Thomas v Mowbray & Ors

[2007] HCATrans 76

[2007] HCATrans 076

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 TUESDAY, 20 FEBRUARY 2007, AT 10.16 AM

(Continued from 6/12/06)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Solicitor for the Commonwealth.

MR BENNETT:   If the Court pleases.  Your Honours, first I seek leave by consent to amend the special case in the form that your Honours have.

GLEESON CJ:   Yes, you have that leave.

MR BENNETT:   The amendment does not, so far as I am aware, affect the argument of any of the parties in any way, but it is for the sake of completeness.  Your Honours, I propose to deal with the defence power and the issues arising under Chapter III and my learned friend, Mr Burmester, will deal with the external affairs power and the reference.  I include in the defence powers the implied protection of the nation power.  I propose to start by making some general remarks about the nature of the defence power and the implied power compared with the nature of the threat with which this legislation deals.

KIRBY J:   You are dropping your voice, Mr Solicitor.  That is not a sin you are usually guilty of.

MR BENNETT:   I apologise, your Honour.

KIRBY J:   I want to hear every word.

MR BENNETT:   Your Honours, as I say, I propose to start with some general remarks about the defence and implied protection power and the nature of the threat which gives rise to its invocation.  I then propose to address on the defence power itself and then on the implied power before coming to the Chapter III issues.

I start then with some general submissions.  The first thing to note about the defence power is that war is an irrelevancy to the argument.  Today, of course, the word is frequently used in a metaphorical sense.  One talks about a war on terrorism, a war on poverty, a war on global warming, and, as your Honour ‑ ‑ ‑

KIRBY J:   The Cold War was talked of in the Communist Party Case.

MR BENNETT:   Yes, and your Honour Justice Hayne gave the example of a war on obesity.  The point is, of course, that the word is frequently used in a metaphorical sense.  War is not an essential element of the defence power or the implied protection of the nation power.  Of course, “war” in its traditional private international law sense is sufficient for the invocation of that power but it is not necessary for it.  The second matter to note is that ‑ ‑ ‑

KIRBY J:   Was that the understanding of the power at the time of Federation?

MR BENNETT:   Your Honour, we would submit it probably would have been.  There is a question, of course, as to whether the Boer War was in its entirety a war against a foreign nation or part of a civil war against an insurrection in a British Colony.  There were various ways it could have been characterised.  The other recent war, of course, at the time was the American Civil War. 

KIRBY J:   You are not propounding a 1901 view of the defence power?

MR BENNETT:   No, your Honour, I am not.

CALLINAN J:   But in any event, it is such an elastic power that it is one that the Court needs to be very vigilant about, because it is so elastic.

MR BENNETT:   Your Honour, the fact that it is elastic has, of course, the dual consequence.  The second matter is ‑ ‑ ‑

KIRBY J:   It was recited in the Communist Party Dissolution Act, was it not, the defence power?

MR BENNETT:   Yes, your Honour.

KIRBY J:   But it did not say that provision, although that Act came into force on the very day that Australian troops landed in Korea.

MR BENNETT:   Your Honour, I will say something about that case later on but it has nothing to do with this case.  All that case says is that where some factual matter is necessary for the invocation of a power, one cannot simply assume it in recitals.

GUMMOW J:   That is what worries me about this case actually.

MR BENNETT:   Your Honour, here we have facts.  I will come to that in the evidence that is there.

GUMMOW J:   All right.

MR BENNETT:   The major answer to your Honour’s question will be that the Act creates its own power by saying that the power to make orders is conditioned on events which if they are proved clearly bring it within the power.

HAYNE J:   That is say, the legislature has given to the judiciary the task of determining what is necessary for the protection of the public, is that right?

MR BENNETT:   In part, your Honour.

HAYNE J:   The Act speaks of what is reasonably necessary for the protection of the public from a terrorist act.  That is central to the provision, is it not?

MR BENNETT:   Yes, your Honour.

HAYNE J:   And the legislature gives to the judicial branch the determination of what is reasonably necessary for the protection of the public from what, on your hypothesis, is a defence threat.

MR BENNETT:   Yes, your Honour.  An Act which says if X is proved the Court may do Y where X is something within power is necessarily an Act within power, even if at the time of its enactment there is no X around.  An Act which said “If Australia is at war there shall be conscription” would be a valid Act.  The condition stated in the Act itself means that it only operates in a case where the power is there.

GUMMOW J:   The trouble is the power is said to be “purposive”.  The question is who distils the purpose?

MR BENNETT:   Yes.  Your Honour, one gets to that in two ways.  One gets first by the matters I am about to go to which show why terrorism, in a broad sense of the word – I do not adopt any definition for that purpose at the moment – is within the defence power and, secondly, it is the provisions of the Act to which I have referred which create the relationship between the making of a control order and the condition.

The second matter to note is that for the invocation of the defence power or the implied power one does not need an opponent which is a sovereign state.  History provides numerous examples of situations where it has been necessary for a polity to defend itself against a body other than a sovereign state.

One could start with the book of Joshua in the Bible.  If the Canaanite cities had had a federation with section 51(vi) in it there is little doubt that it could have been invoked against the children of Israel, although at that stage one could hardly describe them as a sovereign state in the traditional sense.  Their only territory was the territory they were about conquer.

KIRBY J:   What was the defect of the Canaanites on this theory?

MR BENNETT:   There is no relevant defect except they lost.

KIRBY J:   They were a community, were they not?  They were a state, so far as they had states?

MR BENNETT:   It was described as the land of Canaan.

KIRBY J:   It was a land.

MR BENNETT:   The extent of self‑rule of the individual cities is something beyond my knowledge, your Honour.

KIRBY J:   They may not have had the separation of powers.

MR BENNETT:   They probably did not, your Honour, but the walls fell down.  A second example is the fall of Rome.  Rome was not defeated by a sovereign state.  It was defeated by armies of Goths and vandals and other peoples from the north.  There are more recent examples.  The battles around Khartoum against the forces of the Mahdi are one example.

Perhaps another example might be the paradigm example in public international law of self‑defence, the incident concerning the Caroline, which your Honours are no doubt familiar with.  I will not take your Honours to it.  The point of it is that it was necessary in defence of Canada for the British forces to attack and sink a ship which was transporting rebels and arms matériel to rebel forces in Canada, but which was not a ship representing any foreign country.  These examples simply illustrate that the concepts with which the powers are concerned are not concepts which historically required the opponent to be a sovereign state. 

The third matter, which it is not necessary for your Honours to consider in this case, but it is worth bearing in mind in looking at the breadth of the power, is that the threat under the implied power of protection of the nation need not be human.  It could be invaders from outer space, it could be a rogue asteroid which is likely to hit Australia and cause enormous damage.  It could even be migratory birds infected with avian flu, although the power to shoot them down at the borders of Australia could no doubt be found in the quarantine power as well.  But those matters are all matters which could be dealt with by a sovereign state under the implied power to defend the nation.

CALLINAN J:   Mr Solicitor, is there an offence of treason under the Crimes Act (Cth)?

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

HAYNE J:   It includes compassing the death of the Prime Minister, does it not, now?

MR BENNETT:   It probably does, your Honour.  In the statute of Edward I it included various other activities which are ‑ ‑ ‑

GUMMOW J:   It is in the Criminal Code Act 1995, is it not, Chapter 5, Part 5.1, “Treason and sedition”?

MR BENNETT:   Yes.

CALLINAN J:   There is no provision ‑ ‑ ‑

MR BENNETT:   Yes, if the person:

(a)causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor‑General or the Prime Minister; or

(b)causes harm to the Sovereign, the Governor‑General or the Prime Minister resulting in the death of the Sovereign, the Governor‑General or the Prime Minister; or

(c)causes harm to the Sovereign, the Governor‑General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor‑General or the Prime Minister; or

(d)levies war, or does any act preparatory to levying war, against the Commonwealth -

and then there are ‑ ‑ ‑

CALLINAN J:   There is nothing in our Constitution like Article 3, section 3, which restricts treason.

MR BENNETT:   No, your Honour.

CALLINAN J:   In the United States Constitution.

MR BENNETT:   No.  There is a lengthy definition.  It is in section 80.1 of the Criminal Code.  Now, the fourth matter is that whatever the situation was in 1901, the denotation of the reference to defence in section 51(vi) is clearly wider than it would have been seen as in 1901.  The obvious example which is frequently cited is that naval and military clearly today would include an air force.  The defence would also include things unimagined by those who drafted the section, such as defence against air attack, defence against germ warfare, defence against enemy saboteurs and so on.  They might have been able to imagine enemy saboteurs but it was not a major factor then.  There is certainly ‑ ‑ ‑

KIRBY J:   But generally in countries that derive their constitutional traditions from Britain, dealing with saboteurs would have been left to the police force.

MR BENNETT:   It depends on the nature of the sabotage, your Honour.  If the sabotage amounts to “making war against the king in his realm”, to use the words of the old statute, it would not be.

CALLINAN J:   It was done in Australia during the coal mining strikes.  The military rather than the police were used. 

MR BENNETT:   Yes.  There are references to that ‑ ‑ ‑

CALLINAN J:   That would appear to be clearly within subsection (vi) because it talks about maintenance, I think, of the laws of the Commonwealth.

KIRBY J:   Did the legality of that action come to this Court?

MR BENNETT:   Not so far as I am aware, your Honour.

KIRBY J:   I do not think we can assume that it was lawful.

MR BENNETT:   Your Honour, the importance of it is not so much whether it is lawful, as whether it was something within the minds of the drafters of the Constitution.

KIRBY J:   I am sure it is always in the minds of government to use power for their purposes. It remains for this Court to say whether it is valid under the Constitution.

MR BENNETT:   Yes.

GUMMOW J:   Now, 119 speaks of domestic violence.  The States can ask the Commonwealth, Executive Governments can ask the Commonwealth to protect them against domestic violence.

MR BENNETT:   That is in a different context, your Honour.  That is in the context of a duty on the Commonwealth.  It is not in the context of a power.  That cannot be used to read down a power.

GUMMOW J:   I am not suggesting it does.  I think it reads it up.

MR BENNETT:   Yes.

GUMMOW J:   How are they going to protect the States?  They are not going to send Billy Hughes, policeman, I do not think.

MR BENNETT:   Your Honour, all these things could be internal. Section 119, about protecting a State from invasion, that could be of course an invasion from elsewhere within Australia. If de Groot had led his new guard in an invasion of Queensland that would not have been – and I am assuming it is not on behalf of the Government of New South Wales, which it certainly would not have been, it would clearly have been the duty of the Commonwealth under section 119 to protect Queensland against invasion. The fact that it came from inside Australia would not stop it being invasion for that purpose.

KIRBY J:   When has section 119 been invoked in either of its limbs in Australia, if at all?

MR BENNETT:   I think there was an invocation some time ago at a CHOGM ‑ ‑ ‑

HAYNE J:   The Hilton bombing, I think.  If it has ever been invoked, I think it was the Hilton bombing.

MR BENNETT:   Yes.  I do not think it was done during the Sydney Olympics.

KIRBY J:   Was that at the request of the Government of New South Wales or was that on the initiative of the Federal Government?

MR BENNETT:   Your Honour, I have not investigated that.  If the second limb of the section was invoked, it would have required New South Wales to make application.

KIRBY J:   Is not the fact that with all your resources you cannot think of a single instance in which section 119 of the Constitution has been invoked an indication of the fact that it is both rare in its application, if at all, and it is intended to be rare?

CALLINAN J:   Or it might be because Australia is a peace‑loving country.

MR BENNETT:   And it might be because we have not in the past had threats of the nature which have required it to be invoked.

GLEESON CJ:   In the last decade of the 19^th century a meeting of the Cabinet of Victoria resolved to declare war against France.  That is, resolved that Victoria would declare war against France.  No doubt they calculated that the consequences of that would be to involve Great Britain but that arose out of what was going on in countries not far from Australia.

MR BENNETT:   Yes.

HAYNE J:   But apropos of the Hilton bombing, it was not a callout under 119, it was in fact done by Order in Council by the Governor‑General in Council.  These matters are discussed in a piece by Justice White of the Supreme Court of Queensland in a paper presented at an annual public law weekend in Canberra entitled “THE EXECUTIVE AND THE MILITARY”.  I think her Honour records that there has never been a callout under 119.

MR BENNETT:   There would not need to be for the Hilton bombing because that would clearly have been external affairs, it being an attempt on the life of the Prime Minister of India.  There is no doubt the external affairs power would have covered whatever was necessary in that situation.  The fifth matter is, of course, that in relation to the implied power, to which I will come, one does not need to rely on denotation because one is not construing a word; one is rather looking at what is within it.

The second aspect of these preliminary remarks concerns the nature of the threat and this is really the reason for the width of the definition.  Things have been said in this Court about the width of the definition of “terrorism” and its relationship as a whole to the defence power and it is to that that these submissions are addressed.

In the distant past, no doubt if one had an enemy, whether a State or not a State, that was seeking to do one harm, the way it would be done would be by invasion, but that is today in many ways a quaint old‑fashioned concept.  It is something which is far less likely than a great many other things.

KIRBY J: There is quite a lot in our Constitution that is quaint and old‑fashioned.

MR BENNETT:   But that does not mean one needs to construe it in that way, your Honour, hence the whole doctrines which are variously called denotation and connotation, concept and conception or reading the words in the light of the contemporary world. 

KIRBY J:   Denotation and connotation is a somewhat controversial question in philosophy as well as law.  One person’s connotation is another person’s denotation and so on.

MR BENNETT: The use of the words is controversial. Justice McHugh always said one had to talk about concept and conception to get the same distinction across. The point about it is not that there is any specific doctrine of what is the one and what is the other, but that one does have to look when one construes words in the Constitution at the overall matter being described and its application to the world of 2007. The major point which I wish to make is this, that modern civilisation, particularly western civilisation and for present purposes particularly Australia, the Australian polity, the Australian society, has a particular vulnerability and it has that vulnerability for nine reasons.

The first is the ready availability today of explosive substances, highly toxic poisons, germs and other weapons or things which can be used as weapons.  That is the first matter.  The second matter is that it contains cities with very large localised populations and of necessity many people are frequently concentrated in a small area.  The third factor is the very high value our society places on human life.  A society which had no regard for human life including that of its own members would not suffer from the vulnerability that our society does suffer from.  The fourth matter is the dependency of modern society on a variety of types of infrastructure.  The fifth is the high value placed by our society on a number of iconic structures, to use the modern cliché.  The sixth is that infrastructure and iconic structures can easily be destroyed by explosives.  Water supplies can be poisoned and in other ways great damage can be done to infrastructure and human life by individuals.

The seventh matter is the particular vulnerability of aviation and, to a lesser degree, ships, buses and trains.  The eighth is the growth of fanatical ideological movements which compass the destruction of western civilisation and, in particular, of Australia, or elements of it.  The archetypical examples of the combination of factors I have referred to, or some of them, are the events of 9 September 2001, the events of Bali, Madrid, London, Nairobi and Dar es Salaam, Jakarta.  One could go on at great length.

CALLINAN J:   You could also include in that international communications, which are so much easier today.

MR BENNETT:   Yes, I included that in infrastructure, your Honour, but, yes, certainly that is a very important aspect of infrastructure for this purpose.

CALLINAN J:   That is why I think electronic surveillance may be so important.

MR BENNETT:   Yes.

KIRBY J:   Of course, on one view the events you have described in your ninth item are simply a continuation of events that occurred before.  For example, the events of the Stern Gang, which were very significant in the establishment of the state of Israel, were, in the view of some, acts of terrorism, no doubt the British administration at the time, but in the view of others, were part of a liberation struggle.

MR BENNETT:   Your Honour, there is the cliché about one man’s freedom fighter being another man’s terrorist.  It is a familiar cliché.

KIRBY J:   Exactly.

CALLINAN J:   Mr Solicitor, there has never been a combination of these factors.  I cannot think of any historical precedent for this combination, particularly involving, as it does, such a very high level of vulnerability which is something that you are emphasising, vulnerability of people, infrastructure, practically everything.  Of course, the more democratic the community the more vulnerable it is.

MR BENNETT:   Your Honour, precisely.  It is a question of degree.  One can, of course, point to Guy Fawkes and his attempt to blow up Parliament.  One can point to the acts of the anarchists in the early part of the century and one can point to the Stern Gang, one can point to various matters.

CALLINAN J:   There is no atomic bomb.  There is nuclear fission.  There is no means of collecting and distributing germs.  One can multiply examples, but you put all of these things together and I defy anybody to produce a true historical precedent for this combination.

MR BENNETT:   That is my submission, your Honour.

KIRBY J: Yes, well, our Constitution remains as it is and we do not rip it up simply because of these dangers. Indeed, some say the best way to fight these dangers is to adhere steadfastly to our constitutional requirements.

MR BENNETT: Your Honour, we do not suggest ripping up the Constitution. What we say is that these matters today provide a context in which both the defence power and the implied power to protect the nation arise and steps taken within the law to deal with those matters are within those powers. That is not ripping up the Constitution. That is applying it to 2007.

HAYNE J:   That is to look at the matter by identifying what you say are the defining characteristics of a threat or the threat currently facing Australia.  How do you relate that to the defence power in this way?  At least in 1901 perhaps that may be irrelevant.  The defence power, I would have thought, had at its centre the notion of the application of organised force at the will of the Executive, the application of organised force in defence of the nation.  One might see it as the application of organised force in the projection of political aims beyond the shores of the nation; witness the expeditionary forces, et cetera.

MR BENNETT:   And that was said in Farey’s Case, your Honour, that defence includes foreign attack pace Quick and Garran.

HAYNE J:   Just so, but the essence at that time was seen as the application of force.

MR BENNETT:   Yes.

HAYNE J:   The threat you have identified is one which entails the application of force by others.  I understand that.  They do it for various motives.  One author describes them as, “revenge, renown, reaction.”  Is it implicit in your argument that the threat is one which calls for the application of organised force at the will of the Executive of the Commonwealth, or is your submission that the defence power has gone beyond, away from, the application of organised force to some other kind of response to this threat?

MR BENNETT:   Your Honour, we would submit that it has always gone beyond the mere application of force to deal with a threat.

HAYNE J:   No doubt it has extended to regulating the price of bread during World War II.  I understand that.  But do you say that the threat you thus identify is one which evokes the application of the organised force of this polity at the will of its Executive in response?

MR BENNETT:   That is one thing which the power would permit, yes, your Honour, but not the only thing.  It also permits legislation designed to defend against the attack made on it ‑ ‑ ‑

HAYNE J:   That is bare assertion, Mr Solicitor.  It says it is within power because it is within power.  What I need to understand by the end of your submission is whether you are urging a move in the understanding of defence from a central core, which at the moment I would understood it to have had in earlier days, as concerning the application of organised force at the will of the Executive.

