Thomas v Mowbray & Ors

[2006] HCATrans 661

[2006] HCATrans 661

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M119 of 2006

B e t w e e n -

JOSEPH TERRENCE THOMAS

Plaintiff

and

GRAHAM MOWBRAY, FEDERAL MAGISTRATE

First Defendant

MANAGER, COUNTER‑TERRORISM – DOMESTIC, AUSTRALIAN FEDERAL POLICE

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 DECEMBER 2006, AT 10.17 AM

(Continued from 5/12/06)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Merkel.

MR MERKEL:   If the Court pleases.  Can I raise at the outset with your Honour the Chief Justice the discussions between us at the Bar table would suggest that if it was possible that there be two days rather than one to complete the matter, that would be the preferred course of counsel.

GLEESON CJ:   Yes, we can handle that contingency.

MR MERKEL:   Thank you, your Honour.  Can I go to some of the matters raised in the course of argument yesterday.  Can I first start with what appears to be a difficult question and that is the observations your Honour the Chief Justice, Justice Gummow and Justice Hayne, in particular, in Re Colina about the contempt power being, in effect, one that is inherent in the nature of a court created under Chapter III and therefore the subject to this Act.  It would follow, as put to me by Justice Hayne yesterday, that if that was an inherent power of a court created under Chapter III, the words “subject to any other Act” would only permit those powers to be added to, not subtracted from.

One of the problems, as I suspect in Re Colina, is that this came up as in Re Ahnee in the Privy Council as a scandalising of the court contempt and there is no quarrel as far as our position is concerned that scandalising of the court is not in any way interfered with by Division 104 and that is a category of contempt as is contempt in the face of the court which is necessary to protect the integrity of the court and its processes, but enforceability of a court order is a topic which raises far more complex questions and can I take your Honours to how that has been treated in this court as an aspect of the judicial power.

Can I just briefly go back to R v Davison 90 CLR 353 and take your Honours to page 368 where their Honours Chief Justice Dixon and Justice McTiernan just below point 5 said that:

Again the enforcement of a judgment or judicial decree by the court itself cannot be a necessary attribute of a court exercising judicial power.  The power to award execution might not belong to a tribunal, and yet its determinations might clearly amount to an exercise of the judicial power.  Indeed it may be said that an order of a court of petty sessions for the payment of money is an example.  For warrants for the execution of such an order are granted by a justice of the peace as an independent administrative act.  But to say that a thing may be done in the course of the exercise of judicial power is not to say that it may not be done without the exercise of judicial power.

Now, that observation by their Honours was taken up by all members of the Court in Brandy.  If I can take your Honours to Brandy v Human Rights and Equal Opportunity Commission 183 CLR 245, in the joint judgment of Chief Justice Mason and Justices Brennan and Toohey at 257, starting with the first clear paragraph, their Honours said:

However, it has not been found possible to offer an exhaustive definition of judicial power.

Then their Honours cited the observations that I have just read to your Honours and then went on to say:

The fact that the Commission cannot enforce its own determinations is a strong factor weighing against the characterisation of its powers as judicial; though it must be recognised that this is not an exclusive test of the exercise of judicial power.

Then in the joint judgment of Justices Deane, Dawson, Gaudron and McHugh at page 268, could I start at the last paragraph of that page:

And in Federal Commissioner of Taxation v Munro, Isaacs J pointed out that the concept of judicial power includes enforcement:  the capacity to give a decision enforceable by execution.  It was this characteristic of judicial power which was emphasised by Latham CJ in Rola Co (Australia) Pty Ltd v The Commonwealth.

GUMMOW J:   They are talking about enforcement by execution; they are not talking about contempt.

MR MERKEL:   Sorry, your Honour, I follow that.  If I could just read on, your Honour, because what their Honours said:

He pointed to the fact that in Huddart, Parker & Co Pty Ltd v Moorehead Griffith CJ referred not only to the giving of a binding and authoritative decision as being indicative of the exercise of judicial power, but also spoke of such a decision being given by a tribunal “called upon to take action”.  Thus, Latham CJ pointed out, where a tribunal is able to give a binding and authoritative decision and is able to take action so as to enforce that decision, “all the attributes of judicial power are plainly present”.

But then their Honours went on to say:

However, notwithstanding the reference by Griffith CJ to a tribunal “called upon to take action”, it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision.  As Dixon CJ and McTiernan J observed in R v Davison, an order of a court of petty sessions for the payment of money is made in the exercise of judicial power, but the execution of such an order is by means of a warrant granted by a justice of the peace as an independent administrative act.

KIRBY J:   What principle do you extract from those passages?

MR MERKEL:   We would say, your Honour, that we would accept that the enforceability of a judicial decision is an essential attribute of judicial power, but we would not accept on the authorities that the court itself as opposed to a different process is a necessary attribute of judicial power.  We say that would follow from Davison and the reliance in Brandy, but, your Honours, I must confess that Re Colina was not, as far as I can recall, relied upon against us in the Commonwealth’s submissions.

The question of whether a court’s capacity to enforce its own orders, putting aside contempt in the face of the court or scandalising of the court, is a necessary attribute of judicial power is plainly a matter of some complexity which requires a little further research on our part. 

I had a look at Re Ahnee, the Privy Council decision, and it was true that in Mauritius there was a separation of powers, but the way Lord Steyn approached separation of powers, meaning complete and absolute separation, is certainly not the way in which the jurisprudence in this country has developed with no encroachment upon each arm of government.  There is, in fact, encroachment and overlap between the judicial, executive and legislative powers in our Chapter III jurisprudence which would be inconsistent with the way Lord Steyn approached it, but I cannot ‑ ‑ ‑

KIRBY J:   In Australia there has to be an overlap between the legislative and the Executive because the Executive must sit in the Parliament, so there is not that strict separation, but there is a high degree of strictness in the separation of the judicature from the other branches of government except for appointment and removal, I think, and funding.

