next and finally on Division 104, can I just make a submission about the principle that comes out of Barrett’s Case, Barrett v Opitz (1945) 70 CLR 141. Your Honours, it is clear from that case that in a single provision the Commonwealth can both enact the legal rule and confer jurisdiction. Moreover, it is clear from the judgment of his Honour Justice Dixon, as he then was, that the Parliament can use that technique to confer a discretionary jurisdiction, one that involves the imposition of new rights or new obligations. That is clear from passages in the judgment of his Honour Justice Dixon at page 167, at about point 3, the paragraph commencing:

But suppose the purpose of the legislature is not to create an absolute liability, and not to give a jurisdiction imperatively exercisable.  Suppose, on the contrary, that what the legislature desires is to bestow upon a judicial body a discretionary power.

His Honour then sets out provisions, of which there were many, where a discretion was exercised by creating first a rule and then a conferral of discretionary power.  On page 168 in the second full paragraph his Honour goes on to put the proposition that the same technique of both enacting a rule, this time a discretionary one, and conferring jurisdiction all in the one provision is permissible.  That conclusion can be seen at the very foot of page 169 where his Honour says:

The grant of that discretionary power appears to me to involve an exercise of the legislative power under s. 51, and, on the assumption that it is a judicial matter –

his Honour was bound by that because of the decision in Jacka v Lewis –

either in whole or in part, an exercise of that power uno ictu with a use of the legislative power under s. 77(i.).

Your Honours, in my submission, a legal rule or norm can be identified in Division 104 that goes along with the conferral of jurisdiction. It is essentially a duty on all persons to ensure that their conduct, whether constituted by acts or omissions, does not substantially assist the commission of a terrorist act. That rule, that general duty, in my submission, can be discerned from the nature of the jurisdiction that has been conferred.

Your Honours, can I just say finally on that question of judicial power and how it might be conferred, my learned friend the Solicitor‑General for the Commonwealth made submissions about chameleon powers.  In my submission, I use slightly different nomenclature and say that the functions that are exercised may be chameleon in the sense that they may, if given to one body, result in - the legislature may provide that they result in the exercise of administrative power.  However, the legislature may also, by giving them to a court and making the appropriate provisions, provide that the same or similar functions result in the exercise of judicial power that is a conclusive and binding order.

Your Honours, for the purposes of my submissions on the binding over orders and their history it might be convenient if your Honours have before you the materials supplied by the Commonwealth.  Your Honours, we provided just this morning a note setting out some of the history.  I will not, obviously, go through that note, but can I just take your Honours to the particular pages in the booklet that show something of the history.

Can I take your Honours behind tab 1 to page 256 in Blackstone’s The Laws of England simply to say that in that and the next page there is a summary of both the pre‑conditions for the exercise of the power to bind over to be of good behaviour and of the conduct that would result in a breach of that order.  Those matters, without taking your Honours to them, are also described under tab 2 in the extracts from Hawkins, Pleas of the Crown at pages 486 to 487.

KIRBY J: This is very interesting and may well be useful and I am not criticising you for giving us the historical background, but the fact is that the evolution of the role of the modern judiciary really took a long course and only really, as it were, changed things in relatively recent times because it began in the Cabinet of the King and at that time the powers of the Executive and the powers of the judiciary were all mixed up and to this day, or until very recently, the Lord Chancellor had all these roles accumulated, whereas, going back to these early times is not necessarily a good guide as to what the judiciary of the federal judicature in Australia established by the Constitution in 1901 was intended to do.

MR KOURAKIS:   Your Honour, the purpose for going to these materials is to show this, firstly, the breadth and width of the power to bind over for good behaviour and then to show how over many centuries that power has been integrated into the ordinary judicial work of the courts in that period of separation out from the single sovereign power.  That separation, the integration of the power to bind over into the work of the courts, has now a history of many centuries.

KIRBY J:   Look at this: 

Thus also a justice may bind over . . . the putative fathers of bastards; cheats ‑ ‑ ‑

MR KOURAKIS:   Your Honour, undoubtedly that which is within the connotation, the denotation of good behaviour ‑ ‑ ‑

KIRBY J:   I am not sure that would pass muster today.

MR KOURAKIS:   ‑ ‑ ‑ will have changed over the years.  Your Honours, on the question of what will breach the undertaking of good behaviour, can I also say that it is dealt with by Burn’s, Justice of the Peace – that is under tab 3 and the pages are from 754 and following and the bond to be of good behaviour could be imposed for something less than the commission of a criminal offence and could be breached by conduct that was less than the commission of a criminal offence.

Your Honours, it is on the question of the writ of supplicavit that I want to now make some brief submissions.  A summary of that writ and its purpose can be seen again in the extracts from Blackstone under tab 1 of the Commonwealth materials last supplied, at page 253.  Before saying something about the writ of supplicavit it is important in my submission to appreciate that the justices of the courts of King’s Bench and Chancery were conservators of the peace, ex officio; that is, the common law recognised that function, being a conservator of the peace, was one that went with the office.  They did not exercise the powers by virtue of the commission given to them by the sovereign on appointment.  The common law itself, as I say, dating back over many centuries, accepted that it was an appropriate position for those judges to take ex officio.

KIRBY J:   Here again we see the question is whether Jews, pagans or persons convicted were entitled to be demandants.

CRENNAN J:   A much more recent example, I suppose - I am using “recent” loosely, just dealing with Justice Kirby’s concerns, are the Vagrancy Acts for the itinerant poor in the 19th century.  I think in Victoria we have only finally repealed the Vagrancy Act in the last 20 years, and that is the context in which binding over orders were common.

MR SEXTON:   Yes.  Your Honour, much of the conduct that would found the imposing imposition of a good behaviour bond or its breach later became those very offences.  Your Honours, the fact that it served a particular purpose now anachronistic, now not needed, in centuries past does not mean that a similar procedure is not suited and adapted to more modern problems and the consultation paper from the Home Office that we provided a reference to in our list of authorities recently is an example of a review of the purpose served by such orders.

KIRBY J:   You might be right, but it does seem to muddle up a lot of things which do not immediately appeal as the proper function of a modern judicature of the Commonwealth of Australia.

MR SEXTON:   Your Honours, the submission I make ultimately with respect to this is that what is called generally “preventive justice” by Blackstone is a function that has been conferred and an integrated part of judicial function for a long time.  Now, precisely what conduct and what level of misbehaviour it seeks to control is one thing, and one now that will largely be determined by Parliament.  Whether or not the process is one that is amenable to the judicial method can be seen by its history and by the fact ‑ ‑ ‑

GLEESON CJ:   The Lord Chancellor says that it is part of our legal heritage but it is a very modern concept with its emphasis on preventing crime.

MR KOURAKIS:   That does not seem to be borne out by the materials.  The materials before your Honours show that the purpose of preventing crime is indeed a very old one.