MR BENNETT:   Your Honour, in my respectful submission, the power authorises something far beyond that and certainly the implied power of protection of the nation authorises something far beyond that.

HAYNE J:   Let me take it a little further.  Let the threat be identified as you do.  Let me characterise it tendentiously as a threat of the performance of wicked criminal acts.  What is it that brings that within defence?

MR BENNETT:   The factors ‑ ‑ ‑

HAYNE J:   Ordinary criminal conduct directed not at the polity but at the people of this country is not within the defence power.  What is it that takes this within defence?

MR BENNETT:   The factors to which I have referred, your Honour, with the existence of the threat being a threat to the polity and its people and the nature of that threat in the 21^st century being something different to the nature of the threats which imagined in 1900.

HAYNE J:   Terrorism is a very old phenomenon.  You can trace it to the Zealots, you can trace it through the Assassins, you can trace it through the Thugs in India, you can trace it through the 19^th century, that is, the commission of criminal acts commonly directed against members of the public motivated by political, religious, mixed motives for the purpose of exacting revenge for what is seen as a wrong done to the group for the purpose of achieving renown within the group that is sponsoring the terrorism and for the purpose of evoking reaction by the polity and people thus attacked is a very old tactic.

MR BENNETT:   Yes, your Honour.  In the absence of the circumstances I have listed it might well have been an interesting question whether the Commonwealth could in 1901 have legislated against anarchists, for example, but the Court does not need to consider that question.  We are not in 1901; we are in an era where the factors to which I have referred apply, where the combination and seriousness of those factors as a matter of degree is far beyond anything previously imagined.

An implied power to protect the nation and its people must involve the ability to deal with it.  The example I gave of the asteroid about to crash into Australia and cause enormous damage - your Honours may remember a film some years ago with that theme where a team of people were sent to destroy it.  To do that would be something within the implied protection power.  It would be classically defending the polity by defending the piece of earth on which the polity exists.

The fact that that may not have been contemplated in 1901 is simply irrelevant. That is a legitimate scope for national action and it is implied in the Constitution, as I will be demonstrating, that there is a power to defend the polity, the nation, the piece of land, whatever its society, the people, whatever one wants to use ‑ ‑ ‑

KIRBY J:   But the asteroid does not really grapple with Justice Hayne’s question because the question is addressed against the background of a polity, Australia, which has had a division of the functions of the military under the defence power and the functions of civil authority and the police under the general powers of government, and that is a division which has been important for our liberties and it is really a very important inheritance from British constitutional tradition and you do not use the police traditionally for fighting asteroids.

MR BENNETT:   No, your Honour, but you certainly have a power to pass legislation to do what is necessary to fight it.

KIRBY J:   That may be so.  That may well be so but that really does not grapple with the distinction that has been put to you, which is a distinction which Sir Victor Windeyer referred to in the note he prepared at the request of Senator Durack for the Hope Royal Commission on the traditional role in our form of polity of the defence force under the defence power and the traditional role of civil authority and the police in dealing with crime against the community.

MR BENNETT:   Well, your Honour, there are many threats which would fall within the defence power but do not necessarily involve the application of military force to defend against them.  Germ warfare is one very obvious example. 

HAYNE J:   Sorry, why? 

MR BENNETT:   Well, your Honour, because one can deal with it by making it illegal to develop particular products in laboratories, by punishing under the criminal law people who manufacture those products in breach of that law.  There are means other than the use of the military forces that can defend against forms of attack that we submit fall within the defence power or, at the very least, the implied power.  The word “defence” itself, of course, is a little bit of a euphemism because it rather contains an implication which Quick and Garran pick up on that the power is to defend and not to attack.  That, of course, is not the way it has been construed.  In Farey v Burvett 21 CLR 433 there is a passage - perhaps I can take your Honours to that. Justice Barton at page 447 said this – this was during the First World War:

The armies of Australia are now engaged in her defence in several fields of the world.  For the safety of Australia is notoriously involved in the success of the Empire in the present war.  It is a common error to suppose that the defence of a country is limited to the protection of its shores when invasion is actually made or attempted.  There is much more hope for the country which, at need, sends its armies or its ships, or both, abroad, to engage, to overcome if possible, or to cripple the enemy in whatever field he may be found.  One is safer from a burglar if he can grapple with him at the gate without waiting until he has entered the house, and one’s belongings are by this means infinitely safer.  Success in a distant field is therefore often the surest means of saving one’s own country from invasion.

Next, attack may be, and often is, the best defence.  This needs no proof.

The ‑ ‑ ‑

GLEESON CJ:   What is the power under which Australian Defence Forces are used for police functions in neighbouring areas?

MR BENNETT:   That may be external affairs; it may be islands of the Pacific; it may be the second limb of the defence power.  There are other powers which - and it could also include the defence power.

KIRBY J:   Is it done pursuant to legislation or is it done under the Executive power?

MR BENNETT:   I think there is legislation in support of aspects of it, although it is basically done under Executive power.

HAYNE J:   Because it is the projection of force for the achievement of political aims formed by the Executive.

MR BENNETT:   Yes.  Well, your Honour, one might say that about the First and Second World Wars. 

HAYNE J:   Just so.

MR BENNETT:   Certainly when Australia was initially involved in those wars, there was no immediate threat to invade Australia.  That emerged later during the Second World War.  There was certainly no threat to invade Australia at the time of the Boer War.  As Justice Barton said, the defence power extends to that.  In that aspect of it the word “defence” is simply a euphemism.  Almost all the countries describe their military forces as defence forces to emphasise that they do not have aggressive intention.  It is often little more than a euphemism, of course.

GLEESON CJ:   If there were a specific threat to blow up the atomic installation at Lucas Heights, could the army be sent in to deal with that?

MR BENNETT:   Yes, your Honour, for a number of reasons it could.

CALLINAN J:   I would not want the New South Wales Police Force doing it.

KIRBY J:   I do not think we should disparage the police forces of the States.

MR BENNETT:   Your Honour, I do not do that.

CALLINAN J:   I am just expressing a preference.

KIRBY J:   They may each have a proper role to play in such an eventuality.

MR BENNETT:   Your Honour, in my submission, the factors I have listed demonstrate something new and evil which Australia has to defend against.

CRENNAN J:   May I ask you a question in that context, Mr Bennett.  In being satisfied that the making of an order will substantially assist in preventing a terrorist attack, how precisely are those factors to work in respect of the magistrate’s degree of satisfaction?  In other words, what I am concerned about in some respects is how much is it going to be necessary to take judicial notice of various matters in the context of being required to be satisfied that the making of the order will substantially prevent a terrorist attack?

MR BENNETT:   To some extent it can be done by judicial notice.  To some extent it is proving what may happen in the future.  Proving a probability or a likelihood or a percentage chance is something courts are engaged in everyday.  They are engaged in it when they look at the prognosis of a personal injury.  They are engaged in it when they make AVOs.  There are many situations where courts have to look at the future and judge it and form a view as a basis for exercising a particular jurisdiction.

CRENNAN J:   There is a big difference between a threat in relation to an identified attack, say, on Lucas Heights and something that does not involve any threat to any specific target.

MR BENNETT:   The act is very clear that it can apply, although no specific act is identified.  The classic case, of course, is a person who has undergone terrorist training, the very case we have here.

GUMMOW J:   Where do we see that, Mr Solicitor?  We are drifting away from the text?

MR BENNETT:   I am sorry, your Honour?

GUMMOW J:   Where do we see that in the text of Act 144 of 2005?

CRENNAN J:   Section 104.4(1)(c).

MR BENNETT:   Yes, under section 104.4(1) the conditions for the order, the request by the AFP member, the court considering such further information as it requires which could, of course, be from the respondent to the application, the court satisfied:

(i)that making the order would substantially assist in preventing a terrorist act; or

(ii)that the person has provided training to, or received training from, a listed terrorist organisation –

that is treated as something which gets one there without the first bit, although the court then still has to be:

satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.

So while one of the alternative bases is the person having undergone or participated in terrorist training, one still has to have that element.

HAYNE J:   What are the facts or the legal standard that are encompassed by the words “is reasonably necessary for the purpose of protecting the public from a terrorist act”?

MR BENNETT:   Your Honour, the sort of consideration that the Court considers in making AVOs or in ‑ ‑ ‑

HAYNE J:   No, those concern the conduct of specific persons.

MR BENNETT:   Yes.

HAYNE J:   This not directed, is it, to a terrorist act by the person the subject of the order?

MR BENNETT:   It need not be, your Honour.

HAYNE J:   Just so.  What then are the facts and what is the legal standard that is applied in determining what is reasonably necessary to protect the public from a terrorist act?  First, for example, Mr Solicitor, how do you prove it?  You get a police officer who comes along and says, “I believe that”, and perhaps the police officer then gives a further amplification of why he or she believes it.  What is the Court to know about what other measures the Executive of the Commonwealth is taking to protect the public from a terrorist act in determining whether or not the order it makes is reasonably necessary for that purpose?

MR BENNETT:   Your Honour, it is an objective standard and one calls evidence.  One can imagine the type of evidence.  A person may have been taking photographs of embassies, having undergone terrorist training, may have in his house books encouraging the making of jihad against Australians.  There are all sorts of evidence that one could have.

HAYNE J:   Be it so, what is the legal standard?  First, what does “reasonably necessary” mean?  A possible point of view is that it is a contradiction in terms.  I think Justice Wynn‑Parry said as much in [1950] Ch.  What is reasonably necessary for the protection of the public?  Why is that not the very judgment that the Executive has to make?  Why have you not pushed over to the judicial branch the decision of policy questions which are for the Executive branch to make?

MR BENNETT:   Your Honour, the legislature creates the general proposition and the courts apply it to the particular facts.

GLEESON CJ:   Does the word “necessary” in this context mean essential or does it have the meaning that it has in section 51 of the Income Tax Assessment Act?

MR BENNETT:   From the latter, your Honour.  One weighs it.  If the terrorist act is one which is likely only to cause damage to property and not a substantial amount of property and if the evidence that it is going to occur is very slight and if the person would suffer severe detriment by reason of the order, one result.  If the act contemplated might involve the death of thousands of people and there is a substantial chance the person is likely to engage in it on the evidence, the other result.  There has to be a weighing in the individual case and, for reasons I will come to when I get to the question of judicial power, that is something more appropriately given to a court than to the Executive.  It is not so open‑ended as to be incapable of having a standard applied to it.

HAYNE J:   When you come to it – and I do not suggest you delay now – you will explain to me, will you, what the distinction between “reasonably necessary” and “reasonably appropriate and adapted” is, and do so by reference to, for example, the deductibility test in the Tax Act, but we can perhaps save that joy for a little time, Mr Solicitor.

MR BENNETT:   Your Honour, both phrases imply a standard.  They are perhaps different ways of describing a similar aspect of the standard.  The second is more concerned with the question of whether there are other ways or other orders that might achieve the result more effectively.  The first is more concerned with the overall desirability of the making of an order.  There is a great similarity between the two phrases.  We submit they lay down a sufficient standard, but I will come to that when I get to the judicial power aspects of the case.

KIRBY J:   I am looking forward to the explanation of “appropriate” and “adapted.”  I have been waiting all my life for that to be interpreted.

MR BENNETT:   Yes. 

KIRBY J:   Derived as it is from Marbury v Madison.  Chief Justice Marshall put it on paper one afternoon and we have been stuck with it ever since.

MR BENNETT:   It has been suggested that reasonably proportionate might be a synonym.

KIRBY J:   I noticed the Prime Minister included in the assurances – I think the fourth assurance was it would be proportioned and that is a concept that I do understand.

MR BENNETT:   Your Honour, the difference may be merely linguistic.  I was coming to the conclusions which we draw in my preliminary submissions from the matters I have outlined.  The first is that the possible threats to the polity, to Australia, to the people, to the physical land or whatever, are from the matters I have listed, the vulnerability aspects and the growth of the fanatical ideological movements, are of enormous variety. 

One needs general powers to deal with a variety of threats which have largely replaced the quaintly old‑fashioned idea of an invading army.  To regard an invading army as the only threat that requires national defence and to ignore terrorism for that purpose, is what in the United States is sometimes described colloquially as “September 10 thinking”.  One says to a person ‑ ‑ ‑

KIRBY J:   Yes, but the Americans, with all respect, have become completely obsessed with September 11 and that is not an event that occurred in this country and I think we have to keep our eye on the threats to Australia.  I mean, more people die every day from AIDS than died on 11 September.

MR BENNETT:   Your Honour, with respect, it is precisely a threat to Australia.  That is some of the evidence which is in the stated case.  When the clearest one – yes, your Honour, the answer to that question is very simple.

KIRBY J:   Where are you referring?

MR BENNETT:   Page 196 where the man who did it says, “Yesterday, London and Madrid.  Tomorrow, Los Angeles and Melbourne.  Allah willing.”  Your Honour, one cannot say that it is something that is only affecting the United States.  The materials are replete with specific threats to Australia, which I will be taking your Honours to in due course.  In my respectful thinking, the ‑ ‑ ‑

KIRBY J:   Is this after Australia’s participation in the war in Iraq?

MR BENNETT:   The date of this is – yes, it is, your Honour.

KIRBY J:   I remember Chief Justice Barwick giving the French version that the animal is so wicked that it strikes back.

MR BENNETT:   Your Honour, the first strike came from the other side in this one.

KIRBY J:   It is a long struggle.

MR BENNETT:   Yes.  In our submissions at paragraph 9, your Honours see we have set out a number of specific statements.  One is where Bin Laden says:

We warned Australia before not to join in [the war] in Afghanistan, and [against] its despicable effort to separate East Timor.  It ignored the warning until it woke up to the sounds of explosions in Bali.  Its government falsely claimed that they [the Australians] were not targeted.

He went on to say that western nations should “expect more that will further distress you”.  Then the deputy leader says in 2003:

O Muslims, take matters firmly against the embassies of America, England, Australia, Norway and their interests, companies and employees.

KIRBY J:   All of this lends force to Justice Hayne’s observations that these are matters of the threats to the Australian community, that the Executive perhaps should take the responsibility for deciding and the political accountability for deciding and not pass over to the courts.

MR BENNETT:   Your Honour, that is nothing to do with what I am arguing at the moment.  That is the judicial power argument which I will come to later on.  But the answer to it is the very short answer which has been said by this Court on a number of occasions in relation to powers concerning search warrants and other related powers, that if these things are to be decided and it is better if it is done by a court than by the Executive.  I will come to that when I get to judicial power.  At the moment I am dealing with the defence power and the implied power to protect the nation.  But we do say that the American phrase “September 10 thinking” is appropriate to denigrate those who do not appreciate that the world did change on September the 11th.

HAYNE J:   Appropriate as a matter of legal proposition or as a matter of political rhetoric, Mr Solicitor?  What is your submission directed to, political rhetoric or legal proposition?

MR BENNETT:   Your Honour, that is simply a flourish to make the point I am making about the nature of the new situation facing Australia and the world.  It is not intended to be more than a piece of rhetoric, but it is a convenient phrase which we adopt.  The definition of “terrorism” in the legislation can be described as covering in broad terms ideologically motivated ‑ ‑ ‑

KIRBY J:   Where do we find the definition?

MR BENNETT:   Your Honour, I am not going to it at the moment.  It is page ‑ ‑ ‑

KIRBY J:   Occasionally we just have to look at the actual legislation instead of the rhetoric.

MR BENNETT:   The primary definition, your Honour, appears in the definition of “terrorist act” in section 100.1:

terrorist act means an action or threat of action where:

(a)the action falls within subsection (2) and does not fall within subsection (3) -

Subsection (3) excludes “advocacy, protest, dissent or industrial action” as long as it:

(b)      is not intended:

(i)to cause serious harm that is physical harm to a person; or

(ii)     to cause a person’s death; or

(iii)    to endanger the life –

et cetera.  The positive elements are subsection (2) which contains a concatenation of serious damage to life or to human beings or to property.

KIRBY J:   I notice that (f) in that subsection picks up Justice Callinan’s point about the integrated information systems and financial systems which do make countries, including Australia, more vulnerable than they previously were when it was done by paper checks.

MR BENNETT:   Yes, precisely, your Honour.  The second element is paragraph (b) of the definition which is that:

the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)      the action is done or the threat is made with the intention of:

(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)intimidating the public or a section of the public.

Now, that definition can be very loosely – I do not suggest accurately – but very loosely summarised as ideologically motivated violence.

GLEESON CJ:   It is loose.  Was whipping the moneychangers in the temple an act of terrorism?

MR BENNETT:   Your Honour, it might depend on a number of matters.  The question of whether paragraph (c) would have been satisfied might have been involved there.  Whether it is down to coerce or influence by intimidation, government, or whether to ‑ ‑ ‑

KIRBY J:   It is intimidating a section of the public.  It was certainly intimidating a few moneychangers.  They would not have liked it at all.

MR BENNETT:   There would be some difficulties in – there would be a question as to whether it fell within paragraph (3) as being advocacy, protest or dissent and not being intended to cause serious harm, et cetera, so there would be difficulty getting that within the definition.  What we say is that an overall definition which prohibits and seeks to prevent ideologically motivated violence on a substantial scale is something which is squarely proportionate, appropriate and adapted, or relevant, or whatever word one wishes to use, to the nature of the overall threat which I have described.

HAYNE J:   Now, you injected the words, “on a substantial scale”. 

MR BENNETT:   Yes.

HAYNE J:   What is the legislative footing for that expression?

MR BENNETT:   One gets that, your Honour, from each of the elements of subsection (2) – either refers to death or contains a ‑ ‑ ‑

HAYNE J:   Death to an individual.

MR BENNETT:   Yes, or contains a vituperative adjective or adverb, “creates a serious risk”, “seriously interferes with, seriously disrupts”, “causes serious harm” et cetera.  That is the first place it comes in.  The second place it comes is that it is not excluded by subsection (3) where it does not involve serious matters of various kinds.  The third way it comes in is that if it is done with the intention of advancing a political, religious or ideological case and with the intention of at least intimidating a section of the public or worse, that is likely to eliminate almost all small scale matters.

HAYNE J:   I have in mind some attacks that occurred in America against abortion clinics and against doctors who were engaged in that kind of practice.

MR BENNETT:   Your Honour, the killing of doctors who engage in that kind of practice for religious or ideological reasons would fall within this definition.

KIRBY J:   Would that not be something that normally in our form of society would be handled by the police?

MR BENNETT:   It would, your Honour, but for the need ‑ ‑ ‑

KIRBY J:   And by the normal criminal process, as it was in the United States?

MR BENNETT:   It would be, your Honour, but for the need ‑ ‑ ‑

KIRBY J:   Why should this be handled by exceptional procedures, including by the use of the military?