MR MERKEL:   That is so.  The high degree, your Honour, would not sit comfortably with Lord Steyn’s pure and absolute separation, but I cannot take it further than that at this stage other than to say that the question, we would say in a Chapter III sense, is not whether it is a necessary attribute of a superior court of record that it enforce its own decisions.  We say the question is is it a necessary attribute of the conferral of judicial power on a Chapter III court that it enforce its own decisions, and that would mean it would be difficult to differentiate in that sense between the Magistrates Court, the Family Court and the Federal Court or a conferral of jurisdiction under Chapter III on other courts, and we say that raises quite difficult questions.

KIRBY J:   If Parliament sets out in the Act a scheme for the enforcement of the orders and the Executive, ignoring the scheme that Parliament has laid down, goes straight to the Federal Magistrates Court and says these orders are not being complied with, enforce them by way of the contempt power, quite apart from the right to trial by jury and all other reasons for restraint, one would expect that a court asked to do that would say Parliament has laid down a scheme.  You go off and act in accordance with the scheme.  It is an abuse of process to come and just use the contempt power for the purpose of trying to deal with the offence which Parliament has gone to the trouble of creating.

MR MERKEL:   Yes, your Honour.

KIRBY J:   I may be wrong, but that is how I would react to it, especially because it deprives a person of one of the few rights that is in the Australian Constitution to jury trial of indictable crimes.

MR MERKEL:   Yes, well, your Honour, I would, with respect, say that is how we put our submissions yesterday and I accept that Re Colina is a hurdle that we cannot just ignore, but unfortunately Re Colina, of course, was in the scandalising context and enforcement by a court of its own orders, as opposed to the enforceability of its orders.  We do not for one minute suggest that a court order cannot have the attribute of enforceability.  It is the process by which it is enforced that is in issue here.  Is it by the indictable offence route set out in 104.27 or is it still able to be by the court itself enforcing its processes?

But given that this matter is to go over, it is one of some several matters which we would ask to be able to put in a further written submission because it was not raised and we do not at this stage know how the Commonwealth wishes to put it.  Certainly, if the principle be as absolute as it might be suggested to be in Colina, that would carry through to all Chapter III courts, not just courts Parliament would choose to create as a superior court of record, because a superior court of record is not necessarily a Chapter III concept.  What is a Chapter III concept is the conferral of judicial power on courts.

I just wanted to flag that as an area of some difficulty given the way in which it has been approached in Brandy and we would say it is the enforceability mechanism rather than whether the court judgment itself is enforceable which, of course, is a necessary attribute.  We do say, just in conclusion, as has been pointed out on many occasions, the issuing courts in this case are statutory courts and their jurisdiction is that defined and able to be defined by Parliament and limited, according to the statute, but we accept the limitation cannot impinge upon what is an essential attribute of a court. 

The cases that I have just taken your Honours to do not suggest an enforceability mechanism is an essential attribute of a court because if it is not an essential attribute of judicial power, it is hard to carry it through to be an essential attribute of a court.  But I cannot take that any further at this stage.

Can I also indicate, your Honour Justice Kirby raised with us yesterday the potential relevance of United States cases and the International Covenant for Civil and Political Rights and we would also seek to investigate those matters and if they are relevant to the submissions we would wish to put, if we could raise those with the Court.  Your Honour also ‑ ‑ ‑

KIRBY J:   At least in my view they are relevant as indicating the type of things that one would expect to be the subject of the judicial power when issues of liberty, privacy, work capacity and so on are affected by legislation.

MR MERKEL:   Well, as I said, we wish to investigate that.  The case of JJ that we had referred to yesterday, your Honour, in the Court of Appeal does discuss deprivation of liberty under the English control order regime in relationship to the European Rights Charter, but we will come back to that in a more refined way, if we might.  Your Honour also asked us if we could prepare a document which outlined the paragraphs of the section of Division 104 that justified each of the orders in the interim control order and could I hand that up to your Honours.

KIRBY J:   This is the document with the material that you gave us orally yesterday?

MR MERKEL:   Yes, your Honour.

GLEESON CJ:   Thank you.

MR MERKEL:   Your Honour Justice Kirby also raised with me yesterday the question of variation of the interim control order.  Under the statutory regime there is no provision for variation of an interim control order.  Under section 104.18, after a confirmed control order is made, the order may be varied on application of the Australian Federal Police officer, senior officer, and the equivalent of that power to apply for alteration of a confirmed order on the part of the person the subject of the order arises under 104.23 so that there is no provision for variation of the interim control order.

If I can take your Honour briefly to page 48, what the order in the present case provides for is, in effect, an internal mechanism of the variation so that in paragraph 1, Mr Thomas can go to another place of residence provided that he gives notification in accordance with the clause and ‑ ‑ ‑

KIRBY J:   But I was thinking of his attendance at court, at this hearing if that had been his wish.

MR MERKEL:   Well, technically, your Honour, if he had given notice of a change of address and it did not conflict with the reporting times, if he went up, flew up and back each day, he may technically have been able to appear and come.  Putting it another way, if the requirements here did not allow that degree of flexibility he could not go to the court to ask it to vary the control order because there is no such power in the division and we say ‑ ‑ ‑

KIRBY J:   That may be a matter which is within its applied powers as a court, Federal Court.

MR MERKEL:   It can control its own procedures, your Honour, but we say when – and I have not taken your Honours laboriously to every aspect of the scheme, but if one starts reading Division 104 at the beginning and finishes at the end, it is very difficult to conceive of anything – and no doubt our learned friends will – that is not intended to be covered because even the nature of the proceeding, whether it is interlocutory or final for the purposes of the Evidence Act and all other purposes is dealt with, and it may be that within one of those provisions there is capacity to pick up a common law procedure such as variation for non‑disclosure, but if it is not there we say the legislature has intended that the interim control order will stand unchanged.  But there are some possibilities for flexibility in the statutory scheme.

