Thomas v Mowbray & Ors
[2006] HCATrans 660
[2006] HCATrans 660
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, 5 DECEMBER 2006, AT 10.16 AM
Copyright in the High Court of Australia
__________________
MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MR S.G.E. McLEISH and MS K.L. WALKER, for the plaintiff. (instructed by Robert Stary and Associates)
MR T.M. HOWE: If it please the Court, I appear for the second defendant. (instructed by Australian Government Solicitor)
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear for the third defendant with my learned friends, MR H.C. BURMESTER, QC, MR T.M. HOWE, MR S.P. DONAGHUE and MR G.J.D. DEL VILLAR. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear on behalf of the Attorney‑General for Western Australia intervening in support of the defendants with my learned friend, MS C.L. CONLEY. (instructed by State Solicitor’s Office)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney-General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor for New South Wales)
MS B.C. WELLS: If the Court pleases, I appear for the Attorney‑General for the State of South Australia with the Solicitor‑General, MR C.J. KOURAKIS, QC, and with my learned friend, MR S.A. McDONALD. (instructed by Crown Solicitor’s Office (South Australia))
GLEESON CJ: There is a submitting appearance for the first defendant. Mr Merkel.
MR MERKEL: If the Court pleases, the proceedings relate to the interim control order ‑ ‑ ‑
KIRBY J: There is to be no intervention on behalf of the Attorney‑General for Victoria, which is the State most concerned?
MR MERKEL: That is correct, your Honour. The proceedings relate to the interim control order made on 27 August 2006 against the plaintiff which is still in force. The relevant facts are set out in the ‑ ‑ ‑
GUMMOW J: Where do we see the order?
MR MERKEL: Pages 46 to 59, your Honour. The relevant facts are set out in the special case book at pages 27 to 48. If I may at the outset seek a consent order. At the request of the Commonwealth, we have agreed to additional facts to be set out in the special case which are paragraphs 45A to 45F and we would seek that order by consent. The amendments had been distributed to the Court late last week.
GLEESON CJ: Yes, we have seen them. Yes, you have that leave.
MR MERKEL: Thank you, your Honour.
KIRBY J: Could you just explain to me what is meant by the qualification as to the facts that you agree between you that these are the facts that you each assert but you do not agree that the facts are true.
MR MERKEL: That is correct, your Honour.
KIRBY J: That does not make this a purely hypothetical exercise.
MR MERKEL: No, your Honour. The facts upon which we rely are very few. They are just basically the control order itself. The Commonwealth wish to rely on a number of other facts, particularly in relation to the defence power, and it is for the Commonwealth, in effect, to satisfy the Court that save as to facts which we do not quarrel with that those facts such as Executive Government reports or statements from video transcripts and so forth have any relevance to the defence power issues, but we did not want to impede the progress of the matter by disputing the making of the statements or the publication of the documents, but it is, in effect, for the Commonwealth to establish their relevance.
KIRBY J: Is there a similar qualification in respect to the facts that you assert relevant to the facts by which the orders were made here, or not?
MR MERKEL: No, your Honour, certain of the facts are objective such as, for example, the occurrence of September 11th and certain acts of terrorism. They are not in dispute and they are facts which we have no difficulty with the Court being aware of and they are able to be relied upon, but it is more the statements made, reports published and documents that are said to be video transcripts. We have agreed to the fact that they were made, but not to the truth of what is said in them.
KIRBY J: At the time your client was in Afghanistan undergoing the training which is referred to in the special case, were the provisions, the constitutional validity of which are now under challenge, already then part of the law of the Commonwealth, or not?
MR MERKEL: No, your Honour.
KIRBY J: I did not see any issue raised respecting the retrospectivity of the operation of those laws as they affected your client, that being a matter upon which the Constitutional Court of Indonesia decided issues concerning the effect of anti‑terrorism laws in that country.
MR MERKEL: There is no retrospective operation as such of any offence provision that would be relevant. All we need to say for our purposes is that the facts relied upon do not give rise to any offence or any liability or exposure to an offence. I do not think the contrary is being asserted in the sense that at the time the training was said to have occurred, and there is a dispute of fact about who it occurred with, but putting that to one side these laws were not in operation and are not said to have retrospective effect.
KIRBY J: I would just like to think about that because effectively a law enacted after your client was doing things which are said to amount to terrorist acts has come into force after those earlier events and attach to those events to apply consequences to him subsequently, not under the general law or the law that was applicable at that time, but under new and special laws enacted by the Parliament and therefore with retrospective operation. Anyway, you do not raise this ‑ ‑ ‑
GUMMOW J: You do not seek to reopen Polyukhovich?
MR MERKEL: We rely upon the fact that there was no retrospective operation to say that the criteria that triggered the control order are matters which do not relate to any existing or antecedent liability. The control order creates new rights not based on any past liability or norm of conduct that is required to be observed, so it is central to our Chapter III case that really the control order is itself the factum upon which all rights and liabilities depend – and that is primarily and fundamentally not a judicial function, but that is our Chapter III argument. We rely on the fact that we predate the terrorist laws to say that the contrary view that there was an existing liability, even such as in the Fardon sense where there was a conviction that led to the preventative detention orders, is singularly absent in the present case.
KIRBY J: Maybe the issue will arise at that point in your argument?
MR MERKEL: Yes, your Honour.
CRENNAN J: What are the facts, Mr Merkel, that we know or are able to rely on in relation to the involvement of the Australian Forces in Afghanistan for argument’s sake?
MR MERKEL: There are none, your Honour, that I am aware of. I have not read anything that suggests that that situation attracts any element of the defence power that is said to be relevant to the terrorist acts as defined in the Criminal Code.
GUMMOW J: Does paragraph 10 of the agreed facts require some supplementation on page 31? That refers to the proceedings in the Court of Appeal in Victoria.
MR MERKEL: No, your Honour, there was a hearing ‑ ‑ ‑
GUMMOW J: Are we meant to find for ourselves these judgments, are we?
MR MERKEL: No, your Honour, we can certainly supply them but I am not sure that either party says they are relevant, but there is no reason why they cannot be referred to. We can supply them, your Honour. The last sentence accurately states the present position. There was a hearing last Friday on whether there should be a retrial of either of the offences which were set aside - the convictions in respect of which were set aside by the Court of Appeal. The Court of Appeal has not handed down its decision on that matter.
GUMMOW J: That was reserved last Friday?
MR MERKEL: Yes, your Honour.
GUMMOW J: Depending upon that decision, I suppose, if it were adverse to you there could be consequences, could there not, for bail and the like?
MR MERKEL: There would be consequences, your Honour, no doubt a lot of consequences, but that sort of raises one of the arguments we propose to put based on your Honour’s decision in Fardon of the close interaction between this control order regime and the criminal offence regime and that just merely epitomises the closeness of the connection. The questions raised in the special case are set out at paragraph 48 at page 42. I need not take your Honours to them at this stage, but the issues we propose to address ‑ ‑ ‑
GUMMOW J: Sorry, page?
MR MERKEL: Page 42, your Honour, of the special case book, paragraph 48.
GUMMOW J: These are questions put up by the parties, are they not?
MR MERKEL: Yes, your Honour.
GUMMOW J: They look too wide to me at the moment. Your interest is getting prohibition in a particular circumstance in respect of a particular order.
MR MERKEL: That is so, your Honour, but the consequence ‑ ‑ ‑
GUMMOW J: Your interest is in declaration of invalidity for this legislation insofar as it supported that order against you. The Commonwealth wants us to give a complete tick and you want us to give a complete cross. The prudent exercise of judicial power may be somewhere in the middle.
MR MERKEL: Yes, your Honour. Of course, how the Court ultimately answers these questions is a matter yet to be ascertained, but can I just say that questions 1 and 2, in effect, we collapse into one question and that is does Division 104 offend Chapter III and therefore is invalid and 2 is whether it is supported by any head of power. If we get an answer that it is contrary to the requirements of Chapter III that would mean the control order would be quashed because it would not have any legislative support and, likewise, if Division 104 is not supported by any head of power the same consequence would follow.
GUMMOW J: But the defence power, as we know, is elastic. What it supports today it may not support in a year’s time or what it does not support today it might support in a year’s time. There is a problem in blanket answers to questions which to one dimension are rooted in the defence power, hence, perhaps, the necessity for a close examination of this order in these circumstances.
MR MERKEL: We will come to it in due course, but on our submissions based on the Communist Party Case, the question of the operation of the defence power would be in December 2005 being the date on which the Royal Assent was received to the amendments that included Division 104. I do not think it is being put by either party that any facts have arisen since that would produce a different answer as at today but, your Honour, we will turn our minds again to those questions if they seem to be too broad.
Our case divides into two parts. The first is that the Chapter III arguments we propose to put are directed at establishing that Division 104 of the Criminal Code confers on a Federal Court non‑judicial power contrary to Chapter III and is invalid, and the second argument is if, contrary to our first argument, Chapter III does support Division 104, the conferral is invalid because it is not supported by any head of power under section 51 of the Constitution or elsewhere.
I should say at the outset that the control order regime does confer on a Federal Court an unprecedented power in a civil proceeding to control all aspects of a person’s life and liberty, and it raises as such fundamental questions concerning the operation of Chapter III and the ambit of the defence, external affairs and referral powers.
In paragraphs 25 and 26 of our outline of submissions, we have endeavoured to encapsulate the vice of the power insofar as it is said to be a conferral of judicial power. Properly understood, the power is to make orders that create new obligations for particular persons in the terms set out in the order, and in the present case, for example, the making of the order imposed an obligation on the plaintiff to remain at his home during specified hours.
That obligation did not stem directly or indirectly from any prior duty or obligation or from any prior statutory or common law regime. It was brought into existence solely by the making of the control order and it did not give effect to any existing rights and duties. It created new rights and duties and those rights and duties were not based upon any breach of any norm of conduct, and in that sense we say it goes far beyond anything that had been authorised by Chapter III in terms of creating rights.
GLEESON CJ: Is that different in kind from an apprehended domestic violence order that might prevent a man from entering his home?
MR MERKEL: Yes, your Honour, because the apprehended domestic violence order in a federal sphere would have to be premised on some anterior duty not to cause the violence; in other words, it is premised upon preventing what is an unlawful act by that person. This regime is not directed in its terms or its width at preventing an act by the person the subject of the control order. It is designed to prevent a terrorist act, so to use your Honour’s example, the parallel with the control order in your Honour’s case would be an order against not the person who is threatening to commit the violence, but some other person who, if apprehended or if detained, may prevent the violent act from occurring, not by them but by some third party, so that this regime is designed to prevent a terrorist act not by the person concerned.
CRENNAN J: Why do you say that, Mr Merkel, not by the person?
MR MERKEL: It is including by the person, but its ambit goes far beyond that, your Honour, because its ambit is to prevent a terrorist act and, indeed, when one looks at the statutory scheme, an offence can be committed in respect of a terrorist act without any terrorist act actually being identified as being anticipated – any precise act being identified as anticipated or having occurred. So there is an extraordinary ambit given to this regime which we say ultimately takes it outside the powers.
KIRBY J: Were you planning in your presentation of your argument to take us briefly through the structure and content of the legislation?
MR MERKEL: Yes, I am, your Honour.
KIRBY J: I would find that helpful.
MR MERKEL: I propose to do that immediately if I can. Can I go, your Honour, to the Criminal Code ‑ ‑ ‑
KIRBY J: Was there any provision in the Criminal Code before these provisions dealing with terrorist acts or their equivalent?
MR MERKEL: Yes, the legislative scheme, just in brief outline, your Honour, was in 2003 as a result of the State referrals. The criminal offence provisions in respect of terrorists, which were Divisions 100 to 103, were enacted.
GUMMOW J: What statute was that?
MR MERKEL: Can I give your Honour an answer to that in a moment?
GUMMOW J: It is helpful to have the relevant text as one goes along.
MR MERKEL: It is in the Criminal Code Amendment (Terrorism) Bill 2002, your Honour, which is in tab D of the Commonwealth’s folder. So that is the explanatory memorandum. The provisions that were enacted relevantly were Divisions 100 through to 103.
KIRBY J: Before they were enacted, were there any provisions at all relevant to the sorts of offences that are now dealt with or were they all gobbled up in general offences like sedition?
MR MERKEL: I am not sure I can give your Honour an accurate answer. For the present purposes, the statutory scheme that we now find started in 2003 and the offence provisions ‑ ‑ ‑
KIRBY J: When was your client in Afghanistan?
MR MERKEL: 2001. The general scheme of what occurred is that by State referral legislation Divisions 100 to 103, which dealt with offence provisions relating to terrorist acts, terrorist organisations and financing terrorist organisations, became part of our law. The referral Acts referred the power to enact Chapter 2, which in the Code relates to criminal responsibility, so the whole of Chapter 2 was referred, and the power to enact those divisions which were set out in the State referral legislation was referred. There was no referral of the control order or the preventative detention regime which now finds itself in Divisions 104 and 105.
KIRBY J: But the original referral statute of Victoria and of the other States contemplated amendments?
MR MERKEL: Contemplated amendments, and when we come to the referral power the precise ambit of that contemplation is very much an issue between us.
KIRBY J: Under the Constitution the referral must be by the Parliament of the State.
MR MERKEL: That is correct, your Honour.
KIRBY J: Not by the Executive Governments?
MR MERKEL: Correct, and we will come to that under the referral power. We say there are many defects in the referral power insofar as it is relied upon to attract the enactment of not new offences or amendment or offences but substantive new provisions such as we find in Division 104.
KIRBY J: I must admit, given that this affects legislation of the State of Victoria, that I am surprised myself that the State of Victoria is not here to assist the Court on the scope of its referral statute and the position of the Parliament of Victoria. However, we just have to do our best.
MR MERKEL: I cannot make any comment about that, your Honour.
CALLINAN J: Mr Merkel, there is a question I wanted to ask you in relation to the stated case. It is clear, is it not, that your client was actually trained by the Al‑Qa’ida organisation?
MR MERKEL: No, not at all, your Honour. That is very much in dispute. That is put forward as a ground, but it is very much a disputed ground.
CALLINAN J: But are we not to proceed upon the basis of these facts as stated?
MR MERKEL: The facts as stated really make ‑ ‑ ‑
GUMMOW J: They are not stated, are they? It is not a stated case.
MR MERKEL: All that is stated is that that is the allegation made against him which is in dispute.
CALLINAN J: That was a contention.
MR MERKEL: It is a contention, and we say that is disputed. That is in the special case.
KIRBY J: These are agreed facts that are disagreed?
MR MERKEL: Well, the agreed fact, your Honour, is that that is the contention and that it is disputed. They are both facts, but they are matters that would be the subject of contest if the control order regime has effect.
CALLINAN J: You could contest that on a confirmation hearing?
MR MERKEL: Yes.
CALLINAN J: If, in fact, that is true, then there would not be the creation of a new offence, would there? Would that not be an offence, under some other Australian law, to have received training from a terrorist organisation?
MR MERKEL: Well, in this instance, unless there is evidence that that occurred post the commencement of the legislation, it would not be an offence.
CALLINAN J: I am just wondering whether there is not any antecedent legislation perhaps not directed to terrorists.
MR MERKEL: No, there is nothing suggested, your Honour, that was done by the plaintiff anterior to the present legislation that gives rise to an offence. What was relied upon in the Supreme Court post‑dated the legislation.
KIRBY J: Unless it came within some other general head of power such as sedition. I am not saying that it would, but sedition has been known to cover a multitude of sins.
MR MERKEL: Your Honour, as you have seen and can see, Mr Thomas has been the beneficiary of a number of legal brains and ingenuities looking at his case in deciding what should or should not be done with him and no one has suggested that anything he has done gives rise to anything other than the offences with which he was charged and which he is now not convicted of.
CALLINAN J: Mr Merkel, this is a question that might be better directed to the Solicitor, but I thought there were some offences under Australian law in respect of joining a mercenary army or volunteering to fight overseas. It may not be a question I should direct to you. But for myself I would be assisted by any information about that and any relationship that any such legislation, if it exists, might have with, for example, section 104.2(2)(b). I am just wondering whether, if it does exist, there is any intersection between that provision and it. You need not trouble about it now. I am just making it ‑ ‑ ‑
MR MERKEL: Yes, thank you, your Honour. Going to the Criminal Code itself ‑ ‑ ‑
HAYNE J: Sorry, can I just go back to the way in which it developed. We begin, do we not, with Act No 66 of 2002, the Suppression of the Financing of Terrorism Act 2002 (Cth). It is that which, I think, first introduces Part 5.3, in particular Division 100 of Part 5.3, which give definitions of “terrorist act” and the like. We go from there, I think, to the Criminal CodeAmendment (Terrorism) Act 2003, Act No 40 of 2003, which is the Act that follows, is it, the referral of powers?
MR MERKEL: That is my understanding, your Honour.
HAYNE J: We then go to a third Act, which is the amendment Act which introduces the control order regime, do we not?
MR MERKEL: That is so, your Honour.
HAYNE J: What is the third Act that injects the control order regime? Is it the Anti‑Terrorism Act (No 2) 2005, namely, Act No 144 of 2005?
MR MERKEL: That is correct, your Honour.
HAYNE J: Is that a complete lineage of the legislation that we are to look at or are there other elements of its ancestry that we need to know about?
MR MERKEL: I am not aware of any other elements, your Honour. The relevant date – I do not have the precise date, but I will find it – was December 2005, which was the date of the Royal Assent.
KIRBY J: What is that third Act? What is the number of it?
MR MERKEL: It is No 144 of 2005, the Anti‑Terrorism Act (No 2).
KIRBY J: There is nothing in the Anti-Terrorism Act (No 1) that is relevant?
MR MERKEL: Not that I am aware of, your Honour.
GUMMOW J: That is your problem with the reference.
MR MERKEL: I am sorry, your Honour?
GUMMOW J: It is in that chronology that there appears what is said to be the difficulty with the reference power.
MR MERKEL: Yes, that the reference power properly construed, particularly when one looks at the second reading speech, was clearly a reference intended to give power to amend the offences, not to enact a whole new preventative regime which is totally different and far from an amendment of the offence provisions.
Can I take your Honours to Part 5.3 of the Criminal Code and just go to the definitions. The control order has two forms: an interim control order made on an ex parte hearing and a confirmed control order on a contested hearing. The issuing court – “issuing court” meaning issuing a control order – is the Federal Court, the Family Court or the Federal Magistrates Court. A “listed terrorist organisation” is defined as listed in the regulations. There is two ways in which a terrorist organisation can become one. One is it falls within the definition of the Act, in effect, promoting terrorist acts, or the other is it is listed.
A “senior AFP member” is the person involved in the control order regime and that is the person empowered to become an applicant for a control order. It means the Commissioner, Deputy Commissioner or someone above the rank of Superintendent. Critically to all aspects of this case is the definition of “terrorist act” which has an extraordinary width. It means “an action or threat of action” ‑ ‑ ‑
KIRBY J: Where is this?
MR MERKEL: This is in the definitions, section 100.1, your Honour. The first leg is that “the action falls within subsection (2) and does not fall within subsection (3)”. Subsection (2) includes or deals with acts that cause serious harm to an individual, to property or to public health, serious interruption with electronic systems, systems used for the delivery of essential government services, public utilities and a system used by a transport system. This will be discussed later in the defence power submission but it covers a width which seems to transcend and go beyond what normally one would expect to be dealt with under the heading of the defence power.
HAYNE J: Is every form of conduct in subsection (2) otherwise a criminal offence?
MR MERKEL: Probably not, your Honour. Serious risk to health may catch, on one view, the tobacco industry.
GLEESON CJ: But done with the intention of advancing an ideological cause.
MR MERKEL: That is the second leg. I was ‑ ‑ ‑
GLEESON CJ: But it has to satisfy (b) and (c) as well as subsection (2), does it not?