MR BENNETT:   Because the factors to which I have referred make serious ideological violence something which concerns the polity which is a threat to ‑ ‑ ‑

KIRBY J:   That is a big change in our constitutional practice and tradition.

MR BENNETT:   It is only a change because of the changing events. It is simply applying the Constitution to a different environment. Of course, here the steps which are taken are handled by the police but it is the federal police. In any event, if there were a problem at the outskirts, there may be questions of severability. We do not need to get into that here because, as in the Hughes Case, this is a case of someone who has actually been trained by Al‑Qa’ida.  We are not dealing here with the outskirts of the definition, we are dealing with its core.

GUMMOW J:   Where do we find that?

KIRBY J:   It is true that they are handled here by the police but you are arguing for a head of federal power - leave aside the reference power - whereby you are asserting that this falls within the powers of the Commonwealth, and that is something new and different and it is falling within the powers of the Commonwealth with respect to defence which at least normally implies that it is going to be utilising the agencies of the Commonwealth of defence.

MR BENNETT:   Your Honour, to apply the defence power to an air force or a defence against air attack is something new and different which became a Commonwealth power when aeroplanes were invented and started to be used.

KIRBY J:   I just do not think that is analogous to what is happening now because we have to keep our eye on what is the next step which is that the Commonwealth takes over all issues of policing in our society on the assertion that this is necessary in the New Age, the combination, the concatenation of all these factors.  The only safe way we can do it is by a national system.  We have heard that before and recently in this Court.

MR BENNETT:   I have, your Honour, and I give the same answer, your Honour, that we are concerned with the situation today and the present problem.  The fact that one solves the present problem in a particular way does not prevent one solving a future problem in a different way.  The alternative is to say that Australia alone of countries in the world is crippled in being able to defend against this new form of threat to it and has to leave it to the States and that is a surprising proposition.

KIRBY J:   Well, “crippled”, if it means observance of the constitutional principles that have been traditional in this country, may simply be carrying on the requirements of the Constitution. That may be the best defence against this form of activity.

MR BENNETT:   Your Honour, I say again, we are not changing the Constitution. We are applying it to a new situation. Not that this is the test, but if an officious bystander from 2007 were to travel in time to the Convention Debates and ask the drafters of the Constitution whether they though the defence power would cover dealing with Usama bin Laden, there is not much doubt what they would say.

KIRBY J:   Well, it certainly is not the test.  I do not know why you are putting it forward.

MR BENNETT:   It is not the test, your Honour, but I put that, your Honour, as the answer to the proposition that in some way I am seeking to depart from the Constitution. We say we are ‑ ‑ ‑

KIRBY J:   The officious bystander has to travel in space and ask the High Court of Australia, not going back to what the founders thought.

MR BENNETT:   Well, he may, your Honour.

GUMMOW J:   We can debate these things from here to kingdom come, Mr Solicitor, but can you answer my question which is you said at some stage that Mr Merkel’s client had received training from a listed terrorist organisation.

MR BENNETT:   Yes, your Honour.

GUMMOW J:   Where is that an agreed fact?

MR BENNETT:   Paragraph 11 of the special case states that the interim control order was issued.  In seeking it the second defendant contended ‑ ‑ ‑

GUMMOW J:   Exactly.  That is what they said.

MR BENNETT:   Yes, and that was the basis on which the order which is challenged was made.

GUMMOW J:   No, no.  Where is it agreed as a constitutional fact to which I can have regard when I am construing 104.4(1)(c)(ii):

(c)      the court is satisfied on the balance of probabilities . . . 

(ii)that the person has provided training to, or received training from, a listed terrorist organisation ‑ ‑ ‑

CALLINAN J:   Is it not proved in the material before the Court?  I think – I just cannot put my hands on it at the moment, but certainly there is material that says that the plaintiff attended a camp at Al Farooq and that he saw and heard Usama bin Laden address people there.  I do not know whether and I am not asserting this, but I do not know whether you need constitutional facts.  It may be a matter of proof under section 75 of the Evidence Act, these being interlocutory proceedings, but, in any event, section 104.28A of the Code expressly applies section 75 of the Evidence Act and not inappropriately, one would have thought, because these are really interlocutory proceedings.  The life of the order is initially 14 days, is it not?

MR BENNETT:   Initially, yes.  There are some other things in the special case.  Your Honours see paragraph 6 on page 30.

GUMMOW J:   Just a minute, Mr Solicitor.  We are not exercising any interlocutory jurisdiction.  We are determining whether an Act is valid, right?

MR BENNETT:   It is a constitutional fact in one sense, in another sense it is not really a constitutional fact.  It is rather a fact showing that the constitutional question is relevant to the particular proceedings in the Court.

CALLINAN J:   For my own part, and I am speaking for my own part, it may be more than that.  In any event, I am just putting the parties on notice of my tentative view about the status of the facts before the Court and the use to which they can be put.

MR BENNETT:   Yes, that is a topic I am going to come to, your Honour, but I will just say this about it.  Paragraph 6 of the special case said:

The Plaintiff left Australia and travelled to Pakistan, and then to Afghanistan.  Whilst in Afghanistan, he undertook paramilitary training at the Al Farooq training camp for a period of three months.  This training included training in the use of firearms and explosives.

We also know schedule 2 to the interim control order, which is at page 52, where the magistrate gives the summary of the grounds on which his order is made and he says:

1.        Mr Thomas has admitted that he trained with Al Qa’ida in 2001.  Al Qa’ida is a listed terrorist organisation . . . Mr Thomas also admitted that while at the Al Qa’ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons. 

2.        There are good reasons to believe that given Mr Thomas has received training with Al Qa’ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa’ida or related terrorist cells.  Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts. 

3.        Mr Thomas is vulnerable.  Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community.  Mr Thomas’s links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas’s vulnerabilities. 

4.        Furthermore, the mere fact that Mr Thomas has trained in Al Qa’ida training camps, and associated with senior Al Qa’ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.

5.        The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act.  Without these controls, Mr Thomas’s knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.

KIRBY J:   Now, the amended special case makes it clear that the plaintiff is going to be the subject of another trial.

MR BENNETT:   Yes, your Honour.

KIRBY J:   Do we have to do anything in relation to these assertions or allegations in respect of the further trial?  I mean, we would not want these proceedings to become a source of unfairness in the retrial of the plaintiff.

MR BENNETT:   No, your Honour.  All that is necessary for these proceedings is to know that these are the allegations.  If the allegations turn out to be incorrect, if Mr Thomas is able to prove at his trial this was really a boy scout camp and that there was ‑ ‑ ‑

KIRBY J:   Normally, it is the prosecution that has to prove things in criminal trials, at least in the first instance.

MR BENNETT:   Your Honour, if that is the fact which is established at the hearing, whoever proves it, then no doubt the Court will not continue the order, but that does not go to the constitutionality of the proceedings ‑ ‑ ‑

GUMMOW J:   The question is, Mr Solicitor, could the order validly have been made in the first place, not whether it is continued.

MR BENNETT:   Yes, your Honour, it is like a demurrer.

GUMMOW J:   You say it is on some quia timet basis and the quia timet basis is enough to engage the constitutional head of power.

MR BENNETT:   Yes, your Honour.  I will come to the whole question of quia timet and ex parte orders when I get to the judicial power section.

GUMMOW J:    I am not worried about judicial power; I am worried about the defence power.

MR BENNETT:   Your Honour, clearly we would submit that it extends to quia timet.

KIRBY J:   Where did those admissions that are referred to in schedule 2 come from?  Were they formally made at the hearing before the magistrate?

MR BENNETT:   I think, your Honour – now, I may be mistaken in this, but there were some admissions made on a television program or a radio program in which the plaintiff was interviewed.  It may be a reference to that.  It may be a reference to something else, I do not know.

KIRBY J:   Was a transcript of that placed before the magistrate that becomes the basis of schedule 2 being the grounds on which his order is made?

MR BENNETT:   I do not know, your Honour.  There were some admissions made in Pakistan which were - and the circumstances in which they were made were the reasons why the appeal against conviction was allowed.

KIRBY J:   But if they are based on the statements to police, then that is the statement which the Court of Appeal held was unfairly obtained and should have been excluded at the trial.

MR BENNETT:   There would still be a question as to the appropriateness of its use in a quia timet situation, which is different from its use in a criminal trial, but your Honours are not concerned with that.  The only relevance of this is that the – it is rather like a demurrer where the Court is not concerned with the ultimate truth of the allegations in the statement of claim.  The issue is whether the matters in issue are matters which would, if established, invoke the constitutional power.

KIRBY J:   But there is attention between our special case which is the document that brings the questions before us where in paragraph 11 it is simply that the second defendant contended certain matters and the actual findings in schedule 2 by the magistrate who appears to have acted on a finding that certain things were done which do appear to attract the actual application of the section of the Act.

MR BENNETT:   Yes.  The reference to the contention is more historical.  As is said in paragraph 11, that is one of the issues in the confirmation hearing, but in determining constitutionality one does not need to determine the truth of the contentions.  If a person alleges facts which if established bring a situation within constitutional power, then the proceeding proceeds.  If the fact is not established, it may not be.  If a person against whom a bankruptcy petition is presented turns out not to be insolvent and not to owe the money, the court dismisses the petition.  That does not mean that dismissing it was not within the bankruptcy power.

KIRBY J:   Yes, but the Act contains requirements that certain things be established, one of which can include the issue of training.  Now, it is not enough that it be contended that there was training.  It has to be actually established to attract the Act.

MR BENNETT:   Your Honour, schedule 2 of the magistrate’s reasons are of course part of the special case but the ‑ ‑ ‑

GLEESON CJ:   Mr Solicitor, we had better get this point straight once and for all because it is a matter that was reverted to, adverted to and then reverted to at least half a dozen times during the two days of argument that he had in December, that is, the question of the status of these facts and the relevance of these facts to the decision making that we have to engage in.  What difference would it make if we knew that Mr Thomas asserted that he had never been outside Australia and he never set foot in Afghanistan and that was his defence?

MR BENNETT:   None whatsoever, your Honour.

GLEESON CJ:   It simply remains an unresolved issue.

MR BENNETT:   Yes.

HEYDON J:   A constitutional challenge could have been brought even though there were no Mr Thomas, no present plaintiff.  I mean, in the Work Choices Case there was no dispute between any employer and any employee but there was a question about the constitutionality of the legislation.  The resolution of the question of the constitutionality of this legislation does not necessarily depend on what this particular plaintiff did or did not do.

MR BENNETT:   No doubt Al-Qa’ida could have challenged its declaration as a terrorist organisation and ‑ ‑ ‑

GLEESON CJ:   If it exists as such.

MR BENNETT:   There may be questions as to how it is ‑ ‑ ‑

HEYDON J:   But there are quite a number of other facts than those in paragraph 6 that are relevant to the Chief Justice’s question.

MR BENNETT:   Yes.

HEYDON J:   I mean, is it relevant merely that ASIO says something or is it relevant that ASIO says something which may be taken to be true?

MR BENNETT:   Your Honour, the ASIO material is being used in a different way.  That is the general material.  That is relevant to the extent to which the Court defers to the Executive on matters concerned with the level of threat and need for security and so on.  I will come to that when I get into the – it is not something which I need to go into at this stage where I am simply dealing with the scope of the defence power on certain assumptions in relation to the material. 

GLEESON CJ:   There could be a case, I imagine, in which a person who was the subject of an interim control order was saying, “On the facts alleged against me, I could not possibly lawfully be the subject of this interim control order”.

MR BENNETT:   Yes.  That would not be a constitutional submission, your Honour.  That would be a submission on the facts.  A constitutional challenge by such a person would fail.  A defence by such a person might succeed.  That is no different to the dismissal of the bankruptcy petition against the solvent person who does not owe the petitioning creditor’s debt.

GLEESON CJ:   Presumably, because there are unresolved criminal proceedings and unresolved final control order proceedings, those representing Mr Thomas are being careful to make it plain that these things are not admitted.

MR BENNETT:   Yes, I accept that, your Honour.

GLEESON CJ:   But is what is relevant to the challenge to the constitutional validity of the legislation in its possible application to Mr Thomas that these things are asserted.

MR BENNETT:   And that they were found by the magistrate on an ex parte basis, subject to, of course, what will emerge at the final control order hearing where, of course, Mr Thomas will have the opportunity to say whatever he wishes and call whatever evidence he wishes.  He has brought his challenge at this stage and at this stage the relevant facts, for the purpose of that challenge, are those found by the magistrate for constitutional purposes.

HAYNE J:   Now, Mr Solicitor, at paragraph 123 of your written submission, which is at page 30 of the document, you say that:

The validity of Division 104 does not depend upon the proof of any constitutional facts . . . The legislation itself ensures that there will be a sufficient connection between the making of a control order and the protection of the public from a terrorist act.

First, is there any secondary submission you make or do you stake your position upon the proposition that validity does not depend upon the proof of any constitutional fact?

MR BENNETT:   No, your Honour.  There is a second proposition and the second proposition is that the general facts alleged, as I have described them in my introduction, are showing in general terms the need for the defence of the nation, the protection of the nation, against particular forms of activity.  Those general constitutional facts are a basis for justifying, as a matter of federal power, the definition of “terrorist act”.

HAYNE J:   Let me come back to that in a moment because that presents a separate question, but let me understand whether one of your submissions is there is no constitutional fact that need be established because the Act by its structure necessarily brings itself within power.  Is that a proposition which the Commonwealth advances?

MR BENNETT:   Yes, your Honour, but it is advanced as secondary to the proposition that the general facts alleged - the matters, for example, are concerning the nature of modern society, the vulnerability factors I have referred to, all those, I suppose, are largely matters of judicial notice.  In a strict sense they could be described as constitutional facts.  The fact that it is possible for people to obtain explosives is no doubt a constitutional fact in one sense but it is something that it is not very difficult to take judicial notice of.  The fact that there are situations in society where large numbers of people are in a small area and that our society places a high regard on human life ‑ ‑ ‑

HAYNE J:   You have recited those nine facts.  I do not think they need to be repeated.  Do those nine facts or propositions contain within themselves, or require any consideration of questions of likelihood, that is to say, any consideration of the size, magnitude, nature – I do not care how you describe it – of the threat that is thus presented?  You have referred to various vulnerabilities.  Is there any additional question that needs to be examined about the likelihood of that vulnerability being exploited?

MR BENNETT:   Your Honour, the last of those facts was the growth of ideologically motivated organisations which seek the destruction of western society in general.

GLEESON CJ:   It is something like the American concept of “clear and present danger” relevance.

MR BENNETT:   As an additional matter on which – as a belt and braces aspect, yes.

HAYNE J:   Because I must say to you, Mr Solicitor, on the special case as it stands I understand the Executive to have made various statements about probabilities, likelihoods, et cetera, but I do not understand there to be any agreement between the parties about the truth or accuracy of those statements and thus, if there is a relevant constitutional fact of some kind approximating, “Look, the threat is real, the threat is likely, the threat is tangible” - I do not know how you want to express it - I need to be taken to the special case to identify with clarity where it is an agreed fact upon which we may act.

CALLINAN J:   What about 149 of the stated case, the declaration made by bin Laden on 23 February 1998 or the interview with the journalist from Time magazine in stated case 153.

HAYNE J:   Those threats are made, what is there that is an agreed fact that demonstrates the likelihood of their being carried into effect?

MR BENNETT:   Your Honour, the courts can draw inferences from the facts in the special case.

HAYNE J:   The Court may draw inferences under the rule from, I think, the agreed facts, Mr Solicitor.  What is the agreed fact that would lead to that inference?  It is agreed that these statements are made, that I understand, but how am I to assess whether it is likely that the statement can be carried into effect?  I mean, I can state that Essendon will win the premiership this year.

MR BENNETT:   Your Honour, there is paragraph 19 of the special case.

HEYDON J:   This disclaimer in paragraph 2 is not actually well adapted to many of these facts in the paragraph at the end of the special case and 19 is an example of that because that does not contain any statement and it does not contain any document, so that that is a statement of a very general fact.

MR BENNETT:   Yes, and I will be taking your Honours to the cases about the deferral to the views of the Executive on certain types of issue and using those to support the conclusions drawn by ASIO about the degree of risk.  One combines the threats, which are set out in great detail, with the events of which the Court can take judicial notice and the virtual claiming of credit for some of those events by Usama bin Laden in the interviews and the statements, one can combine all that and say there is a risk.

If one has a person who has engaged in activity and that person is threatening to engage in further activity, one can draw an inference as to the possibility.  As to the actual likelihood, one might need a lot more evidence but that is a matter of degree from which inferences can be drawn from reading the whole of the material.

CALLINAN J:   You have actual findings by the Federal Magistrate, and they are in the summary of the grounds, I think, on which an order was made.  They are at 52 of the book.

HEYDON J:   His actual reasoning which is set out really from page 11 onwards is in much greater factual detail.

MR BENNETT:   Yes.

HEYDON J:   Earlier I said it perhaps did not matter much what the plaintiff actually did as distinct from what the general position as to threats is, but to what extent can we rely upon the actual reasoning of the magistrate?

MR BENNETT:   Your Honour, the magistrate’s findings are more concerned with the specific events affecting the plaintiff rather than with the general matters but they certainly make that connection.  Under rule 27.08.5 of the Rules of this Court:

The Court may draw from the facts stated and documents identified in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.

The inferences which are largely summarised in the general paragraph I have taken your Honours to in the special case, paragraphs like paragraph 19, are easy inferences when one reads the bulk of this material.  We do ask the Court to read it and the inferences, in my respectful submission, are inescapable that there is serious risk in a general sense.  Then the specific facts found by the magistrate bring the plaintiff within that.

Your Honours, that concludes the introductory remarks about the relevant matters. I come to the defence power specifically. It is important to note that there are certain aspects of the powers which are clearly supported under the external affairs power but we do not need to consider those aspects in relation to the defence power. The external affairs powers were dealt with by my learned friend Mr Burmester. We submit that the founders of the Constitution did not intend to confer more limited powers of self‑protection on the new polity than those available to other sovereign nations.

KIRBY J:   That implies that the criterion is what the founders of the Commonwealth intended.  That is not a criterion that I at least accept and it is not one that has been accepted in all of the decisions of this Court.  I mean, the founders definitely intended something different from what was held in Sue v Hill.  They intended it different, they knew it was different, they knew that a British subject was what an Australian was.  So the criterion of the intention of the founders is, as far as I am concerned, irrelevant.

MR BENNETT:   The intention was precisely, as was found in Sue v Hill, that a person who owed allegiance to a foreign power would suffer certain disqualifications.  That did not change.  There was a change in denotation ‑ ‑ ‑

GLEESON CJ:   Well, it depends what you mean by “intention”.  It depends on whether you attribute to them the belief that Australia’s relations with the United Kingdom would never change.