Your Honour Justice Hayne and also Justice Gummow at pages 67 through to 69 asked me to consider questions that basically fall under the heading of, “Can one disentangle section 104.4 with the criteria that are there set out?” and in particular your Honour Justice Hayne at page 67 at line 2945 talked of the possibility of the person who had the timing device being told it was about to be used for a terrorist act and therefore by going ahead and saying, “Well, I propose to sell the device anyway”, becomes implicated in it.

The answer we would give to that hypothetical situation, your Honour, is that this statutory scheme has deliberately refrained from imposing any such criterion.  For example, what your Honour’s example does is convert what the day before the notification was an innocent bystander to the day after the notification someone engaged in a terrorist act or preparatory to a terrorist act.

If the legislature wanted to capture that situation, it would have been easy for it to do so, but it has not intended to do so and, giving your Honour a real world example, terrorism is beset with security issues and the reality of police officers or others engaged on the government side of the fence in that area revealing out in the public domain anything more than they would wish to reveal is an unlikely prospect.  But putting that to one side, we say that your Honour’s hypothetical does have that conversion of really an innocent person into a person engaged in terrorism, and we say that that is a big quantum leap.

HAYNE J:   Well, that is a proposition that is founded on the ex parte nature of the application for interim control orders.  What I had in mind was in particular what, if any, significance is to be attached to provisions of 101.4(2) and some other of the provisions which create offences where the requisite mental state is recklessness.  Further, to couple with that consideration reference to 101.6 which creates an offence of doing “any act in preparation for, or planning, a terrorist act”, which is an offence which stands in marked contrast with the provisions of section 11 of the Code concerning attempts, where to be guilty of an attempt the conduct must be more than merely preparatory to the commission of an offence.

Now, at the end of the day there is going to be nothing for it except to sit down with cold towels around the head and work through these offence provisions.  What I notice about the offence provisions is:  first, some of them have the mental element of recklessness; secondly, I notice that some of them stand in marked contrast with the attempt provisions.  Now, what consequences follow from that I simply do not know, but we have to relate, I think, the tailpiece of 104 – 104.4, that is – satisfaction “on the balance of probabilities that each of the obligations . . . is reasonably necessary, and reasonably appropriate and adapted”, to this understanding of the base offences that the Act creates.

MR MERKEL:   Your Honour, certainly the last thing I would wish to do in this legislative scheme is to add words, but I think ‑ ‑ ‑

HAYNE J:   I think you could.

MR MERKEL:   It is an integrated scheme and, with respect, disentanglement raised by Justice Gummow yesterday is a task which we would say is precisely what the legislature has stated it does not wish anyone to do because it is a co‑ordinated approach and it is has been negotiated with the States.  The words that are simply not in these provisions is to prevent a terrorist act by the person the subject of the control order.  If that were the case, it would have analogies with the apprehended violence order or the apprehended breach of the peace type of underpinning of many of the domestic violence orders that your Honour the Chief Justice raised with me yesterday. 

We do not suggest that a Barrett way of drafting could not capture such conduct, subject then again, of course, to the Fardon point, but that is a separate point in this context, because the more one brings this civil scheme into an underpinning of the criminal scheme one walks straight into the Fardon point and says, “Here is a civil process as an alternative to a judgment of guilt as part of the criminal process”.  We say that is for another day, as is whether the Executive could be given some of these powers in a different form. 

Ultimately, the answer we give – and it is the same to the matter raised yesterday, I think, at page 11 by your Honour Justice Callinan with us to the concept of a mercenary or someone engaged in overseas conflict.  If one tracks through the various legislative provisions – we have not had an opportunity, but we have had a quick look at it overnight – one will find the same problem, that the elements there to create criminal liability are not those that are really set out, nor are they intended to be any kind of underpinning for those set out in Division 104.  It is that disentanglement process which this Court cannot really be called upon to do. 

KIRBY J:   What was the technical answer to Justice Callinan’s question?  My recollection is that there was a foreign mercenary’s provision in the Australian criminal law.

MR MERKEL:   There was.  I think it came in in 1978, your Honour.  It came up under the ‑ ‑ ‑

KIRBY J:   Presumably it is not applicable here because Australia was not at war at any relevant time with Afghanistan or ‑ ‑ ‑

GUMMOW J:   It did not have to be at war, but it had to be a foreign state.

MR MERKEL:   Your Honour, we have not had time to try and relate whether the facts of this case could potentially fall into this Act.  As I said yesterday, Mr Thomas has had no shortage of legal minds looking at analysing his conduct on behalf of the Commonwealth and it, to my knowledge, has not been suggested that this Act has any application to anything he is alleged to have done.

KIRBY J:   What is the name of the Act?

MR MERKEL:   The Crimes (Foreign Incursions and Recruitment) Act 1978. It is Act No 13 of 1978. We say it is the same disentanglement issue that I have been endeavouring to respond to that was raised by Justice Hayne and Justice Gummow at pages 67 through to 69. I should say just in anticipation of the submissions on external affairs and defence, this disentanglement issue will keep cropping up because the underpinning of external affairs, such underpinning as there may justifiably be, such as giving effect to particular treaties, simply does not get captured by the definition of “terrorist act”. Likewise, with the defence power, we say that it may be that certain aspects of terrorist acts can fall within the power, or may be able to fall within the power, but not this statutory scheme and it is not capable of disentanglement, but we will come to that in our more detailed submissions.

The width is an intractable problem which no doubt our learned friends will explain to your Honours, but it is an intractable problem under Chapter III and an intractable problem under the head of power issues.

KIRBY J:   Seeing as you have taken us back into the judicial power question, have you said or written everything that you want to say about the suggestion in some of the later cases that it is better to have a little bit of judicial participation than none at all.  Now, that was the feeling that I tried to express in a minority view in Wilson that Australia had used judges for inquiries and so on and better to get them to do a little bit than to have them totally excluded, eo nomine, but the Court strongly held in reinforcing Grollo that that was not a proper approach.