MR MERKEL: Yes, absolutely, your Honour. I was only answering his Honour Justice Hayne’s question that everything in subsection (2) may not necessarily fall in itself as a criminal offence.
GLEESON CJ: The word “action”, which is the first word in subsection (2), is the action referred to in the introductory line of the definition of “terrorist act”, is it not?
MR MERKEL: Yes, your Honour.
GLEESON CJ: That is to say, an action that comprehends paragraphs (a), (b) and (c).
MR MERKEL: Correct. The second leg is that:
the action is done or the threat is made with the intention of advancing –
and, again, these are words of extraordinary width –
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.
In subsection (4) “the public” includes a reference to the public, and therefore a section of the public, of anywhere in the world. Also, in response to the extent of whether the conduct would be an offence in Australia, of course, subsection (4)(a) says that “property” could be property anywhere, so that that would transcend what may be an offence in Australia.
HAYNE J: But (c)(i), with which may be contrasted (c)(ii), would fall within von Clausewitz’s definition of “war”, would it not?
MR MERKEL: I could only say questions of fact and degree, your Honour, are always involved, but there is nothing put forward that would start to dissect these definitions by excluding one element or another. If that is the suggested in the submissions, we will deal with it, but we would say properly seen this is undoubtedly an indivisible whole. The intent here was not to ever be able to see terrorist acts or terrorism having a geographic boundary, and that is probably the explanation for the width. It had a role to play that far transcended what we say is defence, and really was ultimately reliant and thought to be reliant on the referrals which were regarded as essential for a constitutional underpinning, not stated to be so, but ‑ ‑ ‑
KIRBY J: Is “foreign country” defined to be a country with which Australia has diplomatic relations?
MR MERKEL: Not that I am aware of, your Honour.
KIRBY J: A member of the Commonwealth of Nations or anything else?
MR MERKEL: No, not that I am aware of.
KIRBY J: So it is any foreign country whatsoever, even one with whom we had unfriendly relations?
MR MERKEL: It is nationality and country blind. This does not have a geographic boundary within the definition, and it is clearly intended not to.
HAYNE J: But the point about (c)(i) is the pursuit of political objectives, is it not, political, religious, et cetera? It is that which marks at least von Clausewitz’s understanding of war; is that right?
MR MERKEL: Well, your Honour, I am not aware of his understanding.
HAYNE J: Well, the pursuit of political objectives by means of force is the essence of that understanding of war.
MR MERKEL: Well, your Honour, all I can say is that the width of this definition would certainly capture that, but it would capture much else that falls short of war. On one view, the Cronulla riots, the bombing of an abortion clinic in the United States or in a suburb of Melbourne, which we would say would certainly not fall within war but may have the required influence of intimidation, whether it be of government or otherwise, those acts can comfortably fall within this definition, as does 11 September, the intimidation effect of which, of course, probably falls in both sections.
KIRBY J: The inclusion of “foreign country” would certainly mean that (c) would, for example, have included any action done by the ANC before the fall of apartheid in South Africa.
MR MERKEL: Yes, your Honour.
KIRBY J: And, indeed, of any of the anti‑colonial regimes or anti‑colonial movements. Mahatma Gandhi no doubt would fall within this definition.
MR MERKEL: No trouble at all, your Honour. One can go back to many historical antecedents too, both religious and otherwise, that would comfortably fall within this section. Its extraordinary width, of course, is one of the problems which we say really required the reference power to support this legislative scheme.
CALLINAN J: Mr Merkel, leaving aside for present purposes the question of referral, placitum (vi) of the Constitution refers to “the control of the forces to execute and maintain the laws of the Commonwealth”, not “the laws of the Commonwealth relating to the military or the defence of the Commonwealth”. I mean, in theory the military could enforce all the laws. You would not need an Australian Federal Police force. So, again, if it is a law within power, then you do not need a state of war or anything approaching a state of war.
MR MERKEL: No, your Honour. In our submissions we have accepted that there is an alternative way of looking at the defence power but we say this far transcends anything relating to an attack on the laws of the Commonwealth. This in fact does not really address that question. So if terrorism was defined in a much narrower sense and the conduct were limited to conduct designed to intimidate governments to change their laws and those laws were undermining the polity or the political system, that may well be within power, but this law bears no resemblance whatsoever to that. So that aspects of the defence power could be covered by part of the law, but there is no real severance issue here – or we have not heard of one yet – but there is nothing here that intends to so limit the operation of this terrorist legislation.
CALLINAN J: What about external affairs?
MR MERKEL: Your Honour, that itself we will come to, but does not support the width of this legislation unless terrorism were an international concern, which we do not dispute it is a matter of international concern, but it lacks the specificity required or the formulation required. If that view were taken that it is supported by external affairs, external affairs would virtually give unlimited power in a range of subject matters not hitherto thought to fall within its head.
CALLINAN J: The environment of the Franklin Dam was a matter of international concern. I do not see why international terrorism could not be?
MR MERKEL: We do not say it is not capable of being international concern, but we do say that in its broad parameters that are being put forward in the present case, it needs more than just international concerns. It needs some specificity as to how and what it is that is of international concern. If terrorism as such were international concern one has to start with what is the definition that is of international concern. Is it the offence, is it the violence, is it damage to – where do its boundaries start and finish, and it is that lack of specificity that we say is fatal.
CALLINAN J: That is the problem about terrorism itself, it is also random and non‑specific. It may be incapable of that sort of specific definition.
MR MERKEL: Your Honour, all we can say is that is why – no doubt on very good advice – reference legislation was sought to sustain these laws and we would have no problem with the reference, and we would be here on a Chapter III point if there was a referral of Divisions 104 and 105, but there never was. There may well be ‑ ‑ ‑
CALLINAN J: Perhaps the reference is out of an abundance of caution. It might not be necessary.
MR MERKEL: That depends on the strength or weakness of our arguments, your Honour, and not I suppose on government views. We say that it is necessary for laws of this width. There were other ways in which the government could have tackled it as a federal issue within federal power, but that was not seen to be endeavoured here in any shape or form. When I say “not seen to be endeavoured”, that is in the definitions. There is the application provisions in which we find Commonwealth legislation where if it does not succeed in its widest ambit they seek to read it down even to the corporations power, so that is all here, but that is not really what this scheme is about, your Honour.
HAYNE J: What aspects of the definition of “terrorist act” are allegedly engaged in the particular application made in respect of Mr Thomas?
MR MERKEL: Your Honour, at the interim control order it is receiving training from a terrorist organisation. I will have to take you to the particular elements, your Honours. The criteria is set out at section 104.4 ‑ ‑ ‑
KIRBY J: There is nothing else in 100 or 101 that we need to look at?
MR MERKEL: No, I will come back to that in a moment, your Honour, because just receiving training simpliciter is not the offence. So what is said to be engaged with Mr Thomas is - by definition it would have to be (c)(i) and (ii) because you cannot impose liabilities unless it would substantively assist in preventing a terrorist act, but the factual issue that was said to be founding, amongst others, the interim control order was (c)(ii). That takes you back to the offence which is not applicable in this case, but in section 101.2 where the offence ‑ ‑ ‑
KIRBY J: I am losing you, I am sorry, Mr Merkel. Now, where is the (c)(i) and (c)(ii)?
MR MERKEL: Sorry, 104.4 are the criteria for a control order. So we would, as we understand it, believe that the entirety of (c) is relied upon, but in factual support of the entirety of (c) the grounds put forward are that he has received training from a listed terrorist organisation.
KIRBY J: This is training that occurred before the Act came into force and from an organisation which was not proscribed as a terrorist organisation at that time?
MR MERKEL: Correct, your Honour.
KIRBY J: I will just repeat my concern at the retrospective operation of the Act.
MR MERKEL: No, but, your Honour, this comes up very much in the Fardon head of our argument, but ‑ ‑ ‑
KIRBY J: You take it in your own time. I will just put it as a footnote at the moment.
MR MERKEL: Well, can I emphasise, your Honour, that it is central to our Chapter III argument that ‑ ‑ ‑
KIRBY J: No, you want it to fall out one way, but we do not take a position that it has to fall out one way. We just have to look at how it operates. It may be that the retrospective legislation is valid and that it does attach to previous Acts and that that is what makes it a valid concern of the judiciary.
MR MERKEL: I do not understand retrospectivities being contended for, but can I indicate this, your Honour. At the confirmation hearing it will no doubt be a very substantial issue as to whether (c)(ii) could be attracted in the present case because Mr Thomas did not receive training from a listed organisation when he received any training. If he did receive training it will also be in dispute that it was with Al‑Qa’ida in any event. But they are issues of fact and will require an interpretation of the provision. But even if that is successful, it does not really itself resolve the issue because (c)(i) is undoubtedly relied on, as it must be, because if (c)(i) is not established, then there is no basis for imposing any liabilities under (d).
GLEESON CJ: “Retrospectivity” is a word which can have a number of different meanings depending on the context, but leaving aside the specific circumstances of your client for the moment, the scheme of the Act or the scheme of the part of the legislation with which we are concerned turns upon the person potentially the subject of a control order having received training from a listed terrorist organisation. That is what causes the Act to bite.
MR MERKEL: That is one element, your Honour, but of itself it is not enough.
GLEESON CJ: No, but it is an essential element.
MR MERKEL: No, your Honour, because subsection (i) is equally able to sustain the order independently of (ii). It is here that we get into the problem – unfortunately, I am jumping ahead to Chapter III – that if this Act were founded upon an anterior liability or breach of some obligation on the part of Mr Thomas, then a large part of the creation of rights argument we will be putting would disappear because there is nothing wrong with Parliament prescribing conduct and in the one section giving a remedy for breach, a discretionary remedy.
Here what is attracted is merely in substance, when this definition is looked at as a whole, a prediction as to whether the control order is likely to prevent a terrorist act because the requirements – but I am jumping ahead, unfortunately – for the control order are cumulative and require putting aside (a) and (b), but (c) has two limbs. Either can get the person there and (c)(i) will always be an issue because (d) requires the obligations to be imposed as reasonably necessary and adapted to protect the public from a terrorist act. We say that any time this section is attracted it really is, as a matter of substance, based upon the predictive aspect: will that control order assist in preventing a terrorist act, not by that person, but it may be by that person.
GLEESON CJ: Yes, and in terms of retrospectivity it is the person’s present quality of being terrorist trained that is the basis of the prediction.
MR MERKEL: If (ii) is the limb relied on.
GLEESON CJ: If (ii) is activated, yes.
MR MERKEL: If that is the one that is activated. Your Honour, if this Act were founded only on (ii), that would have consequences for our Chapter III argument, putting aside the retrospectivity argument. So that if someone had trained with a listed organisation which was in terms an offence – I will come back to that in a moment – and then the court had power to issue a control order against that person to prevent that person committing a terrorist act, that may be a classic Chapter III formulation, putting aside the argument in Fardon about its overlap with the criminal law. It would remove, it you want, the creation of rights argument which I hope to come to shortly.
Can I finish answering the question. The two receiving offences are in section 101.2 and 102.5. Again, I do not want to spend too much time on this, but if one looks at both those offences, the receiving of training as such is not itself an offence, there has to be more: recklessly indifferent as to whether it is a terrorist organisation or intention ‑ ‑ ‑
KIRBY J: Which subsection of 101.2?
MR MERKEL: It has to be (b), for example, your Honour, receives training and it is connected with preparation for a terrorist act and you know of that. So the offence has more than just receiving training. In 102.5 it has to be intentionally receiving training – that is not in (c)(ii) – and you have to be reckless as to whether it is a terrorist organisation.
HAYNE J: But this last passage of debate presents, does it not, a problem, for your side at least, about the specificity of the facts that are said to give rise to the question in this Court? What is the factual base upon which we are to determine it? Are we to determine it, for example, that it is open in the present proceeding for a magistrate to be persuaded that Mr Thomas met 104.4(c)(ii) and that it is open to a magistrate to conclude that 104.4(1)(d) was met, in particular, was met in that aspect of the definition of “terrorist act” that is concerned with coercing or influencing governments?
MR MERKEL: No, that is not the question that we say is raised directly or indirectly before the Court because, your Honour, it is not as if there was a pleading. The case that is put, as we understand it, by the second defendant is that the facts upon which the second defendant rely – and they are not important for the purposes of this application – attract 104.4(1)(c) and (d), and it is that cumulative criteria that we say offends Chapter III and it is the conferral of power on the issuing court under Division 104 that offends Chapter III and we say that the particular facts that may ultimately be found in this case do not affect the outcome of the answer to that question.
HAYNE J: Well, I may be starting at shadows, Mr Merkel, but can I flag it in this way? If you go to the interim control order, page 46 of the special case book, paragraphs a to d recite the jurisdictional facts for the making of the order. Ultimately you want prohibition, prohibition to the magistrate precluding the magistrate from making a final order. Are we to consider the special case on an assumption that any of the elements of 104.4(1) as translated through into the final control order provisions could be made out? I know you dispute that they will be made out, but are we to consider it on the assumption that the case against you is that any of the various permutations and combinations reflected in 104.4 could be advanced?
GUMMOW J: Just before you answer that, Mr Merkel, if one looks at page 46, as Justice Hayne put to you, a, b, c and d look like, and I think are, recitals of jurisdictional facts and that is the way 104.4 is drafted because it says “The issuing court may . . . only if” and sets various matters out, and that is the form that has been followed at page 46. As I understand your submission it is that, granted those jurisdictional facts in this case, those jurisdictional facts are inadequate constitutional facts because they cannot be supported under section 51. Do you see what I mean?
MR MERKEL: Yes, your Honour.
GUMMOW J: Is that what the area of debate is?
MR MERKEL: That is our section 51 argument, your Honour.
GUMMOW J: Yes, forget about Chapter III for the minute.
MR MERKEL: Yes, that is our argument. What I would say to your Honour Justice Hayne is that as far as the Chapter III argument goes and the head of power argument goes we would say that a, b, c and d define the issues that would have to be investigated at the hearing. We do not say that there was simply no evidence of any kind that does not sustain an argument. On the terrorist organisation our point is simple, that it does mean listed and at the time this training was alleged to have occurred it was not listed, but that is a question of construction.
GUMMOW J: But you have to say, I think, that granted the court was satisfied of these matters its satisfaction simply is not enough to support a law that is constitutionally based.
MR MERKEL: Correct, your Honour.
CALLINAN J: Because it is analogous to an appeal from an interlocutory or interim injunction. We have to take the factual findings which may or may not turn out to be the final findings on a full trial, but we have to take them as found on an interim or interlocutory basis, do we not?
MR MERKEL: Yes. Well, that the magistrate was satisfied as to those matters, yes, your Honour.
CALLINAN J: Yes, and you would add to the matters to which Justice Hayne referred the summary of the grounds which states facts at page 52, I think.
MR MERKEL: Yes, your Honour, but with all the vices of an ex parte application where the other side was not heard ‑ ‑ ‑
CALLINAN J: Look, I accept all that, but we need some factual anchor and it may be that perhaps the application might have been better made after the confirmation of the order.
MR MERKEL: Yes. Our case does not depend upon those sorts of matters, your Honour. They are the contentions and they are the matters ‑ ‑ ‑
CALLINAN J: Yes, but you are stuck with them as constitutional facts to which we will look and have to look because we have no others at this stage.
MR MERKEL: Yes, but the fact being that the magistrate’s statement of his findings and the statement of grounds set out in the control order, we do not have a problem with that.
KIRBY J: But just to make this absolutely clear, you were taken to page 46 and to paragraphs a, b, c and d which were the recitals of the magistrate in the actual order which is the subject of the attack in these proceedings, and then you were taken to 52 which has a summary of the grounds on which this order is made. Do we incorporate all of that into the facts on the basis of which the order is made, because I notice that paragraph 1 of that summary includes a finding that:
Mr Thomas has admitted that he trained with Al Qa’ida –
and I understood that you said earlier that that is a factual matter in dispute?
MR MERKEL: Yes, your Honour.
CALLINAN J: But it is in ultimate dispute because the magistrate had found it. Whether he should or should not have found it, he found it on an interim basis, did he not?
MR MERKEL: The special case book, which is agreed, is that the contention is to that effect. It is disputed. The magistrate has made a finding. We are not here contending that if the law is valid the magistrate has no jurisdiction. Our case here depends entirely on the validity of the jurisdiction conferred on the magistrate and the head of power relied upon to confer that jurisdiction. So our case does not depend upon those particular facts and we do not contend there is no jurisdiction if the law if valid.
KIRBY J: It is called an interim control order and reference has been made to it as an interim control order, but it is, in fact, an order with many features of finality and you have to move, the onus being on you, to remove it. It does not have the features that are common to interim orders and it is not, as it were, something that is provisional and only for a short time, for which one might see stronger arguments than for an order which, once made, you, the person subject to it, has to move the Court to set it aside. You have to demonstrate a ground to do that.
MR MERKEL: Yes, your Honour. The regime is even stricter than that. The interim control order can only be, in effect, set aside as such if shown to have no grounds and therefore to be void, in other words, there were no grounds, in effect, available to make the order, otherwise the interim control order remains in force until varied, revoked after a confirmation hearing. So none of the powers that the Court would usually have ‑ ‑ ‑
HAYNE J: The real bite is after a confirmation hearing, is it not, Mr Merkel? That is the real bite in the proposition you have just put. This order evaporates unless confirmed, does it not?
MR MERKEL: No, it remains in force until set aside.
GLEESON CJ: Who sets the date and by what process for the confirmation hearing?
MR MERKEL: The magistrate or the issuing court sets a date for the confirmation hearing, but the rigidity of this regime specifies the only grounds upon which the order can be set aside and they certainly do not include the usual grounds one finds a court order would be set aside, such as an interim application for non‑disclosure and so forth. But the statute is absolutely precise about every aspect of this regime including when it has force and effect, when it ceases to have force and effect and it is quite unlike any court process that I have seen or I am familiar with, but maybe that my friends will find one.
GLEESON CJ: In terms of the process of confirmation, what affects the timing of the confirmation hearing?
MR MERKEL: Just when the magistrate fixes it subject to then adjournments, as has occurred in the present case.
GLEESON CJ: Because of the challenge to validity?
MR MERKEL: Yes, your Honour.
HAYNE J: It is 104.5(1)(e). You have to specify a day.
CALLINAN J: It can be amended presumably? The final hearing might not produce an order in exactly the same terms, I take it?
MR MERKEL: No, the final hearing is a review of the matter, in effect, based on the evidence then put forward.
CALLINAN J: There could be a much less onerous order perhaps made or even perhaps a more onerous order?
MR MERKEL: It could be varied, revoked. All sorts of possibilities are there, your Honour.
CRENNAN J: Once confirmed, Mr Merkel, the control order is in place for 12 months, is it not, commencing from the date of the interim order?
MR MERKEL: I think it may be – I will have to check that, your Honour. It is 12 months, but I am not sure whether it is from the interim order or the confirmation order. It is the interim order, your Honour, under 104.5(f).
CRENNAN J: Thank you.
GLEESON CJ: As I understood what you said earlier – correct me if I am wrong – if there had been no delay occasioned by challenge to the validity of this legislation, the confirmation hearing would be the occasion on which your client would deny and fight the issue of fact concerning the allegation that he trained with Al Qa’ida.
MR MERKEL: All issues of fact and law, yes, your Honour.
KIRBY J: And the issue of construction as to whether that only applies to an organisation which at the time of the activity was a proscribed organisation.
MR MERKEL: Yes, an opportunity denied to him at an earlier time by not having notice, but that is the scheme.
GLEESON CJ: Now, if it had not been for these proceedings, that presumably would have happened by now.
MR MERKEL: Without getting too much into detailed knowledge, your Honour, there are horrendous difficulties about a fair confirmation hearing with criminal prosecutions overhanging in respect of the same subject matter. In other words, until the Court of Appeal has handed down its decision it would probably be a very brave advocate that made a decision on how the interim order could be really contested. That is one aspect.