MR BENNETT:   Precisely, your Honour.  One does not, in either constitutional interpretation or statutory interpretation, ask the question, what would the drafter have done if confronted with these specific facts.

KIRBY J:   Anyway, as Justice Gummow said, we can debate these things forever and really they are not going to decide this case.

MR BENNETT:   No, but, your Honour, that particular point is one which we do stress, that one is never – and Sue v Hill illustrates it beautifully. One does not ask how the drafters of the Constitution would have looked at the facts in Sue v Hill. One asks rather - and this is where the connotation and denotation distinction is a very convenient one. One says the connotation is a person who owes allegiance to a foreign power cannot be a Member of Parliament. The denotation of which powers are foreign powers may change. New Guinea ceased to be a foreign power, then became one. Britain was not a foreign power at the time but it became one. That is nothing to do with the drafter of the Constitution.

KIRBY J:   I suggest it has nothing to do with the intention of the founders. The Constitution is the – they make the Constitution. It is then set free and applies to this country. Our job is to give it an interpretation that makes it operate in accordance with its words as a Constitution.

MR BENNETT:   Well, that is not an issue which we need to decide in this case because, on either basis, we submit what is done here is well and truly covered.  The only thing that might not be covered ‑ ‑ ‑

KIRBY J:   I think a functional approach is much more favourable to the submissions of the Commonwealth because a functional approach requires that you take the words in the context of the circumstances in which they must operate today which in many respects are quite different from those at the time of Federation, were never conceived of.  The founders never knew of nuclear weapons, never knew of informatics, never knew of the perils of the modern age and so it is really a red herring to be talking about their intention.  Anyway, I have had my say and I will just fall into silence for a few minutes.

MR BENNETT:   Your Honour, can we just add this, that if the Constitution were drafted and promulgated today and it had the words of section 51(vi) in it, there is no one who could seriously doubt that this legislation would fall squarely within it. That could not be rationally challenged. So in a sense, because of the factors I have listed in the beginning, that aspect is very clear. The case I have to meet in a sense is the case which says to look at defence in 1900. They did not have Usama bin Laden then. That is the case I have to meet but it is not the primary case. The breadth of the defence power and the implied power to protect the nation can be found in the fact that in any federal Constitution ‑ ‑ ‑

GUMMOW J:   What do you mean by “the nation”, Mr Bennett?  That is the language of the French revolution actually.

MR BENNETT:   Your Honour, it can in different contexts mean the polity, mean the people or even the physical land.  The example of the asteroid involves defending the physical land.

GLEESON CJ:   Protecting the nation involves protecting the nation against what?

MR BENNETT:   Against a whole range of things which threaten the existence of the polity, of the people of that polity.

GLEESON CJ:   I would just like to understand a little better than I do at the moment the extent to which, on your submission, the implied protection power extends beyond the defence power.  If it does not extend beyond it, we can forget about it.  If it does extend beyond it, how far?

MR BENNETT:   I will take your Honour to the passages in Justice Dixon’s judgments which discuss it.  How far it extends beyond it depends on how much one limits the defence power.  If one takes the full scope of the denotation which we say flows from it, then one does not need very much of the implied power.  The implied power must certainly exist for the purpose of resisting things which are likely to cause damage to the nation as such, a large proportion of the people of the nation, the land mass ‑ ‑ ‑

GLEESON CJ:   Would it cover, for example, a pandemic that would not be covered by the defence power?  What do you say about a pandemic?

MR BENNETT:   Yes, your Honour, although it probably would not be necessary because of the quarantine power.  Certainly but for the quarantine power and probably in any event, bearing in mind that one power does not limit another, my answer to that question is yes.

GLEESON CJ:   What about a threat to the nation’s financial system?

MR BENNETT:   Yes, your Honour, a worldwide boycott of Australian goods would be something which could be combated, even if there were no trade and commerce power, under the implied protection of the nation power.

GLEESON CJ:   What about a drought?

MR BENNETT:   Your Honour, there are some more difficult questions when one gets into environmental issues which ‑ ‑ ‑

HAYNE J:   Affected by budgetary constraints of course, Mr Solicitor.

MR BENNETT:   Which I may be addressing your Honours on at some time in the future.  Can I answer that by saying that is closer to the line and it might be a difficult question which side of the line that fell on.  Certainly one does not need to answer that sort of question to answer this one where one has a very clear physical threat by human beings to cause damage.  In other words, if your Honours accept all my submissions as to the present coverage of the defence power, I do not need the implied power.  If your Honours do not, I do.

KIRBY J:   I suppose you can say here that in this case the threat comes substantially, according to the materials, subject to the constitutional fact question from outside Australia from a force which may not be organised as a nation but which is a force that has cross‑national operations that threatens violence and has specifically mentioned Australia and specifically referred to Melbourne and that in this sense it is analogous to the type of things that the defence of Australia has always involved, external – organised to some degree - violence and that you do not have to just sit there waiting for things to happen. As was said by Justice Barton, a nation is entitled, like a person, to defend itself and its Constitution contains the assumption that it can defend its constitutional system.

MR BENNETT:   Yes.  Precisely, your Honour.  Under the external affairs power, of course, there are a number of aspects.  There is the externality that your Honour has referred to in the nature of the threat and those behind it, there is the specific externality in that one of the two conditions, one of the alternative conditions for the interim control order involved activity outside Australia and the provision of consequences for engaging in that activity and the third and fourth ways, of course, are the direct obligation under the United Nations Charter and the resolution requiring States to take actions against terrorism and to prevent it ‑ ‑ ‑

KIRBY J:   I am just concerned to draw a line - you referred to line drawing and that is what we have to do all the time – between what might be said to be dealing with issues of internal dissent and disagreement and even organisations such as the Communist Party and dealing with issues that have a distinct connection with external dangers and threats which have conventionally been the subject of the activity of a defence force in British tradition and in our tradition.

MR BENNETT:   Yes.  In some cases the threat might be purely internal.  In this case, of course, the threat has external elements which I have referred to.

KIRBY J:   There may be a distinction between those two cases because on one view the Communists in 1951 were terrorists within these definitions and yet ‑ ‑ ‑

MR BENNETT:   Your Honour, we will seek to demonstrate – in Re Aird; Ex parte Alpert (2004) 220 CLR 308 there is a rejection of the need for externality. That appears in the judgment of Justice McHugh at paragraph 28 where, at the end of the paragraph after discussing what happens when there is a war, he says:

But the operation of the defence power is more limited when no external or internal threat to the security of the country is present.

GLEESON CJ:   He says the same thing in the first sentence and he cites the Communist Party Case as authority for it.  The Communist Party Case did not decide that the government could not protect the country against communism.  The Communist Party Case was a decision about facts.

MR BENNETT:   It was about evidence, your Honour.

GLEESON CJ:   About evidence.

KIRBY J:   That is one way to read it.  That is a very narrow way to read it.

GLEESON CJ:   That is what the Court decided as distinct from obiter dicta in judgments.

MR BENNETT:   Yes.

KIRBY J:   That is a question that at least you will have to address me on if it is important to your argument.

MR BENNETT:   I am going to come to that, your Honour.  As your Honour says, paragraph 28 begins by saying:

the extent of the defence power rests on facts concerning Australia’s relations with other countries and its internal security.

There is a passage from the Communist Party Case cited to support that.

KIRBY J:   That is a wider view than has traditionally been taken.  I mean, the notion that the military are there for internal security is not a view that fits comfortably either with our constitutional heritage or our constitutional practice.  On another view, it is a very dangerous notion for military involvement in the civil affairs of governance, which has been a very firm tradition of Britain and of this country.

MR BENNETT:   Your Honour, the civil war in the 17^th century in Britain ‑ ‑ ‑

KIRBY J:   Yes, but we are not talking about the 17^th century.  In fact, the determination to keep military out of civilian government was a reaction to the civil war and the Cromwellian revolution.

MR BENNETT:   No, but, your Honour, the civil wars in England and in the United States in the 19^th century demonstrate that military power can and often is used for the purpose of suppressing internal rebellion or an internal desire to split off part of the country or whatever.

KIRBY J:   They were both extra-constitutional activities.

MR BENNETT:   Your Honour, not necessarily.

KIRBY J: We are talking about the operation of the Constitution, not its breach.

MR BENNETT: We would submit if there were a violent secession movement in part of Australia, both the defence power and the implied protection power would enable resistance to it. If the Hutt River Province were to declare war on Australia in some way, it would be open to be dealt with federally under the Constitution and not only by the State of Western Australia.

GLEESON CJ:   That paragraph you referred to in Aird does not say, at least in terms, exactly what you attributed to it.  Contrary to what you said, footnote (24) does not refer to a passage in the Communist Party Case; it simply refers to the Communist Party Case.

MR BENNETT:   Yes, that is so, your Honour.

GLEESON CJ:   The introductory words at the beginning of the second sentence may seem to cut down the width of the first sentence.

MR BENNETT:   The phrase is, “In time of war, or when external or internal forces threaten the security of Australia”.  That is talking about forces, of course, because that is the subject matter being dealt with.

GLEESON CJ:   You say a violent secession movement could be dealt with by the defence power.  It is not something that would have to be left to the State police?

MR BENNETT:   No, that is so, your Honour.

KIRBY J:   One thing we can say with certainty, that was not a matter argued or necessary for the decision in Re Aird.

MR BENNETT:   No, it was not, your Honour.  I do not put that as ratio. 

HAYNE J:   It seems to pray in aid what Justice Dixon says at 187 to 188 of Communist Party in 83 CLR.  It seems to be a source, perhaps the source, for what is there said.

MR BENNETT:   There is also a passage in the judgment of your Honour Justice Gummow in Aird in paragraph 61 where your Honour said:

The term “defence” in s 51(vi) may be thought primarily to be concerned with response to hostile activity, actual or potential, from external sources.

Even there, of course, not only by nation states -

However, there is an internal aspect with which the Constitution also has dealt. Section 69 provided for the transfer of the State departments of naval and military defence to the Commonwealth. Thereafter, s 114 required the consent of the Commonwealth Parliament to the raising or maintaining by a State of any naval or military force.

Then there is section 119 about the protection of the States:

not only against invasion but also, on the application of their Executive Governments, against “domestic violence” (s 119). Domestic violence may threaten the Commonwealth itself. Section 68 of the Constitution vests in the Governor-General . . . of the naval and military forces of the Commonwealth. Section 61 emphasises that the executive power of the Commonwealth extends to “the execution and maintenance” . . . and the cognate phrase “to executive and maintain” is found in s 51(vi). The second limb in s 51(vi) thus supports laws in aid of that executive power. It is unnecessary here to consider further the scope of those executive and legislative powers.

What we get from that for present purposes, and of course they are dicta, is that the defence power is not something which is limited only to external threats and certainly the implied power, to which I will come, is not so limited. 

KIRBY J:   The passage on 188 of the Communist Party Case in the reasons of Justice Dixon does not seem to support the proposition that there is open slather on the use of the defence power for putting down internal subversion.

MR BENNETT:   That passage at 183 CLR 1 at 188, what he said there is giving the sort of original justification for the defence power. His Honour Justice Dixon as he then was, says:

I prefer the view adopted in the United States, which is stated in Black’s American Constitutional Law . . . it is within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities.  And to this end, it may provide for the punishment of treason, the suppression of insurrection or rebellion and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government . . . 

I will take your Honours, in a moment to a passage which particularly makes that relevant.

In the United States the power is deduced not only from what is inherent in the establishment of a polity but from the character of the polity set up and more particularly from the power of Congress to make laws which shall be necessary and proper for carrying into execution the powers vested in Congress by the Constitution and in the Government or in any Department or officer thereof. Putting aside occasional reliance on a Federal police power, the considerations giving rise to the implied power exist in the Commonwealth Constitution.

GLEESON CJ:   A violent secession movement was exactly what the Federal Government in the United States dealt with at the time of the civil war.

MR BENNETT:   Yes, it did, your Honour.  It is important to note that one of the documents in the special case is, starting on page 187 – this is an Al‑Qa’ida document which is called “THE TARGETS INSIDE CITIES”.  It is relevant to this concept of defending the polity itself.

KIRBY J:   Yes, but I think his Honour is drawing a distinction, is he not, between the use of the implied protection of the Constitution which he thinks is the foundation and the use of the particular heads of power because if you look at that famous passage at the bottom of 187 he makes the point that:

History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.

He appears to be rejecting the use of the collection of specific powers, such as the defence power, and says if there is this exceptional power for completely exceptional circumstances of an attempted violent overthrow of the country, you get the power then under the implied power to protect the Constitution.

MR BENNETT:   Yes.  I am taking your Honours to this document to show that part of the threat is not merely a threat at people or individuals but a threat at the polity.  If I can just demonstrate that, at page 188 in the preface at the top of the page the document says:

Targets inside the cities are considered a sort of military diplomacy.  Normally, this kind of diplomacy is written with blood and decorated with body parts and the smell of guns.  It carries a political meaning that relates to the nature of the faith’s struggle.  The intent is to send messages to different directions.  Therefore, it is very important to choose accurate targets (similar to al‑Quaeda explosions).

Then there is reference to events in Riyadh which we are not concerned with.  Then there is talk about “Economic Targets” on page 189, halfway down the page:

The purpose of these targets is to ‑ ‑ ‑

KIRBY J:   What is this document, by the way?  It is an English translation of what?

MR BENNETT:   It is referred to in the special case.  It is called “Al‑Qa’ida Targeting Guidance” at the front.  I will just have the reference to it found in a moment, your Honour.

HEYDON J:   It is paragraph 23(g).

MR BENNETT:   Yes, 23(g) on page 34:

Al Qa’ida released an articled called “The Targets Inside the Cities”.  An English translation of that article is set out in Annexure M.

Now, if one goes on, “Economic Targets” on page 189:

The purpose of these targets is to destabilize the situation and not allow the economic recovery such as hitting oil wells and pipelines that will scare foreign companies . . . Some of the benefits of those operations are the effect it has on the economic powers like the one that had happened recently in Madrid where the whole European economy was affected.  Such attacks have dual economic effects on the crusaders, Jewish and renegade Islamic countries.

The next page, “Human Targets”:

We have to target Jews and Christians.  We have to let anybody that fights God, his prophet or the believers know that we will be killing them.  There should be no limits and no geographical borders.  We have to turn the land of the infidels into hell as they –

et cetera.  Then the importance of targets as listed as being firstly Jews and then Christians and their importance is Americans, British, Spanish, then Australians, then Canadians and Italians.  Then “The Purpose for Human Targets”:

To stress the struggle of the faiths. Targeting Jews and Christians is a proof that it is a religious struggle.

Then on the next page, page 192, the “Advantages of Operations Against Cities” are:

3.To punish the ruling government and put limits to its power . . . 

5.To have those governments and its main figures lose their popular support.

No 6, which contains a crime against the English language as well as the other crime -

6.        To effect the economies of these countries.

KIRBY J:   I do not think we can blame anyone but the translation service for that.

MR BENNETT:   No, that is so, your Honour, in fairness, although I think it is their translation.  Then:

11.To force governments to change their policies.

12.To shake the confidence of the governments and have the military establishment turn against the political establishment or have political parties fight each other.  The more infighting, the less people trust their government.

What all this material demonstrates, apart from the existence of the threat, is that the threat is very much against the polity and the purpose of the acts against individuals, or one of the main purposes, is attacking and destroying the polity.

KIRBY J:   I think the listed nations on pages 190 to 192 are the nations which originally were members of the so‑called “coalition of the willing”.

MR BENNETT:   I am not sure the Canadians were, your Honour.  I do not think Canadians were ever in it.

GLEESON CJ:   I thought their grievance against Spain went back a little further than that.

MR BENNETT:   Exactly, your Honour, I was going to say that.

KIRBY J:   Spain did, under the former government, take part in the ‑ ‑ ‑

MR BENNETT:   No, no, no, the point the Chief Justice is making, your Honour, is that Spain is a country which was at one stage a Muslim country.

KIRBY J:   I am quite aware of that.

GLEESON CJ:   It is referred to in what you mentioned a moment ago as a crusader nation.

MR BENNETT:   Yes.

KIRBY J:   I thought that might have been a reference to what President Bush had said.

MR BENNETT:   I think it goes deeper than that.  When one reads the whole of the material, it goes much deeper than that.  But the reference to Canadians, I think I am correct in saying that they were not part of the ‑ ‑ ‑

GUMMOW J:   No, but they have a presence in Afghanistan.  That is what that is about.

MR BENNETT:   Yes.  The purposes are very clearly demonstrated there as involving the relevant polities.

We note also in relation to externality that in the Work Choices Case there is a passage at paragraphs 209 to 212 of the majority judgment which notes that section 51(vi) was included in the Constitution against the background of, and as a means of responding to, violent and disorderly strikes and lockouts of the 1890s. The word “invasion” in section 119, as I have said, can involve an invasion from one State to another and I gave the example of de Groot invading Queensland.

GUMMOW J:   Do you rely, Mr Solicitor, on Justice Fullagar in the Communist Party Case 83 CLR 259 to 260? Mr McLeish may have referred us to this, I am not sure, starting at line 6:

there exists also a legislative power . . . for the protection of itself and the Constitution against domestic attack.

It finishes up on the bottom of 260:

if it ever becomes necessary to examine it closely, it may well be found to depend really on an essential and inescapable implication which must be involved in the legal constitution of any polity.

KIRBY J:   That seems very similar to what Justice Dixon was saying.

MR BENNETT:   Yes.  We see that as reflecting the answer I gave the Chief Justice earlier in another context that the width and scope of the implied power depends on how much one limits the defence power.  If the defence power is wide and covers everything that we say it covers, there is not need for anything else.  If it has limitations, you need this to get over the limitations.

GUMMOW J:   That is what the Chief Justice is asking.

KIRBY J:   Yes, but I do not think that is the logic of Justice Dixon and Justice Fullagar.  They were saying, “You’re not going to get it out of the defence power, you have to go to the implied power”, but the implied power is to defend the very existence of the nation as in the civil war in the United States and I do not think anybody suggests that Australia’s existence as a nation and its constitutional stability are in any way affected by the rantings of the type of material you have been reading us.

MR BENNETT:   It depends on what is done in support of the rantings, your Honour.  It is more than “existence”; it must include the imposition of serious damage on it too.  The power does not merely become available at the moment when one says the whole existence is threatened; it must apply at some earlier point than that. 

The statement at the bottom of 259:

The survival of the Constitution appears to me to be a matter most incidental to the execution of power under it.

One must have somewhere the ability to defend oneself against major threats whether to one’s existence or of serious harm and one gets that from the defence power or, if not, from the other.  I will be taking your Honours, when I get to it, to the remarks of Justice Dixon in relation to the implied power.