There has been some suggestion since that one of the advantages of the present scheme is that that may not be a full‑blown judicial involvement.  It is better to have the federal magistrate involved because (a) it gives an independent person and (b) it gives somebody scrutinising these matters with the long tradition of the judiciary behind them.  Is there anything you want to add to what you have written about this because you did not really say much about it yesterday?  It is an easy thing for one to feel that why should we exclude Magistrate Mowbray?  Is he not the best defence of the liberties of Mr Thomas than to say purism and purity require that he have nothing to do with the matter?

MR MERKEL:   Your Honour, we have not addressed it separately, but now your Honour has raised it directly with me can I indicate that there are three matters.  We would say, firstly, we have set our policy arguments out at paragraphs 41 to 49 of our written submissions.  Secondly, we, on our submissions, say that that issue can only arise in the debate about double aspect powers.

KIRBY J:   Why?

MR MERKEL:   Because under the separation of powers doctrine, as we have put it, the exclusively non‑judicial power is not capable under the Boilermakers doctrine of being conferred on a federal court, so that to get desirability into the ring on that issue would be to, in effect, overrule Boilermakers at its most essential aspect.

KIRBY J:   That distinguishes Wilson because no one could suggest that writing a report and providing it to the Executive Government is called judicial business, whereas you say this case is called judicial business.

MR MERKEL:   It has been called judicial business, but on our Chapter III argument, your Honour, it is not.  It is exclusively non‑judicial business and therefore desirability and policy have no part to play because that is fundamentally undermining.  In fact, we would say, if our argument is accepted, it is overruling Boilermakers because there is no doubt about the desirability and convenience of the Industrial Court.  It had not given rise to any particular problem – I believe it had not given rise to any particular problem until Boilermakers and when that was raised in argument in the Boilermakers transcript which was reported in the High Court, I think – it was raised of counsel ‑ ‑ ‑

KIRBY J:   There are three pretty good strong dissents in Boilermakers.  I mean, there was another point of view and Chief Justice Barwick never ceased reminding everyone that there was another point of view and that it inflicted a very artificial wound on the Court, but no one is challenging it.

MR MERKEL:   No one is challenging Boilermakers.

KIRBY J:   It stood for 50 years this year.

MR MERKEL:   Well, your Honour, there may have been a dissenting view in the High Court ‑ ‑ ‑

KIRBY J:   Like Engineers, it is sort of set in stone.

MR MERKEL:   There was no dissent in the Privy Council, your Honour.  It was a joint judgment upholding the majority judgment.

GUMMOW J:   We do not know that. 

MR MERKEL:   I see.  There was no dissent expressed in the Privy Council.

GUMMOW J:   Could not be.

GLEESON CJ:   Could not be in those days.  There was a book in which you noted it.

MR MERKEL:   Yes.  Well, I will not take that any further.  No one is advocating the overruling of Boilermakers in this case, your Honour, and so that is the second answer we would give.  Secondly, we say that it is not really a real issue because the government has ample provisions, given Grollo, to enable persons that would have the repute and standing and the statutory protection to engage in this activity with the integrity of the magistrate or the court.  So that we say that ultimately it is a policy issue not for the courts, it is a policy issue for government.

KIRBY J:   Does not Grollo look a little bit questioned after Wilson?

MR MERKEL:   Well, your Honour, as a losing counsel in Grollo, I did not ‑ ‑ ‑

KIRBY J:   Wilson seemed to be taking Grollo to the next stage.

MR MERKEL:   I thought Wilson was an application of the Grollo criterion, but whether incompatibility arises obviously has to be looked at in each situation by reference to all the circumstances, but my understanding is that this Court has applied Grollo and has not really questioned it.  But they are the answers I would give on the policy issues, your Honour. 

The final matter was your Honour Justice Gummow at page 80 raised with us the question of the meaning of “liberty” and we would accept that that is a vexed question and it does arise and that is another matter which we would ask to be able to put a written submission on when we have had a chance to look at that issue more closely.  They are the matters I wanted to just deal with arising from yesterday.

Could I now go to the last part of our submission on the reference power.  Can I just indicate there are at least two High Court cases that have considered the reference power.  In relation to the matter your Honour Justice Kirby raised with me yesterday about the need for specificity, both cases would ‑ ‑ ‑

KIRBY J:   I must have been wrong on that ‑ ‑ ‑

MR MERKEL:   Yes, your Honour.

KIRBY J:   ‑ ‑ ‑ because it seems as though the Court has said it is in the nature of a reference that you cannot be spelling out the details of the statute and therefore it is enough that it is expressed in general terms.

MR MERKEL:   Yes, that is right, your Honour.

KIRBY J:   There is no need for you to go over that.

MR MERKEL:   Yes, but it is an alternative.  It can be as specific as the Parliament would wish and it can be as general, provided it is a matter, as the Parliament would wish.  Without taking your Honours to it, in the R v Public Vehicles Licensing Appeal Tribunal 113 CLR 207, particularly at pages 225 to 226 in the joint judgment, it was clear that when their Honours were talking about the reference power it was the will of Parliament that must identify and characterise and define the reference, no one else, but their Honours made one qualification to that and that is, in the middle of the page, they said:

There is no reason to suppose that the words “matters referred” cannot cover matters referred for a time which is specified or which may depend on a future event even if that event involves the will of the State Governor‑in‑Council and consists in the fixing of a date by proclamation.

We would say that outside that it is quite clear that the definition of the matter must be an expression of the will of Parliament.  Yesterday I had taken your Honours to the second reading speech.  The explanatory memorandum is not quite as explicit but we say it – clause 4 is explained in the explanatory memorandum which I think your Honours would have.  The explanation of clause 4 is that:

Sub‑clause (1) makes the references. The matters referred are limited to those necessary to provide support for the Commonwealth Parliament to re-enact Part 5.3 of the CommonwealthCriminal Code (set out in Schedule 1 of the Bill) and to make amendments to that part and Chapter 2 of the CommonwealthCriminal Code as necessary. 