KIRBY J:   But in a sense this is getting courts to do what we would now regard as the Executive dirty work because with the formation of modern police forces in the 19th century a lot of these things have been taken over and done by police.  Rounding up cheats and so on is now fitted into particular crimes and dealt with by police who bring people before magistrates who have new functions and different functions.

MR KOURAKIS:   Your Honours, alongside the creation of offences by statutes such as the statutes that my learned friend Mr Meadows took your Honours to, and South Australia has its equivalent – they appear on our list of authorities – the function has been maintained, the procedure modernised and its focus narrowed.  Domestic violence orders are an obvious example.  The question of the extent to which they should be used is one thing; whether or not they can be used, consistent with the judicial method is another.  There is a history of courts being able to do so.

Finally, your Honours, on the question of the writ of supplicavit, that was a writ taken in the courts of King’s Bench or Chancery seeking an order to go to a justice requiring the justice to bind someone over.  The passage at page 253 that I have asked your Honours to go to speaks of compelling “the justice to act, as a ministerial and not as a judicial officer”.  That is about a third of the way down.

My learned friends for the plaintiff have submitted in paragraph 13 of their reply that that reference to “acting ministerial” is a reference to the judges of the court of King’s Bench or Chancery acting ministerially.  With respect, that is plainly not right when the whole passage is considered and that is not the explanation of the power given by Burn’s under tab 3 at page 743 either.

Importantly, your Honours, plainly in hearing the writ the court acted judicially and the reference to the statute about halfway down that page, 253, was one that required the court when an application for a writ was made to it to have the application made on motion supported by declaration on oath and entered into the records of the court.  That statute is set out – I will not take your Honours to it – under tab 2 at pages 479 to 480 but, importantly, it makes, in my submission, the point that the court’s jurisdiction in this regard was fully integrated into the jurisdiction of the court itself requiring, as I have said, the notice of motion and the record to be kept.  If the Court pleases, they are my submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, there are six matters we would seek to address but can I just correct one error that I made, I think, on the first day.  I had indicated, on a misunderstanding from my instructor, that Magistrate Mowbray had disqualified himself.  In fact, he had raised his son’s involvement incidentally in the matter but no issue arose because the matter was transferred to Melbourne so there was not any disqualification, in fact.

KIRBY J:   I did not hear that?

MR MERKEL:   There was no disqualification by the magistrate.  The issue did not arise.  I think I had said that there was and I just wanted to correct the record and apologise for that error.

The first of the six matters we would seek to address in reply relates to the special case.  A number of questions have been asked of my learned friend for the Commonwealth about the special case and its standing.  Under Order 27 rule 8.3, we accept that the case must state the facts and identify the documents necessary to enable the Court to decide the questions of law arising and those questions are set out at page 42 of the special case book.  The parties have agreed on the facts and documents for that purpose, that is, answering those questions and no other purpose.  The ultimate availability or entitlement of prohibition was not a matter raised in the questions or put in issue, nor has the Commonwealth sought to raise any issue about our client’s standing.  What we want to say  ‑ ‑ ‑

KIRBY J:   What do you say about the schedule 2 with the summary of grounds on which this order is made?

MR MERKEL:   I will come to that under the defence power, your Honour.

KIRBY J:   They seem to be very specific findings by the magistrate against your client.

MR MERKEL:   Yes, we have no difficulty in dealing with that, your Honour, but what I wanted to say is that whatever role it may have the questions asked are at page 42.  An issue of prohibition was not a matter raised for the purposes of the special case, but the point I wanted to make is the facts were agreed on the basis of those questions and for the purpose of answering those questions ‑ ‑ ‑

GUMMOW J:   I should say this to you, Mr Merkel, looking at page 42, those questions seem to me to be too wide.  It seems to me your standing at the moment is to – you are not a State, so your standing is to challenge that order that was made against you.

MR MERKEL:   It goes wider than that, your Honour, because our standing is to challenge the exercise of power, not only just that has occurred but that which is threatened to occur and will occur, namely the exercise of power for the confirmation hearing, and we would say that even if some provisions are severable and valid, others propose to be acted upon which we would say are not, but I will deal with the findings ‑ ‑ ‑

CALLINAN J:   I am concerned about that because I read your written submissions as challenging the whole of 104 and I may be wrong but is there any attempt to deal with severance – various provisions anywhere in your written arguments?

MR MERKEL:   Your Honour, the Commonwealth have not put severance in any meaningful way ‑ ‑ ‑

CALLINAN J:   No, but if you put ‑ ‑ ‑

GUMMOW J:   We cannot have things foisted on us, you see, by agreement between you and the Commonwealth.

KIRBY J:   Mr Burmester definitely argued severance in relation to the external affairs power.

CALLINAN J:   But not in relation, for example, to the defence power.  You can just draw my attention to any written arguments about this if they are there but ‑ ‑ ‑

MR MERKEL:   Your Honour, we have put our arguments on invalidity.  The Court, no doubt, will deal with those as is appropriate.  The Commonwealth, we would say quite correctly, has recognised that untangling this statutory scheme into segments simply will not work without changing its meaning and operation.  This is not a case where there is said to be an external operation, for example, training with a listed terrorist organisation is geographically blind.

CALLINAN J:   That is not my point and I am not speaking for Justice Gummow, but I doubt whether it is his point either.  Are we not concerned about the constitutionality of 104 in the operation of the Act and the order made under it so far as it relates to your client and not otherwise.

MR MERKEL:   Your Honour, we would say that that is the question ultimately depending on the answer to the questions asked at page 42.  The difficulty I have in answering is that there are so many possible ways in which the Court may approach the issue of validity under Chapter III and under heads of power that, in a sense, it may depend on what is successful and what is not successful as to whether severance arises.

GUMMOW J:   At the end of the day, Mr Merkel, you come here wanting prohibition.

MR MERKEL: We want prohibition, your Honour, but at this stage we want prohibition not only in respect of the interim order that was made, but also in respect of the jurisdiction which we say the magistrate, under the Constitution, does not have to proceed to a confirmation hearing on grounds that we say, for the reasons we have put forward, are not available because Chapter III and the heads of power do not support them. But I wanted to say that there is a misapprehension in any event about the schedule 2 facts and I wanted to come to that because this question of having admitted training with a listed terrorist organisation we say has not come up at all in the correct way.

First of all, it is my understanding that there is no admission of that kind in any of the material.  My understanding is that it is an inference the magistrate has drawn.  Secondly, and most importantly, the magistrate’s conclusion relates to training with a listed terrorist organisation in the year 2001.  When the statutory scheme is followed through, section 100.1 defines a “listed terrorist organisation”; 102.1(b), (2), (3) and (4) define it by reference to its activities in the present tense which relates to the date of listing which is in 2002.

CALLINAN J:   Why can we not take judicial notice of the fact that it has continued those activities?