There are also serious issues of allegations of non‑disclosure that the plaintiff would wish to put forward and there is a big issue about whether non‑disclosure would even attract a right to set aside the order under the statutory regime. It is not a ground. Our friends may find some way it can get in. Even if the Court was actually misled on the interim hearing, that is not a ground for setting aside the interim order. This regime is a very hard one to go outside when one looks at rights and obligations, but that is another part of our argument which we come to later. But it is this overlap between the civil and the criminal that gives rise to serious consequences in a case such as the present.
CALLINAN J: A deliberate misleading would be perversion of the course of justice and contempt and probably several other offences.
MR MERKEL: Well, your Honour, I will take your Honour to the statutory regime. It is ‑ ‑ ‑
KIRBY J: If you can prove it.
MR MERKEL: Well, if you could prove it, but it is either picked up in this regime or it does not exist. Now, there are provisions. The court controls its own procedures and we do not say that the court’s rules and so forth do not come into play, but when you look at the grounds upon which an order may be set aside, they are stated and it is not easy to graft on anything outside it, but it may be that there are ways of doing it but it is not necessarily part of our case to have to argue that extremity.
GUMMOW J: Just before you the leave the Magistrates Court, what is the appellate structure? Is there one? This would just take - this sort of case would find its way in the ordinary appellate structure in the Federal Magistrates Court to the Federal Court, would it?
MR MERKEL: I would believe so, your Honour. The Act does not deal with it ‑ ‑ ‑
GUMMOW J: It does not specify.
MR MERKEL: ‑ ‑ ‑ but it does say the court is in control of its own procedures and if one looks at the appellate presumption there is nothing in it that would indicate there is no appellate procedure and, therefore, it would be picked up, not because of the Federal Court Act, but because of the way this Act does go to great lengths to talk about what the court can and cannot do and it is wide enough to pick up control of procedures that would include appeal and the usual court procedural processes. So we are not suggesting the court does not have its procedural processes available.
KIRBY J: Can applications for interim orders of this kind be made in the first instance in the Federal Court?
MR MERKEL: Yes, your Honour, the issuing courts are the Federal Court, the Federal Magistrates Court and Family Court.
KIRBY J: It is in the election of the senior officer of the Australian Federal Police to decide where to commence the proceedings?
MR MERKEL: Yes, your Honour. I think I had got as far as the definition of “terrorist act” in section 100.1. I had not taken your Honours to subsection (3). That really protects advocacy and so forth which does not have the intent and ‑ ‑ ‑
KIRBY J: This is subsection (3) of what?
MR MERKEL: I am sorry, your Honour, it is 100.1, the definition of “terrorist act”, because of the width of the act, was thought seemed to be capable of proscribing what might be lawful protest and so subsection (3) means that an act that falls within it is not a terrorist act as defined. That includes advocacy, et cetera, that is not intended to cause any of the harm. So a fiery advocate who may fire up the public to cause terrorist acts is not himself or herself guilty of falling within the definition if they did not have the intent when they fired up the group.
KIRBY J: Does that mean that it can be a terrorist act even if it is a book that is, say, critical of some aspect of international affairs and is placed in a library, that that could be treated as advocacy?
MR MERKEL: It would have to fall within the intent. So if Mr Bin Laden decided to publish his memoirs it may well be that that may contain an incitement ‑ ‑ ‑
KIRBY J: But I am thinking what if Nelson Mandela publishes his memoirs?
MR MERKEL: I think he would probably at this stage at least fall outside (b).
GLEESON CJ: He probably would not have an intention to cause somebody’s death.
MR MERKEL: Yes.
KIRBY J: But (3)(b) is not intended to cause serious harm.
MR MERKEL: Yes, so that the advocacy that is not intended would take Mr Mandela outside and possibly bring Mr Bin Laden inside. I am sorry, I have put it wrongly. Mr Mandela would fall within subsection (3) and Mr Bin Laden probably would not.
GLEESON CJ: If an action falls within subsection (3), then by reason of paragraph (a) of the definition of “terrorist act” it is okay.
MR MERKEL: That is correct, your Honour, it is not a terrorist act, but if it was advocacy with the intent, then it is capable of being a terrorist act. Section 100.2 refers to the referring States. This is in the original legislation and the referred provisions in that section are what I have indicated to your Honour, Divisions 100 to 103 but not 104 and 105.
Can I just go to section 100.4 because it is relevant in that the definition of “terrorist act” is wide enough but as we travel through the legislative scheme it gets expanded not only to terrorist acts but preparatory acts, so the offence provisions pick up – and by “this Part”, 5.3, means the offence provisions and, of course, now 104 and 105 meaning the control order provisions, not only actions that constitute terrorist acts, but:
all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).
Then 100.8, which is relevant to the referral power, was part of the schedule in the referral Act and was enacted in accordance with the referral. That requires an express amendment but not to be made unless approved by a majority of the States.
KIRBY J: Yes, but does that mean by the majority of the Parliaments of the States or the majority of the Executive Governments? If it is the Executive Governments, that is an attempt to undermine – it is the power of the Parliaments to refer powers to the Commonwealth, not the Executive.
MR MERKEL: When we come to the referral argument, we have two answers, your Honour. If it is an amendment which is just an amendment to the form of the offences, that probably falls within the referral and is not required to be approved by the Parliament because the referral is sufficient to capture it. But if it includes amendments substantively of the kind that has in fact occurred, then that is subverting the referral provisions by giving not only the Executive Government but the Premier – in this case the factual issue was that the Premiers approved of the amendments, not the Governor‑in‑Council or the Parliament. So the answer is yes, your Honour, that ‑ ‑ ‑
KIRBY J: Well, the issue would become is it subverting or is it carrying into effect the referral that the Parliament has approved of?
MR MERKEL: Yes. We say the latter, your Honour.
KIRBY J: Well, we will come to that in due course.
MR MERKEL: I am sorry, the subverting, not the carrying of effect. Then we get to Division 101. I have already taken your Honours to some of the provisions, but they are the terrorist offence provisions. I do not need to trouble your Honours with the detail of them. They are very widely drawn. Division 102 create offences with terrorist organisations. In 102.1 one has a definition of “terrorist organisation”:
an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act –
and (b) is a specified organisation. There is a process for listing which I need not trouble your Honours with. I have taken your Honours to 102.5, which is one of the receiving training offences. Division 103 is about financing terrorism, so it is an offence under Division 103. Then we come to the control order regime. The object is succinctly and accurately stated. If I could take your Honours through this once, I will not have to go back to it in any detail, but it does certainly, in our submission, constitute a comprehensive and exhaustive statement of what the Parliament permits and does not permit in respect of applications. The commencement is 104.2 where the senior AFP member requests an interim control order and is required to get the Attorney‑General’s consent.
KIRBY J: That is a not uncommon provision that one used to see quite commonly as a protection for the public interest that the law officer has to consider whether it is a proper matter to initiate the proceeding.
MR MERKEL: Yes, it protects the public from, in effect, a police frolic. It has that protection built in that the ‑ ‑ ‑
KIRBY J: And thereby the Attorney‑General as a Minister assumes political accountability for the proceedings which he set in train or agreed should be set in train.
MR MERKEL: Such political accountability as exists in the responsible government regime, yes, your Honour.
KIRBY J: I am talking of the theory of the representative democracy.
MR MERKEL: Yes, your Honour, but it is certainly there as a fetter on what might otherwise be seen to be unfettered police power to request an order and have the benefit of the ex parte procedures. Section 104.4 deals with the interim control order. It is very specific about its mandatory criteria. We are concerned with (c) and (d). The substance of it I have already addressed your Honours on, but they are cumulative requirements, (c) plus (d), and then in subsection (2) the impact of the obligation must be taken into account. So we say as a matter of substance this is all about the predictive quality that your Honours were familiar with in the preventative detention cases: will this order assist in preventing a terrorist act, not necessarily by the person concerned?
The terms of an order are required to be set out in 104.5. I do not need to go into the detail of that other than to say that it fairly apprises the person of the consequences of the order and the effect of it.
GLEESON CJ: Paragraph (e) is the matter that we were talking about earlier, I think.
MR MERKEL: Yes, your Honour, that is to specify the date for the three opportunities. There is no fourth opportunity provided for. We say that order creates a liability hitherto not existent and not founded on any breach of any anterior obligation. The obligations the order can impose, and the extent of them is something we rely upon to say that they amount to a deprivation of liberty or are capable of amounting to a deprivation of liberty.
KIRBY J: Is there any outer limit of the interim order? Is there any outer limit for which it runs, if, for example, by mistake or otherwise no day is fixed?
MR MERKEL: Well, that may go to its validity, your Honour, because it is a requirement it fix a hearing date.
KIRBY J: But there is nothing here that says it shall not last longer than one year, that being what it can be confirmed to run for.
MR MERKEL: Section 104.5(1)(f), your Honour, specifies the period, but its outer date is 12 months after the date on which the order is made, but there is provision for continuing the order by a fresh application. So they cannot operate for more than 12 months but can be renewed.
KIRBY J: So that at least theoretically, if the confirmation hearing is not held promptly or at all, the control order can last for a year?
MR MERKEL: Yes, your Honour, it would last a year. The extent of the restrictions is extraordinarily wide. For example, (c) is “a requirement that the person remain at specified premises” – there is no limit on what they may be. They could extend from the person’s home to a detention centre – “between specified times each day, or on specified days”; (d) is a tracking advice; (e) is association with individuals; (f) is about accessing technology; (g) is about using articles that are specified; and (h) is extraordinarily wide, it even extends to prohibiting a person from going to work.
GUMMOW J: We need to look at the particular obligations imposed here at page 48.
MR MERKEL: Yes, your Honour. They require him to remain at his home.
GUMMOW J: They do not seem to be as extreme as they might have been.
MR MERKEL: No, your Honour, they are not.
KIRBY J: But I suppose we have to look at the validity of the legislation by reference to what can happen under it, not just what happened in this particular case. So what happened here sharpens the mind, but the question of validity, I would think, has to be considered in the light of what the Parliament has envisaged might happen.
MR MERKEL: That is correct, your Honour. One thing we would say is that the nature of this order, for example, that Mr Thomas remain at home “between midnight and 5.00am” makes one speculate how predictive this really is. What is there at 11.00 pm or 6.00 am that he might do that he would not do between midnight and 5.00 am, so that in truth, this is really an educated guess about what might protect the public, but the reality check is that we are talking about possible behaviour and possibilities, not really any higher than that, save in an extreme case where you might find the person will actually be put in a detention centre as a specified place if they actually have evidence that he is about to commit a terrorist act.
CRENNAN J: But in terms of whether prohibition would go or not, Mr Merkel, we have to focus on the precise restraints in the control order, do we not, rather than possibilities that might have happened?
MR MERKEL: Your Honour, as I think I said before, the prohibition argument is premised upon invalidity which does not depend upon the terms of this order. We are not contending this order was beyond power other than ‑ ‑ ‑
GUMMOW J: You are saying the Act is invalid insofar as it founded this order.
MR MERKEL: Yes.
GUMMOW J: That is your standing.
MR MERKEL: That is it, your Honour.
GUMMOW J: So we have to look at these restraints?
MR MERKEL: Yes, your Honour, but they fell within a section which itself is invalid.
GUMMOW J: You have to say they are or are not supported by the statutory provisions and, if they are, the statutory provisions insofar as they support them are invalid?
MR MERKEL: Yes, your Honour, but it is the latter argument that the statutory provisions do not support an order that would require a person to stay at their home during specified hours and this is such an order.
GUMMOW J: Which particular aspects of the orders do you object to? That is what I am trying to ‑ ‑ ‑
MR MERKEL: The lot, your Honour. We say there is no jurisdiction conferred at all under 104. We do not need to descend to any paragraph of the order to say that is beyond power. We say the section which authorises and confers jurisdiction is not supported in the Constitution and is contrary to Chapter III. It is a challenge on the validity of the section pursuant to which this order was made.
GUMMOW J: What, to make explosives, for example?
MR MERKEL: No, your Honour, I do not think they would need a control order to stop a person making explosives, your Honour.
GUMMOW J: That is not the point insofar as one of the things this order restrains is making explosives, is it not?
MR MERKEL: Sorry, it does. It also restrained in its original form Mr Thomas from communicating with Mr Bin Laden which no doubt falls within subsection (3) but, your Honour, we stand or fall on the validity of the subsection. The order is consequential. Then after photography and fingerprinting there can be counselling or education which under subsection (6) has to be ‑ ‑ ‑
GUMMOW J: You are not going to get away with this, Mr Merkel. Which paragraphs support these obligations at 48 and 49, which particular paragraphs of the restraints that may be imposed in 104.5 ‑ ‑ ‑
MR MERKEL: Rather than delay your Honour now, can I ask one of the learned juniors to relate each of them to a particular subparagraph of the section and I will give your Honour an answer to that in a moment, if I might.
GUMMOW J: It is 104.5(3), is it not, “may impose . . . the following”?
MR MERKEL: Yes, your Honour.
GUMMOW J: It goes through from (a) to (l). My impression is some of these are engaged and some are not.
MR MERKEL: That is correct.
GUMMOW J: Your client is not required to wear a tracking device, is he, for example, which is (3)(d)?
MR MERKEL: No, your Honour. Only some of the subsections are engaged ‑ ‑ ‑
GUMMOW J: Yes, well, that is what I just need to know. That is all.
MR MERKEL: I will give your Honour an answer to that if I may in a moment. Moving ahead, again, I would have to ask your Honours to read the scheme in its entirety but the right to contact lawyers, et cetera, is dealt with. Then there are Subdivisions C and D which I do not need to trouble your Honours with. Sorry, Subdivision C deals with an urgent interim application where the normal procedures are able to be bypassed. Nothing, we would say, turns on that. Then we come to 104.12 which is the process of the confirmation. They are serviced:
As soon as practicable –
by an AFP member. A requirement to explain ‑ ‑ ‑
KIRBY J: You pass over the urgency, but at least possibly one could imagine that an argument for some form of interim control order is that otherwise, unless it can be made, if it is always made on notice and in the usual delicate and observant ways of our system, that it would defeat itself; that the person would flee or otherwise not be able to be brought under the regime.
MR MERKEL: Yes, we have no quarrel with that, your Honour - with provision being made for that as part of a regime if the regime is otherwise valid. The steps after the order are that the senior AFP officer must, under 104.12A:
(a) elect whether to confirm . . . and
(b) give a written notification –
of his election. If he does elect or she does elect then service is required of, in effect, the summary of information. Subsection (3) protects information from being communicated that was relied upon if it was prejudicial to national security and so forth. Subsection (4) is of some relevance. If there is an election not to confirm then under 4(a):
(a) the order immediately ceases to be in force -
so that in effect the court is not in control of its order in that sense. It is the senior police officer that decides whether the order is to cease or not and then it is a procedure to be followed if that occurs. Then 104.14 is the confirmation hearing. In subsection (1) it sets out the persons who may adduce evidence. Subsection (2) provides that:
Subsection (1) does not otherwise limit the power of the court to control proceedings in relation to the confirmation of an interim control order.
So it has, therefore, power to control its proceedings at the confirmation hearing. Then (3) says:
the court must consider:
(a) the original request -
We put in argument - which I will not develop any further, it is in our submissions – that that request can include information relied upon and not disclosed under the security provisions to the persons subjected to the order ‑ ‑ ‑
GLEESON CJ: What is paragraph (e) of subsection (1) about?
MR MERKEL: Your Honour, there is, I think, a special statutory scheme in Queensland which I am not familiar with that gives a public interest monitor a certain role. It must have been part of the arrangements between the Commonwealth and Queensland that the Act and the referral Act would include some such provisions, but I am not personally familiar with what it was otherwise intended to do.
HAYNE J: So 104.12(5) which generates the obligation ‑ ‑ ‑
MR MERKEL: Yes, your Honour.
HAYNE J: I would have though political reality has also generated the obligation, but there we are.
MR MERKEL: The action the court could take is set out and very carefully prescribed and limited in (4), (5), (6) and (7). If there is no attendance then the court is empowered to confirm the order without variation. Subsection (5) says:
The court may take the action mentioned in subsection (6) or (7) if –
there is an attendance.
(6)The court may declare, in writing, the order to be void if the court is satisfied that, at the time of making the order, there were no grounds on which to make the order.
Subsection (7) sets out the otherwise limit of the court’s jurisdiction which is to “revoke the order” if not satisfied as to the criteria; “confirm and vary the order” if satisfied as to the matters again relevant to the criteria and “confirm the order without variation”. So that sets out the ambit of the court’s powers. Then 104.15 talks about the order being in force, again, not because it is a court order but because of the force given to it by the statute, so that under (3):
(a)the interim control order ceases to be in force -
if the control order is confirmed, and then –
(b) the confirmed control order begins to be in force -
The terms of the confirmed order are much the same in terms of substantive requirements as the interim order and (2) says that the 12 month limit which is 12 months from the interim order –
does not prevent the making of successive control orders in relation to the same person.
Then Subdivision E deals with an application for revocation or variation that may be made. I do not need to trouble your Honours with the detail of that. Subdivision F deals with adding obligations, et cetera, to a control order. Section 104.24 enables application for variation and then there are provisions for the service and explanation. Section 104.27 is important from one aspect of our submissions and that is that the only statutory provision that relates to the consequences of non-compliance or breach is 104.27 which provides for the commission of an offence which is imprisonment for five years. Under section 4G of the Crimes Act 1914 (Cth) any offence for which there is a punishment:
exceeding 12 months are indictable offences, unless the contrary intention appears.
I will come back to the significance of that later.
GUMMOW J: Section 104.27, does that pick up the Criminal Code provisions about mens rea and so on?
MR MERKEL: Yes, it would, your Honour. It picks up precisely in this case Part 5.4 and 5.6, because it does not specify a fault element. So recklessness would be the test which when we later come to this is a totally different regime which ultimately is inconsistent with the court’s contempt regime.
KIRBY J: One of your arguments is that this contemplates the trial of such matters in State courts exercising federal jurisdiction. There is no provision in this scheme for the Federal Magistrates Court or the Federal Court to deal with these offences?
MR MERKEL: No, your Honour.
KIRBY J: Would there have been any constitutional inhibition in so providing?
MR MERKEL: No, your Honour.
KIRBY J: It would depend on the reference, I suppose, so far as the reference power was necessary.
MR MERKEL: Yes, if the reference power was necessary, it would have to be something referred. That is right, your Honour. What was referred was these provisions, nothing else, but there is no constitutional inhibition on a federal court exercising that jurisdiction but it is not.
KIRBY J: That depends on if it is supported by the defence power, the external affairs power, plus the incidental power, then subject to Chapter III the Federal Parliament could enact for one of its own courts to deal with the criminal offence.
MR MERKEL: Yes, your Honour.
KIRBY J: But you say that if it is necessary to rely on the reference power, the reference does not go so far as to provide for punishment in a federal court.
MR MERKEL: No, it does not. In fact, more precisely, your Honour, it provided for this very provision – I am sorry, I am mistaken. Its amendment power gave on the case against us the authority for this provision. We say on our referral there was no authority for this provision or any part of Division 104. I would add it would be a trial by jury because it is an indictable offence and section 80 would require it be a jury that would determine whether there was a breach of the order.
KIRBY J: It would be a trial by jury if it is a federal offence and that would apply in the State court exercising federal jurisdiction under section 80 of the Constitution.
MR MERKEL: Yes, your Honour, that is correct. If I could take your Honour Justice Gummow back to the special case book, pages 48 and 49. The following statutory provisions support the orders. Order 1 is supported by 104.5(3)(c), 2 is subparagraph (i), 3 is subparagraph (k), 4 is subparagraph (b), 5a and b, subparagraph (h), and c is also (h), your Honour, so the whole of 5 is (h), 6 is subparagraph (e), 7 is subparagraph (f) and 8 is subparagraph (g).