Sub‑clause (1)(a) refers to the Commonwealth Parliament the matters to which the current text of Part 5.3 of the Commonwealth Criminal Code relates but only to the extent of enabling the Commonwealth Parliament to make laws with respect to those matters by including the text of Part 5.3 in the Commonwealth Criminal Code in, or substantially in, the terms of that text.

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

The reference to Part 5.3 is plainly a reference to Part 5.3 as set out in Schedule 1 of the Bill, which are the offence provisions. So we say that it would take a very strained reading of both the intent, the text and the context as is put against us by all of the intervening States and the Commonwealth, to say as long as you amend Part 5.3 and what your amendment does is fall within the definition of “terrorist matters”, et cetera, that that is within the reference. So we say, with respect, that is a submission that does violence to the language as well as the intent of the referral Act.

The second argument we put, if we are wrong and the Court is persuaded to adopted a wider interpretation, we say that that interpretation would give the referral Act an unconstitutional operation unless section 100.8 required approval by the Parliament, at least of the referral State which it does not in fact do, but that is a moot point because there is no parliamentary approval and therefore 100.8 could not operate by any approval other than Parliament, certainly, on any view, not an approval by the Premier which is what is sought to be relied on in the present case.

While we do not say the Governor‑in‑Council would be sufficient, at least under Part IV of the Constitution Act (Vic), the Governor‑in‑Council exercises the power of the Executive Government and the Premier is an adviser to the Governor‑in‑Council. So ultimately the case that is put against us is not only that the amendment can be one approved by the Premier outside the statutory scheme, but that Parliament has nothing whatsoever to do with the process. We say that does violence not just to the statutory language but also to the constitutional power conferred in respect of a referral under section 35(vii) of the Constitution.

So they are the matters that we would wish to put in respect of the referral power.  That leaves only for us to address the defence implied nationhood power, which my learned friend, Mr McLeish, will be addressing your Honours on, and the external affairs power, which my learned friend, Ms Walker, will be addressing your Honours on.  But before I conclude on the aspects that I have addressed your Honours on, can I just make one ‑ ‑ ‑

KIRBY J: Where does nationhood come into all this? I mean, I know the cases, but what is its hook in section 51?

MR MERKEL:   It is a combination, your Honour, of sections 61, 51(vi) respecting the forces involvement in upholding the laws of the Commonwealth and 51(xxxix).  It comes up in some detail particularly in the Communist Party Case in its link with the defence power.  So that insofar, for example, as there might be an assault, using a neutral word, on the institutions of government in this country, if it not technically fall within the defence power, it may come under the implied nationhood power, and it is discussed in a number of cases and my learned friend, Mr McLeish, will take your Honour to it, but when we come to it, it is much as we have said with Chapter III, that properly framed we do not put that terrorism falls necessarily outside the defence power or outside the implied nationhood power.

At one extremity of terrorist acts one has September 11th or acts of violence against Commonwealth Government institutions or services.  They are matters that we do not dispute are capable of being the subject of Commonwealth legislative action.  But at the other extreme one has the domestic examples which we say clearly fall outside the defence implied nationhood powers and then, when Ms Walker gets to it, the external affairs power, and it is that vice that besets this statutory scheme at every level. 

I hope I have not done violence to the submissions of Mr McLeish in that summary of the nationhood power, but it is a difficult question which troubled their Honours in the Communist Party Case which, of course, picked up both elements, an assault, so it is said, on the institutions of government as well as an assault that required the attraction of the defence power.

Before I sit down, could I just say to your Honours that it is an undoubted irony in this case that a plaintiff is here before your Honours

standing accused by the Commonwealth of seeking to undermine its democratic constitutional values and laws, but is here in this Court ultimately seeking to uphold those very values and laws, and we do say, and we do not say it lightly, that in doing so the circumstances of this case and the issues raised do bear some significant analogies with the Communist Party Case.

If I could now ask your Honours to hear Mr McLeish on the defence power.

GLEESON CJ:   Yes, Mr McLeish.

MR McLEISH:   If it please the Court.  I wanted to go back to some basics about the defence power which we would ask the Court to focus on in addressing its application or otherwise to Division 104.  The two basic features are its purpose of nature and its elasticity.  Then I will move to the kinds of laws which the defence power supports before addressing the significance of the words “naval and military” and finally turn to explain why we submit that Division 104 is not a law supported by the defence power.

There are three areas which our submissions will cover. The first is the defence power in section 51(vi); the two limbs of that power. The second is the second limb of that power. The third is the nationhood power or the implied power, the incidental power, however it is characterised. Although it is nearly always described as the defence power, it is instructive, in our submission, to return to the words of section 51(vi) which give the Commonwealth Parliament the power subject to the Constitution to make laws with respect to:

the naval and military defence of the Commonwealth and of the several States -

That is what we call the first limb, and also with respect to -

the control of the forces to execute and maintain the laws of the Commonwealth -

That is the second limb. Section 51 finds its place in a constitutional scheme under which the control of the colonial, naval and military forces was taken over by the Commonwealth. Power with respect to naval and military defence was then given to the Commonwealth. Section 68:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General –

Section 69 provides for the transfer of the departments of naval and military defence in each State to be transferred to the Commonwealth. Section 114, amongst other things, prohibits a State from raising or maintaining any naval or military force without the consent of the Parliament. I will also be coming to section 119 which obliges the Commonwealth to “protect every State against invasion”. On the application of the Executive Government of the State against domestic violence, we say that is particularly important when one comes to look at the nationhood power or the implied or incidental power.

The two features I mentioned at the outset are the purposive nature of the power.  Under the authorities the Court looks to what the law operates for, not at what it operates upon, to use the language of Justice Dawson in Richardson v Forestry Commission 164 CLR 261 at 326 – I will not take your Honours to it.

The elasticity of the power is a reference to the fact that its ambit expands and contracts according to external conditions.  This is because the purpose can be determined in part by those external conditions and the circumstances that gave rise to the law.