MR MERKEL:   That is not the problem.  It is judicial notice that it was a listed terrorist organisation when it was not and we say that is not what the statute makes available.  Can I give your Honour this example.  Take Hamas.  In 1975 it may have been carrying on hospitals in the West Bank area of Palestine or whatever.  In 2002 it may have been declared a listed terrorist organisation.

This statutory scheme, on the interpretation that is being put against me at the moment, would have the fact that someone engaged in hospital training with Hamas in 1975 has trained with a listed terrorist organisation in 2002.  We say the statutory scheme simply does not work that way, but, more importantly, when one looks at section 102.1(b) it is simply not open to treat this scheme as intending to apply to a listed organisation prior to the date on which it was listed, because there is nothing in the scheme that suggested prior to that date that it was a terrorist organisation, because its listing is not premised on its past activities.  It is premised entirely on its activity at the date of the listing. 

So we say that this question of the magistrate’s finding demonstrates, on a proper construction of the Act, not that he has found a jurisdictional fact but what he has found is the absence of a jurisdictional fact.  Now, we are not here at this stage on a 75(v) challenge based on the magistrate’s findings.  We are here on a constitutional challenge, so that we say that particular issue which has been agitated before the Court in some detail simply shows the lack of power to make the order because an essential jurisdictional fact is missing.  The other fact that the magistrate found, namely that the orders necessary to prevent a terrorist act or to assist in preventing a terrorist act - that was also found - that, in essence, is the subject of the constitutional challenge. 

Now, your Honours have heard under Chapter III and under the defence power, extensive submissions that, we would say with respect, enable the Court to answer that question.  Now, under the defence power I will take your Honours to the facts in the special case that answer the questions your Honour Justice Hayne raised of my learned friend:  where do we see the degree of likelihood of a terrorist act?  It is all there in the special case.

KIRBY J:   Just before you do that, I mean, the fact of the matter is we have in the special case book, pages 46 and 47, which is the interim control order and the reasons why it has been made, and we have schedule 2.  Now, I do not know how they get in there by reference to the special case but, presumably, they are there because they are in some way referred to in the special case - schedule 2 being on page 52 - and as far as I am concerned, I mean, these are very significant findings of fact against your client.

MR MERKEL:   To the contrary, your Honour, the findings of fact on schedule 2, with respect ‑ ‑ ‑

KIRBY J:   It says:

SUMMARY OF THE GROUNDS ON WHICH THIS ORDER IS MADE

1.        Mr Thomas has admitted . . . 

2.        There are good reasons to believe -

I mean, this is black and white. 

MR MERKEL:   The point I am making, your Honour, is a different point and that is that the finding that he trained with Al-Qa’ida in 2001, and it is a listed terrorist organisation under the regulations which only came into existence in 2002, shows when that is looked at properly that it is not open to the magistrate to exercise jurisdiction because he had not trained with a listed terrorist organisation because ‑ ‑ ‑

KIRBY J:   How can we make that factual determination?

CALLINAN J:   You are challenging a fact.

MR MERKEL:   No, your Honour, I am accepting the fact.  I am accepting that he trained in 2001 but the listing only occurred as at 2002.  It is like my Hamas example.  Had he worked in the hospital with Hamas 20 years ago ‑ ‑ ‑

CALLINAN J:   That is a factual error then that you say the magistrate made.

MR MERKEL:   No, it is a legal error, your Honour.  It is not a factual error.  The finding of fact ‑ ‑ ‑

GUMMOW J:   It is a newly emerging legal error, is it not?  It did not emerge a couple of days ago.

MR MERKEL:   Your Honour, it comes about because this question of standing and the ultimate availability of prohibition and the significance of that finding is a matter that was not put by the parties in the special case.  That is the water under the bridge but having now had this put against us, we turn it around and say, “Quite the contrary, it shows that a jurisdictional fact is missing”.

CALLINAN J:   Mr Merkel, I raised on the first day what I saw as a real problem of the status of the facts and what was alleged and not alleged in the special case and what regard we could have to it, what were constitutional facts, what they had to be proved, all of those matters and I did not hear any submission of this kind from you then.

MR MERKEL:   Your Honour, it emerged in the running more so ‑ ‑ ‑

CALLINAN J:   No, Mr Merkel, it emerged, or I mean the point was at least latent, if it is a point, when you agreed to put in the special case what is in the special case.  The only reservation you made was that you did not accept the facts.

MR MERKEL:   Your Honour, that applies to certain statements and documents but not to all the facts.  What I propose to do in a moment, if I may, is to go to the defence power to show that the facts necessary to decide that issue, the constitutional facts, are in the special case and always have been there.

CALLINAN J:   I am sorry, in my view, that is just not appropriate for a reply.  I am speaking only for myself but I think it is inappropriate for a reply in this case, quite inappropriate.

MR MERKEL:   Your Honour, it is to correct, with respect, the submissions that had been put by my learned friend, the Solicitor for the Commonwealth, when asked by Justice Hayne, “Where do we find the likelihood or imminence of a terrorist attack?”  I can take your Honour, if I am able to, to the special case to show it is dealt with specifically.

CALLINAN J:   That was always an issue.  It was an issue from the first minute of the case.

MR MERKEL:   But, your Honour, the facts are agreed to and they state precisely what the risk is and it is in the special case.

KIRBY J:   Well, they speak with forked tongue, because they say in the actual special case the second defendant contended – that is on page 31 – and then we read about five or 10 pages later, schedule 2.  Now, I know you have to get through a lot in a short time and you have said you have six points and I do not want to hold you up, but I do not see how you turn schedule 2 against the other parties.  If that means you have to put in a memo or something, I think, speaking for myself, I would want to have that, so I understand what your case is because at the moment I see that as a problem.

MR MERKEL:   If I might put in a memo.  I have endeavoured to describe it, your Honour, but I would only be repeating myself, but if I can put in a memorandum referring to the statutory provisions to explain why that is a finding that shows that a section 75(v) jurisdictional fact has not, as a matter of law, been able to be established by the findings and, therefore, that issue is not an issue against us, it is an issue in our favour.  But it raises directly the substantive issue raised under the questions which is the effect of the ultimate task of the Court which is to impose restrictions necessary and adapted to preventing a terrorist act which has been the focus of the argument throughout the whole of the case.

But could I, if I could have the Court’s leave to explain that particular point so there is no misunderstanding about it, could I go – that is what we wish to say in respect of the special case, could I go to the defence power which is the second matter.

GUMMOW J:   Wait a minute, you would have to amend your application to show cause, would you not?

MR MERKEL:   Yes.

GUMMOW J:   You want to say you have another 75(v) point and it is not there at the moment.  It was that that gave birth to the stated case and I for one am not going to rummage around deciding a point that is not linked back to the substantive proceeding in which you seek prohibition.  It is not a ground at page 8, Mr Merkel, and you can go round and round as much as you like.

MR MERKEL:   No, your Honour, that was one of the two constitutional facts open to the magistrate to find.  The other, which was an essential step, was that his order would assist in preventing a terrorist act.