In order to find the proportional connection between control orders and the threats to which I have referred, we make a number of submissions.  The first is the one I have already made that Division 104 ensures a connection by requiring the relationship between the control order and the prevention of a terrorist act.  So far as terrorism is concerned, I remind your Honours of some of the speeches in A v Secretary of State for the Home Department [2005] 2 AC 68. The question there was whether the threat of terrorism faced by the United Kingdom in late 2004 threatened the life of the nation within the meaning of article 15 of the European Convention on Human Rights which said certain things arose if there was a public emergency threatening the life of the nation.

Lord Bingham, Lord Hope, Lord Rodger, Lord Walker, Baroness Hale and Lord Carswell all held that the threat of terrorism there was an emergency threatening the life of the nation.  There was a strong dissent by Lord Hoffmann, of which your Honours are doubtless aware, which we would invite your Honours to reject. 

KIRBY J:   Lord Hoffmann’s dissenting speech - none of this is binding on us, but as far as I am concerned it was pretty persuasive.  If Britain was not damaged by the threats of the Nazis with their ever‑present invasion, you can hardly say that the nation of Britain was threatened by the type of things that have occurred in the list of activities that you are relying on.

MR BENNETT:   The other view is that he was proved wrong by the events in London shortly after the judgment.

KIRBY J:   The nation has gone on.  The British nation has gone on.  I mean, with all respect, it is pretty unconvincing to say the life of the nation is threatened.  It is a wicked and monstrous act; it is dealt with in the normal way by police and by other responses of civilian society.  The nation is not affected.

MR BENNETT:   We know from the writings which I have taken your Honours to that part of the purpose of that is to damage at least the nation and where one has that, one can threaten the life of a nation without – that does not necessarily mean threaten to destroy it.  But in any event, the word there was “threat”.

KIRBY J:   I just think it is absurd to say that the life of the British nation was threatened and endangered as a nation.

MR BENNETT:   If one moved further to atomic weapons and biological weapons, one could have that occurring.

KIRBY J:   You are referring to what happened in London.

HAYNE J:   Then you are into this question of fact, Mr Solicitor, about the likelihood of that occurring.  Yes, threats are made, but where in the stated case do we know how likely that is?  The answer “We’re the government and we tell you so” may, you say, suffice, but where do we know how likely these events are?

MR BENNETT:   Only, your Honour, in the way one draws an inference from the extreme nature of the statements and the actions that we know have occurred.

GUMMOW J:   What did the House of Lords rely on as a factual footing for applying Article 15, which has a provenance “emergencies threatening the life of the nation”.  That is a French idea.  In the 1790s it was a good idea for supporting or you would go out and guillotine the aristocrat living next door because they were being invaded by the Austrians.

MR BENNETT:   It may be, your Honour, that the phrase is a composite phrase and one should not take the word “life” too literally.

GUMMOW J:   Yes, but it is critical rhetoric from ‑ ‑ ‑

HAYNE J:   We see the nature of the argument for the appellants at page 73 at the foot:

Assessment of the threshold factual question whether there is such an emergency falls to be determined in the first instance by the Secretary of State.

That is, by the Executive.

MR BENNETT:   Yes.

HAYNE J:  

The court’s role is that of review -

Now, that is the argument that is advanced.  Let us defer to the Executive and let us review it.  That is a variant on the theme:  the government tells you so, accept it.

MR BENNETT:   Yes.  Your Honour, it was a little more than that.  In paragraph 117 and following in the speech of Lord Hope, there is a reference to what the evidence was.  The evidence before the body from which the appeal came:

was divided into two parts:  material which could be made public and “closed material”.  Your Lordships have not been shown the closed material –

et cetera.

HAYNE J:   So the House of Lords is asked to decide the question on the footing of seeing some of the material?

MR BENNETT:   Yes, your Honour.

HAYNE J:   Material excluding that which the government will not show it.  “Trust me, I am from the government”.

MR BENNETT:   Yes, your Honour.  It is one area where that has to be done.

GUMMOW J:   Why?

MR BENNETT:   Because for the same reason that the statements by informers, for example, when used in the proceedings under this Act or in criminal proceedings involving terrorism, are not shown to the accused, contrary to one of the ‑ ‑ ‑

HAYNE J:   Well, these were not shown to the court.

MR BENNETT:   Or even the court sometimes, in extreme cases.  Let us assume ‑ ‑ ‑

GUMMOW J:   That all seems contrary to Marbury v Madison, really.  You are saying you can determine constitutional validity of a contentious matter by relying upon undisclosed material.

MR BENNETT:   Your Honour, there are many passages which ‑ ‑ ‑

GUMMOW J:   You see, the British do not have this tradition and it is one of their problems, perhaps, but they do not.  We do, so.

HAYNE J:   And it presents precisely the problem identified by Justice Kitto in Communist Party at 272 where his Honour said that:

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

MR BENNETT:   Yes.

HAYNE J:   When we come to the judicial power points you will no doubt address that.

MR BENNETT:   Yes, but if I could just give your Honours examples, in Alister v The Queen (1984) 154 CLR 404 ‑ ‑ ‑

GUMMOW J:   Is that a constitutional case?  It is about the Hilton bombing, is it not?

MR BENNETT:   It is, your Honour.  It is a criminal case.  It involved questions of evidence and suppression of evidence and so on.  Justices Wilson and Dawson said at page 435, point 9:

Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate.  It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister.

KIRBY J:   That is against you.  That is exactly saying what Lord Hope in the different constitutional context of Britain is saying, that the first step is for the Executive Government and the Parliament to take the responsibility because they are accountable.  They can be rendered accountable to the people for any diminution in their liberties and the courts then have a reserve role to scrutinise most carefully what is done, but it is a reserve and it is one that is exercised with deference to the elected branches of government.

MR BENNETT:   Yes.  Your Honour, I am being asked about the status of material such as the material in the stated case attributing a view of the security situation to ASIO, a considered view based on an examination of the evidence by it and the weight to be given to that.

KIRBY J:   ASIO is not exactly the Executive Government.  ASIO is an agency of the Executive Government.  I assume it has a high degree of independence of the elected government and reports to the elected government its own independent view.  But the government and the Minister would normally, one would think, make these decisions and take the praise or blame of the people for doing so, not judges.

MR BENNETT:   We are not talking about decisions.  We are talking about informing the Court about assessments of risk.  We are not talking about decisions in the sense of ‑ ‑ ‑

KIRBY J:   Courts are not very well placed to make these assessments.  The training of judges is not really very well adapted to deciding the measure of risks, the actuality of them, whether this is just bluff and bluster in relation to Australia or whether it is something that really affects the country.

MR BENNETT:   In relation to that, your Honour, we would submit the Court decides if the order the Executive seeks is proportionate but the Court does not have to formulate in a vacuum what is necessary to protect Australia.

GLEESON CJ:   What is strictly necessary to protect Australia.  On pages 102 and 103 Lord Bingham explained with precision what is meant by this concept of proportionality.  It means whether what is involved goes:

beyond what is “strictly required by the exigencies of the situation.

“whether . . . the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

That is what meant by proportionality.

MR BENNETT:   In the context of a margin of appreciation in that context ‑ ‑ ‑

GLEESON CJ:   How does the Court decide that?  It is not deciding whether something is, to use another phrase, “appropriate and adapted to the end”, it is deciding whether something is strictly required by the exigencies of the situation.

MR BENNETT:   Your Honour, as I said, in the context, that is with a margin of appreciation, by “required” one obviously means something less than is absolutely necessary.  Let me give a very simple example.  Suppose there were a threat to plant and detonate an atomic weapon in a major Australian city.  The issue would not be for a court, “Is it probable?  Can we be certain this is going to happen?”  If there was one chance in a thousand that would justify all sorts of preventative detention and imprisonment.

GLEESON CJ:   But the concept of proportionality comes out of the European Convention requirement copied in a number of other Bills of Rights or Charter of Rights and Freedoms context of looking at impairments of freedom and asking whether they are no more than is necessary to accomplish the objective.

MR BENNETT:   As in many other contexts, “necessary” includes something less than necessary.  In the example I have given, one chance in a hundred that someone is going to explode an atomic bomb in a major city is more than enough, one would have thought, to make it necessary to detain that person.

GLEESON CJ:   But if the court is asking itself is there some way in which the Executive Government could have achieved this objective without the impairment or without the extent of the impairment of right or freedom that is involved in this method, what is the informational basis upon which the court answers the question?

MR BENNETT:   Your Honour, the court answers that very question because it weighs, under the sections your Honour has seen, the degree of detriment to the individual, the degree of risk, and all the other factors, and they are ‑ ‑ ‑

HAYNE J:   That is not the process engaged in in A.  See, for example, Lord Hope, paragraph 120, page 138, which explains how his Lordship approached it and that was the very antithesis of the way in which you have just identified the task as being undertaken.  His Lordship there comes to the conclusion that:

All the factual material which may provide an answer to the relevant question is in the hands of the Home Secretary. 

Not in the hands of the court, in the hands of the Home Secretary. 

But has he asked himself the right question?  And did SIAC ask itself the right question –

Now, that is what their Lordships were doing, which is a radically different inquiry from that which you have just described.  Why it has to be radically different is identified with stark clarity in paragraph 118 where his Lordship refers to there being ample evidence to show certain things and no doubt, viewing part of the available material, his Lordship could conclude that there was ample evidence to arrive at a conclusion. 

But there is a difficulty, I would suggest, with great respect, in determining whether that answer would be open if the whole of the relevant material were to be viewed, because you do not view the countervailing material.  Now, at some point that is going to present you with a series of questions about the judicial power issue to which you will come in due time, but it also, does it not, present you with a more fundamental root question under rule 27.08.3, which is to say whether the special case states:

the facts and identify the documents necessary to enable the Court to decide the questions raised -

and tendered for consideration by the Court.

MR BENNETT:   The parties agree on the special case.

HAYNE J:   I understand that. 

GUMMOW J:   I know.

HAYNE J:   That I well understand and they do so for their own particular reasons, Mr Solicitor, but the question for this Court, it seems to me, includes the question whether the facts stated and documents identified sufficiently constitute the facts and documents necessary to enable the Court to decide the question of validity.

MR BENNETT:   When combined with the views of the agency of government which is concerned with security and with the inferences that can be drawn, we submit it does.  Can I just say this too about paragraph 138 in A.  What was involved there was a rather different question of whether the different treatment of aliens and British subjects which was otherwise prohibited was justified and whether that was something which was required by the ‑ ‑ ‑

GLEESON CJ:   That was the background on which the decision turned.

MR BENNETT:   Yes, it was.

GLEESON CJ:   Discrimination.

MR BENNETT:   Yes.

GLEESON CJ:   Is that a convenient time?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   We will resume at 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases, there are a number of short matters arising out of this morning’s discussions, then I will deal with the implied power to protect the nation, then with the evidentiary question.  The first matter arising from this morning is the suggestion that section 51(vi) is confined to the use of physical force by the Commonwealth.  There are a number of passages which suggest that that is not the case.  In Farey v Burvett 21 CLR 433 which I have taken your Honours to a number of times, there is a passage at page 440 where Sir Samuel Griffith says:

As to the suggested limitation by the context, the words “naval” and “military” are not words of limitation, but rather of extension, showing that the subject matter includes all kinds of warlike operations.  The concluding words cannot have any restrictive effect . . . In my opinion the word “defence” of itself includes all acts of such a kind as may be done in the United Kingdom, either under the authority of Parliament or under the Royal Prerogative, for the purpose of the defence of the realm, except so far as they are prohibited –

The Communist Party Case and the Marcus Clark Case are the two major cases on the scope of the defence power in peacetime and in neither did any judge of this Court draw a distinction between the defence of Australia generally and the defence by use of naval and military force.  The recitals which were in question in the Communist Party Case referred only to the defence and security of Australia, they did not refer to naval and military defence and nothing in the case turned on the absence of any connection between the suppression of Communism and naval and military defence.

KIRBY J:   Just before lunch you expressed the view, and a view was expressed, concerning what was involved in the Communist Party Case and you were rather inclined to suggest it was merely a matter of procedure or fact finding.  That is not borne out by pages 9 and 10 of the record of the report in that case at 83 CLR where the questions which were stated for the opinion of the Full Court were two.  The first was:

Does the decision of the question of the validity or invalidity . . . depend upon a judicial determination or ascertainment of the facts ‑

that being the matter that you were pressing.  But there was a second question which was:

If no to either part of question 1 are the provisions of the Communist Party Dissolution Act 1950 invalid either in whole or in some part –

and that question has to be answered by, and was answered by the Court and it would be a serious mistake in my view to read the Communist Party Case as some minor expression of views on procedure and fact finding, important though those matters may also be, and not to take into account the fact that the Court was required to pass on the validity of the Act, which it did.

MR BENNETT:   But that finding on validity was the result of the absence of evidence making one link which needed to be made and ‑ ‑ ‑

KIRBY J:   That is one way to interpret it and the other way to interpret it is that it was a much wider question.  After all, the court had the Act before it and the question of its validity was discussed, not in obiter dicta, but in order to answer the questions posed by the stated case.

MR BENNETT:   Yes, but, your Honour, had there been evidence ‑ ‑ ‑

KIRBY J:   You may try to narrow down the Communist Party Case as an insignificant matter but it is not an insignificant matter.  It is a most important decision of the Court; one of the most important in its history.

MR BENNETT:   Your Honour, the issue really is this.  If the matters in the recitals had been positively proved by evidence in the court, would the result have been different?  In my submission, it would.  The language of the judgments makes that clear.

GUMMOW J:   You want to look at page 5, I think, which sets out the sections, and the second column, the column on the right‑hand side of page 5 sets out, about 12 lines from the bottom, section 9, and you see:

(2.)     Where the Governor‑General is satisfied –

certain things happen.  If you go over to the last page on 284, for example, at the bottom of 284:

s. 9(2) is invalid –

says Justice Kitto, for the reasons we have been talking about –

if it is, ss. 10(1) and 14, the operation of which is conditional upon a declaration being in force under s. 9(2), must fall within it.

The remaining sections of the Act cannot –

be severed.  That is what happened.  Section 9(2) was a critical pivot, I think, and 9(2) had this difficult question of satisfaction of the Governor‑General which the Court did not like much.

MR BENNETT:   Yes, but that is because you had to be satisfied that you were the person to whom this section applies.  The person to whom this section applies was a person who was a member of the Communist Party or who was, at any time, a communist.  So there were issues about the determination of that fact.

GUMMOW J:   Yes, that is right.

MR BENNETT:   Yes, that is another aspect of the case.  But so far as the defence power is concerned, had the matters in the recital to that Act been proved, in our respectful submission, the case would very clearly have gone the other way.

HAYNE J:   How is that consistent with the answer to question 1(a)?  Question 1(a) was:

Does the decision of the question of the validity or invalidity . . . depend upon a judicial determination or ascertainment of the facts –

in the preambles?  Answer:  no.

MR BENNETT:   No, because the preambles did not get the Commonwealth there and there was nothing else to get them there.

HAYNE J:   Does it depend upon – let me get the language right, Mr Solicitor - does the decision of the question of validity or invalidity depend upon a judicial determination or ascertainment of those facts?  Answer:  no.  It is not a question of absence of proof, is it?

MR BENNETT:   Yes, it goes further to that extent, yes.

KIRBY J:   I would only add that the headnote in the first holding records the view of the writer of the headnote that it is ultra vires and it goes through the various heads of power including one of which is section 51(vi) and that is how the Communist Party Case has been taught to generations of Australian law students.  I mean, the Commonwealth may try to read the case down as a minor matter on the preamble to the Act, but as far as I am concerned, that is heresy.

MR BENNETT:   It is not quite as wide as that.  The Act today is applied to a class of persons on the assumption that merely as members of that class the defence power would apply to them and permit the legislation. 

KIRBY J:   It is not how it is written.  It is not how it has been taught.  It is not how I understand it.  It is not how the Justices express it.  It is just plain wrong, in my submission, for you to be putting that.  It is not the…..or argument in this case, but let us not seek to sideline the Communist Party Case which was a very important holding of the Court.

MR BENNETT:   The other major aspect of it, your Honour, was that the matters recited were concerned solely with the aims of communism rather than on actions which had been taken.  That was another aspect of it.  But here, of course, we have actions.  The Act did not define the nature of conduct and the means adopted to combat it which, of course, our legislation does.  This legislation goes much further, even in relation to terrorist organisations.  Their declaration as terrorist organisations requires an administrative procedure which involves satisfaction of certain facts and possibility of judicial review and so on.  This case does not depend on assertion and the absence of factual activity in the way that the Communist Party Case did.  Justice Fullager in Marcus Clark (1952) 87 CLR 177 said at page 253:

I should have thought it indisputable that the matters mentioned in the preamble to the Communist Party Dissolution Act 1950 were matters upon which the Parliament could legislate under the defence power in peace or in war. But the provisions of the law actually enacted were of an altogether exceptional and peculiar character. The statute did not merely prescribe rules of conduct or create duties or impose prohibitions. In the first place it imposed, of its own mere force and without the possibility of judicial intervention, what were really penalties upon a particular specified organisation. And, in the second place, it attached, of its own mere force, what were really penal consequences to the formation of an opinion of the Executive, not judicially examinable, that a person or a body of persons was engaged, or likely to become engaged, in activities prejudicial to defence.

So there were the other features that are quite distinct from this case.

The second matter concerns the reference in the United Kingdom case to the life of the nation.  We note in relation to that a number of things.  The first is that in the Communist Party Case Justice Dixon at page 192 in relation to the implied power said at point 5:

The other power is concerned primarily with the protection of Federal authority against action or utterance by which it may be overthrown, thwarted or undermined.

So it is just not overthrown, lesser a tax are sufficient to invoke the implied power.  Of course, the ultimate matter that can invoke the implied power is a threat to the existence of the polity.  It can also be invoked by something which thwarts or undermines it.

We note that in Sharkey 79 CLR 121 the relevant section there which appears at page 134 of the report and which was upheld in the course of a definition of “sedition” was:

to promote feelings of ill‑will and hostility between different classes of His Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth –

Well, that is a long way short of destroying.  It is promoting feelings of ill will and hostility so as to endanger the peace, order or good government.  So it is something less than total disruption is sufficient and the mere fact that the English case involved the words “life of the nation” in the European treaty does not really affect the argument.

In relation to the word “necessary” which appears in section 104.4, the context of reasonably necessary to prevent the commission of a terrorist act, we simply remind your Honours of what was said by the Chief Justice in Mulholland (2004) 220 CLR 181 and there is a passage at page 199 where your Honour said the word “necessary” has different shades of meaning. It doesn’t always mean essential or unavoidable, especially in a context where a court is evaluating a decision made by somebody else who has the primary responsibility for setting policy.