GLEESON CJ:   External to what?

MR McLEISH:   External to the actual operation of the naval and military forces, your Honour.  I will be coming to the way Justice Fullagar explained the operation of the power in the Communist Party Case and his Honour distinguished two aspects.  The first aspect concerns the equipping and operations of the naval and military forces as the direct and immediate object of the power and the second is the doing of things which are conducive to the prosecution of a war or other activities that the military is engaged in.  The external conditions is a reference of the surrounding circumstance in which the military carries on its activities and principally it is a reference to wartime, your Honour, but also preparations for war or the period of transition after a war has ceased.

GUMMOW J:   What do you mean by wartime, by the way?

MR McLEISH:   War is at one end of a continuum, your Honour.

GUMMOW J:   Yes, but do you mean by war?

MR McLEISH:   War is when the naval and military forces are engaged in hostilities against a foreign nation for the defence of Australia.  There are other circumstances in which the naval and military forces operate.

GUMMOW J:   Exactly.

MR McLEISH:   But they are not necessarily naval and military defence.  I will be coming to that, your Honour.

KIRBY J:   But this provision has to be read against the very strong historical background of the British nation which was that you did not have a large standing army, and that was what distinguished Great Britain from the continental countries and that civil law ordinarily prevails and that the raising of military and defence forces was to be seen as something that was not there to oppress the citizens, but to defend them, and that it was subject to the civilian power.  These are matters that were debated in a series of cases in this Court in the 1990s and lately in Re Aird.

MR McLEISH:   Yes, your Honour, I will be referring to – there is debate in the authorities as to whether the reference to the forces referred to in the second limb of 51(vi) is a reference to the military forces or ‑ ‑ ‑

KIRBY J:   This is not so much as an implied limitation on section 51(vi), but a constitutional assumption that exists because of the history against the background of which section 51(vi) is written.

MR McLEISH:   Yes, your Honour.  If I could take the Court to ‑ ‑ ‑

GUMMOW J:   The First World War changed all that.  It certainly changed it in Britain.

MR McLEISH:   With respect to the standing army, yes.

GUMMOW J:   Not just with respect to the standing army.  It was with respect to mobilisation of the whole economy and the whole labour force, too.

MR McLEISH:   Yes, your Honour, and that is where the external conditions may bring in what I will be calling the secondary aspect of the power that allows ‑ ‑ ‑

KIRBY J:   It did not change the fact that it is still by world standards a country with a small military and, secondly, that it is subject to the civilian power, because that is what section 51 says by subjecting it to the Constitution.

MR McLEISH:   Yes, your Honour, and the Court has held that the defence power is not exclusive of the States in all respects, for example, and indeed subject to the Constitution and that is to be borne in mind. If I could take your Honours to Stenhouse v Coleman 69 CLR 457, Justice Dixon explained at page 471 how the defence power operates and we submit this is uncontroversial, but it is a useful account of the way in which it works. His Honour said at the top of the page:

Some of the difficulties which have been felt in the application of that power seem to me to be due to the circumstance that, unlike most other powers conferred by s. 51 of the Constitution, it involves the notion of purpose or object. In most of the paragraphs of s. 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service ‑ ‑ ‑

GUMMOW J:   There is a habit of the Bar of just reading snippets out of judgments.  Now, what was Stenhouse v Coleman all about?  It was about a national security regulation.

MR McLEISH:   Yes, your Honour.

GUMMOW J:   Controlling the economy in a very significant fashion and was held to be valid.

MR McLEISH:   It was held to be valid.  It was a regulation concerning the carrying on of business as a baker or bread distributor.

GUMMOW J:   Exactly.

MR McLEISH:   And therefore not one that was immediately obvious as a law with respect to defence aside from the circumstances at the time.  His Honour explained the relevance of the circumstances two‑thirds of the way down page 471.  After the reference to Blott’s Case, his Honour said:

For apparently the purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth.  It is evident that among these circumstances the character of the war, its notorious incidents, and its far‑reaching consequences must take first place.  In some cases they must form controlling considerations, because from them will appear the cause and the justification for the challenged measure.

CALLINAN J:   Is that not completely against you?

MR McLEISH:   No, with respect.

CALLINAN J:   These circumstances are absolutely unique.  I know in history of no other situation in which nationals living within a national community, within their own national community, actually set out clandestinely to destroy other people in the community.  I just cannot think of any situation in which that has ever occurred before and occurring in many countries throughout the world and done by people, moreover, who have demonstrated that they do not care whether they live or die themselves.  It is a unique combination of circumstances.  I invite you to point to any other parallel in history to this.

MR McLEISH:   We do not say, your Honour, that a law could not be made with respect to that.

CALLINAN J:   That is why the defence power has to be the most flexible of all the powers.

MR McLEISH:   We do not say that that could not give rise to an exercise of the defence power, your Honour.  What we say is that the law that has been made does not qualify as an exercise of the defence power because of its breadth and that it would be ‑ ‑ ‑

CALLINAN J:   But you have just read a passage which says, in effect, that the breadth of the law to some extent must be dictated by the circumstances in which the nation finds itself.

MR McLEISH:   Yes, your Honour, and I will be coming to the facts later but ‑ ‑ ‑

KIRBY J:   There is, of course, a lot of writing on the background of terrorism and many historians have traced acts of terrorism back to the Middle Ages and many assert that the pirates on the high seas, many of them British, were the terrorists of their time, and in the 1890s there was the great movement of the anarchists, the communists were called terrorists and certainly all of the colonial liberation movements were called terrorists in their time, and many of the people who fought in those were willing to die for their cause.  So I do not think it can be said that this is entirely unique.

CALLINAN J:   Well, it is because it crosses international borders.  That is what makes it unique.  I mean, you cannot identify the enemy.

KIRBY J:   The Mau Mau were often very difficult to identify.

CALLINAN J:   But in Kenya.  They were not fighting in Morocco.