GUMMOW J:   As I understand it, it is not a constitutional fact, as you now put it.  It is a jurisdictional fact purely related to this circumstance, something happens in 2001 in relation to an organisation.  In 2002, thereafter, it is listed.  What can then be made of what happened in 2001 because at that stage it was not listed?

MR MERKEL:   Correct, your Honour, and the reason why it does not arise as a 75(v) jurisdictional fact – sorry if I said constitutional fact – at this stage, is that the magistrate also found on the second limb, as he would have had to, that his order would assist in preventing a terrorist act.  So that all we are trying to say is that the admission in schedule 2 that the magistrate has found is not a point that can be used against us or to disqualify us.  It just merely gets the Court to the substantive issues the parties have argued irrespective of the finding of the magistrate.

So what we are trying to say here is that that fact or that finding is not an impediment in our path to dealing with the questions, nor does it make the questions asked, in any sense, hypothetical or moot.  We are not trying to put it any higher than that because the parties have come here on a constitutional case, not on a question of the facts as they may have been in respect of the interim order which is yet to go to a confirmation hearing.

If I could go to the response we would wish to put to the defence power, my learned friend had talked of unique and unparalleled circumstances.  We would wish to hand up to your Honours a recent article by the Honourable Michael McHugh, former Judge of the Court, Terrorism legislation and the Constitution, (2006) 28 Australian Bar Review at page 117.  I can hand up copies to your Honours.  I will not be reading from it in the time available but I would like to refer your Honours to his Honour’s description of two matters, the first at pages 133 to 134 ‑ ‑ ‑

GUMMOW J:   Why should we receive this?

MR MERKEL:    Your Honour, because my learned friend, the Solicitor for the Commonwealth, had put how unique and unparalleled the terrorist circumstances are, we would say Justice McHugh has in his article ‑ ‑ ‑

GLEESON CJ:   Mr McHugh, actually.

MR MERKEL:   ‑ ‑ ‑ described a long history of terrorist acts.

CALLINAN J:   I am familiar with this article and I also asked you, I asked you in-chief, to try to point to any historical precedent for a combination of all of the factors.  You did not do so then and this article does not do so.  I do not see why we would be ‑ ‑ ‑

MR MERKEL:   I can only refer your Honours to it.  I will not take ‑ ‑ ‑

GUMMOW J:   It is not an article by a judge, Mr Merkel.

MR MERKEL:   No, your Honour.

KIRBY J:   His Honour Justice McHugh is still a judge in Hong Kong and as far as I am concerned I have already read it and I will read it for my information.

CALLINAN J:   I am not disparaging Mr McHugh or the article.  I am just saying it does not ‑ ‑ ‑

KIRBY J:   I mean, you can say it all yourself, with a little bit more time.  This might save you a bit of time which is much to be desired.

MR MERKEL:   I certainly will not try and do that, your Honour.  Could I go, your Honour, to what I say are the constitutional facts that have been agreed and not qualified by paragraph 2 of the special case?  There are two that we say are key facts which enable your Honours to deal with the current situation under the defence power arguments.

The first is at paragraph 19 of the special case at page 32, where it is agreed that terrorist acts as defined “could occur outside or within Australia”.  The second is that at paragraphs 41 and 42, at pages 40 to 41 of the special case book.  It sets out the alert system Australia has, which is not qualified by paragraph 2, and it says that Australia has been on a medium alert which is that a “terrorist attack could occur” which is a lower level than a “terrorist attack is likely” or “imminent.”

KIRBY J:   What does that mean to us? I mean, I do not know what the difference between low and medium and how you would make the decision between that. It just does not seem to be very informative, whereas the Solicitor’s long list, the availability of nuclear weapons, the communications that now exist in the world – I mean, the fact is that it cannot be denied that the world is more integrated and more vulnerable. If you are talking about what is a defence power functionally in the Constitution for, it is pretty hard to say that it is not there to deal with a problem such as other nations deal with untrammelled by any limitation.

MR MERKEL:   I will come to that in a moment, your Honour. The reason this is relevant is, with respect, the Commonwealth’s argument has really been put almost on the premise that the situation is at (c) and (d) which is inconsistent with its own material, its own agreement and its own level of alert. I do not say that this cannot enliven the defence power. What we really are saying is that Division 104 is not an exercise of that legislative power. The relevance is that if it were (c) and (d), one may have a greater level of elasticity than one would plainly have at (a) and (b).

So all we are trying to do is to get this back into a reality situation because this is the state or level of alert that is in the agreed facts as a constitutional fact and is not qualified in any sense by paragraph (2). We do not argue that the risk of the terrorist attack and the fact that an act or attack could occur does not or cannot enliven the defence power. Our argument is a much simpler one and that is that the Commonwealth has failed to establish that Division 104 is an exercise of that power for the purpose of the naval and military defence of the Commonwealth or the implied nationhood power, even if those powers be given the widest ambit that my learned friend has contended for.

The Commonwealth ultimately relies on the definition of a “terrorist act”.  Can we make several observations about my learned friend’s submissions.  He was unable by reference to that definition to refer to any defence purpose.  There was no clear relationship between the definition and defence.  There was no role for the defence forces and there was nothing in aid of defence force activity or in response to any organised force that threatens the Commonwealth.

KIRBY J:   Mr Merkel, I say again, as far as I am concerned, schedule 2, if it stands, stands as an impediment to you because it is one thing for a person to go to a foreign place and engage in spiritual instruction and learning and cultural instruction, but it is another thing for a person to go to another place and engage with a body which notoriously has been involved in blowing people, planes and things up.  I mean, it is a very dangerous thing to do and it is a peril to civilisation and to tolerance and human rights.

MR MERKEL:   Yes, your Honour, we do not have any quarrel with that, but that is the issue that remains to be determined, whether there is ‑ ‑ ‑

KIRBY J:   You say that, but it looks as though it has been determined on page 52.

MR MERKEL:   At an ex parte hearing in the absence of any evidence.

KIRBY J:   But it is what we have.

MR MERKEL:   I understand that, your Honour, but we are here looking at the validity of legislation, not the validity of an ex parte decision of a magistrate.

KIRBY J:   In a case where a finding has been made that your client went to a foreign place and with an organisation which has been proscribed and which notoriously has been involved in blowing people up.  It is not as if there is not a foundation which is absolutely orthodox, a foreign force of people organised in a foreign country that is devoted to blowing people up and blowing up property and doing a lot of damage to a lot of people, all in the name of faith apparently.

MR MERKEL:   Your Honour, if they be the facts that are established, so be it, but whatever the facts are, they are facts that still have to be applied under the rule of law under a constitutionally valid enactment and what we are seeking to address and all we are seeking to address is whether this enactment at this moment is a proper exercise and a valid exercise of the defence power.  That is all I am addressing.