Your Honour referred to Ronpibon Tin under the Income Tax Assessment Act where a plurality said that the word “necessarily”, in the context of the allowability of deductions necessarily incurred in carrying on a business, meant “clearly appropriate or adapted for”, not “unavoidably”.  There are, of course, many contexts where the word “necessary” is used to mean something much less than absolutely essential.

HAYNE J:   What does it mean when a contrast is drawn with “reasonably appropriate and adapted”, as it is in this legislation.

MR BENNETT:   Very much the same, your Honour.

HAYNE J:   So it is surplusage, is it?

MR BENNETT:   Two phrases are used with – there may be nuances of meaning.  One is more concerned with whether to make the order at all.  The other is more concerned with whether certain things go in it, what it contains. 

HAYNE J:   I am not sure how that works semantically with the text at all, Mr Solicitor.

MR BENNETT:   Your Honour, if one goes to the text, it is section 104.4 ‑ ‑ ‑

HAYNE J:   Each obligation, et cetera , “is reasonably necessary, and reasonably appropriate and adapted, for the purpose of”.  We simply read “reasonably necessary” as an unnecessary drafter’s flourish.

MR BENNETT:   No, your Honour, “reasonably necessary” is whether the obligation should be imposed at all; “reasonably appropriate and adapted” goes to the extent of the obligation.  It is a matter of grammar.  For example, the first might go to whether the person has to stay at home in certain hours and the second would go to what those hours are.  The alternative view is that they are simply synonyms and placed there largely because of the constitutional significance given to the words, “reasonably appropriate and adapted” in some of the decisions of this Court.

GLEESON CJ:   I suppose one thing we can be clear on is that “reasonably necessary” does not mean reasonably indispensable.

MR BENNETT:   Yes, your Honour, for the reasons given by your Honour ‑ ‑ ‑

GLEESON CJ:   For the reasons mentioned by Justice Hayne - and I think he referred to Justice Wynn-Parry - it seems to be a contradiction in terms.

HAYNE J:   The reference to Mr Justice Wynn-Parry is In re Naylor Benzon Mining Co, Ltd [1950] Ch 575:

The words, “reasonably necessary” used as a phrase in which the adverb is designed to qualify the adjective, are meaningless.  A thing is necessary or it is not necessary.  It may be regarded or treated as necessary in one context and not in another, but the context cannot be provided by merely preceding the word “necessary” with an adverb such as “reasonably”.

That was his Lordship’s view.

MR BENNETT:   Your Honour, it is his Lordship’s view.  It is different from the view expressed by the Chief Justice in Mulholland which is that the word “necessary” almost implies the phrase ‑ ‑ ‑

GLEESON CJ:   No, all I pointed out in Mulholland is if you look at the cases that they cited in Ronpibon Tin as authority for the meaning of “necessary” in section 51 of the Income Tax Assessment Act, they have referred to McCulloch v Maryland.

MR BENNETT:   The other view in relation to what your Honour Justice Heydon puts to me is that the words “reasonably necessary” are a hendiadys and should not be broken up into two separate words construed separately, in which case the criticism by his Lordship just falls away.

GLEESON CJ:   Like “fairly unique”.

MR BENNETT:   Yes, “fairly unique” is completely ungrammatical but certainly in the colloquial sense, it is a hendiadys which has a colloquial meaning.  It is a meaning purists might decry but the putting together of the two words just gives them a different meaning from the two words taken separately.

KIRBY J:   I knew you would work that figure of speech into your submissions somehow.

MR BENNETT:   I have not got to “zeugma” yet, your Honour. 

KIRBY J:   Mr Burmester and I always wait for it and no doubt others.

MR BENNETT:   The next matter concerns the existence of the implied power to protect the nation and there are a number of cases where this power is referred to.  The only ones are mainly Justice Dixon in Burns v Ransley (1949) 79 CLR 101 at 116 – I will not take your Honours to the individual passages, your Honours are probably familiar with them – and R v Sharkey (1949) 79 CLR 121.

What is more important for present purposes is that in the Second Fringe Benefits Tax Case (1987) 163 CLR 329 at page 357 point four, a majority consisting of Chief Justice Mason and Justices Wilson, Dawson, Toohey and Gaudron said this:

The Constitution established a new body politic, the Commonwealth of Australia. The body politic was armed with specific legislative, executive and judicial powers. However, the establishment and the nature of the body politic gave rise also to certain implied powers, as explained by Dixon J –

in the various cases.

Subject to constitutional prohibitions, express or implied, the implied powers include a power for the regulation and supervision of the polity’s own activities, the exercise of its powers and assertion or waiver of its immunities.

That was taken a little further in Victoria v The CommonwealthandHayden (1975) 134 CLR 338, the AAP case, at page 397 where, after saying very much what was said in the Second Fringe Benefits Tax Case which I will not repeat, their Honours in the middle of the page said:

So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion.

But then they go on to say it has further aspects.  The area of internal security is specifically regarded as one of the areas covered by that power by his Honour Justice Mason, as he then was, in that case. 

In relation to the extent to which the legislation protects not only the polity of the Commonwealth but also the States and the Territories, we simply repeat what appears in paragraphs 137 and 138 of our written submissions; that States are integral parts of the nation and the protection of the nation extends to protecting the States and terrorist acts within the limits of one State have obvious capacity to affect the nation as a whole.  In relation to Territories, I suppose, one could rely on section 122, so we do not need to rely on this power there.

Section 119, my learned friends sought to use to read down the implied power or the defence power, but that is concerned with a duty, not a power. In my respectful submission, clearly when the Constitution is dealing with what is a duty, it may well express it differently when it expresses a power. There is no reason to read either the implied power or placitum (vi) down by reference to section 119.

The final matter before I come to Chapter III is some short additional submissions about the evidentiary questions.  I have referred your Honour to the dissenting judgments of Justices Wilson and Dawson in Alister v The Queen.  There are also passages in Church of Scientology v Woodward, which I will not take your Honours to. I will just give your Honours the references. It is (1984) 154 CLR 25 where Justice Mason at 61 to 62 and Justice Brennan at pages 74 to 75, as their Honours then were, each accepted that the gravity of a risk to national security is not readily susceptible to judicial evaluation and assessment. In A v Hayden, (1984) 156 CLR 532 - your Honours will recall the Sheraton Hotel ASIS case - Chief Justice Gibbs at 548 to 549 and Justices Wilson and Dawson at 576 to 578 both favoured a high measure of judicial deference to the Executive in matters of national security.

In the present case the materials we have in relation to the conclusion – so this is in addition to the materials from which your Honours can draw an inference in any event – your Honours see paragraph 39 of the special case at page 40 says:

Views and conclusions expressed or reached by or on behalf of the Commonwealth about the threat of terrorism to Australia, and the measures that it has taken –

are outlined in a group of documents which are provided to your Honours and it is worth noting in relation to those documents that volume 2 of the special case book at page 540 is a communiqué at a Council of Australian Governments Special Meeting on Counter-Terrorism where the Prime Minister, the Premiers and Chief Ministers of the Australian Capital Territory and the Northern Territory and the President of the Australian Local Government Association set out a communiqué in which they say at line 29, “A terrorist attack in Australia continues to be feasible and could occur”, and that recommends various matters including the control order regime which is the subject of this litigation.  That appears at page 547 and following.

KIRBY J:   What is the evidentiary status of a communiqué of this kind?  A press release, is it?

MR BENNETT:   Your Honour, it is a statement by nine Executive Governments and in an area where the Court gives great weight to assessments by Executive Governments. 

Your Honour asked this morning about statements by Ministers as opposed to bodies such as ASIO and, your Honour, there are statements by Ministers expressing the relevant views, in the materials.  At page 241 there is a statement by the Prime Minister where in the third paragraph he says:

We know that Al Qaida had an active interest in carrying out a terrorist attack in Australia before 11 September 2001 and that we remain a target today.

Mr Downer, Minister of Foreign Affairs, at page 320 says at line 35:

The threat Australia now faces – and most directly experienced through the tragedy of the 2002 Bali bombings – is transnational. It is terrorism of a previously unknown scale.  It is a different kind of conflict -

et cetera.  On the next page, 322, the top of the page there is a reference to being -

directly threatened by a new kind of terrorism.

There is a statement by Robert Hill, the Minister for Defence, at page 484 where he refers to the Government’s Defence White Paper, which immediately follows, which:

sets out our responses to the salient features in our changing security environment:  the emergence of new and more immediate threats from terrorism and increased concerns about the proliferation of Weapons of Mass Destruction.

The White Paper is then in the next few pages and at page 490, for example, it says that:

The numerous recent terrorist attacks, both pre and post September 2001, demonstrate that terrorism is more than a transitory phenomenon and is likely to last for years.

Those are the specific conclusions by Ministers of the Executive Government, but there is a wealth of material.  As I said this morning we simply commend the material to your Honours as material from which an inference can be drawn even in the absence of those conclusions by organs of the Executive Government and by Ministers.

Justice McTiernan in the Communist Party Case said at page 208, the top of the page:

I think it would have been better if the Court had had the guidance of a formal statement made by the Executive Government of its appreciation of the international situation.  The Court would be bound to give very great weigh to such a statement, particularly if it positively said that there was an impending danger of war ‑

or, in the present context, the present danger from terrorism.  So those are matters which we submit have an evidentiary basis quite apart from the ability of the Court to draw inferences from the volume of material in the special case itself.

HAYNE J:   Does it follow from the arguments you have been advancing about the defence power that the Commonwealth would contend that it would be open to pass regulations or legislation to the effect of the national security regulations that were passed in World War II whereby the Minister, if satisfied, but with a view to prevent that person acting in any manner prejudicial to the public safety of the Commonwealth, that was necessary to do so, make various orders prohibiting, restricting or ultimately detaining?

MR BENNETT:   We would, your Honour, but that would be for reasons which go beyond the matters argued in this case.  That involves an analysis of the defence wartime internment cases and Liversidge v Anderson and that area of inquiry.  We would say, yes, your Honour, if it came to that, although the determination of this case would not necessarily determine the outcome of that case. 

HAYNE J:   That is to say, the threat which we confront would warrant the exercise of that power.

MR BENNETT:   Yes, your Honour, and one only needs to give the easy example perhaps of the terrorist who has access to an atomic weapon and there is a risk that if allowed free he will place it somewhere and explode it.  To suggest that there is not an executive power of preventative detention in that situation would be ridiculous.  Ultimately, these things are all questions of degree and the relevant degree is clearly expressed in section 104.4 and subjected to judicial determination.

That makes it appropriate for me to come to Chapter III.  There are four Chapter III arguments put against us in this case.  They are quite separate, nothing to do with each other, and I will deal with them quite separately.  They are the Boilermakers arguments about separation of powers and nature of judicial power.  Secondly, the Chu arguments based on the statements in Chu about detention in custody.  The third, the Brandy arguments about inability of the Court to enforce its orders and the significance of that under Chapter III and, finally, the Fardon argument about the compatibility - or perhaps I should call it not so much a Fardon argument as a Kable argument - with the exercise of judicial power including the question of ex parte orders and the whole procedure.

Starting then with Boilermakers, my friend’s first point is the classic distinction between creating new rights and adjudicating past rights and there are a number of answers to that.  The first and simplest answer is the chameleon doctrine which has been referred to in this Court in at least three major cases.  I will not take your Honours to these - Precision Data v Wills (1991) 173 CLR 167 at 189, R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628 point 5 per Justice Mason and Justice Gibbs at 621, Justice Stephen agreeing at 622, Justice Wilson at 634 and Justice McHugh at 632. There is also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1969-70) 123 CLR 361 at 386 to 387.

Now, we do not submit that those cases have overruled Boilermakers, but they have taken almost all the sting out of it.  The sting of Boilermakers was that in starting with the general undeniable proposition that the Constitution contained the separation of powers, it then came to the apparent conclusion that every time a body had to do something that was borderline between judicial and non-judicial one had to put it on one side of the line and woe betide the legislature if it had given it to a body of the other type.

Now, that rigidity has been removed by the chameleon doctrine.  The effect of the chameleon doctrine is this, that, yes, there are some powers which are exclusively judicial.  The traditional one is a judgment - punishment of criminal guilt although even there, as your Honours know from the argument in White’s Case last week, there are exceptions.  At the other extreme one has matters concerned with policy and pure policy considerations which are simply incapable of being given to courts.  Apart from those two tiny and, in the scheme of things less important areas, one has the great vast field of endeavour in between in which the power takes it character from the body to which it is given.

It is executive if conferred on an administrative body.  It is judicial if conferred on a court.  That is really the reason why the Commonwealth has declined invitations from time to time – “invitation” may be too strong a word – to argue that Boilermakers should be overruled.  There is no need to overrule it.  It does not matter much any more.  The reason it does not matter much any more is the chameleon doctrine.  It matters in the extreme cases.  So the sort of approach that is taken in this case ‑ ‑ ‑

KIRBY J:   This is a rather dismissive approach to another important decision of the court. I am beginning to wonder if anything is left. I mean, after all, the separation of powers doctrine, at least so far as the judiciary is concerned, is a very important principle of reserving the judiciary to certain matters on the basis, first, that that is defensive of the constitutional compact and second, that it is, and history shows, more likely to be protective of liberty and therefore it fulfils two very important functional purposes in the Constitution. I do not think simply because the legislature of the Commonwealth has been careful in framing its legislation to fit within the doctrine as expounded by the Court that one should forget the fundamental constitutional purposes that separation fulfils.

MR BENNETT:   That is so, your Honour, but one does not fulfil that purpose by a deontic or, dare I say, Calvinist interpretation which says, as I outlined earlier, every single grant of power has to be examined under a microscope if, even though it may be a borderline one, if it falls on one side one dare not give it to anything but a Chapter III court, if it falls on the other side one dare not give it to anything but an Executive body.  The distinction is absolutely rigid, even though it may be very difficult in particular cases to see on which side of the line a particular power falls.

KIRBY J:   This is the peril of the chameleon doctrine taken to its extremes. It does not matter at all, you just put it in one branch of government and then it is fine whereas, as Sir Owen Dixon pointed out, the structure of the Constitution, the separate provision for the judicature, the particular responsibilities given to the judicature in the constitutional setting were all reasons for preserving the separation as a fundamental norm of the Constitution.

MR BENNETT:   But the separation can be preserved without that rigidity.  It can be preserved by accepting that there are certain powers, a large number of them, which can be exercised judicially and can be exercised by administrative bodies and one can find many of them.  If one wants an example of a power which could not be exercised by a court, perhaps one of the clearest examples is what occurred in Yanner v Minister for Aboriginal Affairs (2001) 108 FCR 543 – that is not the Yanner in this Court, it is the same person but a different case.

That was a case concerning election to the Aboriginal and Torres Strait Island Commission and there was a provision similar to section 44 of the Constitution in the ATSIC Act which said one was disqualified if one had recent convictions of a certain time involving imprisonment for more than a certain period. That provision had at the end of it the words, “unless the Federal Court otherwise orders” and there was an application by Mr Yanner to the Federal Court to otherwise order.

The Federal Court held, in the face of argument to the contrary both from Mr Yanner and from the Minister – so it was the court against both parties – that the provision was invalid and the court could not make an order under it because no criteria were provided.  The judgments of the majority of the Full Court make it clear that had the Act used some phrase such as “if the Court is satisfied that the person remains a fit and proper person to be appointed”, or, “is of good character”, or some other phrase it might have been all right.

The problem was that there was no criterion at all provided and as a matter of construction the Court was not prepared to imply one and, of course, the question of what characteristics are appropriate for a member of a quasi legislative executive body such as ATSIC are clearly matters of policy and political matters.  The extent to which particular crimes should or should not be accepted in a person who is elected to that body is very much a matter of policy and political judgment and it was a classic of a matter which is on one side of the Boilermakers division.

The other side, of course, as was argued last week, is the adjudication and punishment of criminal guilt subject to certain exceptions.  But in the middle there are a range of things.  Perhaps the most commonly litigated chameleon area is the area of professional discipline.  One has cases like Boatman involving the cancellation of a pilot’s licence by the Federal Court and one has cases like X and Y, which I think your Honours are delivering judgment in later this week.

There are various cases involving various forms of professional discipline of people whose occupations can be subject to federal control such as company directors and insurance executives, pilots and so on, and those are typical areas where courts have said these powers can be judicial and can be administrative.  One sees that with the legal profession in the States where there are both administrative and judicial bodies which take responsibility for aspects of legal professional discipline.

GLEESON CJ:   Is it right to say these powers can be judicial or they can be administrative or is it slightly more accurate to say these are matters with which a government may deal by the exercise of its judicial power or these are matters with which a government may deal by the exercise of its executive power or these are matters with which a government may deal by the exercise of its legislative power?  I would have thought a classic example of such a matter is planning and environmental control which is typically dealt with sometimes by legislation, sometimes administratively and sometimes judicially.

MR BENNETT:   Yes, indeed, your Honour.  The example of Mr Meagher many years ago shows that the question of professional discipline can be dealt with by the legislature on occasions where I think there was an Act of Parliament restoring someone to the rolls who had been struck off.

KIRBY J:   Do not count on that being valid in the federal sphere.

MR BENNETT:   No, your Honour, that is obviously a matter of State concern and the State does not have the same separation of powers.  I simply give it as an example to show that in the area of professional discipline it would be open to the Commonwealth to legislate that, subject perhaps to section 51(xxxi), Mr X’s pilot’s licence shall be cancelled.

So one can deal with these things in different ways and the way your Honour the Chief Justice puts it is slightly more accurate than the phraseology I used.  The powers here, we would submit, are in that category and they can be conferred on either.  They are not necessarily judicial and not necessarily administrative, but certainly they are capable of being judicially exercised.  The standards which are imposed by section 104.4 are standards of a type which are applied by the judiciary in different contexts every day, standards about matters being reasonably necessary or the ‑ ‑ ‑

HAYNE J:   Can you point to any example where the criterion is reasonably necessary to protect the public?

MR BENNETT:   The nearest thing might be AVOs, your Honour, where ‑ ‑ ‑

HAYNE J:   That is to protect a specified victim who is the applicant.  To protect the public?

MR BENNETT:   There is no relevant distinction, your Honour, for this purpose.  In each case a prediction has to be made as to the future based on present evidence.  There are many cases where courts do that and the ‑ ‑ ‑

HAYNE J:   Predictions about the conduct of the person concerned.  This is a prediction about the conduct which may or may not involve the person directly and a prediction about its effect on the public at large.  Whatever sense one reads “reasonably necessary” and “reasonably appropriate and adapted”, what is the criterion the Court is to apply in deciding whether what it orders is necessary or appropriate or adapted to protection of the public?

MR BENNETT:   Your Honour, all I can do is give synonyms of those words.