GUMMOW J: Thank you.
KIRBY J: Could you just have a little document prepared with those subparagraphs on it, just to make sure that I have not made a ‑ ‑ ‑
MR MERKEL: Yes, se will get that done, your Honour. Could I now move to the Chapter III argument. The premise upon which we ‑ ‑ ‑
KIRBY J: We are not concerned in these proceedings, are we, with the circumstances and the sequence of events that led to the making of the control order in this case, that is to say the acquittal by the jury of your client of certain offences and then the determination by the Court of Appeal in respect of the others, and the making of this order within days of the second of those two events?
MR MERKEL: No, your Honour, they provide if you want a practical example of how these provisions can work in practice, but we do not need to rely on the specificity of those circumstances for any part of our argument.
KIRBY J: At least to my mind it raises the question why bother have the courts deal with the offences when, if the proper process of law disposes of the matter through the jury and through the appellate process, it can all be put to naught by the orders initiated by the Executive Government and pursued under these provisions of the Act.
MR MERKEL: Your Honour, that observation raises the three legs of what we call our Chapter III argument. If this kind of order is permitted to be part of the judicial function, namely, the role of the courts is no longer just to adjudicate but to create rights, provided the courts act judicially, then Boilermakers, the protection that it was intended to confer, and in particular the protection that Chapter III gives to the liberty of the subject is fundamentally undermined. But we have to make good that argument by being very specific about three aspects of why we say this contravenes Chapter III, which we rely on separately and cumulatively.
Can I just indicate at the outset it is important conceptually to go back to what Chapter III actually protects, because our learned friends’ submissions blur the distinction between the categories of judicial power which we say is a fundamental error in the submissions put against us. If I could call it the Chapter III jurisprudence establishes three distinct categories of federal power ‑ ‑ ‑
GUMMOW J: Where do we see this in the written submissions?
MR MERKEL: I am sorry, your Honour, it is not expressed in this form. This is just a premise which I wanted to start after I had seen the Commonwealth’s submissions and thought this through and said there is something fundamentally wrong about the approach that is put against us and it required analysis of what are the three legs of federal power with which we are concerned.
The first is that classically dealt with in Boilermakers and the cases that preceded it, which are discharge of functions which are exclusively within the judicial power of the Commonwealth and in respect of which jurisdiction can only be conferred on a federal court. That fundamentally carries with it two obvious examples: the determination and enforcement of existing rights and liabilities and the other obvious example is a judgment of guilt and punishment under the criminal law.
The second category which was described by Chief Justice Dixon and Justice McTiernan in R v Davison 19 CLR 369 – I do not need to take your Honours to it – discharge of functions are described by their Honours as having a double aspect. That is the functions are such that they may be conferred on a non‑judicial tribunal or a federal court. The functions are able to be conferred for either historical reasons, namely, they were part of the judicial function at Federation, by direct analogy, in other words, they are so close to the judicial function they can be extended by analogy, or by reason of the nature of the power being such that they do not fall – and these are the important words of exception – within the exclusive judicial or non‑judicial power.
The categories with appropriate safeguards that fall into the double aspect can be conferred on either a Chapter III court or an administrative tribunal. Examples of such double aspect categories are the tribunals in Tasmanian Breweries and Precision Data which could not enforce their own decisions but determined that certain agreements were able to be unenforceable either because they are contrary to the public interest or share acquisitions in unacceptable circumstances, being a jurisdiction which, if properly framed, could fall within a Chapter III court’s province or an administrative tribunal province. The contrast is the function of HREOC in Brandy where the Tribunal was determining existing rights and liabilities, namely, breach of law, but fell afoul of Chapter III because of the enforceability of the Tribunal’s decision.
In this case we say we are concerned with the third category, which is the exclusively non‑judicial power, which are discharge of functions that are not themselves part of the judicial power or auxiliary thereto and cannot be conferred on a Chapter III court. The fundamental proposition that we put forward is the determinations that create rights or liabilities which rely upon the statute for their effect and another tribunal or forum for their enforcement is a classic instance of such power and as long ago as Alexander’s Case, which is a threshold decision relied upon time and again, was a classic instance where awards of the Conciliation and Arbitration Commission fell into that category.
KIRBY J: It was a court at that stage, I think.
MR MERKEL: Yes, I am sorry, the Court, the Commission and now the Industrial Relations Commission. But the characteristics of an award that put it within the exclusive category of the non‑judicial power where they created rights and liabilities not by reference to any anterior liability or standard or norm of conduct which was prescribed by the statute, the liabilities they created relied solely on the statute for their effect and it was left, importantly, to another tribunal or forum for their enforcement. We say that is a very accurate description of the power to make a control order in the present case.
KIRBY J: Could you help me at some stage. You remember the old cases that said that you cannot have an order for reinstatement because reinstatement is giving new rights, and yet, subsequently, the Conciliation and Arbitration Act or the Industrial Relations Act were changed to permit the Arbitration Commission or the Industrial Relations Commission to make such orders. Was there some development in this Court that led to that?
MR MERKEL: Yes. Your Honour, I propose to take the Court through the cases. Sadly, I am looking at the time I have spent already. I do need to take your Honours through the cases because the cases sometimes do not clearly distinguish that they are dealing with the double aspect power, and much of what is said about creation of rights is under the heading, not stated but implicitly there, of the double aspect power.
When you look at the authorities the courts have cited, they support our protection of the exclusively non‑judicial category, but one needs to go to the cases because what our learned friends have done – and I do not criticise anyone for it – they have set out observations in this Court from time to time that talk of judicial power to create rights and that not necessarily being fatal to a Chapter III power, but one has to read more closely what is meant and intended there to realise that is an exception and only applies in very limited circumstances so that the fundamental doctrine of Boilermakers, founded as it was on Alexander, about the core function of courts being determining rights and tribunals creating them is something that needs to be maintained and understood, but with the double aspect powers excepted from it for good reason.
Our learned friends’ submissions blur any such distinctions and, in effect, leave very little for what might be called exclusively non‑judicial. But I will take your Honours to the reinstatement cases because they fall in a number of heads and have a history that make good our point.
GUMMOW J: Is a corollary of your proposition three, exclusively non‑judicial, set out at paragraph 45 of your written submissions, namely, that what has happened to your client would have been proper if it had been done directly by the Attorney‑General under this legislation, namely, that this power can be conferred upon the Executive Branch?
MR MERKEL: It could be, your Honour, subject to our Fardon argument. There are three limbs to our argument. The first is that there is no power in a federal court to create rights absent an anterior liability or an anterior norm of conduct being prescribed. That is our first argument that stands alone. Our second argument is that there is no power to confer on a court power to make an order which relies on a statute and another tribunal for its effect. Our third head of argument is the Fardon argument which respectfully adopts, and wishes to embellish as little as possible, your Honour’s analysis in Fardon, namely, that, in truth, orders for deprivation of liberty are part of the exclusive Chapter III function of the courts.
GUMMOW J: No, I think I said detention in custody by the State.
MR MERKEL: I think your Honour said detention in custody. I think your Honour then said loss of liberty and I think your Honour said deprivation of liberty, but we cannot approach your Honour’s judgment as a statute. We say that the substantive consequence of these ‑ ‑ ‑
GUMMOW J: No, it was written very carefully and it is restated in Woolley, I think. Anyhow, go on.
MR MERKEL: We have to found ourselves, your Honour, on deprivation of liberty, but we will come to that, but the Fardon point does rely upon these orders authorising a deprivation of liberty in a real and substantive way which attracts the principles that your Honour had enunciated. If that is not so, or not found to be so, then the answer to your Honour’s question is it would, subject to a statutory power existing under section 51 or elsewhere in the Constitution, be an Executive Government role, as it has almost invariably been, to work out what detention is lawful or not and for good reason ‑ ‑ ‑
KIRBY J: Anyway, that is a few steps down the track. If this legislation is not upheld and it is moved to the Executive Government, then different and other arguments presumably would be presented to us.
MR MERKEL: Absolutely, your Honour.
GUMMOW J: I am just trying to find out what the constitutional framework is. I am not worried about what happens in the future. I want to construe the Constitution now.
MR MERKEL: Yes. Your Honour, if it is an exclusive Executive power to create rights ‑ ‑ ‑
GUMMOW J: Now, for example, the Attorney‑General for a long time has had wire‑tapping powers under security legislation and this would be accommodated to that sort of system, I suppose. That would be equally valid, would it?
MR MERKEL: Yes, your Honour, it could be a persona designata power and if it were not incompatible with the function of judges – and the Court has said a lot about that – then it would be such a power, but we say that ‑ ‑ ‑
GUMMOW J: Well, that assumes you can find judges to exercise it.
MR MERKEL: That is so, your Honour.
GUMMOW J: Or retired judges willing to exercise it, for want of something more useful to do.
MR MERKEL: Yes, your Honour, that is an active area of industry. But, your Honour, the importance of this analysis is not just this case, but deprivation of liberty is a discretionary power under the heading of creating rights. It is not the role or function of courts other than in association with a criminal proceeding. We say that that line has been crossed in this case and it has far‑reaching consequences.
GUMMOW J: At the end of the day, your problem is an absence of a bill of rights binding all branches of the government, which has the effect that no branch of government can do it.
MR MERKEL: That is correct, your Honour, but Chapter III does give those fundamental protections as far as the courts are concerned and the powers of the Executive Government have to fall under a head of power which we say in the present case they failed to do. But the State courts certainly do not have either of those restrictions and there are ways and means, no doubt, by which such a scheme could be constructed, but there is no in terrorem case against our submission that can be properly put, your Honour.
GLEESON CJ: Well, it is simply a consequence of the difference between saying “You can’t do that” and saying “You cannot let judges do that”.
MR MERKEL: Yes, your Honour, and if our reliance on Justice Gummow’s analysis in Fardon fails, then it retreats from “You can’t do that” to “You can’t let judges do it”. But it is a fundamental threshold issue for this Court to deal with, because we say that the creation of rights distinctions so drawn over the last 70, 80 years since Alexander’s Case basically falls away on the arguments put against us, and it falls away sadly in the area where the courts need to ensure their traditional functions are protected. That is on deprivation of liberty. So that is not the role of the federal judicial power.
KIRBY J: Because our Chapter III was to some extent influenced by the design and structure of the United States Constitution and because there have been a number of recent decisions in the United States relevant to these questions of the extent of the limits of Article III, it might be useful to have a look at some of the United States authorities at some stage.
MR MERKEL: We have encountered so many Full Court decisions, including very recent decisions of this Court, that we have approached this very much in terms of Chapter III jurisprudence.
KIRBY J: I can understand that but if, as Justice Gummow said, we are looking at the design of the Constitution and how it is intended to operate it may be that the Court will want to have a look at what has happened in other final courts in these matters because this is a matter that is common to many countries and when you look at the British cases you run into the problem that they have the Human Rights Act and the European Convention and the Canadians have the Charter, but the United States really has the closest structure to our constitutional structure for a good reason.
MR MERKEL: Yes, your Honour.
KIRBY J: I am just alerting you to the fact that I will be having a look at the United States cases.
MR MERKEL: Yes, we shall try and take that on board, your Honour. Can I just briefly summarise the steps in our argument. The factum determining and creating the liability in Division 104 is the control order itself and not conduct in breach of or which is a failure to achieve any antecedent norm of conduct or of any anterior liability. The second step is that Division 4 confers power on a ‑ ‑ ‑
KIRBY J: Is the key word there “liability”, because the agreed facts recite anterior factual conduct?
MR MERKEL: Yes, but that of itself is not sufficient to attract the liability, your Honour. It is merely one of alternatives and the conduct cited is no more than a fact. It is not itself conduct that gives rise to a liability. In other words, it is not a norm of conduct that is required to be observed or established. It is just conduct as such, not a prescribed norm. The conduct itself is not itself a breach but, more importantly, it is one of several cumulative factors. The conduct alone cannot attract the jurisdiction.
The second step is that Division 104 confers power on a tribunal to create rights and liabilities of the kind described in our first step, but the rights and liabilities obtain their legal effect from the statute and rely on another tribunal for their enforcement. The third step is a fortiori when creation of rights relate to the deprivation of liberty. That is anathema to the judicial power in the absence of an antecedent liability.
KIRBY J: Why does it have to be an antecedent liability as distinct from antecedent conduct, because if one looked at this case you would say true it is that what Mr Thomas is alleged to have done in Afghanistan was not an offence against Australian law, but does it provide a premise upon which it is relevant for the Australian Parliament now, in the light of supervening events, to say on the premise that he went, although an Australian citizen, to Afghanistan to have this training, that that is something which in the light of events that have occurred since is a premise upon which it is appropriate to engage the judicial power here and now by reference to events that happened earlier.
MR MERKEL: Because, your Honour, if this Act were framed – and I think I said this earlier – so that the section read, “If a person trains with a listed terrorist organisation the court may impose certain obligations”, that may well be what would be called a double aspect power, but this Act is not framed in that way. This Act is framed with cumulative requirements, one of which is a fact which must be satisfied are merely predictive, but the fact alone does not establish the liability. That is the first answer we would give your Honour.
The second is that merely stating a fact as the foundation for a jurisdiction is not sufficient. We say that to properly attract the exercise of judicial power the legislature needs to have directly or indirectly prescribed the norm of conduct, the breach of which gives rise to the liability, the norm of conduct being something which is implicitly required to be observed, even taking, for example, an unacceptable share acquisition of the kind considered in Precision Data.
There is an implicit liability that if you engage in an unacceptable share acquisition it is not something that you are prohibited from doing under the Act, but it is something that the Act, in effect, prescribes as giving rise to this liability because it is unacceptable in the circumstances as defined, and that itself creates the norm of conduct which the legislature has required to be observed, the failure of which renders you open to the risk, but there is no such statutory scheme here, your Honour. We rely very much on the cumulative criteria, not just one.
GLEESON CJ: What is the essence of the difference between the scheme and the restraining orders or apprehended violence orders that are made in very large numbers in all State or most State jurisdictions that often restrain conduct that is not or would not be illegal conduct, like approaching somebody?
MR MERKEL: I think, your Honour, and we have dealt with this in some detail in our written submissions, that in the State courts they do not have a Chapter III inhibition so there need not be a matter or there need not be a dispute about liabilities. There may be just a conferral of jurisdiction and this could be conferred in the State court subject to ‑ ‑ ‑
GUMMOW J: They make orders of this nature in the Family Court.
MR MERKEL: The orders in the Family Court, your Honour, are part of an existing cause so it is, in effect, a form of relief in a matter that is already formulated and before the court.
GUMMOW J: Is that correct?
MR MERKEL: I think so, your Honour. I will have to take your Honour back to it but we have replied to it in our outline, and we have dealt with it in paragraphs 50, 51 and 52 of our outline, and we say that insofar as the general power exists, it is with respect to the matter so that it is already interim relief in a matter that is properly before the court, the interim relief is related to the matter, and insofar as the protection of children occupy a special position such as ‑ ‑ ‑
GUMMOW J: Section 68B I was looking at.
MR MERKEL: Yes, and we say that would fall under the parens patriae jurisdiction which has always stood as an historical exception to the kind of principles that we are putting forward. There are historical exceptions which we have no dispute about.
GLEESON CJ: But insofar as the history of exercise of power by judges or judicial officers may be relevant to identifying something as being part of or capable of being part of judicial power, those apprehended violence orders and restraining orders have a long history, do they not?
MR MERKEL: They certainly have a history in the State jurisdiction.
GUMMOW J: No, they go back to the writ of supplicavit, do they not, you refer to in paragraph 13 of your reply?
MR MERKEL: Yes.
GUMMOW J: There is no need to deal with it now, but a better reference than Blackstone is Story on Equity, paragraph 1477, and also Fitzherbert’s writing with a commentary by Lord Chief Justice Hale, Natura Brevium at paragraph 81. There is a long history to this.
MR MERKEL: Yes, we are grateful to your Honour for that, but there is a second answer that we would give and that is it is one thing to proscribe conduct which if engaged in or an Act which if engaged in would constitute a breach of law, unlawfully, either civilly or criminally, but this regime does not direct itself in the statute to preventing a person from engaging in an unlawful act.
It may embrace that, but it is giving a much wider jurisdiction and that is why we say that in the apprehended violence situation what underlies it is that if the order is not made that person will commit a violent act, therefore, there is an implicit norm of conduct or liability that if that act is committed, it will be unlawful.
GLEESON CJ: But the fear that a person may commit a violent act becomes the basis for restraints that include such things, as I said earlier, of restraining a person from going into his own home, restraints against conduct that is not unlawful.
MR MERKEL: No, the restraint of going to his own home is not unlawful, but the purpose of the restraint is to stop that person from committing an unlawful act. This regime is not so structured. We do not have to respond to that situation in dealing with terrorist act because the definition of “a terrorist act” and the definitions of all the criteria are not geared to whether that order will prevent that person from committing a terrorist act. It has a far wider operation.
HAYNE J: That depends on what operation is given to reasonably necessary and reasonably appropriate and adapted cumulative requirements to the purpose of protecting the public from a terrorist act. There is, I think, an implicit assumption in your answer that gives those words of limitation a rather elastic form. At some point in your argument it would be helpful if you could identify an example where the person the subject of the order is properly restrained according to the Act as it is framed, that is, where the order is necessary and reasonably necessary and appropriate and adapted to prevent a terrorist act and the person thus restrained is, to put it tendentiously, wholly innocent. Do not stay unless an example comes at once.
MR MERKEL: Well, I will come back to that, if I may.
HAYNE J: At some point I would like some understanding of it.
MR MERKEL: Yes.
CALLINAN J: And some bail conditions. I know you say there would be a matter, but some bail conditions are not designed simply to prevent further unlawful acts.
MR MERKEL: I follow that, your Honour, but, again, that is an adjunct to a matter.
CALLINAN J: To a matter, I understand what you say about that.
MR MERKEL: And we do not get to having to ‑ ‑ ‑
CALLINAN J: But still, some of the conditions sometimes imposed do not relate directly, or may not be seen directly to relate to the matter. It may be simply, for example, for the comfort of a complainant that somebody not even be seen by a complainant or something of that kind.
MR MERKEL: Yes. There is no doubt about the width that bail conditions can accommodate, your Honour, but we say if that width were conferred independently of the matter, it would run into the same problems with which we are dealing.
HAYNE J: At its root, the problem I have is the essential circularity of the provisions with which we are concerned. The notion that someone plotting a terrorist act is necessarily going to obey a court order is a rather unusual proposition. The purpose of these things seems more to be to inform the person the subject of the order that they are under immediate attention of the authorities, but there we are. The notion that “I have made an order, therefore you will not commit a terrorist act” suggests a rather ample view of judicial power.
MR MERKEL: Yes. Your Honour, it may explain why the legislature made it an indictable offence rather than some other form of enforcement, but also we say that the extraordinary width of this legislative scheme suggests that the legislature had an intent to keep all possibilities open and it deliberately did not include the words “terrorist act by that person” in that statutory scheme. I will certainly put our minds to it over lunch about examples, your Honour, but there will be examples that, many of them, where the authorities may believe that the order will prevent an act but not by that person.
KIRBY J: You often find sitting here that constitutional cases involve a pressing of the envelope to the next stage. Now, as I understand it, your contention is that the next stage is presented here because the control order is directed not at the protection of a particular person, but at the protection of society and involves prevention of things being done, not only by the person subject to the order but by third parties.
MR MERKEL: Yes, your Honour.
KIRBY J: But may it not be that with some of the family law orders that they are directed to the protection of society from the violence that can happen by people going into their own home and harassing or doing violence to a person who is there and that in terms of the activities of third parties that bail conditions can require that a person not have any contact with another person, lest that other person does things that will interfere in the due administration of justice. So that to that extent there are analogies in other judicial type orders that provide a foothold for saying this is unusual but it is not entirely alien to the type of thing judges have been doing.