KIRBY J:   I mean, you may have issues on the reference and so on, nationhood power, but why is it not a valid use of the defence power of the Commonwealth to enact legislation which addresses the potential danger to the Australian community of people who get themselves involved in a foreign organisation, a foreign place, who are being trained to kill people in large numbers?  It is a new world, but it is a fairly traditional focus of defending the nation.

MR MERKEL:   Your Honour, those circumstances can enliven the defence power, but how it may be applied in the particular circumstances depends upon the legislation and the problem with this legislation all lies within the definition of “terrorist act”.  Put simply, your Honour, what has occurred in this case is that this Act was passed in reliance on the reference power, not by reference to any head of the defence power which is not recited, and not surprisingly, because it was not really intended to be relied on.

HAYNE J:   We are not engaged in some psychoanalysis of what the legislators intended to do, we are concerned to characterise legislation and whether it is with respect to one of the enumerated heads.  Talking about whether it is an intended exercise is beside the point, I would have thought, Mr Merkel.

MR MERKEL: Your Honour, the width of the definition is explicable by reference to the simple analysis. It embraces but is not confined to a defence purpose. It embraces but is not confined to domestic violence in the State’s fear under section 119 of the Constitution. It embraces and is confined, in substance, to ordinary criminal conduct extending from the most serious conduct that can be the subject of the defence power to property damage or personal harm which is the subject of the ordinary criminal law of this country.

We say to give the defence power that ambit in peacetime at a time when there is not an imminent threat is giving the elasticity of the defence power to a situation which hitherto has never ever been treated as appropriate for that power to be exercised.  Even in wartime there would be a question about this kind of extension.  The problem all lies in the definition.

KIRBY J:   Yes, but you have not addressed the list of 10 items on the Solicitor’s list which indicate that we are not in the milieu of traditional war.  We are in the milieu of a different war.  It is not something that began suddenly in 2001.  It is something that has been with the world, as the material put before us today indicated, since the new weapons have become available.  They are especially perilous to large centres of population.

MR MERKEL:   I can accept all that, your Honour, but ‑ ‑ ‑

KIRBY J:   If you are going to put in a note – you may not have time now, but as far as I am concerned that was a pretty powerful list of items that said we are in a new situation and the defence – the question is functionally whether the defence power responds to that new situation.

MR MERKEL:   But the defence power, your Honour, with respect – and this comes out from Justice Dixon in Sharkey 79 CLR at page 151 where my learned friend had said that section 119 is about a duty to the Commonwealth, not about the power of the Commonwealth. His Honour had said it is a confinement of the power of the Commonwealth in the area of “domestic violence” the power being a power that can be granted if the States request it.

So the contradistinction between 51(vi) and 119 is one that my learned friend’s submissions would have does not exist, but I go further that this exercise of power in its definitions embraces just ordinary criminal conduct, any harm, physical harm – any serious harm that is physical harm to a person - serious damage to any property, interference with a financial system, a telecommunications system, a transport system, a system used for a transport system.

KIRBY J:   All of these are the symbols and methods of a highly vulnerable interdependent society and world. That is why there is a new situation. The Constitution adapts to new situations.

MR MERKEL:   Your Honour, if the Court is satisfied that the constitutional facts set out justify the, in effect, conflating of defence with domestic violence and ordinary criminal conduct and that is the situation called for ‑ ‑ ‑

KIRBY J:   It is not ordinary domestic violence.

MR MERKEL:   ‑ ‑ ‑ as if it were wartime, then that extension no doubt will be made by the Court, but it will break down a lot of barriers that had hitherto existed between Commonwealth and State power.

CALLINAN J:   Mr Merkel, it is difficult to imagine how a police force rather than a military force trained to do these things could possibly handle a combination of the circumstances to which the Solicitor referred and it is hardly apt for a defence by a police force.  You would really have to convert your police force into a paramilitary force.

MR MERKEL:   Your Honour, that is why, to resolve these matters, there was a referral, but I will not go back on that.  That is the thrust of what we put in reply, your Honour.

CALLINAN J:   No, but it is relevant to the question of defence – whether it is defence or not.  Surely, we can have regard to the realities and the limitations, the natural limitations of a police force, even if you did not have a federation.  Take the Federal Police Force, they are not equipped and trained to deal with a culmination of these things.  They are uniquely things calling for a military response, are they not?

MR MERKEL:   What your Honour has put to me would have a powerful effect had the Act drawn upon that force, but there is no role for anything other than the Federal Police, and no doubt in association with the State police.  So this is a policing matter.  It is not a call for any role of the naval, military or air forces.

CALLINAN J:   No, but the activities upon which they will embark, the military ‑ ‑ ‑

KIRBY J:   Do you say that the Federal Police cannot be used under the defence power?

MR MERKEL:   No, I am not saying that, your Honour.  I am just saying that this Act treats these issues as policing issues and there is no involvement of defence forces.

CALLINAN J:   When the terrorism occurs or is imminent, I mean there will be various stages of it if it occurs in this country.  It may be that this is a very early stage and that the police can deal with this stage of it, but as it develops, it would obviously call for a response by a military force, and the exercise of all sorts of special powers, I would have thought, or an urgent power – the undertaking of all sorts of urgent things by the Federal Executive.

MR MERKEL:   Your Honour, I can only say that what your Honour is putting to me is what is a wartime situation, with respect.  We would say the constitutional facts do not bear that analogy or that comparison.

CALLINAN J:   But the facts of which we can take judicial notice do, cannot we?

MR MERKEL:   Except for this, your Honour, the parties have put agreed facts.  The agreed fact is that the Commonwealth cannot put and does not put its case higher than a terrorist act, as defined, could occur, and a terrorist attack could occur.  It would be a surprising result that the Court would go beyond what the Commonwealth has put forward as an agreed fact, to infer a more serious situation or some higher degree of risk than that which the Commonwealth itself is putting forward.

We would say the only reasonable assumption on the basis of the material inference is that the Commonwealth has put the risk as accurately as it is able to perceive it, and its intelligence agencies, with all the access that they have to information, is able to perceive it.  For this Court to go further and put a high level of risk, we would say would be inconsistent with the facts and not justified by evidence before the Court or on facts of which this Court could take judicial notice of.  So we do say that there is a very serious question ‑ ‑ ‑

KIRBY J:   Let me understand.  Can I understand, are you contending that the 10 items that the Solicitor for the Commonwealth raised are outside the proper bounds of judicial notice, such as readily available explosives, containment within cities, the high value to human life, dependency on superstructures and so on?  Can we not take judicial notice of all of those matters?