MR McLEISH:   The question of defining terrorism is at the heart of the difficulties, we submit, with this legislation, that it is so broadly expressed as to encompass all manner of things which, in our submission, are far beyond any defence purpose and show that the purpose of the law is to address a phenomenon called terrorism and not naval and military defence.  I will be coming back to the relevance of the external circumstances.

GLEESON CJ:   Were you intending to read from the bottom of 471 over to the top of 472?

MR McLEISH:   Yes, your Honour.  He elaborates at the bottom of 471, and I am happy to read that passage:

The course of the war has taught us that, in grave emergencies, it may be necessary, in the exercise of the defence power, to assume control of the greater part of the human and material resources of the nation.  The character of a war and the state of emergency at a given time may justify measures which at another time would be unwarranted.

GLEESON CJ:   That probably explains the point that Justice Gummow was making earlier, that is to say that this was a case about baking.

MR McLEISH:   Yes, your Honour, it is the circumstances of the war in 1944 which explains why the Commonwealth could make a law with respect to baking, and it made another law with respect to baking, or at least with respect to bread, in the First World War, laws which it could not ordinarily have enacted.  His Honour does point out:

One difficulty to which this elastic application of the defence power gives rise is that regulations, the necessity or justification for which would be conceded during the emergency which called them forth, may continue unrevoked when the emergency may have passed and conditions may have assumed a normal appearance.

That was a question the Court had to grapple with after World War II in cases such as Dawson v The Commonwealth in which the Parliament was given a measure of latitude in unwinding some of the measures which had been necessary during the war.  The Court said that the end of hostilities did not mark a guillotine on the Parliament’s power.  In other words, the elastic does not snap back the moment the emergency ceases.  I mentioned that I would be ‑ ‑ ‑

KIRBY J:   But could I just say that when I made references to terrorism, I was referring to a recent book by Dr Ben Saul, who is an Australian, called Defining Terrorism in International Law.  It has just been published by Oxford University Press and it contains a very useful history of past terrorist movements.

MR McLEISH:   Thank you, your Honour.  Depending on how one defines “terrorism”, there has always been terrorism of some kind, if it is the advancing of an ideological, religious or political ‑ ‑ ‑

KIRBY J:   A lot of what you are going over now though is really not contentious, is it?  You have to ultimately get to the nitty‑gritty and your suggestion which is that the defence power is a somewhat frozen one unless there are actual hostilities and is one confined to overseas enemies as distinct from enemies who may have overseas connections, but have connections within the nation.

MR McLEISH:   We say that the central conception of it is overseas enemies.  It has an internal element and that is recognised in the authorities as well, your Honour.

HAYNE J:   Well, why is the central conception not the pursuit of ideological or political aims through force, commonly encountered, of course, in international circumstances – witness World War II and the like.  But why confine it by the reference to internationalism?

MR McLEISH:   It is through naval and military force, your Honour, we submit, and the paradigm example of that is war, which involves an external aggressor.  The conception of what the naval or military do is primarily external ‑ ‑ ‑

HAYNE J:   A concept of an external aggressor presupposes purity which may not always be present.

MR McLEISH:   We do not deny, your Honour, that there are other circumstances in which the naval or military could be engaged to deal with matters of that kind.

HAYNE J:   I take it you do not confine naval and military defence to events involving declared wars between nation states?

MR McLEISH:   No, your Honour.

HAYNE J:   Once you go beyond that, as you must, what is it that marks off the defence power, do you say?  As Justice Gummow asked you, what is war in this context?  It is used metaphorically all too often.

MR McLEISH:   Your Honour, I would prefer to come to that, if I may, through the analysis of Justice Fullagar in the Communist Party Case because it is useful, in our submission, to see where the cases are fitted and, of course, we are dealing with a situation which does not fall readily within the cases on war because, of course, they are not at war.  If I could take your Honour to the Communist Party Case 83 CLR 1, in particular 253. His Honour explains the purpose and nature of the power and then in the bottom paragraph of page 253 describes section 51(vi) as having two aspects. He says:

In its first aspect, s. 51(vi.) authorizes the making of laws which have as their direct and immediate object, the naval and military defence of the Commonwealth and of the several States. This power is clearly not confined to time of war.

KIRBY J:   Could you just help me, going back to Justice Gummow’s earlier question, you really have to know the setting in which this is raised.  Was the Communist Party Dissolution Act 1950 based in part on the defence power?

MR McLEISH:   Yes, your Honour.

KIRBY J:   This was against the background of the Berlin Blockade, the Korean War and the assertion that to defend ourselves against communists at home we had to use the power that section 51(vi) gives?

MR McLEISH:   Yes, your Honour.

KIRBY J:   And the Court, apart from Chief Justice Latham, is it, rejected that contention?  Did any of the Justices accept the 51(vi) claim?  They must not have done so unless they used some other basis for striking the legislation down.

MR McLEISH:   The principal basis for striking it down, your Honour, was that the Parliament had not nominated any criterion by which to identify whether the Communist Party which was being dissolved came within the defence power.  The Parliament had asserted that for itself, in effect, by nominating it for dissolution.  So that there was argument about the effect of the recitals in the legislation and of what judicial notice could be taken and so on, but the majority did not need to get into those questions in the end because of the vice in the legislation.  The examples Justice Fullagar gave of his first aspect were at the top of page 254:

the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications –

et cetera.  He notes that a borderline example of that primary aspect is to be found in Attorney-General (Victoria) v The Commonwealth (1935) 52 CLR 533. That is the clothing factory case. The reason that was perhaps regarded as a borderline example is that the Court therein between the wars held that the Commonwealth could operate a clothing factory which primarily produced defence uniforms but also in peace time produced uniforms for private persons and the public service so as to keep it in a state of readiness. So that is at the edge of Justice Fullagar’s first aspect. He then discusses defence force discipline, which of course the Court has more recently looked at. He continues:

What I have called the secondary aspect of the defence power has so far only been invoked and expounded in connection with an actual state of war in which Australia has been involved.  It has hitherto, I think, been treated in the cases as coming into existence upon the commencement or immediate apprehension of war and continuing during war and the period necessary for post‑war readjustment. 