MR MERKEL: We would prefer to say it is not entirely alien to what State court judges may do, but we say properly analysed it is alien to what Federal Courts or federal judges do under their Chapter III role. It is most fundamental to that that there must be some limitation on the court’s role in creating rights and, of course, Boilermakers itself was an inconvenient outcome, upset a longstanding and generally acceptable situation with the court but error had to be corrected and we say, on our submissions, this case says that there must be a recognition of that third category of power which is not judicial power and that is the bare creation of rights through a court order.
That is a distinction that has a long line of authority to support it. The few exceptional cases that have been recognised by the courts should not allow to become the norm which is that if they become all double aspect powers then the important distinction about the three categories is effectively broken down and we say it extends to why could not federal courts issue search warrants, the same sort of problem. There is no anterior norm of conduct or liability but it is convenient and it is maybe better done by judges and that person has an opportunity to come back and challenge it so we will have it as a Federal Court power, but this Court has firmly resisted the notion that warrants are part of the judicial power if they create rights and obligations without any antecedent kind of conduct or liability.
We say that once that rule is breached it has far‑reaching ramifications and just waving the name “terrorism,” which obviously has a very powerful impact on anybody and everybody, is not a reason any more than the preservation of the Industrial Court was a reason for undermining Chapter III, but that is how we put it, ultimately.
KIRBY J: You will remember Chief Justice Barwick was rather, though an ardent supporter of the Engineers doctrine, a sometime critic of the Boilermakers decision. But as I read the written submissions no one has suggested a reopening of the fundamental principle in the Boilermakers Case.
MR MERKEL: No, your Honour, no one is. Each side is saying that this a sanctification of the principle or a good example of it. We say it is a good example of its breach. Our learned friends say it is a good example of its width and its inflexibility. Can I take your Honours just very briefly to Boilermakers 94 CLR; this is the High Court decision. The quote that was fundamental to the decision in the High Court and in the Privy Council which is reported at – I do not want to take your Honours to it - 95 CLR 529 at 535, is the quote of Justice Isaacs and Justice Rich. In Alexander’s Case which is set out at page 281, where their Honours – principle which we rely upon in our present application about the essential difference – this is at point 8:
But the essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights.
Then their Honours, again citing the passage, say “The two functions therefore are quite distinct.” I do not need to take your Honours any further to it. At page 2 ‑ ‑ ‑
GUMMOW J: There are two notions, are there not, in that passage? One is anterior rights and liabilities and other is enforcement, is it not? Are there not two ideas?
MR MERKEL: Yes, your Honour. The “ascertain and declare but not enforce” is necessary because if it had “ascertain and declare and enforce” then it would be a transgression of the judicial power which is, in effect, Brandy’s Case. In fact, indeed, it is precisely what befell HREOC in Brandy’s Case.
GUMMOW J: That is where Brandy fits in, does it not?
MR MERKEL: Yes.
HAYNE J: Ascertain and declare what ought to be.
MR MERKEL: Properly understood, your Honour, when one looks at the cases that are cited as authority for the various propositions what ought to be based upon, we say in all the cases, an antecedent norm of conduct or an antecedent liability. Ought to be carries with it a discretionary power.
HAYNE J: It is the second half of Alexander’s quote. “The arbitral power . . . ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be”.
MR MERKEL: Yes, we say this is a control. This is precisely a fair description of the discretionary power given in respect of control orders. What ought to be the restrictions to preserve an outcome which is to assist in preventing a terrorist act which is analogous in this context for Chapter III purposes to prevent and settle an industrial dispute. So you create rights and ‑ ‑ ‑
KIRBY J: It is not incidental to something else as perhaps arguably some of the family law injunctions are, but it is the whole point of the legislation.
MR MERKEL: Yes, the only point at Division 104, what ought to be the obligations and rights. At page 278 their Honours cite Queen Victoria Memorial Hospital v Thornton 87 CLR 144 and R v Davison. I will not take your Honours to those cases given the time, but Thornton conferred State courts with federal jurisdiction to determine preference in employment, and it was found in the joint judgment as, in effect, falling within the exclusive area of non‑judicial power conferred on a court because it was a power which was entirely discretionary and, as was said at page 151:
No antecedent rights exist in any of the persons . . . issue of fact submitted to it for decision. Its function appears to be entirely administrative –
and therefore it was an administrative power. So that is one of the examples given of no anterior norm or anterior liability.
R v Davison 90 CLR 353 is the other case cited by their Honours. That is where the double aspect is referred to. Again, I will not take your Honours to the detail of the judgments, but the problem there was whether a debtor’s petition could attract a federal judicial power. That was an example of where arguably there was no antecedent right or liability. All one had to do was commit an act of bankruptcy which would be committed by filing the petition. Chief Justice Dixon and Justice McTiernan at 365 to 370 and Justice Kitto at 382 spoke of the historical antecedent that made it probably an historical exception to the creation of rights that flow from a sequestration order or creation of obligation.
Justice Fullagar at 377 to 378 had no difficulty with the anterior criterion being an inability to pay debts which attracted the liability. So there was a norm of conduct on his Honour’s approach, a person’s inability to pay debts, therefore, liable to be bankrupt by either a creditor or a debtor’s ‑ ‑ ‑
GLEESON CJ: What page is that, Mr Merkel?
MR MERKEL: Pages 377 to 378, your Honour. His Honour at the bottom of 377 at point 8 made the point particularly over the page at 378 the act of bankruptcy because a person is unable to pay the debts was, in effect, an anterior liability to be made bankrupt. Could I take the Court next to R v Trade Practices Tribunal; Ex parte Tasmanian Breweries 123 CLR 361. The passage of Justice Kitto at 377 is cited time and again, particularly 377 to 378, in support of the authority under Chapter III to create rights. That case concerned a power of the Trade Practice Tribunal to determine an agreement or practice examinable and whether it is contrary to the public interest and the agreement would be rendered unenforceable. His Honour at 377, citing Spicer’s Case, said at point 3:
“The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards.”
Similarly, to confer a power of discretionary judgment as to whether a restriction or practice has a specified quality –
and we say that is a very important factor stated by his Honour, very often overlooked; specified quality, we say, is the equivalent of an anterior liability or an anterior norm of conduct –
may be to confer judicial power, but only if the quality is so described that its existence is to be judged by applying an objective test or standard supplied by the legislature.
Then his Honour said at the bottom of the page:
None of the powers of the Tribunal, then, involves any adjudication upon a claim of right.
GUMMOW J: There is this emphasis on its own subjective criterion.
MR MERKEL: Yes. Well, there are two categories that certainly come out of Tasmanian Breweries and Precision Data, namely, if the criteria become subjective or intrude into the areas of government policy, what could otherwise be what I would call a double aspect function becomes non‑judicial and does not offend Chapter III if conferred on a tribunal.
GUMMOW J: The notion of contrary to public interest is caught up in that too.
MR MERKEL: Yes. Whether the same view would be taken of it today, your Honour, may be another question, but I think that the underlying point that their Honours made is that if the court is asked to embark upon subjective evaluations or matters that are policy based, rather than objective criteria, then it would not be appropriate for conferral on a court.
GUMMOW J: It is sort of odd in a way because the whole doctrine of common law with respect to restraint of trade is all about public interest.
MR MERKEL: Yes, your Honour.
GUMMOW J: That lay behind the statute in construing Tasmanian Breweries.
MR MERKEL: I certainly did not come here to try and undermine Tasmanian Breweries, your Honour, but the specified quality is the support we find for the submission we are putting.
Can I take your Honours next to Ranger Uranium Mines 163 CLR 656, which gets to the cases your Honour Justice Kirby raised with me about reinstatement, and it relates to a claim for reinstatement of dismissed employees. It was important to that decision which upheld the Commission’s right to make orders for reinstatement that the dismissal to attract the jurisdiction had to be unjust, harsh or unconscionable or unfair. So that, in effect, you have the criterion of a specified quality that attracted the jurisdiction and as such it therefore fell within the double aspect powers which could be conferred on a court or could be conferred on the Commission. At 664 in the joint judgment their Honours explained why this was not an adjudication of a legal right and therefore exclusively within Chapter III. In the middle of the page their Honours 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, unless the provisions of s. 5 of the Act are invoked, 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.
And their Honours made the point at 665, after the quote, they outlined the norm of conduct and down the page said:
It is well settled that functions “may be classified as either judicial or administrative –
So you get into the double aspect heading. But critical to the double aspect is the criterion of a specified quality of conduct or liability, namely, harsh dismissal. Then at 666 their Honours make the point that:
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 . . . The purpose of the Commission’s inquiry is to determine whether rights and obligations should be created. The purpose of a court’s inquiry and determination is to decide whether a pre‑existing legal obligation has been breached –
Could I then move on to Re Dingjan 183 CLR 323 ‑ ‑ ‑
KIRBY J: That last case is really distinguishable though, is it not, because there the power was given by Parliament to a non‑judicial tribunal and it was doing what a non‑judicial arbitral tribunal has long been held capable of doing, namely, of deciding a matter and creating new rights?
MR MERKEL: Yes, your Honour.
KIRBY J: Whereas here we have the Federal Magistrates Court which is given a power which is said to be creating new rights and therefore alien to the judicial power.
MR MERKEL: Yes, your Honour, and that distinction has been respected and maintained, but the importance of my reference was that it was a double aspect power because their Honours said it could have been given to a court or a tribunal, and the reason it was a double aspect power was because there was a harsh and unconscionable dismissal which was the criterion of a specified quality Justice Kitto referred to in Tasmanian Breweries. It is that aspect that we say distinguishes it from what would have otherwise been exclusively non‑judicial power.
KIRBY J: But although very general and unspecific, it was still a criterion, so it could have been given to a federal court. Courts, certainly in the States sphere and in the federal sphere, frequently decide matters of opaque criteria.
MR MERKEL: Yes, your Honour, absolutely. I am taking what Justice Gummow had ‑ ‑ ‑
KIRBY J: In the public interest, for example.
MR MERKEL: As Justice Gummow put to me, Tasmanian Breweries, nowadays courts would not shy away from deciding whether conduct of a particular commercial kind was contrary to the public interest as being too subjective or too policy driven a criterion but ‑ ‑ ‑
GLEESON CJ: Having regard to the provisions of 104.4(1), this is a power that is given for the purpose of dealing with a threat to the public from a terrorist act, is it not?
MR MERKEL: Yes, your Honour.
GLEESON CJ: The court has to be satisfied that this order is necessary to protect the public from a terrorist act.
MR MERKEL: Yes, your Honour.
GUMMOW J: In other words, if you look at 104.4(1), it says “The issuing court may”. That, I guess, does not mean “must”, does it? You have to satisfy the jurisdictional requirements and then the court “may make an order”.
MR MERKEL: Yes, it is a discretionary authority.
GUMMOW J: That is governed by 104.1, I suppose, at least by the object of the Division.
MR MERKEL: Yes, but we do not say this is a policy or subjective criterion unable to be administered by the courts in the Tasmanian Breweries sense or in the Precision Data sense. What we are saying is that in each of the cases where creation of rights has been held to be double aspect, the basis upon it is either an explicit or implicit assumption of an anterior norm of conduct or liability that has been given effect to. That is why what attracts the jurisdiction is not a specified objective criterion because an arbitral award has a specified criterion of being to prevent and settle an industrial dispute.
GLEESON CJ: The assumption is danger to the public from a terrorist act.
MR MERKEL: Yes, your Honour.
GLEESON CJ: Could you confer upon a court a power to make orders in the nature of quarantine orders in the event of a danger to the public from a pandemic?
MR MERKEL: If the conferral was purely in those terms and did not rely on any breach of an anterior norm or an anterior liability, the answer is no because it would be creating rights, which is not the court’s function. It is purely the function of the Executive Government or the legislature to lay down criteria for that. So it is crossing, if you want, a Chapter III line when the courts no longer have as a function that is fundamental to the judicial power of adjudication which carries you through to the first and second headings, but really it then becomes a removal of the third heading, that which is exclusively Executive. It really in effect says that if it is not exclusively judicial, all powers are double aspect provided they are appropriately conferred.
GLEESON CJ: Exclusively Executive or exclusively legislative. The power in Tasmanian Breweries was held to be legislative power, I think you will find.
MR MERKEL: But, your Honour, there, because the legislature had effectively delegated to the tribunal the function of determining the criteria that were contrary to the public interest rather than the legislature prescribing those criteria. I am not saying that this is a policy or a subjective case but the importance of me going to Tasmanian Breweries is that passage of Justice Kitto so often cited does talk of the specified quality which we say founds the jurisdiction, not is the criterion by which the jurisdiction ultimately is to be exercised. All creation of rights legislatively will have a criterion which in almost all circumstances will be objective.
GUMMOW J: Are you going to be taking us to that passage in Peacock’s Case 67 CLR 25 at 54 where Justice Williams gives examples of legislation which seem to be creating rights?
MR MERKEL: I was going to come ‑ ‑ ‑
GUMMOW J: TFM, for example?
MR MERKEL: I was going to come to Peacock’s Case, your Honour.
GLEESON CJ: Perhaps you could come to it after lunch, Mr Merkel, if that is a convenient time.
MR MERKEL: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2 15 PM:
GLEESON CJ: Yes, Mr Merkel.
MR MERKEL: Your Honour, I was going to raise with the Court the possibility of whether, if we do not finish our submissions today, the Court might be able to sit a little after 4.15. We are hoping to finish all our submissions today.
GLEESON CJ: No, that problem will not arise, Mr Merkel. We understand that there is a distinct possibility that these proceedings will not finish tomorrow. If they do not finish tomorrow, we will finish them in February. We will look at the position at the end of tomorrow and if we all think that it is certain to finish within one day after the end of tomorrow, then we have a free day, because a case has been settled, in the first of the February sittings, but if it looks as though it might not be certain to finish within one day, then it will go into the second lot of February sittings. So, one way or another, assuming the case does not finish tomorrow, it will go over to February.
MR MERKEL: Yes. I am indebted to your Honour for that indication.
KIRBY J: Could you tell me, if, for example, your client wanted to be present in this Court to hear his case argued before this Court, is that possible under the order that has been made against him or not?
MR MERKEL: It would not be permitted under the order but it may be possible to get some variation. I am not sure how that process works.
KIRBY J: There is a process for variation for funerals and things like that, I assume.
MR MERKEL: I will have to check that, your Honour. There is certainly a process for confirmed orders and I assume it would apply to interim orders, but I would have to check that. I will check that, your Honour.
KIRBY J: Yes. I am missing some of what you say and I want to hear everything that everybody says, so if you could lift your voice, please, because it is a big room.
MR MERKEL: Yes, I am sorry, your Honour. Your Honour Justice Hayne asked us to consider examples of conduct that might not constitute a terrorist act by a person but would be the subject of a control order by that person. If I can address some examples that occurred to us over lunch, and we would say that they are by no means exhaustive.
The first, your Honour, would be the case of the firebrand advocate, for example in the Cronulla Beach situation, who was preaching a form of religious or racial hate but not intending that preaching or advocacy to cause people to become violent but there was a well‑founded fear that a group would undertake violent action as a consequence of that speech and intimidate the public. That person could be the subject of a control order not to make the speech.
An associated example would be if a television company were thinking of broadcasting some advocacy by an overseas fundamentalist or cleric that could have the real possibility of causing people to act upon it even though that person and certainly the television company had no intent that violence would flow, that could result in a control order that could have the effect of preventing that activity.
A third example is a wife of a man who may be preparing for a terrorist act becomes aware that he is under surveillance and while he is under surveillance the authorities believe they can prevent him from carrying out the act but if he becomes aware of the surveillance and eludes it they may lose that ability so they might be able to get a control order to prevent the wife from contacting the man saying that he is under surveillance.
Another example would be a fundamentalist cleric teaching a brand of religious doctrine which would stir up vulnerable disciples of that religion, and that is not far removed from what was suggested to be the situation in London, but the person had no intent that those vulnerable to his teachings would go out and commit an act of violence.
Another example would be there may be a person in Australia being the only person who sells particular timing devices which, unknown to that person, were likely to be used by terrorists, and an order could be obtained to stop the sale of those devices because they were likely to be used for a terrorist act. Going to the September 11 situation, if pilot training was being given, again ‑ ‑ ‑
GLEESON CJ: On that last example, that would be provided the manufacturer of timing devices was a person who had received training from a terrorist organisation, would it?
MR MERKEL: But the person who would be subject to the control order would be selling the devices not for a terrorist purpose, just have them in stock available to be used by anyone. Unbeknown to that person, a group of potential terrorists were going to make up a bomb and needed that timing device and the police found out that that timing device was essential for the terrorist act, but the person who sells the device was not himself aware of the use or the potential use of the device. So it was an essential element for the terrorists, but outside that situation it had an entirely innocent use. So if the terrorist act could be prevented by the devices not being made available, a control order could achieve that outcome.
GLEESON CJ: The person who is the subject of a control order – I am looking at 104.4(1) - will always be either a person who has received or provided training, or would be a person about whom the court is satisfied that the making of the order would substantially assist in preventing a terrorist attack and the making of the order is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public. Is that right?
MR MERKEL: When you say “about who”, I am not sure that that formulation is picked up, your Honour.
GLEESON CJ: No, well, I was trying to express a formula that would cover the person you are talking about, the maker of these timing devices.
MR MERKEL: Well, it would come in because, your Honour, the court can be satisfied that preventing that person from selling the device and making an order framed appropriately would substantially assist in preventing a terrorist act, then being the availability of the devices to be used for a bomb, and then they would make a control order adapted for that purpose which would be one that prevents that person from engaging in the activity of selling that device at all, for example.
The pilot training example is a real life example. If the authorities were aware that pilot training was being undertaken unbeknown to the trainer for terrorist purposes, a control order could be put out against the trainer for the purpose of preventing a terrorist act.
There are others, your Honour. A control order could be made against a bank or a bank officer in respect of a bank account which unbeknown to the officer was proposed to be used to finance a terrorist act, so bank accounts could be frozen. One can go on. The point of the examples is really to show that in this area the ambit of possible operation of these clauses is so wide that the one thing that one can be certain about is the legislature did not intend the person necessarily to be a person who is going to engage in the terrorist act. It is intended to be and proposed to be far wider than that.
Just before the adjournment, I proposed to take the Court to Re Dingjan 183 CLR 323. This case concerned the Industrial Relations Commission power to set aside or vary harsh contracts or contracts which were against the public interest. Justice Gaudron’s judgment was adopted or agreed to by other members of the Court. At 360 to 361, her Honour in a passage relied upon very strongly by our learned friends, particularly at 360, talks of “power to bring a new set of rights and obligations into existence” as generally being non-judicial, although it may it take its character from the tribunal involved.
That is the double aspect power but, importantly, we wanted to go to the authorities cited for that proposition. Her Honour cited Precision Data, which is the last case we want to go to, but Peacock v Newtown Marrickville and General Co-Operative Building Society 67 CLR 25 and the passage cited was at page 35.
That case concerned a jurisdiction conferred on a State court and the regulation provided where by reason of war a contract is impossible to perform or unduly onerous the court was able to vary it and the question was whether that was within the judicial power or outside it because, in effect, the court was creating new rights in replacement of the contractual rights. The passage her Honour cited was at page 35 of Chief Justice Latham’s judgment where his Honour, under the middle paragraph, said in respect of the judicial power argument:
It is contended for the respondent society that under reg. 4 tribunals are authorized to alter rights and not merely to declare and to give effect to pre‑existing rights. In my opinion, this fact does not show that the powers conferred by the regulation are not judicial powers. In some cases the powers are analogous to those exercised by a court where it declares that a contract is discharged by impossibility, breach, or frustration. The circumstances which control the exercise of the powers created by the Regulations are similar in their effect, as between the parties, to facts which affect the discretion of a court of equity when it declines to order specific performance of a contract on the ground that it is unconscientious or oppressive.