MR MERKEL:   Your Honour can take judicial notice of the facts but not my learned friend’s summation of what really are highly complex activities.  What availability there is of nuclear explosives is a matter, your Honour, which I do not think judicial notice would answer the proposition ‑ ‑ ‑

CALLINAN J:   We know that there was an immense amount of poison gas used, do we not, in the Kurdish area of Iraq?  Do we not know that -judicial notice ‑ ‑ ‑

MR MERKEL:   Your Honour, all I can say to your Honours is no doubt you will take judicial notice of such constitutional facts as are appropriate, but I do not profess to be an expert on this, but I would suspect that if one looks below my learned friend’s propositions and tests them factually rather than as an assertion and say, “What are the facts?” then the matters become far more complex than just an assertion of the kind my learned friend made.  We would say, of course, there is a vulnerability in society, but there was a vulnerability in societies over the last 100 years at different levels to different extents.

CALLINAN J:   But it is going to escalate.  As science discovers more ways of killing people you are going to get more and more – the threat is going to increase and it is no good saying, “Well, it was not a problem in the past”.  I mean, each problem is an escalating problem.

MR MERKEL:   With respect, your Honour, we would say the Commonwealth has put its foot forward.  We have agreed to that.  If there are some facts of which your Honours take judicial notice, I cannot take it any further than saying that there is a great deal of political rhetoric in this area out there and the actual facts that justify it are matters that this Court should carefully scrutinise before getting caught up in that atmosphere.

Our point here is not that the power is not enlivened, but one has to look at this definition and ask, “Is this a defence definition?” and we say there is simply very little in it that attracts the defence power.  Some of it can, but most of it descends down to ordinary criminal conduct and the examples that have been given to your Honours show that at one extreme it will attract defence and at the other extreme it will attract an ordinary State criminal activity.

But we would say that your Honours should tread with caution.  If schedule 2 is a problem then hard cases can make bad law and, we say, in a constitutional context, schedule 2 should have nothing whatsoever to do with the ambit of the defence power ‑ ‑ ‑

KIRBY J:   I just do not see how I can ignore it, but if you have a deus ex machina that gets schedule 2 out of the record book and out of the special case, well that is one thing.  But whilst it is there it is an impediment because ‑ ‑ ‑

MR MERKEL:   With respect, your Honour, if one looks at the concern the magistrate had about the plaintiff’s activities ‑ ‑ ‑

KIRBY J:   This is not concern.  These are findings.

MR MERKEL:   These are findings, but the findings in respect of the plaintiff’s activities, as has been put on the question of liberty, are intrusions not at the most extreme end, so the risk that this magistrate thought this particular plaintiff posed would have to be at the lower level of risk.  The confinement to home was for some hours at night.  He was free to change addresses.  So that to exaggerate the current case based upon findings of fact that are not borne out by the actual impositions and restrictions imposed, we say is to give the findings a meaning they do not have ‑ ‑ ‑

KIRBY J:   That cuts both ways, because, I mean, then you have the contention which the Solicitor to the Commonwealth put that this is a modulated system and it is true.  It does not lock him up and throw away the key, like Mr Fardon.  It simply says, “Well, you have got to stay, you have got to notify where your addresses are and we have got to keep tabs on you”.

MR MERKEL:   We say that it is reflective of the risk but I think I need to move on, your Honour.  If I can go to the third matter, which is Chapter III, we say that the substantive issue raised by the special case, the constitutional validity of the control order regime in sections 104.4 and 104.14 and that issue is to determine, looking at it as a matter of substance, what obligations, prohibitions and restrictions of the kind set out in 104.5(3) are necessary and appropriate and adapted to protect the public from a terrorist act and, on the Commonwealth’s submissions, for the purposes of the defence of the Commonwealth.

Unlike the control order regimes that your Honour has been taken to elsewhere, and anything even said by our learned friends to be analogous to the control order regimes, what one invariably finds is a regime unlike anything that has been put forward in Australia because all of the regimes are directed to the conduct and preventing the conduct of someone involved in or threatening to engage in a terrorist act.  We say that the breadth of the Commonwealth’s control order regime, which stands unique in the legislative scheme your Honours have been taken to, runs into the same kind of problems as were identified, particularly by Justice Windeyer and Justice Kitto in Tasmanian Breweries as not capable of being the subject of the judicial power.

It was succinctly put in our learned friend’s submissions at paragraph 123 – these are the Commonwealth’s submissions – in the last sentence of paragraph 123, what our learned friends say is:

The area of operation of Division 104 adjusts with the level of threat.

We would not put a matter less appropriate for judicial determination and more appropriate for executive determination than what our learned friends have described.

Justice Dixon, in Wishart v Fraser – I will just give your Honours, the passage, if I might – 64 CLR 470 at 484 to 485, made the point that security matters are essentially matters for the Executive. What we say Justice Kitto had put at 377 to 378 of Tasmanian Breweries, and Justice Windeyer at 399 through to 401, which is picked up in the qualifications on creating rights in Precision Data at 190 to 191, are that policy considerations, lack of objective criteria which a court can apply, are disqualifying aspects when a court is conferred with the power to create rights.

We say that this is, a fortiori, an example for reasons members of the Court had raised with my learned friend, and I will not repeat them, an example of where the court has been given and delegated the very function that is uniquely and appropriately that of the Executive and we say that that falls afoul of the Tasmanian Breweries principle.  We also say that the ‑ ‑ ‑

KIRBY J:   What do you say to the contention that, in a sense, it is better that it be done by the judiciary, if it can be done by the judiciary, because of its sensitivity to issues of liberty and so on, than by the Executive?  There are words in the cases that say things to that effect.

MR MERKEL:   They do, your Honour.  We addressed it in our primary submissions and I will not repeat those, I will give your Honour the paragraphs.  We addressed that issue at some length but I have one proposition to add.  We would go further and say nothing could be more likely to bring the judicial power and the judiciary into disrepute than making the protective policy decisions required by sections 104.4 and 104.14.

The delegation of executive responsibility to the courts leaves the courts holding responsibility for the outcome of their orders and this is a most dangerous intrusion on the judicial power and it is hard to see anything more likely to bring it into disrepute with the power to control a person in threatening to engage in a terrorist act, or people who have the capacity to enable a terrorist act, as part of the judicial power absent any objective criteria or any clear criterion such as that which exists in the English legislation.

Of course the courts can be given a power to determine whether a person is likely to engage in a terrorist activity but that is not this power.  The policy answers we give your Honour at paragraphs 41 through to 49 of our original submissions as to why we say that the principle of giving this to judges as opposed to the executive branch who can be comprised of suitably qualified persons ‑ ‑ ‑

GUMMOW J:   You say this could be given to the executive branch, do you?

MR MERKEL:   Not in this form, your Honour, but that is a different question.  We do not need to address that.

GUMMOW J:   We do.  We do, because it is a separation of powers question.

MR MERKEL:   Your Honour, the wartime regulations give analogous powers and have given analogous powers.

GUMMOW J:   Let me just make it clear.  It is not an absence of power.  It is a question of location of power.

MR MERKEL:   Yes, your Honour, we do not go any further than that in this case and the wartime regulations, which have been held to be valid conferral of protective powers in the broadest of terms, have not been rendered invalid as executive powers. 