Prescient words, his Honour says:

In a world of uncertain and rapidly changing international situations it may well be held to arise in some degree upon circumstances which fall short of an immediate apprehension of war.  In its secondary aspect the power extends to an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence.  Examples now familiar are the prices of goods and the rationing of goods, rents and the eviction of tenants, the transfer of interests in land, and the conditions of employment in industry generally.

Then his Honour suggests maybe that was part of the incidental power.  I do not need to take the Court to the rest of that passage.

GUMMOW J:   Do we not have to look at page 259, line 7?

MR McLEISH:   Yes, your Honour.  This is a statement that is found in some of the cases we referred to in our written submissions:

The “defence” to which s. 51(vi.) refers is the defence of Australia against external enemies: it is concerned with war and the possibility of war with an extra-Australian nation or organism.

It is presumably a reference to an organisation or a non‑governmental body.  We do not say that that means that confines the defence power.  A war involving external enemies could, of course, have an internal element and I think Chief Justice Latham used the expression “fifth column activities” in some of the cases. 

GUMMOW J:   This notion of external enemies looks rather simplistic actually.

MR McLEISH:   We say it is the primary notion of the defence power.

GUMMOW J:   Yes, but it is simplistic view of the world.

MR McLEISH:   I think his Honour did foresee that circumstances may change.  We do not say that there must be an external enemy before the defence power is engaged.

KIRBY J:   Is a summary of what his Honour says at 259 that external enemies and defence against them is an important aspect of the defence power but it is not the only aspect, that you can also have internal disruption and that the Commonwealth is entitled to defend itself against domestic attack?  But is that domestic attack connected with an external enemy, in your submission, or is that domestic attack which is wholly home‑grown?

MR McLEISH:   What his Honour is talking about there is an attack on the Commonwealth or its institutions or its laws from any source, domestic or otherwise.  That is a matter not so much, we say, for naval or military defence but just Commonwealth inherent power generally.  There is no need, we say, for a naval or military connection to the exercise of those powers of the Commonwealth.

GLEESON CJ:   The legislation with which we are concerned fastens on the concept in part of a person who has received training from a listed terrorist organisation.  That would include at least training overseas.  Well, training for what?

MR McLEISH:   That is a question which brings us back – I will have to perhaps check that question, your Honour.  I was about to say that it brings us back to the definition of “terrorist acts” but it may be that – I have a recollection of looking for a definition of “training” without success, but perhaps if I can come back to that question.

The case I mentioned earlier about the sale of bread was Farey v Burvett 21 CLR 433. This was a leading early case on the so‑called ‑ ‑ ‑

KIRBY J:   Just before I put the Communist Party Case away, was there anything Justice Dixon said in that that is helpful?

MR McLEISH:   We have referred to passages in our written submissions, your Honour.  I was not going to take your Honour to anything particular that Justice Dixon said in the Communist Party Case other than what is in our written submissions.  Farey v Burvett 21 CLR 433 involved a power to fix the highest price at which bread could be sold and, again, that was clearly not a law within Justice Fullagar’s first aspect. It was not a law which had naval or military defence as its direct object, but the law was upheld because, in the words of Chief Justice Griffith at the top of page 441 – and I am not reading the exact words, but it “conduce[d] to the successful prosecution of the war and defeat of the enemy”. The reason for that appears in the next paragraph, is that the effect of the law was “of tending to secure an adequate food supply to Great Britain during the War”.

I am taking the Court to that case not so much as an illustration of what it holds – to take the Court to what it holds or as an illustration about secondary aspect, but because it is put against us that the case provides a justification for limiting the words “naval and military” and, in our submission, the Commonwealth in its written submissions reads those words out of section 51(vi) altogether. The statement that the words “naval and military” are not words of limitation appears on page 440 in the judgment of Chief Justice Griffith. His Honour said:

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 suggested limitation by context to which his Honour refers appears in the argument at page 436 of the report.

KIRBY J:   Where are you reading?  What passage?

MR McLEISH:   I am sorry, your Honour.  I was reading from page 440, the first sentence at the bottom complete paragraph where Chief Justice Griffith said that:

the words “naval” and “military” are not words of limitation, but rather of extension –

We place importance on the words “naval and military” and say that that describes ‑ ‑ ‑

KIRBY J:   Why would they be words of extension given that the most ample expression would have been “the defence of the Commonwealth”?  These are adjectives which seem to suggest particular kinds of defence.

GLEESON CJ:   They do not eliminate the air force.

MR McLEISH:   No, your Honour.  The air force, we say, is within them either because it is military or because it is within the general conception of “naval and military”.

KIRBY J:   Initially the Royal Air Force and the Royal Australian Air Force were parts of the army in the First World War.

MR McLEISH:   It has been put against us that we do not make allowance for the air force.  We say that that is in the same category as television and it is within the general conception of “naval ‑ ‑ ‑

KIRBY J:   That is not a very good answer because that head of power says “and other like services”.

MR McLEISH:   It does, your Honour.

KIRBY J:   But I think it is a nonsensical argument because air force is military.

MR McLEISH:   That is our primary submission, your Honour.  The argument that the Chief Justice ‑ ‑ ‑

GLEESON CJ:   Do you suggest that the words “naval and military” are words of limitation?

MR McLEISH:   We do, your Honour, but we say they are not words of limitations in the sense which was being suggested in this case.  The argument that the Chief Justice was rejecting is at page 436 about 10 lines from the bottom.  Counsel argued that:

GLEESON CJ:   Thank you, Mr Merkel.

MR MERKEL:   Thank you, your Honour.

GLEESON CJ:   The further hearing of this matter will be adjourned to 20 February 2007 and this Court will adjourn until 10.00 am tomorrow.

AT 4.27 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 20 FEBRUARY 2007