Then his Honour goes on to talk of other examples of the court exercising a similar or analogous power. Again, we say that the anterior criterion of the contract becoming impossible to perform is one well known to the courts, a standard upon which the courts can act and a tribunal can act and therefore is not outside the judicial power.
Before the adjournment your Honour Justice Gummow pointed out to me the examples given by Justice Williams in Peacock and at page 54 we have a number of observations we would make, firstly, that such examples were given extensively by the Commonwealth and the intervening States and we have endeavoured to deal with them in categories in our reply which I do not want to have to trouble the Court with because it is set out and we do not wish to add to it, but there are two points.
One is that many of these examples are historical exceptions and therefore do not take the point any further because the Court has always accepted that historical exceptions form part of the judicial power, if part of the court’s jurisdiction at Federation. Peacock is an example of where direct analogy with such powers may be another basis for extending that jurisdiction.
A third example, which is a problem in its own right, is that Justice Williams was not in terms really differentiating in this passage between what may be State judicial power and federal judicial power and we say it is a very important distinction that needs to be made and it is one that was the subject of observations by a number of members of the Court in Fardon’s Case.
So merely saying that courts have exercised this power in a State context does not necessarily answer the question of where the courts in the federal context can or should exercise the same power. It would, if it is an exercise of power that goes back to 1900. It would, if it is an exercise of power that bears a direct analogy, such as in Peacock, with what is part of the common law equity jurisdiction of the court, but it does not carry the matter any further without that dichotomy being taken up. We do say that those examples are of the kind, if not specifically dealt with, but very much dealt with in our reply submissions. So we say Peacock is yet another example of that double aspect power which has the criterion for which we contend. Her Honour was not intending and, by the citations, did not go any further than that power.
A similar situation arose in Ha v New South Wales 189 CLR 465, yet another joint judgment of the Court. The judicial power came up in a very unusual way. It was, in effect, on the basis of an application that the Court should prospectively overrule certain franchise cases. The passage where the creating of rights was discussed was at page 503. While prospective overruling has nothing to do with the present case, what their Honours said at the bottom of 503:
A hallmark of the judicial process has long been the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non‑judicial power. Prospective overruling is thus inconsistent with –
that obligation. But the cases cited by their Honours – Precision Data, which I will come to in a moment, but the one of Rola Co (Australia) 69 CLR 189 was the one I wanted to take your Honours to. It was Justice Rich at page 203 that her Honour cited.
This case is somewhat complicated in a way that is not significant, but in substance the tribunal in question had power to decide whether females may be employed on certain classes of work and whether with respect - certain classes of what were called men’s work - and then to work out what their hours and conditions and rates of pay should be. The regulation made the determination of the committee binding on the employers. There was a two‑step process. There was an initial determination which itself created the liability and as a result of a subsequent amendment, I think it was, that that was given effect as if it were an order equivalent to an order of the court.
At page 203, Justice Rich, halfway down the page, considered whether the regulation purported to:
invest a Committee of Reference with part of the judicial power of the Commonwealth -
and then his Honour made the important point, again, we say, with respect, overlooked in parts of our learned friend’s submissions, between the difference between judicial power and the duty to act judicially. At the bottom of the page, after referring to Alexander, his Honour said that:
On the other hand, if he has no authority to determine the already existing rights or liabilities of persons, but is empowered to impose on them new legal duties or liabilities from which they were previously free, or to alter or abrogate legal rights to which they were previously entitled, his power is not judicial, although in exercising it he may be, and commonly is, subject to a legal duty to act judicially -
So, far from her Honour’s passage in Dingjan and also the concept of creation being a double aspect power, that passage and particularly what his Honour is suggesting in Rola, would suggest that creation of new rights absent a breach of a liability or a criterion of the kind I have been discussing, is not within the judicial power. Now, his Honour at 205 halfway down the page said:
All that the Board is empowered by the Regulations to do is to decide, with respect to work, (1) whether (putting it very broadly) it is men’s work, (2) if so, whether females may be employed on it, and (3) if so, at what rates of pay and upon what working conditions, and to give decisions as to these matters, binding a particular employer or group of employers. When, however, it gives a decision, that decision is binding on the employer or employers and his or their employees, and must be filed in the Commonwealth Court of Conciliation and Arbitration, and thereupon has effect and is enforceable as if it were an award or order of the court. Hence, the Regulations empower and require an administrative body – a Board - to decide whether or not certain classes of work come within a certain definition, and, if it decides that they do, to impose upon employers new legal duties towards any females who they may employ upon such classes of work, and to confer on any females so employed new, corresponding, legal duties. These powers are clearly not judicial powers.
We say they are directly analogous to the control order power. What his Honour did in the conclusion at page 207, and this was the point upon which his Honour was ultimately in dissent, in the second‑last paragraph it said:
Upon a review of the Regulations as a whole, I find myself forced to the conclusion that the function of a Committee of Reference, as provided for by reg. 5C, is not to vest in individuals new legal rights which they did not possess until conferred upon them by the Committee, but to determine, with respect to particular individuals or individuals of a particular class, a fact the determination of which decides whether they are entitled to legal rights which, if they have them at all, they possess because these rights have already been conferred upon them independently by a different body. This is essentially a judicial function, and involves the exercise of judicial power.
What happened in that case is the initial decision created the liability, but under the statutory scheme as interpreted by his Honour, that decision then became, in effect, enforceable by another body and that enforceability aspect gave it the judicial power quality that would have otherwise been lacking. We would say that the passage cited in Ha in the joint judgment of their Honours makes good our point that the citation in Rola does maintain the distinction of a third category rather than the double aspect category.
In that context can I now go to the case of obviously crucial importance in all the submissions on this point, Precision Data 173 CLR 167. Precision Data was in many ways analogous to Tasmanian Breweries. The Corporations and Securities Panel had power to make a declaration that acquisition of shares and conduct in relation to shares was unacceptable and then make orders that included divestiture and a number of other matters that would affect the rights of the persons involved.
The question arose as to whether the panel was exercising judicial power and in the joint judgment of the Court that is dealt with at page 188, the discussion starts. But importantly can we go to 189 in the middle of the page which is the paragraph that we rely upon as the third category of power which is non‑judicial where their Honours say:
Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power -
Their Honours then cite Ranger Uranium Mines and then say:
The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows, the remarks apply with equal force to determinations made for administrative, executive or legislative purposes.
We say that is a classic definition of the third category, not the double aspect powers, but their Honours qualify those observations at the bottom of 190, and this is the passage relied upon by our learned friends against us:
In some situations –
and we emphasise that - it means in exceptional cases or cases that provide an exception –
the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power. The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities.
It is this passage we say is of crucial importance:
It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. The legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J. in R. v Commissioner Court of Conciliation and Arbitration; Ex parte Barrett.
Now, I will come back to the Barrett in a moment, but can I make it clear that the discretionary authority there referred to was where the Court in respect of an anterior obligation, not wishing to make the obligation enforceable as such, but wishing to confer a discretionary authority or power on a tribunal to give effect to it as the tribunal might determine, the legislative trick is described by his Honour as to not define the obligation as such, but merely confer jurisdiction to enforce the obligation as a discretionary matter and therefore not make the obligation or breach of it actionable as such, but to really confer a discretion as to whether there should be some consequence as a result of breach. But Barrett is a prime example of the necessity of the anterior obligation. Their Honours go on and say:
Leaving aside problems that might arise because of the subject‑matter involved –
and we say that is an important consideration in the present case because we say deprivation of liberty is a very relevant subject matter which distinguishes the double aspect cases –
or because of some prescribed procedure not in keeping with the judicial process –
and we also rely on that, saying that the totality of the scheme is not in keeping with the judicial process. Then their Honours go on to say:
where a discretionary authority is conferred upon 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.
On one view, if taken at the breadth our learned friends would wish to have it, that second passage totally nullifies the first. But we say that is certainly not what follows and not what could be reasonably understood once it is understood what the discretionary authority that their Honours were referring to was really about.
Can I go to Barrett’s Case 70 CLR 141 to explain that. Can I go to Justice Dixon’s judgment at 162 to 163. The power in question was the power given to the Commonwealth Court of Conciliation and Arbitration to direct performance or observance of the rules of a registered organisation. At 162, Justice Dixon sets out the text of section 58E which was in question:
It is divided into two sub-sections. The first is expressed to authorize the Arbitration Court to give directions for the performance or observance of the rules of an organization. The second makes it an offence to fail to comply with directions so given and prescribes a penalty, which, under s. 89B, might be imposed by the Arbitration Court -
Can I just stop there. On that analysis alone, it is comparable with the control order regime. His Honour then says:
The section thus provides for two separate and distinct proceedings. The first results in the imposition of a duty, breach of which is punishable. The second deals with the penal consequences. The first proceeding is “upon complaint by any member of an organization.” The person against whom the order is sought is to be given an opportunity of being heard. Subject to these conditions, the Court may (not must) make an order giving directions. The directions are “for,” that is, “for the purpose of securing,” the performance, which is active, or the observance, which is passive, of the rules of the organization. The performance or observance is to be by someone under an obligation to perform or observe them . . . It is a discretionary power with which the Court is armed, not for the purpose of enforcing the civil rights of individuals, but to enable the Court, when industrial considerations appear to make it necessary or desirable to do so, to insist upon observance of the rules, which, under s. 55(2), must comply with the conditions prescribed by reg. 6 of Statutory Rules 1928 No.81.
Can I just stop there. It was critical to his Honour’s analysis, as becomes clear later, that the performance or observance of the rules is by someone under an obligation to perform them. The discretionary authority conferred by this legislative scheme was not to give a person a right to secure performance, but to give the tribunal a discretionary authority to make such orders as it sees fit for enforcement including refusing to enforce. Even in that situation, at page 164 in the middle of the page, his Honour said:
Apart from authority, I should have been disposed to say that the function or power confided to the Arbitration Court by s. 58E did not include any part of the judicial power of the Commonwealth, but consisted in a discretionary authority to impose upon persons already under an obligation to perform or observe the rules of an organization 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
His Honour then goes on to discuss the authorities. Can I go then to page 165.
CALLINAN J: What is the difference between that and a mandatory injunction, or even perhaps specific performance of a contract?
MR MERKEL: I think the difference, your Honour, between the mandatory injunction is that a person who comes to the court for adjudication of rights comes entitled, based upon that adjudication, to a remedy as a matter of right subject to discretionary disqualifications and subject to discretionary reasons for not granting it. What his Honour goes on to explain here is that even though there was an obligation to enforce for people to comply with the rules, that obligation was not enforceable as such, as a right; it was merely a factum that gave rise to a power in the court to exercise its discretion whether it would compel enforcement. His Honour goes on to explain this.
So there is no such thing as a cause of action for compliance with the rules under this scheme. You merely have a right to ask the tribunal to exercise its discretion, which is very different when someone goes to a court and asks for relief based upon an entitlement, based on a cause of action made out.
HAYNE J: Is that right? I had understood his Honour in the last sentence on 165 spilling over to 166 to say the opposite of what you have just put to us, namely that:
It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority.
His Honour goes on to give examples:
9 Geo. I., c. 19, enacted that if any person by colour of any authority of any foreign Government sold a ticket in any foreign lottery and should be convicted by two or more justices he should forfeit –
et cetera. Is that not, in essence, the drafting technique that is employed here, namely, orders may be made if certain conditions are satisfied? The conditions that are satisfied, subject to an important caveat that you would make and you began to explore immediately after lunch, are obligations which include – they may not be limited to – giving knowing assistance to or doing acts preparatory to the commission of a criminal offence, namely, committing a terrorist act. Then I understand you say, but the field is so much wider: see the innocent agent examples that you gave immediately after lunch. But at the moment confining attention to the drafting technique, what is wrong with the analysis I have just offered to you?
MR MERKEL: Your Honour, if the Act was framed in the manner which your Honour has put it, that would be a classic instance of the Barrett drafting trick. For example, there is an implicit obligation created by the statutory scheme and the legislature has given a discretionary remedy that follows from breach of that obligation. But we say it is critical to his Honour’s reasoning that this was judicial power because there was that antecedent obligation. So in your Honour’s example, if there was the antecedent obligation not to receive training from a terrorist ‑ ‑ ‑
HAYNE J: The hinge about which the analysis I have proffered to you turns is provided by 104.4(1)(d). That is the “reasonably necessary, and reasonably appropriate and adapted” element. Now, the analysis I proffered to you may be quite wrong. I am not for the moment saying it is right or wrong, but I just want to understand whether the analysis is open. But if you hinge the provision about “reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting”, that then invites attention to what that encompasses. If it encompassed no more than the various criminal offences of committing terrorist acts and the various secondary forms of liability associated with it, the analysis starts to go down a particular path. Now, at what point do you chop off that analysis is really where I am at.
MR MERKEL: Your Honour, we say that what his Honour was referring to was required in this context in Barrett, an anterior liability to comply with the rules as an obligation which the legislature never spelt out. His Honour said that was an implicit underpinning of the trick which was not to say there is an anterior obligation to comply with the rules but to say that you confer power straight on the tribunal to direct compliance with the rules as a discretionary authority based upon its jurisdiction to prevent and settle industrial disputes.
The difference, we would say, between this legislative scheme and not one that may be redrafted to accommodate Barrett, but this legislative scheme, is there is no anterior liability of the kind his Honour had mentioned. Of course, the receiving and training, as we explained and endeavoured to outline this morning, is itself not expressed as the anterior liability in the way that his Honour is talking about.
HAYNE J: I will leave it alone in a moment, Mr Merkel, but can I just flag for you the difficulties so that you can grapple with them either now or at some later point. At the moment I do not attribute special significance to the receiving training from a terrorist organisation. What is fussing me at the moment is that when we go to the Code there are certain criminal offences involved in or constituted by performing terrorists acts and the Code itself then has the various forms of secondary liability, attempt – and we see something I think called “preparation for” and presumably “counsel, procure”, et cetera, find a place somewhere.
What lurks behind this concern is that the interim control order regime is necessarily ex parte. If, however, it were inter partes, if the innocent agents whom you gave as examples immediately after lunch, the manufacturer of the timing device, were given notice before action, “Do not selling your timing device. We have reason to believe it will be used for performance of a terrorist act”, and he said, “Thank you for your letter. I propose to do it”, it comes closer to something that bears analogies with injunction to prevent subsequent commission of crime, it comes closer to notions of judicial power. Those thoughts are unformed, I say nothing about whether they are correct, but at some point in your argument you may wish to grapple with them and see what answer is to be given to them.
MR MERKEL: If I can consider that and come back to it, your Honour?
HAYNE J: Yes.
MR MERKEL: I think that the initial reaction, your Honour, is that this kind of legislation is necessary because there are no common law equitable equivalents to the kind of situation that has been postulated, that it was necessary for the legislature to outline this in this way so that there would be this all‑embracing power conferred to create these new rights rather than give effect to existing rights. We have not seen our learned friends produce analogies to this kind of use of the order that we are dealing with, but if I can come back to that, your Honour.
It is interesting that his Honour at first, even with that underlying liability, felt that this was not judicial power. We suspect and believe that that was because his Honour saw this as creating rights without an anterior liability but then on reflection and authority his Honour accepted that it was this Barrett drafting trick that created the norm of liability but it was implicitly underlying the scheme and that found it to be a proper exercise of judicial power. So we say Precision Data properly understood supports the submissions we are putting. Chief Justice Latham had no such ‑ ‑ ‑
GUMMOW J: Just before you leave Chief Justice Dixon at the bottom of 165 of Barrett, what I think is missing at the moment – I may be wrong about this – from the Commonwealth’s submissions is an analysis of 104.4 in terms of what it is – because, after all, they rely on Barrett – that one finds in 104.4 that is dealing with substantive liabilities or substantive legal relations and what it is that is giving jurisdiction with reference to them and what it is that is imposing or creating rights or obligations and what it is that is remedial.
There are two ideas in Barrett which are discrete. They had to be because it was necessary to disentangle it to find a law under 76(ii) of the Constitution as well as a law under 51. What I would need some assistance on at the moment from whoever will give it is how you disentangle 104.4 to see those two discrete legislative activities to make the Barrett theory work here. If you look at 58E, it is easy enough, I suppose, to see how it was disentangled:
“(1) The Court” (Commonwealth Court of Conciliation and Arbitration) “may, upon complaint . . . make an order giving directions for the performance or observance of [obligations] –
Well, you can say there is a legislative requirement that these rules be observed and, secondly, the court has conferred a jurisdiction to act upon a complaint to enforce it. It is not so easy to do that with 104.4.
MR MERKEL: Your Honour, I am indebted to your Honour for raising it because it triggered one other matter that I wanted to say about Justice Williams in Peacock, and that is that in that passage that your Honour referred me to his Honour talked about altering existing legal relations. Of course what your Honour has just pointed out is that 104.4 is created in a situation where there are no legal relations between any of the parties, even using legal relations in the widest form meaning an extending to obligations imposed by the legislature.
GUMMOW J: Well, I think it is said that they are created logically with an anterior existence to the moment of the investment of the jurisdiction. Do you see what I mean? There is a scintilla between the two.
MR MERKEL: Yes.
GUMMOW J: That is the theory of it, I think.
HAYNE J: But also they are against a background of the application of the general norms of the criminal law as prescribed by the Code.
MR MERKEL: I think, your Honour, if the construction were one limited or the drafting intended to be limited to engaging in acts that are proscribed, then one would have the quia timet analogy arising. We say it is deliberately not drafted in that way and we say that the issue that your Honour Justice Gummow has raised with us is an issue studiously avoided by our learned friends because this is not a definition that can be untangled. It is intended to operate as a whole in this form and we say that is really its vice, and its vice would become more apparent when we get into the area of ‑ ‑ ‑
GUMMOW J: Well, the quia timet element may make it more difficult – that is what I am worried about at the moment – and how you adjust that to an application of Barrett.
MR MERKEL: I am reminded the object only complicates the matters further because the object in 104.1 makes it equally clear that obligations are imposed on a person to protect the public, but it is a person and ‑ ‑ ‑
HAYNE J: Because what seems to be the underpinning here is an unarticulated notion of creating a norm of behaviour different from, looser than, notions of attempt, a norm of criminal liability.
MR MERKEL: Yes, and no doubt, your Honour, that is embraced within it, but deliberately not set to be the boundaries of it, and we say that strikes at the vice of this legislation. It becomes even more apparent when one gets into the defence power issues.
GLEESON CJ: In the days before the legislation dealing with restraining orders and apprehended violence orders, the procedure by which one would seek protection from a violent person would be to seek an order having that person bound over to keep the peace. Was an order of that kind an exercise of judicial power?
MR MERKEL: It could be in this context, your Honour, that we are talking because it would have that double aspect capacity because the anterior obligation being enforced was an obligation to keep the peace, so that therefore to have a law conferring a jurisdiction to stop the breach of the peace would fall, even if expressed in a Barrett term, within the judicial power or it could be given, maybe, to a non‑judicial tribunal but, again, the essence of it is that anterior obligation created by law. We do not for one moment want to be technical or prescriptive about that, but the cases make it clear on our analysis, we would say, that there must be something of that kind expressly or implicitly. That is what distinguishes ultimately the second and third categories that we were describing and we say that the failure to recognise those boundaries is a fundamental breach of the Boilermakers’ doctrine and the wall built between the Executive and the judicial power.
Can I leave the creation of rights as such and go to our second limb which is both independent and cumulative. That is that where there is creation but no right of enforcement then that is exclusively non‑judicial power. The way in which we would put it, endeavouring to use the language of your Honour Justice Hayne and Justice Gaudron, I think it is, in Luton v Lessels 210 CLR 333 at 360, we would say the control order is the factum by reference to which the statute creates rights for the future which are then to be observed by resort to the courts, that is in a criminal prosecution for breach. That falls precisely within the definition of Justice Isaacs and Justice Rich in Alexander’s Case where the arbitral award is to create rights but the tribunal creating them does not enforce them.