HAYNE J:   That is the difficulty, Mr Solicitor.  The fact that you can do no more than give synonyms rather suggests that the criterion is one of insufficient certainty and the lack of certainty may be thought to stem from the inability of a court to arm itself with sufficient information to know what the risk to the public is, how it is to be met, and most especially is that so in matters where questions of national security intrude.

MR BENNETT:   Your Honour, the court receives evidence.  It receives evidence on oath.  It can hear the respondent, himself or herself, if that person desires to put evidence before the court.  It receives evidence on oath from the Australian Federal Police and it forms a view as to the extent of the risk, the extent of the harm done to the respondent by the making of the order.  The extent of the risk would involve both the probability or otherwise of it occurring, and the extensive damage done if it occurs.

HAYNE J:   What it does not know and cannot tell is what it is not told in evidence.  I have in mind what was said in A.  Whether House knew there was a whole body of other material bearing upon the nature of the risk, its likelihood and the like, the court can act, true it is, only on evidence, but it is asked to make a decision of a kind that is expressed in terms that would not be foreign if describing the task of the Executive or the Parliament.  “Do what you think is necessary to protect the public”.

MR BENNETT:   Your Honour, it is more precise than that.  It requires first one of – there has to be a request by the AFP member.  The court has to consider such further information if any as the court requires so it can insist on further evidence on some aspect being obtained either from the respondent or from the applicant, then the court has to be satisfied on the balance of probabilities either that making the order would substantially assist in preventing a terrorist act or that the person has provided training to or has received training from a listed organisation.  Those are very precise matters.  They are matters of a type which – the fact that the specific purpose of protecting the public from a terrorist act does not itself appear elsewhere does not mean it is not a criterion of a type that is sufficiently clear for a court to be able to act on it.

It is simply not like Yanner where there is no criterion at all.  The criterion is provided and it is a sort of criterion courts weigh all the time.  The injunctions are another example.  The Equity Court, when it pronounces an injunction, normally does not do so unless there is a risk that the conduct would occur unless it makes the injunction and it has to make an assessment of the probabilities and act accordingly.       There are, of course, provisions for the order to be confirmed at a later date.  The application has to be approved by the Attorney-General so there has to be executive approval before it is made.  It is, in effect, a check on the Executive.

GLEESON CJ:   You mentioned a provision about such evidence as the court requires, where is that?

MR BENNETT:   At 104.4(1)(b), your Honour, and that has a dual function.  First, it enables the court further to interrogate the Australia Federal Police officer and say, “I want more evidence about X, Y and Z”, and, secondly, it enables the court to say, “I want to hear what the respondent has to say about how this will affect him and whether there is a risk of him doing it”, and so on.

GLEESON CJ:   This is a departure from adversarial procedure, is it?  Is this an investigative function that the court is performing requiring further information?

MR BENNETT:   Your Honour, it is a minor departure.  I say a minor departure for this reason, that although a court is not normally able to require fresh evidence ‑ ‑ ‑

GUMMOW J:   It says “information” not evidence.

MR BENNETT:   Yes, “information”.  In practice, of course, a court could always do it because, in practice, a judge can always say to a litigant, “I need evidence about X before I am prepared to make an order in your favour”.

GLEESON CJ:   Is this all in an ex parte situation?

MR BENNETT:   Not necessarily, your Honour.  I will be coming to the question of ex parte orders but it is not necessarily ex parte.  It may be initially.

HAYNE J:   There are two features of this section which differ from the ordinary application ex parte for injunction.  First, there is the provision to which the Chief Justice has been just directing your attention, the court asking for, receiving and considering further information on bases not identified in circumstances not identified and in a manner not specified.  The second feature, which might be thought to depart from an ordinary lis inter partes is that the focus of the court at the end of the process is not upon the position as between the competing parties; it is upon the position of the public.  Do those features cause this provision to stand apart?  You say, “No, no, the courts do it daily”.  Can you point to any other example where either of those two features is present?

MR BENNETT:   Your Honour, the first feature is present as a practical matter in all courts, particularly on ex parte applications but generally.  How many times has a barrister gone into a judge to obtain an ex parte order and been told, “Go away and get me evidence on X and then you might get your order”?  How often in an adversarial situation in open court does a judge say to one or other party, “To decide in your favour I really need evidence about X”?  The judge does not have power to say, “I require you to do it”, but here, if the court does require further information, it must receive and consider it before making an order.

KIRBY J:   But these are orders which impinge on liberty, and normally in trials or hearings that touch on liberty, the court under our instruction is most careful not to intervene and require information.  It plays a neutral role.

MR BENNETT:   Your Honour, it is not contrary to neutrality for a court to say, “Unless you persuade me to the contrary, my view is that I require evidence or information about X and you won’t get your order or you won’t win this case unless you provide it”.  That is a very standard and very normal judicial response and a very proper one.

CALLINAN J:   It happens in bail applications too, does it not, all the time?

MR BENNETT:   Yes, your Honour, it does, and in binding over orders.

KIRBY J:   But the word “requires” is a very strong verb.  In a criminal trial – I may be wrong but I thought this Court had said that a judge may not require evidence to be brought by either party.

MR BENNETT:   “Require” does not mean require in the sense that the party is in contempt if the party does not provide it.  It is require in the sense of require in order to be satisfied of the matters before I make an order.  It is require in the sense of require in order to make the order, as a condition of making the order.  That is something which we submit is perfectly normal.

GLEESON CJ:   In the State area is an order modifying the restrictions imposed by a covenant on land an exercise of judicial power or administrative power?

MR BENNETT:   Your Honour, it is done judicially normally, although I think there may be some powers under the Real Property Act in some circumstances.

GLEESON CJ:   Commonly it is done ex parte and commonly a judge exercising that power might say to the applicant, “If you get an affidavit from an architect saying that this modification won’t affect the amenity of the neighbourhood, then I’d be prepared to make this order”.  Is that a requirement?

MR BENNETT:   In the sense in which the words are used here, yes.  In the literal sense of the word, no.  In such cases, of course, the court almost always requires some sort of notification to those immediately affected, the immediate neighbours.  The court might determine in such a case as a preliminary matter how wide the net should be cast in determining who gets notice and whether by service of documents or by post or by advertisement and so on.  There are all sorts of questions of degree.  If there were such a provision under Commonwealth legislation, if there were some power to which it was relevant, that would be a classic chameleon power.

GUMMOW J:   I suppose it is now in a federal statute to be a curial power to wind up on a just and equitable ground, would they not?

MR BENNETT:   Yes.  We have a lot of examples of cases where courts apply that sort of standard.  If one looks at Precision Data – I am sorry, that was the takeover panel deciding if something was an unacceptable acquisition.  That is on the one side.  Perhaps the clearest example of what is being complained about here, the making of new rules is a cy-pres scheme where the Equity Court or the Probate Court finds a will where a testator has a general intention of charity, he said, for blind orphans but has not specified the name of an institution, the court settles the scheme cy-pres.  If it finds an orphanage for the blind it goes there, or to a number of them if there is more than one.  If there is not one, it may give it to some blind institutions and some orphanages.  The court settles a scheme which totally turns on the discretionary considerations and in a very real sense lays down a new situation, but it is within broad parameters and those parameters are sufficient to make it in the context judicial power.  It is certainly a traditional judicial power.

In Re Dingjan the Industrial Commission was able to alter contracts where they were unfair and unjust or harsh and unconscionable and so on.  So there are many cases where subjective considerations are assessed by a court and it makes orders which may create a new regime affecting one of the parties or both of them in one sense, but in another sense all the court is doing is applying criteria laid down for it to pre‑existing facts and making orders and that, we submit, is classic judicial function. 

There has been some reference in the course of the submissions to Barrett and the drafting - that is R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141. That involved the double aspect method of drafting under which legislation may both create substantive rights and give jurisdiction to a court to create them if certain criteria are established. My learned friends submitted that that double aspect drafting is dependent upon there being an antecedent obligation. We would submit that is simply not the case. In that case, in fact, it was the difference between the jurisdiction conferred under the federal Act and the antecedent obligation to comply with the rules that meant that there was a double function because if it had been exactly the same, there would not have been the creation of a new right. But there was a double function because there was a difference and a new, perhaps identical, obligation, a new federal obligation, was created, a new liability was imposed and jurisdiction was conferred upon the court to create it.

GUMMOW J:   I raised this on the earlier occasion on 5 December at transcript 2975 that you had to disentangle in Barrett first a law under section 51 and then a law under section 76(ii), and the question that was worrying me at that stage was how one translated that analysis into 104.4 of this present legislation.

MR BENNETT:   Your Honour, we would submit that section 104.5(3) sets out the substantive obligations, prohibitions or restrictions which are to be created.  Section 104.4(1) confers jurisdiction on the court to grant a control order imposing those but only if certain conditions are satisfied.  If the conditions are satisfied the court can make orders that create new rights or obligations, exactly the way it was done in Precision Data.

GUMMOW J:   Just stopping there for a minute.  (a), (b), (c) and (d) would found a complaint of jurisdictional error, would they not?  They are conditions for the exercise of the jurisdiction, are they not, only if those things are there?  That is what it looks like.

MR BENNETT:   I am sorry, which (a), (b), (c), and (d), your Honour?

GUMMOW J:   104.4(1).

MR BENNETT:   Yes, they are the four preconditions.

GUMMOW J:   Yes, so all I am saying perhaps is a complaint could be made at some stage of jurisdictional error.

MR BENNETT:   Yes, it could.

GUMMOW J:   To this Court under 75(v).

MR BENNETT:   Yes, your Honour.  If one of those four conditions were not satisfied, there would be no jurisdiction to make the order.

KIRBY J:   Can I go back to Justice Hayne’s question earlier.  Is there any precedent that you know of that is similar to section 104.4(1)(d)?  Has there ever been such a section in the Commonwealth statute book?

MR BENNETT:   Well, in answer to your Honour’s second question, I do not know of any ‑ ‑ ‑

KIRBY J:   Well, it can be easily ascertained by a computer search.

MR BENNETT:   It can be checked.

KIRBY J:   Perhaps you might have a look at that overnight, if you would.

MR BENNETT:   I will, your Honour.  The clearest analogy is binding over orders, orders binding people over to keep the peace.  I will be saying more about the old English writs later on.

GUMMOW J:   But they are in the written submissions.

MR BENNETT:   Yes, your Honour, it is.

GLEESON CJ:   Paragraph (d) seems to be directed to each particular obligation, prohibition and restriction to be imposed by the order.

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Paragraph (c) seems to require that the court ask itself whether it is satisfied that some order would substantially assist preventing a terrorist act and then paragraph (d) requires the court to consider individually, as I understand it, each of the restrictions, et cetera, and apply that test, whatever the test precisely means, to each restriction one by one.

MR BENNETT:   Yes, and it must take into account subsection (2) as well which ‑ ‑ ‑

GUMMOW J:   Puts it back to the individual as well as the public.

MR BENNETT:   Yes.

GLEESON CJ:   The opening words of (2) reinforce that idea that paragraph (d) involves addressing each of the restrictions and asking that question about each of them.

MR BENNETT:   That is emphasised, your Honour, by what one might have thought was redundant otherwise and that is subsection (3) which specifically empowers the magistrate to say, “I’ll make some of the orders you seek but not others because I’m not satisfied under (d) as to some of them”.  It allows the court to sever, in other words.

GUMMOW J:   I am still not happy about 104.4(1), Mr Solicitor, so you will have to bear with me.  Assume (a), (b), (c) and (d) are made out.  What is left in the words “may make an order”?  Does it mean “must”?  If it does not mean “must”, what is left by way of discretionary matters?

MR BENNETT:   It probably means “must”, your Honour, because there is in practice a discretionary element in carrying out the weighing process required by paragraph (d).

GUMMOW J:   That is what I was wondering.

GLEESON CJ:   Could the court decline to make an order because there has been delay in applying for an order?

MR BENNETT:   Your Honour, that could be argued both ways. 

GLEESON CJ:   That is the question that would test the proposition that Justice Gummow was raising with you, is it not?

MR BENNETT:   Yes.  It is arguable that in that situation, by analogy to an argument I am going to put later based on the Electric Light Case, that the general law provisions and general law procedural rules of the court apply, that if that is part of the body of law normally applied by the court, that it comes in there.  That might involve questions of characterisation of the power of a court to refuse to make an order it would otherwise make.

GLEESON CJ:   You could have something akin to waiver, could you not?  Look at paragraph (c).  You could have a situation where you might say, “Well, making a control order against this person would substantially assist in preventing a terrorist act, but the authorities have known about this person and this person’s situation and the threat alleged to result from this person for a long time and they’ve never done anything about it”.

MR BENNETT:   Your Honour, one might well think that if the test in (d) were satisfied that it would be difficult to imagine a case where that on its own would be a factor.  It might be a factor because one would say, “The fact that he’s been around for this long and hasn’t done it rather suggests he’s not going to do it”.  In that sense it would be relevant to (d) and possibly to (c)(i), but as a matter of waiver by the authorities, one would have the same sort of question about criminal conduct. 

GLEESON CJ:   How does subsection (2) relate to paragraph (1)(d)?  Suppose the court thinks it is reasonably necessary for the purpose of protecting the public from a terrorist act to make a control order, in that context how does the court take into account the impact of the restriction on the person’s circumstances, including for example, financial circumstances?  If you think it is reasonably necessary to make a control order against Smith, in order to protect the public from a terrorist act, how do you take account of the fact that Smith is saying, “I have to go to work every day to earn my living”.

MR BENNETT:   It is a weighing process.  One weighs the severity of the terrorist act, the probability of it occurring, the number of people who will be affected by it, the seriousness of the ‑ ‑ ‑

GLEESON CJ:   But is it your weighing process in working out what is reasonably necessary?

MR BENNETT:   Yes, your Honour.  The word “reasonably” ‑ ‑ ‑

GLEESON CJ:   It would have to be if you are right about “reasonably appropriate and adapted” being applied to the precise mechanism, would it not?

MR BENNETT:   Your Honour, the word “reasonably” itself applies a balancing process and subsection (2) merely develops and explains that.

GLEESON CJ:   Does that mean that the court might have to decide whether, although the public interest would be served by making a control order against an individual, the impact of that order on the individual in a particular case might be such that, on grounds of reasonableness, you would not serve the public interest in that way?

MR BENNETT:   Yes, your Honour.  If, for example, the terrorist act was breaking the window of an abortion clinic and that was the most serious thing the person was likely to do, and the court came to the view there was a very small chance the person will do it anyhow, and requiring a person to stay more than a quarter of a kilometre from the abortion clinic would have an enormous effect on him because he works within a quarter of a kilometre of it, then that would be an example.  Obviously, it depends on the nature of the terrorist act, its seriousness, the percentage chance the court assesses of it occurring, and the degree of harm or inconvenience it will cause the person.

HAYNE J:   But does the criterion of 104.4(2), that is the requirement to weigh the effect on the individual, run against the proposition that upon satisfaction of the jurisdictional facts specified in 104.4(1) the Court must?

MR BENNETT:   No, your Honour, because (2) is incorporated by reference into paragraph (d).

HAYNE J:   So that the jurisdictional fact is a complex fact comprising reasonably necessary having regard, amongst other things, to the effect on the individual’s personal circumstances?

MR BENNETT:   With this qualification, your Honour.  The jurisdictional fact is that the Court is satisfied on the balance of probabilities that, so it is a question of satisfaction, but, yes, your Honour, it is taken into account in determining that jurisdictional fact.

HAYNE J:   Because that may be contrasted with a premise for what Justice Dixon was saying in Barrett which I think is not often noticed.  If you go to Barrett 70 CLR, particularly at 164, you see that the whole of what his Honour says about the particular case was premised on the decision in Jacka v Lewis, in particular at the paragraph commencing at point 5 of the page on 164 where his Honour describes the conclusion that he might have reached, apart from authority – he describes it as a conclusion that the Court was given:

a discretionary authority to impose upon persons . . . an expanded or transmuted duty or set of duties enforceable by new and penal sanctions, a discretionary authority ancillary and auxiliary to the settlement of industrial disputes –

As I understand his Honour’s reasons, had that been the view that was to be had of the nature of the power conferred, it would not have had this double aspect construction applied to it.  So applying that in this case, if all you have is, or if what you have in 104 is a set of jurisdictional facts coupled with a discretion otherwise uninformed, what do you say about the sufficiency of that from a Chapter III perspective?

MR BENNETT:   Your Honour, I would say two things.  First, there are many powers where there is a general discretion.  A power to grant an injunction is a classic one, I suppose.

HAYNE J:   Not uninformed by criteria, I would have thought, Mr Solicitor.

MR BENNETT:   No, it is normally informed by statutory criteria in the Commonwealth context.  Here, our case is that there are statutory criteria, they are laid down and, indeed, the section goes to some lengths to explain what is taken into account and what the process is.

GUMMOW J:   Yes, but what, looking at 76(ii), is the law made by the Parliament under which Parliament then goes ahead and makes a law conferring jurisdiction?  Two steps.  Where do we find, other than implicitly, a 51(vi) law here?

MR BENNETT:   The 51(vi) law is the section itself which says if certain criteria are satisfied, the court may make an order and the court is given jurisdiction to make that order.

GUMMOW J:   What do we hook onto 51(vi), what words?  How do we connect all this to 51(vi)?

MR BENNETT:   One gets to 51(vi) by ‑ ‑ ‑

GUMMOW J:   Through the jurisdictional requirements, is that right?

MR BENNETT:   Through the definitions of “terrorist act” and the “prevention of a terrorist act”, the application of the cliché “prevention is the best form of defence”. 

GUMMOW J:   These jurisdictional facts have to do a lot of work, I think.

MR BENNETT:   They may, your Honour.

GUMMOW J:   Maybe they do it. 

GLEESON CJ:   Is section 104.4(2) a kind of balance of convenience provision?

MR BENNETT:   Yes, your Honour, very much so. 

GLEESON CJ:   We are looking at interim control orders in 104.4.  Is there a similar balance of convenience consideration in deciding whether the order is extended?

MR BENNETT:   I think there is, your Honour.  I will just come to that.

HAYNE J:   Section 104.14(7), is it not?

MR BENNETT:   Yes, that is what I am looking at, 104.14(7).

HAYNE J:   Which tips you back relevantly into 104.4(1), does it not?

MR BENNETT:   Yes.

HAYNE J:   Is there any criterion at final order that is different from or additional to the criteria at interim order stage?

MR BENNETT:   It is hard to see it.  The court may:

confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).

It can confirm and vary it by removing one of the prohibitions if it is satisfied in (c) but not in (d).  That emphasises the point I made that (d) is concerned with each obligation whereas (c) is concerned with the overall order, and it may revoke it if it is not satisfied as in (c).  So it really provides the same effect, but in different words.