GUMMOW J:   It is a question of location within which branch.

MR MERKEL:   Yes, that is all we are here on, your Honour, nothing else.

GUMMOW J:   You are saying located in no branch?

MR MERKEL:   No, your Honour, we do not put that.  We are here concerned solely with this branch.  It is the judicial power and only the judicial power with which we are concerned in this case.

HEYDON J:   You say it can be conferred upon a State court by a State legislature and it can be conferred upon a federal judge as personae designatae, but it cannot be conferred on a federal judge simpliciter.

MR MERKEL:   Your Honour, the personae designatae will raise the Grollo issue, but subject to incompatibility questions, that is correct.

KIRBY J:   It is more the Wilson issue.  Designatae has dried up a bit.

MR MERKEL:   Yes.

GLEESON CJ:   There would be no problem about conferring on a retired judge.

MR MERKEL:   No, no problem at all.  That is why I say, and we have put this in our submissions, that the location of the power in a person qualified to administer it is not really ultimately the issue.  The question is the risk that the judiciary are required to carry to the judicial power and to the judiciary itself of this kind of power being conferred and we say that the risk is a very serious one.

I have not taken your Honours to the National Security Information Act, but former Justice McHugh in his article at 129 to 132 outlines how this Act applies and it really enables the Executive to effectively determine what information can come before a court and what not. Sections 38D and 38L of the Act would apply to civil proceedings.

We have already had your Honours raise with my learned friend the investigate function.  Already we see an inquisitorial function on the magistrate at the first instance hearing.  The House of Lords in A v Secretary of State for the Home Department, the life of the nation case, the case my learned friend took your Honours to this morning at paragraphs 63 to 64 all outline the sort of problems that will beset the judiciary if this is part of the judicial power.  So we say far from Boilermakers not only being ink that has dried up, but ink that has disappeared, the Boilermakers doctrine protects the integrity of the judicial power which we say is fundamentally undermined by this statutory regime. 

Now, that is the Tasmanian Breweries issue, but we also say that your Honour Justice Gummow raised with me at transcript page 68 the untangling of sections 104.4 and necessarily 104.14.  My learned friend, the Solicitor for the Commonwealth, did not endeavour to disentangle those sections to reveal the section 51 matter in respect of which jurisdiction is conferred under section 76(ii) and we say that is because there is no untangling.  There is a bare creation of rights and obligations divorced from any anterior conduct.

My learned friend, the Solicitor for South Australia, at least in his submission at the very end realised that some duty must be implicit to create a matter, but we say there is none.  It is not a tenable proposition that the ammonium nitrate retailer is under some duty absent or prior to this statutory regime. 

We say it does not create a duty and it is not a matter capable of being within the double function requirements of Barrett.  We say ultimately it is because this is the conferral of power to create an obligation, prohibition or restraint to protect the public and it is not a matter for the purposes of Chapter III and it also falls into that problem for reasons identified by Justice McTiernan in Tasmanian Breweries at 371 to 372.

So we say that this case does raise fundamental issues, certainly on our learned friend’s chameleon submission.  If that were accepted by the Court, then he is right.  Boilermakers has run its course and it may just have minor work to do at the margins.  We say, with respect, the judicial power is a much more sacrosanct part of the constitutional framework of this country than that.

Can I now go to the fourth matter, which is the reference power.  I think, your Honour, there are two matters.  I will try and race through them quickly.  I think I can, your Honour.  In Public Vehicles Licensing Appeal Tribunal 113 CLR 207, in the joint judgment their Honours talked of the reference power as requiring a State Parliament to express its will and do so by enactment. What is at the heart of the referral power is the will of the State Parliament.

In determining the will of the Parliament of Victoria your Honours are aided not by my learned friend’s Corporations Law counterpart but by the Interpretation of Legislation Act 1984, section 35, which takes your Honours to the second reading speech which unambiguously reveals that the Victorian Parliament thought it was limiting the power of amendment to the amendment of the offences in the terrorism legislation and the criminal responsibility legislation.

GLEESON CJ:   Mr Merkel, would it have been within the power of amendment if this had occurred?  Section 101.1 says that:

A person commits an offence if the person engages in a terrorist act.

Penalty:  Imprisonment for life.

Would it have been within the power of amendment if the following subsection had been added to that section?  In a prosecution for a contravention of this provision, the averment of the prosecutor contained in the information, complaint or claim shall be prima facie evidence of the matter or matters averred.

MR MERKEL:   Your Honour, I find that in the middle area of what we would say is within the amendment power.  It is clear that an amendment to the offences and the structure of the offences or some provision of the offences is intended.  Whether it goes to tacking on a totally new subject matter that is related to the offences in the sense that it arises out of them, is more questionable.  What we say ‑ ‑ ‑

GLEESON CJ:   Or I have just reversed the onus of proof.

MR MERKEL:   Yes. Your Honour, that may be within the boundaries or on the boundaries, but what we say, and we say, with respect, one does not have to answer that in this case because the submission that is put against us is not an amendment of the offence provisions as such. What is put against us is simply as long as the amendment relates to terrorist acts and is put in Part 5.3 as a matter of form, then it does not matter what it says or does. We say that whilst in the middle ground, reversing the onus of proof may well be within the kind of intent of the amendments.

Once one gets an entirely different statutory regime not directed to offences at all, but directed to preventing terrorist acts being assisted by conduct of people who themselves are not engaging in terrorist acts, then one has come to a totally different subject matter.  It is that triumph of form over substance, that denial of the will and intent of the Victorian legislature that we say causes problems with the approach our learned friends have taken. 

Even within the explanatory memorandum it was put by my learned friend, Mr Burmester, that there is nothing in it that would give an indication of what the legislature intended.  We say that in the explanatory memorandum subparagraphs – it is at page 2, your Honour, when clause 4 is explained.  This is consistent with the Attorney-General’s speech:

Commonwealth Parliament to re-enact Part 5.3 . . . (set out in Schedule 1 to the Bill) and to make amendments to that part . . .

Sub‑clause 1(b) refers the matter of terrorist acts and actions relating to terrorist acts but only to the extent of enabling the Commonwealth Parliament to amend Part 5.3 and Chapter 2 -

Our learned friends read 5.3 strictly as a matter of form. We say the legislature, in explaining the enactment of Part 5.3, is not enacting just the heading, “Part 5.3”, but is enacting the text of Part 5.3 and it is the amendment of that text, namely what Part 5.3 contains, which is the legislation set out in the schedule that we say is the subject of the amendment. We say that if this Court is to give effect to the will of the legislature we say it is clear on its face that if there be ambiguity, nothing can be clearer than the second reading speech of the Attorney as to what the Victorian Parliament was intending.