Can I go straight to Luton v Lessels 210 CLR 333 where the Court considered the role of creation and the separate role of enforcement. The criteria for the Registrar to make an assessment in respect of child support and a departure from that assessment is summarised at page 345 in your Honour the Chief Justice’s judgment in paragraphs 19 and 20, which clearly put the power in the double aspect heading because there are objective criteria that affect legal rights and create legal rights and that could fall within the judicial or the non‑judicial power, but what your Honour said at the bottom of 345 was:
The exercise by the Registrar of the powers referred to above does not involve the determination of pre-existing rights and obligations. It involves the creation of new rights and obligations for the future. The acceptance of an application, the making of an administrative assessment, and the making of a departure determination constitute the factum upon which the legislation operates to fix or alter the rights and obligations of parent and carer.
Furthermore, the enforceability of such rights and obligations depends upon the intervention of a court and the independent exercise of judicial power. The Registrar cannot enforce his or her own assessments or determinations.
Your Honour Justice Hayne, together with Justice Gaudron, dealt with the same issues at 357 to 358. Halfway through paragraph 67 their Honours said:
What is important for the purposes of the present inquiry is, first, that the Registrar can take no step to enforce an assessment made under the Act – that is a matter for those who have the benefit or burden of the assessment and it is to be done by recourse to the courts in the same way as any other debt is enforced. There is not that capacity (so often found when judicial power is exercised) to make a decision enforceable by execution. Secondly, the assessment creates and quantifies the debt. It does not determine a question about the existence of any right or obligation. It is the factum on which other provisions of the Assessment Act and the Registration and Collection Act operate, thereby creating new rights and new obligations which are to govern the future.
We say that is precisely what a control order does. Your Honour Justice Kirby discussed creation and enforcement at pages 374 in paragraph 126 and page 375 at paragraph 129. Your Honour Justice Callinan at 388 in paragraph 189 discussed 10 factors, again, relevant once one is in the double aspect head of power – nine and ten were creation and enforcement. We say based on the Alexander’s Case definition adopted and accepted by the High Court and the Privy Council in Boilermakers, the role of creating but not enforcing rights is quintessentially the role of the Executive arm or the exclusive non-judicial power. We say that Luton v Lessels is an example of its application but in a double aspect situation. Alexander’s Case is the quintessential example of it in an arbitration aspect.
Brandy’s Case 183 CLR 245 is the reverse side of that coin. The joint judgment of their Honours Chief Justice Mason, Justice Brennan and Justice Toohey discusses the issue of enforcement at page 257 and 264, and then in the joint judgment of Justices Deane, Dawson, Gaudron and McHugh the enforcement aspect is discussed at 268 to 269. I do not need to go to the passages, but it was fundamental that if HREOC merely determined whether there was unlawful conduct, which was the specified criterion, but had no power in itself to make that determination operative as a judgment, then it would have been a double aspect power, but because it was operative as a judgment it fell within the exclusive judicial power.
The second step of our argument on this aspect is that the court has no enforcement role and that section 104.27 was intended to be and made by the legislature to be the avenue for enforcement of a control order, and we say the only avenue for enforcement of a control order.
HAYNE J: What, working a pro tanto repeal or modification of section 17, for example, of the Federal Magistrates Court Act about contempt?
MR MERKEL: Each of the Acts in question of the issuing courts are expressed to be subject to any other Act. So the contempt power itself is expressed to be subject to any other Act. I have the sections. Your Honour, it is the Federal Court of Australia Act, section 31(1), Federal Magistrates Court Act, section 17(2) and the Family Court Act, section 35. We say that the inference is irresistible when one goes to this legislation that the contempt power as a mode of enforcement is simply inconsistent with this legislative regime. I need to make good that argument, your Honour, but that is how we say it works.
So there is no prima facie starting point, as is said a number of times in our learned friend’s submissions, we must take the court as it is found. That may apply to a State court but in a federal situation where you have a statutory court as it is found itself was subject to this Act. So if we are correct in our contention then ‑ ‑ ‑
GUMMOW J: There is a case called Ex parte Torney about the Family Law Act, I think, in which several members of the Court said that contempt was an inherent character of a Chapter III court. It is not a question of the legislature deciding to give it. It may regulate it in certain respects, but it is the essence of what judicial power is. So if you want to say there has been some implied repeal of section 17(1), you are in areas of invalidity, it seems to me.
MR MERKEL: Our starting point, your Honour, is 17(2).
GUMMOW J: My starting point is Chapter III, the creation of a Chapter III court. It would be a pretty odd Chapter III court that was shorn of any contempt power. We explored this in Torney’s Case I am sure, maybe elsewhere as well.
HAYNE J: 200 CLR 386.
GUMMOW J: Mr Burmester has the reference in his head.
HAYNE J: Not to say on his heart.
MR MERKEL: Well, that raises a number of questions, your Honour.
GUMMOW J: Yes, it does.
MR MERKEL: We have said that it lies within the power of the ‑ ‑ ‑
GUMMOW J: Mr Torney was a Family Court litigant causing endless trouble in the Family Court and produced a contempt case, Re Colina; Ex parte Torney (1999) 200 CLR 386.
MR MERKEL: I will have to have a closer look at that, your Honour.
GUMMOW J: Yes, it has been referred to since I am sure.
MR MERKEL: Yes.
GUMMOW J: It was not necessary for the decision, but the point has been raised in that case.
MR MERKEL: Yes.
HAYNE J: Why can the two not stand together? There are those who would say that to proceed on indictment for the offence may in some sense be fairer, the punishment is limited by the statute, the accused has jury trial, but non constat that the person cannot be dealt with for contempt, I would have thought, just as the person who assaults another in the face of a court may be dealt with on indictment for the assault or may be dealt with for the contempt.
MR MERKEL: Well, your Honour, for present purposes the contempt power with which we are concerned is the power to take action for breach of the order. I propose to take your Honours, if I might, through the statutory scheme and it may be that if what is being put to me is the view the Court reaches, what I would hope to demonstrate is that it is certainly not what was intended by the legislature, but that may be a different question. We say that when one looks at this scheme, it is abundantly clear that the legislature intended that the Act would give the order its statutory force and the Act would also give the remedy in the way which we have described. But we will have to look at that question of a statutory court having an inherent power not capable of being taken away by statute, but we would say that we would wish to address that question.
HAYNE J: There is reference in Torney to procedure on indictment being too dilatory and thus unsatisfactory.
KIRBY J: Do not worry about the jury trial.
GUMMOW J: Paragraph 14 on page 394.
MR MERKEL: I will have to get it, your Honour. If I may put the argument ‑ ‑ ‑
KIRBY J: You will have a look at that and send a ‑ ‑ ‑
MR MERKEL: I will. If I can have the indulgence of putting the argument unburdened by Torney and having to deal with it based upon how the statute works, but we will obviously have to deal with it. Could I take your Honours – I do not want to delay your Honours too long on this – but section 104.27 ‑ ‑ ‑
GUMMOW J: The point shortly is that the statutory act of creation of the court under section 71 necessarily carries with it the inherent contempt power which no doubt can be regulated in various ways, but it must be there.
MR MERKEL: I do not wish to suggest that ‑ ‑ ‑
GUMMOW J: There is no need to take it any further at the moment. It comes out of section 71.
MR MERKEL: Yes.
KIRBY J: I think, speaking for myself, the answer you have given is adequate. There is this separate constitutional contempt power which cannot be taken away but resides in the Chapter III court, but for the present purposes you are addressing the validity of this legislative scheme and within the scheme there is this provision for a particular way of dealing with the matter, namely, by a criminal offence, and that is what you have to address. You are now hooking an argument on the fact that that is not given to the court a quo, that is given to another court, and that that is an indicium that it is not the judicial power that is being exercised.
MR MERKEL: Yes, thank you for that, your Honour. We would contend that it ultimately is sufficient for our purposes that if it be the case that one avenue for breach is left for another institution and there are those alternatives, that does not mean the court cannot give effect to its order through the contempt power, that the legislature has also chosen another forum in another tribunal to do so. What I wish to do is take your Honours briefly back to the statutory scheme to show the extent to which the Court is in effect deprived of control of its orders in this process and ultimately it does seem to indicate, although it is committed to a court, what was intended to be committed is what the cases would refer to as the non‑judicial power.
Can I make that good? I have already taken your Honours to section 104.27 and why that is an indictable offence with trial by jury. The relevant sections that get you there are section 4G of the Crimes Act, section 80 of the Constitution and section 68(2) of the Judiciary Act. Can I take your Honours to some what would be very strange statutory provisions – certainly the drafting persons and Parliament was unaware of the contempt power because if I can take you to section 104.5(1)(d), the statute gives effect to the order by imposing the liability not as such but it says that the order is to “state that the order does not begin to be in force until it is served personally”.
Then can I go to 104.12(1)(b), when service occurs we go down to (b)(iii), the information that must be given is not that you will be liable for contempt but the effect of section 104.27 and:
(c)must ensure that the person understands the information provided under paragraph (b) –
When the order is confirmed section 104.15(3) has again statutory effect to bring the interim order into a cessation and the confirmed order to begin in force against that statutory effect to what the consequences of making the order are and when the order is required to be served there is no further warning of what its consequences are, but under the variation power, 104.26(c)(ii), where there is a variation of a control order we yet again have “must inform the person of . . . the effect of sections . . . 104.27”.
So unburdened by Torney, one would see that the legislature at least intended that consequence of breach that the person should be apprised of was an indictable offence. So those sections show both that the Act gives the order its force, not the nature of the order as an order of the superior court. Other indirect indications that the court does not control its orders, such as 104.12A(4)(a), unlike an order of the superior court of record:
If the senior AFP member elects not to confirm the order . . .
(a) the order immediately ceases to be in force -
so that the statutory provision brings the order to an end – nothing to do with the court. Control of the order is more in the hands at that stage of the senior AFP officer. As appears to be the case, the grounds of setting aside the order are limited to it not having any grounds for its making, then it would be up to the person affected by the order to ask the senior AFP officer, rather than the court, to make the election on some ground that was not available under the Act. So what we, in effect, say is that the legislature has addressed the issue of enforcement directly and indirectly and does not give rise to the contempt power.
The inconsistency with the contempt power is exacerbated by the fact that Chapter 2 applies and under Chapter 2 one has the fault provisions because Part 5.4 and 5.6 apply, and they specify fault elements that do not coincide with the fault elements that would exist in respect of civil and criminal contempt, whatever that dichotomy may lead to today, so that the very structure of an indictable offence seems somewhat different. The elements of the offence and the defence to it seem very different to what would be accepted as the case in Witham v Holloway 183 CLR 525. So it is an odd result with the court saying all contempts are criminal in nature in Witham v Holloway and yet having different crimes created out of the same conduct. It is certainly inconsistent if no further than the legislative intent displayed by this control order regime.
Now, we say those matters are of some consequence, so that even if the court has that control it is not the only vehicle for control. Secondly, we say that these indicia, even if as a matter of law Torney’s Case meant there was ultimate control, show a legislative intent which is inconsistent with these orders being in the nature of judicial power or an exercise of judicial power.
I will not delay your Honours on the Code aspect of our argument but can I just give your Honours certain authorities where the Court has discussed ‑ ‑ ‑
KIRBY J: Can you just remind me what this point is?
MR MERKEL: This is to say, your Honour, that the legislature has addressed the issue of compliance, directed itself to the question of breach, and it would not be for the court to superimpose but for a constitutional reason the added contempt obligation. What we say is the shorthand – using “code” as a shorthand, we say that if ever there was a legislative code on a topic where the Parliament intended to address itself to all of the issues arising, this is it. It has addressed not only the substantive issues but the procedural issues and it is wished to pick up the procedures of the court. It has said so in relation to the interim control order. When it has wished to define its proceedings for the purpose of the Evidence Act and interlocutory proceedings in 104.28A, it has done so.
Can I just give your Honours authorities which have discussed the principles by which it would be contended that this is intended to be exhaustive and comprehensive to the matters it regulates? There is Minister of Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 70. We have R v Gee (2003)212 CLR 230 at 254 to 255, and Justice Wilson’s analysis in O’Rourke v Miller (1984) 56 CLR 342 at 358 to 359, and then Chief Justice Barwick in Brettingham‑Moore v St. Leonards Municipality (1969) 121 CLR 509 at 524 and Salemi v MacKellar, Justice Stephen (1977) 137 CLR 396 at 441.
In substance, we say that Division 104 is a legislative regime that is intended to be exhaustive and comprehensive as to the matters it regulates, leaving no room for the operation of legal rules to be found outside the regime except to the extent that the Code itself picks up such external rules.
GUMMOW J: Is a prosecution for the offence created under 104.27 of contravening? Would that be an associated matter within section 18 of the Federal Magistrates Court legislation? It is a familiar provision.
MR MERKEL: Yes.
GUMMOW J: It is in section 32 of the Federal Court Act. At first blush one cannot see why not.
MR MERKEL: No doubt it will be a surprise to their Honours that they may be able to conduct a jury trial, but if they have the contempt power, that would call into play whether the section 80 jury trial is associated with it. It is certainly not what anyone I think intended, but it may be a consequence of the oddities of this ‑ ‑ ‑
GUMMON J: The relevant matter is the making of the order which has been contravened and thereby created the offence. Anyhow, you do not have to pursue it in this case.
MR MERKEL: Yes, if I can think about that, your Honour.
HAYNE J: Just on the legislative technique that we find reflected here, there are obvious analogies with various provisions in the Family Law Act where, for example, Part XIIIA, Division 2 of that Act provides various sanctions for failure to comply with orders including fine, imprisonment, and the like, though there the imprisonment is I think for 12 months or less, not engaging the indictable offences provision. But these provisions are not unknown in federal legislation.
MR MERKEL: Yes, I accept that, your Honour. It is put against us that there is nothing inherent in the court not having power to enforce its own orders if it is given to another court within the same hierarchy and also breach of an order may itself be an offence and a contempt, but we say this scheme did not intend that it operate in that way, even if we are wrong and Torney applies so that unbeknown to the legislature it did.
GUMMOW J: Section 112AD of the Family Law Act, which you have just been referred to, helps explain why, going back to the Magistrates Act, perhaps section 17(2) is there. Section 17(2) says, “And by the way, there may also be supplementary provisions found elsewhere”, and an example is 112AD of the Family Law Act. Do not forget the Federal Magistrates Court has substantial family law jurisdiction.
HAYNE J: A caveat enabling addition, not subtraction, from the contempt power, addition of other offences.
MR MERKEL: I must say we had come on the basis that section 17(2) qualified subsection (1).
GUMMOW J: Maybe.
MR MERKEL: The error of our ways was not something ‑ ‑ ‑
GUMMOW J: That is not the usual way the Commonwealth drafts, Mr Merkel.
MR MERKEL: We will have to look at those matters, your Honour. Could I move the third limb of the Chapter III argument which is Fardon’s Case. Your Honour Justice Gummow had explained in the decision of Al‑ Kateb 219 CLR 562 ‑ ‑ ‑
GUMMOW J: First of all we have to know what was decided in Fardon, do we not?
MR MERKEL: I was only going to cite Al-Kateb as the forerunner of your Honour’s analysis in Fardon.
GUMMOW J: What was said in Al-Kateb was in the minority, was it not?
MR MERKEL: Sorry?
GUMMOW J: Al-Kateb was a dissenting judgment.
MR MERKEL: I was going to it, your Honour, more for the purpose of the lead‑up to what your Honour said in Fardon; possibly I do not need to because, of course, neither case concerned, ultimately, the federal judicial power exercised by Federal Court. I was going to just briefly discuss what your Honour had said in terms of detention, particularly, your Honour, at pages 609 to 611, 611 to 614 and the example your Honour gave at paragraph 133 at 611, ultimately referring to involuntary detention of persons within their homes and the concept of deprivation of liberty which, we say, that whether it be detention in a State institution, detention in a detention centre under a control order, or a detention at home, the power conferred is about involuntary detention in terms of detention against a person’s will. We say that should be central to the reasoning of your Honour in Fardon.
I think your Honour the Chief Justice in Vasiljkovic 228 ALR 447 had also referred to detention against a person’s will. That is where your Honour equated, at 459, detention with the deprivation of liberty. Paragraph [35] of 459, your Honour said, halfway down the paragraph:
Any form of involuntary detention, under any conditions, involves an interference with liberty.
We would say that the nature of detention and the concept of deprivation of liberty are intertwined and, indeed, even though the English legislative scheme is different and affected by the European Human Rights Charter in a recent decision of the Court of Appeal, which is Secretary of State for the Home Department v JJ and Ors [2006] EWCA Civ 1141 – I do not need to take your Honours to it – their Honours considered the English control order regime, which is no different in substance to the Australian when it comes to the obligations imposed, and rejected the submission put by the Secretary of State that a restriction on liberty was something short of deprivation of liberty.
Their Lordships had no difficulty in finding that the control order regime was a deprivation of liberty and authorised a deprivation of liberty in a significant and substantial way. So we say that the concept of involuntary detention and deprivation of liberty should lie at the heart of the analysis of the judicial function not extending to deprivation of liberty in the terms of creating rights in the manner in which the control order regime does as part of the judicial function divorced from the judgment of criminal guilt.
GUMMOW J: Paragraph [80] you will find is what I had in mind. No need to go back to it.
MR MERKEL: Yes, your Honour.
GUMMOW J:
involuntary detention of a citizen in custody by the state ‑ ‑ ‑
MR MERKEL: Yes, your Honour pointed that out to me this morning and I had said that your Honour had also referred to deprivation and your Honour did use that in paragraph [81].
GUMMOW J: That is right.
MR MERKEL: But we would say that involuntary detention in a State institution is merely one form of deprivation of liberty.
GUMMOW J: You may be right, but that is all I said on the previous occasion.
MR MERKEL: Yes, well, I follow that, your Honour, and in a sense it is put that the present case has a strength that is absent in Fardon, namely, the factum in Fardon upon which the liability was founded was connected with a prior conviction. Here that does not exist. It is not as strong in the sense your Honour has already pointed out to me that this does not entail as such involuntary detention in the State institution, but we would say the power to detain in specified places could extend to detention anywhere including, for example, a detention centre if that were felt appropriate. So that the deprivation of liberty authorised by control order is so substantial, including the loss of the right to work, that it is not possible to dissect it out of the punishment/non‑punishment dichotomy which led to your Honour’s formulation as leaving punishment out.
GUMMOW J: We need to know at some stage what is meant in this universe of discourse by this word “liberty”, do we not? Liberty from what, or to do what?
MR MERKEL: Your Honour, I suppose the fundamental liberties in this discourse, your Honour, are the right to be free of government ‑ ‑ ‑
GUMMOW J: Whether we are talking about a right or whether we are talking about an immunity. It can be quite complicated, I think.
MR MERKEL: I think in the US Supreme Court, your Honour, the greatest hallmark of liberty was said to be the fundamental right to be let alone.
KIRBY J: That was a long while ago. There has been a lot of water that has flown under the judicial bridge since then.
MR MERKEL: Yes.
KIRBY J: Indeed, we in Australia have the relevant reference point of the International Covenant on Civil and Political Rights which our country has adhered to and, through the optional protocol, has submitted itself to communications to the United Nations Human Rights Committee. You do not seem to have referred to that. I want to let you know and the other party and interveners that I will certainly be having regard to it.