HAYNE J:   I read it as injecting no new criterion at the moment and I do need to be corrected if that is wrong.  Not immediately, Mr Solicitor, you can have the pleasure of correcting me later, of course.

MR BENNETT:   I doubt very much that I will have that pleasure, your Honour, because it seems to me that just looking at the section, that it does exactly – it simply repeats the criteria, puts it in a different order but it is the same.  It summarises very neatly what the effect would have been at the time of the original order. 

GLEESON CJ:   Do we know what the provenance of these provisions is?  I had a recollection that I read somewhere, but my memory may be playing tricks with me, that these provisions are similar to the provisions that operated in the UK and that were the subject of A.

MR BENNETT:   Can I have that checked too, overnight?

GLEESON CJ:   Yes.

KIRBY J:   I would be surprised if they used “appropriate and adapted”.  I think that is home grown.

MR BENNETT:   Yes, I think that is, your Honour.

GLEESON CJ:   No, it is grown in the United States.  It is in McCulloch v Maryland.

MR BENNETT:   Yes.  The Canadian provisions bear a haunting similarity too to some aspects of these.  It is important to realise that something can be necessary to prevent a terrorist act even if the thing that is prevented is not itself an offence.  That is rather like the order made by the Family Court saying the husband cannot enter the matrimonial home.  To enter the matrimonial home would not itself be an offence, but in aid of the need to protect the wife from an assault one makes an order that goes beyond the mere injunction against the commission of the offence.

That can occur here.  For example, if it were ascertained that someone was about to lend a vehicle to a suspected person for the purpose of that suspected person engaging in a terrorist act, one could get a control order preventing the innocent owner of the motor vehicle from lending that vehicle.  I suppose if one first told that person – if the police first tell that person what the purpose is, it would be an offence then for the person to go ahead and lend it.  So in that sense it may involve an offence but that is not a necessary element.

Another example is if a listening device is installed in a home and that is seen by someone, an innocent person, who shares the home with the suspected person.  One might get a control order for the purpose of preventing the innocent person from disclosing the existence of that listening device to the suspected person.

A newspaper intending to print an advertisement that intelligence reveals is the agreed trigger for a bombing, a control order might prevent the printing of the advertisement.  So there are situations where control orders can be made against people other than the suspected perpetrator or suspected intending perpetrator.  Our submission is that the concept of “reasonably necessary to prevent a terrorist act” is sufficiently precise to create a justiciable standard for the purpose of the Barrett test.

There are two passages in Fardon (2004) 223 CLR 575 which pick up on this sort of approach. At paragraph 34 in the judgment of Justice McHugh – I can give your Honours the pages in the Commonwealth Law Reports and the Australian Law Reports if your Honours wish either of those. The beauty of paragraph numbers is I do not need to. His Honour says this about six lines into the paragraph. The court:

has to determine whether, on application by the Attorney‑General, the Court is satisfied that “there is an unacceptable risk that the prisoner will commit a serious sexual offence” if the prisoner is released from custody.  That issue must be determined in accordance with the rules of evidence.  It is true that in form the Act does not require the Court to determine “an actual or potential controversy as to existing rights or obligations”.  But that does not mean that the Court is not exercising judicial power.  The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists.  It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies.  The powers exercised and orders made by the Court under this Act are of the same jurisprudential character as in those cases.  The Court must first determine whether there is “an unacceptable risk that the prisoner will commit a serious sexual offence”.  That is a standard sufficiently precise to engage the exercise of State judicial power.  Indeed, it would seem sufficiently precise to constitute a “matter” that could be conferred on or invested in a court exercising federal jurisdiction.

The Court goes on to ‑ ‑ ‑

GLEESON CJ:   It actually came from a judgment of this Court, did it not, that expression “unacceptable risk”?  I thought it was pointed out in some case where it was said to be insufficiently precise.  I thought counsel took some pleasure in pointing out to us that it came from a judgment of this Court.

KIRBY J:   Justice McHugh footnotes the Waterside Workers’ Federation Case.

MR BENNETT:   I think the case may be M v M referred to in footnote (91).

GLEESON CJ:   Yes, I think that is right.

MR BENNETT: That is (1988) 166 CLR 69 at page 78. There is also a passage at paragraph 225 in the judgments of Justices Callinan and Heydon. That is at page 657 of the Commonwealth Law Reports and 111 of the Australian Law Reports where your Honours say:

The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability –

although here of course, it is balance of probabilities –

that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law.  The process of reaching a predictive conclusion about risk is not a novel one.  The Family Court undertakes a similar process on a daily basis and this Court . . . said this in M v M of the appropriate approach by the Family Court to the evaluation of a risk to a child –

Then there is a passage from M v M set out.

Sentencing itself in part at least may be a predictive exercise requiring a court on occasions to ask itself for how long an offender should be imprisoned to enable him to be rehabilitated, or to ensure that he will no longer pose a threat to the community.

That is, of course, Veen (No 2) rather than Veen (No 1).

The predictive exercise of an assessment of damages for future losses is also a daily occurrence in courts –

and so on.  We submit the standard is sufficiently certain.  I should also refer very briefly to Re Ranger Uranium Mines (1987) 163 CLR 656 which involved unfair dismissal and the settlement of an unfair dismissal dispute. At page 664 point 5, the whole of the Court said:

Where, as here, the relevant award imposes no obligation upon an employer to reinstate a dismissed employee or class of employees and the Act confers no general entitlement to reinstatement, either as a right or as an available legal remedy, then . . . the dispute is properly to be viewed as a claim for the creation of an obligation on the part of the employer to reinstate the dismissed employee or employees.  The creation of new rights and obligations is a function which is properly performed in the exercise of arbitral power.  In the present case, no claim was made by reference to s. 5 of the Act and it was made clear by the Union and the Society that they sought a variation of the Award or the making of a new award to bring such an obligation into existence.

GUMMOW J:   That statement of principle at 666, in the second paragraph, is too wide, is it not?

MR BENNETT:   Yes.  That was where I was about to go.

GUMMOW J:   It does not allow for the wartime cases dealing with variation of contracts and restrictive covenant variations and so on and so forth.

MR BENNETT:   And at 666 point 2, the Court says:

In our view the fact that the Commission is involved in making a determination of matters that could have been made by a court . . . does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court.

That, of course, is the chameleon doctrine.  Your Honours will see from page 665, halfway down the page, they start by stating the chameleon doctrine:

It is well settled that functions “may be classified as either judicial or administrative according to the way in which they are to be exercised . . . A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so found.  Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers -

and so on.  The criterion there, of course, is very subjective - harsh, unconscionable or unfair.

We would submit there is nothing in the present case which violates the Boilermakers principle and makes it non‑judicial in that sense.  In Precision Data there is, I am reminded, at 173 CLR 191 a reference to:

where a discretionary authority is conferred on a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power.

I should mention briefly a matter mentioned by your Honour Justice Hayne about the criminal law.  This is an alternative submission, that if contrary to my submissions it were necessary for there to be some threat of a criminal offence, the important matter to bear in mind is that there will always be a threat of a criminal offence by some person, not necessarily the respondent to the application.  Indeed, even in relation to that person, if that person is informed of the matters, one would have thought then the provisions about recklessness would at least make the lending of the car or the disclosure of the listening device, or whatever it is, a criminal offence by the respondent. 

In practice, it is almost invariably going to be the case that the effect of the order would be to prevent the commission of an offence, although not necessarily by the respondent.  One has to bear in mind in this area the width of the laws relating to attempt and aiding and abetting and the various matters in the Criminal Code, section 11 and following, and the width of the offence relating to preparatory acts and planning in section 101.6. The alternative argument continues in this way, that in the large majority of cases the jurisdiction is no different to the jurisdiction to grant an injunction to prevent a breach of the criminal law.

There are many cases on injunctions to prevent breaches of the criminal law and there is a lot of jurisprudence on when the Attorney‑General has to seek to seek the injunction and when he or she does not.

GLEESON CJ:   Does balance of convenience come into an application for an injunction to prevent a breach of the criminal law, as in Gouriet?

MR BENNETT:   As I understand it, yes, your Honour, although it may be that very great weight would be given to the fact that an offence would be committed.  If the offence were purely technical and not going to harm anyone, the court might well refuse to grant an injunction.  The original cases, of course, were bus companies that operated without licences and were regularly paying the small fines imposed on them.  In Gouriet v Union of Post Office Workers [1978] 1 AC 435 there is a statement at page 500F where Lord Diplock, when talking about injunctions to prevent criminal acts, says this:

Resort to this jurisdiction is of respectable antiquity.  It was first used in cases of public nuisance as a more effective and expeditious remedy than was provided by indictment of criminal information.  Nevertheless, the extension of its use to statutory offences is modern, and has hitherto been confined by the consistent practice of successive Attorneys-General to statutes whose objects are to promote the health, the safety or the welfare of the public and to particular cases under such statutes either where the prescribed penalty for the summary offence has proved to be insufficient to deter the offender from numerous repetitions -

Those two cases, Sharp and Premier Line, are the two bus company cases, I think.

GUMMOW J:   One is about selling flowers outside a cemetery.

MR BENNETT:   No, Sharp and Harris are the bus company cases, I think:

or where the defendant’s disobedience to the statutory prohibition may cause grave and irreparable harm, as in Attorney‑General v Chaudry.  

GUMMOW J:   That is an Earl’s Court private hotel that was going to burn down with a lot of Australians in it probably.

MR BENNETT:   Yes, but the reference to “grave and irreparable harm”, the paradigm of that would have to be the classic terrorist situation.  There was also some discussion of that in Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1 by your Honour Justice Kirby, then President of the New South Wales Court of Appeal.

So that deals with the first of the four Chapter III questions, the Boilermakers argument.  The second concerns the question of detention and custody and the much criticised remarks in Chu Kheng Lim 176 CLR 1. Now, the passage is at page 27, point 8 and it is a passage which is cited against us. What is said by Justices Brennan, Deane and Dawson is:

In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form.  It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary –

and we stress the word “arbitrary” which seriously limits the passage –

power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt.  The reason why that is so is that, putting to one side the exceptional cases to which reference is made below –

and this is the statement which we take issue with –

the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

There are a number of things we have to say about that passage.  The first is that it repeatedly uses the term “detention in custody”.  It is not talking about something less than that, and I will come to that.  That is the first matter I will deal with.  Then I will deal secondly with the cases which have suggested that this passage expresses the law far too widely.  Thirdly, of course, it is in the course of laying down a principle about Executive detention, not about judicial detention.

Dealing first with the question of detention in custody, that may involve questions when and if a case comes to this Court challenging the preventative detention provisions, but this is a long way short of that.

GUMMOW J:   It has nothing to do with this case, has it?  This is about what judges are doing in Chapter III courts.

MR BENNETT:   That is so, your Honour, but the passage is cited ‑ ‑ ‑

GUMMOW J:   It is entirely consistent with that, on one view of it.

MR BENNETT:   But the dictum is cited against me to say that detention in custody even by courts is exclusively related to the finding and punishment of criminal guilt, and then my friend says this is really detention in custody, and therefore, he says, we run foul of this passage.  We say it is a dictum anyway.  It is not a passage which represents the law, and in any event this is not detention in custody.

Dealing first with the meaning of “detention in custody”, there are a number of cases ‑ ‑ ‑

GUMMOW J:   I am not sure I still follow it.  If the proposition you just attributed to your opponent is correct, is there any branch of government that can engage in this activity validly?

MR BENNETT:   Your Honour, my friend would submit, as I understand him, no, except for the recognised exceptions which are detention pending criminal proceedings, quarantine, incarceration of dangerous people who have a mental condition, immigration detention.

GUMMOW J:   What I am getting at is that implicit in it maybe is a submission that seeks to rise above separation of powers into a Bill of Rights.

MR BENNETT:   Yes, that is implicit in the proposition.

GUMMOW J:   Which would bind all branches of government, which we do not have at the moment.

MR BENNETT:   We do not, your Honour.  I am not supporting the argument.  I am arguing against it.

GUMMOW J:   I know you are not.  I am just trying to work out why you are not angrier.

MR BENNETT:   The first case is Eatts v Dawson (1990) 21 FCR.  It is the case in which your Honour Justice Gummow sat in the Full Federal Court. 

KIRBY J:   These authorities are establishing what?

MR BENNETT:   That what is done by the control order does not amount to detention in custody.

KIRBY J:   They could hardly have applied to control orders back in 1990, so what is the general constitutional proposition?

MR BENNETT:   The meaning of the words, your Honour, “detention and custody”.  This was an Aboriginal death in custody case and what had happened was that the police had arrived and had not formally arrested him but at the time when he had not been formally arrested he was shot and the question was whether he was in custody.

The court said that when a person makes it clear to another that the person is restrained from leaving or going anywhere else that may be sufficient.  The passage is at page 179 point 7, where Justices Morling and Gummow said that:

Elements in the lexical meanings of “custody” include the notion of dominance and control of the liberty of the person, and the state of being guarded and watched to prevent escape.  To confine the meaning of “custody” to “that state which follows arrest or similar official act”, as the first respondents would have it, is, in our opinion, to pay too close a regard to legal forms –

et cetera.  But it does involve the notion of dominance and control of the liberty of a person and the state of being guarded and watched to prevent escape.  Well, that is a long way from the control order in this case.  In Ruddock v Vadarlis ‑ ‑ ‑

KIRBY J:   Why do you say that?  The control order has very serious impingements upon the liberty of the plaintiff.

MR BENNETT:   Yes, but it does not confine the person.  The restrictions are set out at page 48.

GLEESON CJ:   We might have been told this on the last occasion and I have forgotten it, but are the restrictions imposed similar to those that are sometimes made bail conditions?

MR BENNETT:   Yes, your Honour, they appear to be.  The conditions are these.

KIRBY J:   Where are they?

MR BENNETT:   Page 48, your Honour. 

GUMMOW J:   We now have the bail order in this case, do we not?  It is annexed, is it not, to the revised case?

MR BENNETT:   That is the amendment to the stated case.  The view taken was no doubt that because of the control order there was no need to impose any additional requirements, but one does not know, of course.

KIRBY J:   You have not advanced any argument that by reason of the bail order made in respect to the plaintiff in this case that we are not faced with the constitutional questions which have been argued before the Court?

MR BENNETT:   No, your Honour.  No, no one argues.  Your Honour sees he is required to remain at his current place of residence between midnight and 5.00 am unless he notifies the AFP in writing of another address.  So he can nominate any address he likes, notify it in writing and live there.  That does not sound like custody in the ‑ ‑ ‑

GLEESON CJ:   Bail conditions commonly impose restrictions on the liberty of people, but by hypothesis they are not in custody.

MR BENNETT:   Yes, precisely, your Honour.  Then 2 is reporting.

CALLINAN J:   And people on bail may turn out to be innocent.

MR BENNETT:   Yes, of course.  People who are detained in custody pending the hearing of their criminal charges may turn out to be innocent.  Indeed, people can be convicted and serve gaol terms before their appeals are allowed and turn out to be innocent.

Then there is a fingerprinting condition.  He is prohibited from leaving Australia without prior consent.  He is not allowed to take part in certain activities involving weapons and explosives.  He is not allowed to communicate with people in relation to terrorists acts and explosives and so on.  He is prohibited from communicating with some named individuals and anyone who he knows to be a member of Al‑Qa’ida and he is prohibited from accessing certain forms of telecommunication and he is prohibited from having in his possession any firearm or ammunition.

Those conditions are a long way short of detention and custody.  Even the one which comes closest to it, the requirement to be at his home between midnight and 5.00 am is one subject to his right to nominate another place.

There was some question asked last time about could he come to Canberra if he wanted to for this hearing?  The answer is clearly yes.  He would just substitute an address in Canberra and there would have to be alternative reporting arrangements, but that no doubt can be arranged.  There are provisions for variation of things like that.  So we are a long way short.

It is interesting that in Little v The Commonwealth 75 CLR 94, during the war there were restriction orders made by the Minister, similar in many ways to control orders, that required persons not to change address, report to the police, and so on. One of the interesting things is that Justice Dixon at page 102 point 2 referred to the fact that after three months under a detention order, restriction order was made and thereupon he was released from custody. So his Honour seems to have taken the view that the conditions under the order were not regarded as custody. That is a very small clue.

In Ruddock v Vadarlis (2001) 110 FCR 491, which your Honours recall was the Tampa case, in the judgment of Justice French at page 548, paragraph 213, and Justice Beaumont, the other member of the majority agreed with this, his Honour at paragraph 213 said this – your Honours recall the general facts of this case:

The learned primary judge however has constructed a total restraint upon their freedom by virtue of the Commonwealth’s commitment to retaining control of their fate.  He referred to a constellation of factors which had the result, as he saw it, that the Commonwealth “took the complete control over the bodies and destinies of the rescuees”.  As to one of those factors the evidence did not appear to support the conclusion that his Honour reached that the Commonwealth did not allow communication with the rescuees.  It may be accepted that it did not facilitate communications and did not permit third parties to approach the vessel.  Attempts to communicate with the rescuees through the vessel’s owners were unsuccessful because of the attitude of the vessel’s owners.  The ultimate judgment made by his Honour was evaluative and weight should be given to his view of the case.  In my opinion, however, the actions of the Commonwealth were properly incidental to preventing the rescuees from landing in Australian territory where they had no right to go.  Their inability to go elsewhere –

Your Honours will recall the captain would not go to sea with them on board because the boat was not licensed to carry that number of people and there were other factors –

derived from circumstances which did not come from any action on the part of the Commonwealth. The presence of SAS troops on board the MV Tampa did not itself or in combination with other factors constitute a detention.  It was incidental to the objective of preventing a landing and maintaining as well the security of the ship.  It also served the humanitarian purpose of the providing medicine and food to the rescuees.  The Nauru/New Zealand arrangements of themselves provided the only practical exit from the situation.

That was their being placed on a naval vessel and removed to Nauru and then their applications being processed by United Nations people.

Those arrangements did not constitute a restraint upon freedom attributable to the Commonwealth given the fact that the Captain of the MV Tampa would not sail out of Australia while the rescuees were on board.  In my opinion, taken as a whole, there was no restraint on their liberty which could be attributed to the Commonwealth.

GLEESON CJ:   Mr Solicitor, we have one day left for the completion of this argument, or this case.  Have you and the other counsel who have to address us tomorrow, including Mr Merkel, who has a reply, agreed between yourselves on the division of tomorrow’s time?

MR BENNETT:   Yes, your Honour.  My learned friend will have three‑quarters of an hour for his reply from 3.30.  It will be a matter for the Court if he seeks that that be extended by a short time at 4.15.  We have agreed on one hour for the States which means that the time for me to complete my argument and for my learned friend, Mr Burmester, will conclude at 2.30.

GLEESON CJ:   Very well.  We will adjourn until 10.15 tomorrow.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 21 FEBRUARY 2007