The Acts Interpretation Act, we say, would compel giving effect to that objective as outlined.  We also say, your Honours, that it would be a most unusual way of looking at this scheme to think that the legislature has, in effect, said if you include it as a matter of form under the heading “Part 5.3” we are giving you the whole power in respect of terrorist matters.  It gives no work to do after the work in the reference of the amendment power.  It could have stopped that terrorist matters - there is no need to say, “But only to the extent that”. 

Surely the legislature of Victoria would be indifferent to whether the amendment, as long as it fell within that heading, was to Part 5.3 or called Part 5.4? So we say that our learned friend’s submissions are not only bereft of merit but are not supported by the proper reading or construction of the Act, particularly having regard to construction principles and purposive construction.

The Work Choice example is an unfortunate one because the Corporations Act itself is a different Act but we say this Court cannot be invited to construe that legislative scheme and then use it to construe this. If anything it shows that error has crept in to the processes, which is undermining the very function of section 51(xxxvii), so we say it is time that this Court corrects that error rather than allows it to become perpetuated which is what your Honours are being invited to do by the submissions of our learned friends.

May I briefly address section 100.8 which is the amendment power only if there is a majority of States approving.  We say that 100.8 was part of the original enactment and we say properly construed, reading the Act as a whole, it is part of and defines the matter referred.  It would be an absurd result that the legislature’s intention – now, this is both legislatures, the Victorian State legislature’s intention as expressed in its enactment, the Commonwealth legislature’s intention as expressed in its enactment was merely just an understanding – a memorandum of understanding between the parties but that is the effect contended for by our learned friends.

We say there are two ways of looking at 100.8.  We say it is a limitation of the reference.  In other words, it is subject to amendment which is agreed to by the Parliaments of a majority of the States because the amendment cannot be agreed to by any other agency of the State and it confines the reference to fall into that category and it is not satisfied, or if it is not confinement of the reference, then it is an invalid reference because it seeks to impose a limitation which is not there and is not excisable because obviously it was a critical part of the statutory scheme as far as the State of Victoria was concerned.

KIRBY J:   It is not an invalid reference, is it?  It is an invalid piece of federal legislation purportedly pursuant to the reference which has no operation in that case.

MR MERKEL:   Yes, that is correct, your Honour.  It does not have effective operation.  We say, again, these are matters of some significance.  Our learned friends relied on Bardolph’s Case about the authority of the Premier.  That is a contractual case about agency of a premier to enter into a contract on behalf of the State.  What we are concerned with is the Constitution Act 1975 (Vic). Part VI sets out the functions, including those of the Premier and his or her function is to advise the Executive Council so that even in terms of constitutional standing the Premier has no function in this constitutional context although our primary point is that the function, as pointed out in the Vehicle Licensing Board Case, is that of the legislature and not of State agencies.

Again, if this state of affairs is to continue it is one that this Court should correct so that proper procedures are put in place and the State Parliaments perform their functions in respect of referral.  They are not delegated the executive arm of government.

The fifth matter I want to address - and I think I am getting close to an end, your Honours, so I am sorry for having slightly overshot the time – is the external affairs power.  We do not contend that a United Nations Security Council Resolution cannot attract the external affairs power, given that Australia is a party to the Charter, but in this situation more than ever it is compelling to the submission put by us that there must be sufficient specificity.

The reason why it is compelling is that what is now being put by the Commonwealth, which I think goes beyond anything put previously, is that the Commonwealth legislature has power to enact laws arising out of a resolution by parties which do not include the Commonwealth which are binding upon it as a matter of its Charter obligation to implement into Australian law.  We say that that situation, particularly when one looks at Chapter VII of the Charter, which is about threats to the peace, the resolutions relied upon talk of international terrorism, terrorism without definition, and your Honours have seen that the definition of “terrorism” can be many and varied but to give virtually unlimited power in relation to terrorism without boundaries, and that is what we say ultimately is conferred on the Commonwealth’s submission is to give the external affairs power an operation wider than it had ever been given.

We say the Industrial Relations Case requirement of sufficient specificity a fortiori applies to that situation.  We say that particularly in circumstances such as the present case this Court should be very slow to extend the external affairs power to give the kind of discretionary latitude sought by our learned friends on their submissions.  One submission was that external conduct, in this case being Mr Thomas’ training overseas, can attract the external affairs power but we say that is not the issue.  The issue is the statutory provision and the statutory provision concerning terrorist training with a listed organisation is, as I have said, geographically blind.  It has nothing to do with geography.

So to actually untangle by severance this Act into an external affairs element is to change the whole operation of the Act, so it is not surprising that our learned friends have not really put any severance submission or any severance alternative because this statutory scheme is an integrated whole and it only has external elements in expanding its operation but it is not in any sense intended to have an external operation independently of the internal or domestic operation.  So we say that for those reasons this Court should not accept that this legislative scheme falls under the external affairs power.

In respect of the sixth matter, the power to bind a person to keep the peace, we address that in our reply submissions, but we would say that there are three fundamental matters.  Firstly, the kind of orders and jurisdiction referred to is essentially a jurisdiction to restrain a person from engaging in what was regarded as unlawful conduct or unacceptable conduct, but it is directed at the person who is threatening to engage in the conduct or found to be likely to engage in the conduct, and therefore cannot operate as an analogy with the control order regime, and it should be so confined.

Secondly, we say that historically this was conferred on justices of the peace not courts, and when one looks at the statutory provisions, even though the so‑called judicial function is used in two ways, properly understood, the function is exercised traditionally or historically as personae designatae by judges and section 81 of the Judiciary Act would appear to support that approach.

Thirdly, when one looks at that provision in section 81 of the Judiciary Act it is a jurisdiction associated with a matter, so that it is not a matter in its own right in terms of this Court.  So we say that the analogy that is sought to be drawn is a far cry from the regime that has been put forward in the present case.  They are the submissions that we would put in reply, and we are grateful to the Court for allowing us to overrun our time.  I would ask if we could put in a written submission to clarify what the position is in respect of those findings in schedule 2 and how they fit into the special case that has been put forward.

GLEESON CJ:   Yes, well, you will have seven days to do that, and then your opponents will have seven days to put in their reply to that.

MR BENNETT:   I also seek leave, your Honour, to put in submissions in relation to the article that has been handed up.  It is, we would submit, a totally inappropriate matter for this Court to look at the article at all.  It is basically an article by a retired Justice of this Court discussing what should be done in this case, and in my respectful submission, that is completely inappropriate, but in any event ‑ ‑ ‑

KIRBY J:   But surely we could look at the issues of law because Mr Merkel could have got up, if he had had time, and put all those things to us?

MR BENNETT:   Your Honour, it is also raised in reply, when the article does not arise in reply at all.

GLEESON CJ:   You will have an opportunity within seven days to put any response you want to make to that.

MR BENNETT:   If your Honour pleases.

GLEESON CJ:   We will reserve our decision in this matter, and we will adjourn until 10.15 am tomorrow.

AT 4.38 PM THE MATTER WAS ADJOURNED