MR MERKEL: Yes. Your Honour, as with the US cases, we will endeavour to have a look at that. We really had come, in a sense, on the narrower view that detention of the kind authorised under this Act is involuntary. The restrictions imposed on a right of a person to communicate with others, the right of a person to engage in their activities which are lawful, the right to engage in work, the prohibition that is potentially able to be imposed on that, the right to communicate, the right to travel, that really all the rights that this Act can touch upon really all fall within the definition of what we would say would be the liberty of a person in Australian society, the liberty to do any of those things provided they do not breach the law. This Act creates new laws that impinge upon and deprive a person of those liberties to a lesser or greater extent. It is in that context that we ‑ ‑ ‑
HAYNE J: How does that proposition take account of 104.4(1)(d) which is the limit on the power to make the order and is a limit directed to each of the particular obligations, prohibitions and restrictions which is to be imposed? The point can be put – otherwise, Mr Merkel, is not the proposition you have put advanced at too high a level of abstraction divorced from the particular operation of the statute that has to be considered?
MR MERKEL: Your Honour, the difficulty is the statute starts with what one may call minor restrictions on one’s liberty and can finish with an involuntary detention which is a total deprivation of liberty that equates itself to custody. Where it falls in between depends on the facts of each case. I accept that, your Honour, but we say the fact that it is for a purpose of preventing a terrorist act does not take it outside the nature of the deprivation and whether such deprivation should occur divorced from the criminal process, which this Act seeks to do.
I accept - and we do not wish to resile from the fact that the legal operation that we are contending for means this Act can operate against people themselves who are not breaching the law and, therefore, the Fardon principle is not intended to capture such persons, but, we say, the practical operation in many, but not all cases, will be that this is, in effect, a substitute and an imposition of the burdens of the criminal law where the Crown, for its own reasons, decide to take the civil process.
The present case is just a perfect example of someone being subjected to the criminal process and now subjected to the civil process while still potentially exposed to the criminal process. We say that that raises the whole problem of whether the court should be engaged in involuntary detention in whole or in part. Detention is at the essence and heart of the control order regime by a court order.
The Executive process of detention has been explored by this Court starting in Lim and all the cases since, but we are concerned here with the role of the judiciary in imposing these detentions. We are not here in this case concerned with what the Executive Government might do in this same area if lawfully authorised under a valid head of power or under a head of power that produces valid legislation. But of course what your Honour Justice Hayne puts to me is very much part of the preventative regime in cases like Fardon. There are shades of preventative orders that may be made under these regimes, not exactly Fardon but in others which start off with detention and finish with control supervision orders giving different grades of interference or deprivation of liberty.
The Fardon point, we say, is one that is very important because it is relatively, I think we would say, unprecedented, putting aside wartime regulations which are then by the Executive Government for the courts to be engaged in this exercise of deprivation of liberty divorced from breach of the law, divorced from every legal obligation but creating that obligation. So that even if we are wrong in the Fardon analogy we wish to draw – and I just say we rely very much on what your Honour Justice Gummow said at 74 to 75, your Honour Justice Kirby’s agreement at page 89, paragraph [145] and your Honour Justice Hayne’s concerns, but reserving the question for the future at 103 to 104 in paragraphs [196] to [197] on this issue.
We do say that this is not the same but just another step in the same arena and we would, with respect, submit that the practical operation of this law in this case is to use the civil procedure as a substitute for or to complement a criminal prosecution. It is obviously so in the context of this plaintiff, given the width of the definitions of “terrorist act”, preparatory conduct, Chapter 2 responsibility extended in Part 2.4 with the provisions of Division 102 and 103, yet after his acquittal he finds himself subjected to this process. We say it raises a very serious question about whether this is appropriate for the courts to be engaged in. Executive Government, that is another question. That is a question for another day, depending on different principles. So they are the submissions we would wish to put on Fardon.
Our learned friends say that the present case is not an exception talked of in respect of judicial power but if it is they ask the Court to say we will create a new exception, in respect of terrorism, we assume. They do not put forward a principle as to why the exception should be created and how it should be defined. It is obviously linked to the head of power they ultimately rely upon, but we say simply that the Chapter III wall should not be breached by giving the court power to control every aspect of an individual’s life on the basis of a guess of what that person or others might do.
To quote a recent statement by the former Chief Justice Sir Gerard Brennan, his Honour said he did not accept that it is necessary to truncate freedom of Australians in order to preserve that freedom. We say that it is a serious extension which this Court should not undertake lightly. I do not want to take your Honours to it, but in Wilson’s Case 189 CLR 1 at 9 to 14 in the joint judgment their Honours outlined the importance and fundamental principles underlying the Chapter III separation of powers principles and we say they afford a very good answer to the submission that a new exception should be created if that is what is necessary. We finally put that, as we have said in paragraph 25 of our submissions in‑chief, it is anathema to the rule of law for the courts to deprive a person of liberty divorced from any antecedent rights and obligations of those persons.
They are the three arguments we wish to put orally on Chapter III. On the nature of the Court’s jurisdiction and impairment of the judicial function we rely on our written submissions. They are not usefully supplemented by oral submissions. There is one other matter which I wanted to briefly refer to. This is a case where the fact that the power is conferred on a court is of very limited significance because if we are correct in our third category it is clear from Attorney‑General v Love 169 CLR 307 at 320 to 321 when one is talking of whether it is exclusively non‑judicial power it is of limited significance and we would say it would be entirely circular were it otherwise to say it is because it is bestowed on a court, therefore, it is not non‑judicial power. We say the fact that it is given to the court cannot change the nature of the power. That finishes our Chapter III submissions. Can I now go to the referral submissions.
KIRBY J: This is conceptually the source of power and the first subcategory is the referral by the State Parliaments.
MR MERKEL: Yes, your Honour. The submissions on power basically rely on the referral power, the defence implied nationhood power and the external affairs power. If the referral power is sufficient, then the others are unnecessary and the referral power, if it were effective, would be sufficient. Under section 51(xxxvii) the matter may be:
referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law –
The law, that is, the relevant referral Act, is the Terrorism (Commonwealth Powers) Act 2003. The scheme used was to ‑ ‑ ‑
KIRBY J: Could I just ask, you are dealing with referral first because, as I understand it, the States suggest that referral is the answer to the legislative source of power and that you do not have to answer the other questions and New South Wales, at least, is specific to the suggestion, as I understand it, that it does not arise under the other sources of federal legislative power.
MR MERKEL: Yes, and we do not disagree with that, your Honour. We accept that. That if the referral is effective to capture Divisions 104 and 105, then the other heads of power are academic.
KIRBY J: Does that appear to be the way the Parliament has approached the matter in the way it has drafted the law or used the usual grab of federal powers?
MR MERKEL: No, Parliament has used a very comprehensive and very complex grab whatever head of power up to the corporations power, your Honour.
KIRBY J: It was probably first done by Mr John Ewens, if not earlier by Garran.
MR MERKEL: Yes.
CALLINAN J: Whatever anybody can think of.
MR MERKEL: Interestingly, I think, when one goes to the scheme the defence power is the one that is not resorted to, but that does not mean it cannot be relied on.
GLEESON CJ: It is a not a novel drafting technique. Complainants used to do it pursuant to all powers thereunto him enabling.
MR MERKEL: Yes. Well, if we are wrong on referral, then one does not have to be troubled by anything further but, importantly, the scheme ‑ ‑ ‑
KIRBY J: Where is the section that has the grab bag of federal powers?
MR MERKEL: Section 100.3, your Honour. It then goes down to 100.4. I should say there are real problems of construction here because there is no doubt 100.3 was enacted as part of the 2002/2003 legislative scheme without Divisions 104 and 103 in mind. They really are geared to the offence provisions and they do not translate comfortably, putting it very gently, to the new provisions, which are preventative rather than in respect of conduct that has taken place.
KIRBY J: But would one not regard this as a speaking provision? That is to say, it says “The operation of this Part in a referring State”, and then you would just look from time to time at what the path was and consider whether it was within the reference.
MR MERKEL: Your Honour, that is right, but, for example, if you go to section 100.4(4), the drafting problem starts to emerge, but no one has relied on these provisions as yet, so I do not wish to pre‑empt them. It shows that this was drafted with a view to dealing with conduct that is an offence, not conduct that may occur that is not an offence, but I do not need to trouble your Honours with it. The answer to the question is yes, the legislature has had a go at incorporating whatever it can.
The Victorian Act adopts the technique of setting out in the schedule the precise legislation, the enactment of which is to comprise the matter referred – the Act is a short one and if I may take your Honours through it – and the schedule sets out what became Divisions 100 to 103. The purpose is to refer certain matters. Then there is definitions, importantly, “criminal responsibility legislation” is defined as:
the provisions of Chapter 2 of the Commonwealth Criminal Code, as in force from time to time –
I take your Honours over the page to the “terrorism legislation” because that is necessary also to understand and that is likewise defined as:
the provisions of Part 5.3 of the Commonwealth Criminal Code enacted in the terms, or substantially in the terms, of the text set out in Schedule 1 –
Can I just identify the fight or the contest between the parties at this stage. The plaintiff is contending that the express amendment provisions allow amendment of the text of the provisions of the legislation referred. The words are “text of the provisions of the legislation referred”, which means there is power to enact amendments to Chapter 2 and to Divisions 100 to 103 being amendments to the offences created which are the provisions of the text of the legislation referred.
The Commonwealth and the States are contending that the express amendment provisions when carefully analysed allow amendment of Part 5.3 to add on new divisions unconnected to the offences provided they fall under the heading of matters of terrorist acts and actions relating to terrorist acts. So the contest, in effect, is as long as it is under Part 5.3, as long as it relates to terrorist acts, which would have to be as defined in the referred provisions, then it is captured by the amendment provisions. It could relate to preventative measures, it could relate to preventative finance measures, it could relate to a range of matters. Now, we say textually, contextually and by purposive interpretation the submission is misconceived.
The careful wording chosen throughout these sections shows that what is intended is amendment to the provisions, not additional divisions unrelated to and entirely supplementary to whatever Parliament is authorised to enact.
KIRBY J: Was the Victorian Act that you have taken us to a template for or complied with a template used in all the States, or not?
MR MERKEL: Yes, I think it has been the form used in the other States but I have not ‑ ‑ ‑
KIRBY J: I have an impression from something I read that Victoria was even more particular in this respect.
MR MERKEL: I must confess, I have not read the other referring Acts.
KIRBY J: It might be as well if that be done so that if there is a particularity in the Victorian Act it can be drawn to notice, seeing as we do not have the assistance of the Solicitor‑General of Victoria.
MR MERKEL: Yes, your Honour. We will have a look at that, although we wish to stress that the referral, because it refers and is operative only in the State of the referral, it is this Act that needs to be interpreted according to the Victorian legislative scheme and Interpretation Act. They are the two competing provisions, so can I go back to the – we have definitions of criminal responsibility legislation and terrorism legislation. The definition of “express amendment” says:
“express amendment” of the terrorism legislation or the criminal responsibility legislation means the direct amendment of the text of the legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the legislation –
Can I just leave out the “but does not include” for the moment and go back to what the express amendment is. Just as a matter of construction, because of the definitions, that reads: express amendment of the provisions of the terrorism legislation or the provisions of the criminal responsibility legislations means the direct amendment of the text – and I only add these words – the provisions of the legislation. They are the only added words. The definition of each of the Acts show that amendment is of the provisions, not of the legislation as such or not of Part 5.3, so the express amendment power on a literal construction is confined to the amendment of the provisions of the legislation which are Chapter 2 of the Code and are the legislation set out in the schedule which do not include Divisions 104 and 105.
The references are defined as the references under section 4(1)(a) and (b). The referred provision is the text in Schedule 1 and “terrorist act” has the meaning set out in Schedule 1. The critical sections which outline the reference are section 4(1)(a) and (b):
The following matters are referred to the Parliament of the Commonwealth –
(a)the matters to which the referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the referred provisions in the Commonwealth Criminal Code in the terms, or substantially in the terms, of the text set out in Schedule 1 –
and that occurred, but the key to the present dispute is:
(b)the matter of terrorist acts, and actions relating to terrorist acts, but only to the extent of the making of laws with respect to that matter by making express amendments to the terrorism legislation or the criminal responsibility legislation.
Now, we say because of the definition of that legislation being the provisions, it means express amendment to the provisions of that legislation, not to Part 5.3. They are the main provisions. Subsection (3) says:
The operation of each paragraph of sub‑section (1) is not affected by the other paragraph.
I do not think the other provisions are relevant. There is one other aspect I should take your Honours to, that is at page 13 100.8 is set out, because the reference as defined, being referred provisions, includes the requirement of approval to any express amendment.
CALLINAN J: I am sorry, whereabouts is that?
MR MERKEL: It is in Schedule 1, your Honour, 100.8, which is at page 13 of the Act.
KIRBY J: But is not the starting point of this the constitutional – I realise you started with the constitutional text, but is it not a matter of high constitutional purpose that the matters referred have to be by the Parliament of the States and by definition because it is a variation of the constitutional compact has to be to quite a high degree of particularity and specificity as it passes under the authority of the Members of Parliament of the State concerned, so that it cannot, without abandoning or abdicating the responsibility of the State Parliament, be expressed in terms that does not have that degree of constitutional particularity? Is there any authority on this?
MR MERKEL: There are authorities on this, your Honour, and they would be to the effect that – or they are to the effect, my understanding that the reference of a matter leaves it to the State Parliament to define the matter so that provided the matter is defined appropriately, if it were international air trafficking, it can be a general matter or it can be as specific as this Act, as long as it is meaningful and it falls within the definition of a matter. So it does not have to have specificity, but it is required to be a matter defined by Parliament. So we would say – not that we have to get there, but we would say that, for example, limiting the reference in a way that allows the matter to be defined by a majority of States which if it excluded the Victorian Parliament would be outside the constitutional ambit.
GUMMOW J: Again, 100.8(2)(a) is ambiguous, is it not, a “group consisting of the States”? What does that mean? What is the State for this relevant purpose, the Executive Government, the legislative government, both?
MR MERKEL: I think, your Honour, to be constitutionally valid in the context in which this is used, it would have to mean the Parliaments of the States because they are the only entities that can define the ambit of the matter. That is our final argument.
GUMMOW J: Wait a minute, it is a majority of a group comprising not only the States, but these other entities, too.
MR MERKEL: Yes, your Honour. It has the ironic possibility that the amendment which is to apply in Victoria may be one that Victoria does not wish.
GUMMOW J: Does not wish. So the majority is made up of some States plus these two Territories.
MR MERKEL: Yes, but, your Honour, we have a much easier path.
KIRBY J: That seems a pretty easy path to me, the one Justice Gummow has raised.
MR MERKEL: Your Honour, we have what we hope is a much easier path because under section 35 of the Interpretation of Legislation Act (Vic) ‑ ‑ ‑
KIRBY J: But that is just a, I hesitate to say, mere statute of the Parliament of Victoria. We are talking about the Constitution here.
MR MERKEL: Your Honour, even under the Acts Interpretation Act (Cth) there is a construction of these provisions that will fit within the constitutional ambit and it is that that we are contending for. In fact, our construction does no violence because the amendment, if confined to amendments of the offences, does not enlarge the matter.
KIRBY J: Anyway, what is the name of the Victorian interpretation Act?
MR MERKEL: Your Honour, the Interpretation of Legislation Act 1984, section 35 is the purposive construction act in looking at the explanatory memorandum in the second reading speech. Could I take your Honours straight to the second reading speech because Mr Hulls left it in no doubt whatsoever that what he told the Parliament they were agreeing to in this referral Act was amendment to the offences and not amendment in any wider sense.
KIRBY J: Where do we find this?
MR MERKEL: It should be on our list. I hope your Honours would have copies because ‑ ‑ ‑
CALLINAN J: I have the explanatory memorandum. Yes, I have the speech.
MR MERKEL: Yes, we have the speech. I will come to the memorandum in a moment, but the speech really is such that the submissions put by everyone against us and possibly the eloquent silence of the Victorian Government here would suggest that the parties are saying, well, so much for the intention of the legislators because there is no doubt about what was intended here. Mr Hulls in the second reading speech of 25 March 2003 said at 524, starting at the third paragraph:
Using its existing constitutional powers, the commonwealth introduced terrorism offences into the commonwealth criminal code in mid‑2002. However, as the commonwealth does not have specific
law‑making powers relating to terrorism or the criminal law generally, there exists a possibility that its terrorism laws may not fully cover all examples of relevant terrorist acts. Any gap in the coverage of these laws, however slight, is undesirable and could result in the prosecution of a terrorist suspect being frustrated on technical grounds.Victoria and the other states have agreed to lend so much of their legislative authority to the commonwealth as is necessary to ensure that any constitutional gaps are filled and, as far as possible, any uncertainty about the national application of these laws is eliminated.
The bill does this by referring power to the commonwealth under section 51(xxxvii) of the commonwealth constitution. The bill also refers the power to amend those offences as required.
That is the offences the Commonwealth introduced -
Using the referred powers from the states, the commonwealth will re‑enact its terrorism offences, which will apply comprehensively.
The referral of state legislative power to the commonwealth is a significant step which the government does not take lightly. The government believes that in the area of terrorist activity, the commonwealth has a legitimate interest in passing criminal laws that clearly protect all Australians. It is therefore appropriate to refer legislative power to ensure the seamless operation of those laws.
The bill provides for safeguards to protect Victoria’s interests while fully supporting the Commonwealth in securing effective national terrorism offences. The bill provides for a referral of power that is limited to only that necessary to enact terrorism offences in the same form, or substantially the same form, as the present commonwealth terrorism offences and to amend them as required.
Victoria’s overlapping criminal law has been preserved by express provisions in the proposed commonwealth legislation guaranteeing the concurrent operation of state criminal laws and commonwealth terrorism offences.
The commonwealth and the states have agreed that the commonwealth terrorism offences will not be amended except upon the agreement of a majority of the states and territories, including four states.
Victoria’s interests are further protected by the power to terminate the reference, for any reason, by proclamation on three months notice.
The bill is short and uncomplicated. Clause 4 refers the ability to the commonwealth to enact and amend, as required, the terrorism offences set out in schedule 1 of the bill. The offences in schedule 1 reproduce the existing commonwealth terrorism offences.
KIRBY J: What are you reading all of that for? Some of it seems to really be against you.
MR MERKEL: I have not found the part that is against us, your Honour. The only amendment power that is given here is to the terrorism offences which are set out in the schedule. There is no suggestion anywhere that there is an amendment, not to the offences, but amendment by later introduction of the control order and preventative detention regime. They do not amend the offences in any shape or form.
KIRBY J: But he does say in that second‑last paragraph, in the first column, that:
The commonwealth and states –
presumably their Executives –
have agreed that the commonwealth terrorism offences will not be amended except upon the agreement of a majority of the states and territories -
by which I take them to mean Executives –
including four states -
which is just, with all respect to the Attorney-General, a constitutional mistake.
MR MERKEL: I appreciate that, your Honour, but the point I am directing your Honours to at this stage is that all that authority is given in respect of amendment is to the terrorism offences. So that the point your Honour raises with me is entirely hypothetical because this was not an amendment to the terrorism offences that gives us Division 104, which brings us here today. So that there was no referral with or without State agreement of amendment other than to the offences and 104 does not fall into that category.
KIRBY J: Are you saying that a supplementary amendment in an amending Act is not an amendment but a supplement?
MR MERKEL: No, maybe I have not explained it correctly, your Honour. The schedule to this Act does not contain Divisions 104 and 105. What is said is that amendment to the offences is not limiting and not what this scheme is about. It is really supplementing the scheme in the way that Division 104 does. We say that nothing could be clearer from the Attorney’s second reading speech that the amendment power, whether conferred validly or invalidly, putting to one side for the moment that question, the amendment power was to Divisions 100 to 103.
There is simply nothing that can be gleaned from this second reading speech and we would say the explanatory memorandum or, we say, a literal or contextual construction of the Act that would suggest anyone had in mind the amendment not to the offences, not to Chapter 2, but by adding something as long as it was called an added division to Part 5.3.
GLEESON CJ: Is your argument that the matters referred did not include what Blackstone called preventive justice?
MR MERKEL: Correct, your Honour, and nothing could be clearer than what the legislature has set out in this scheme to show ‑ ‑ ‑
GUMMOW J: There was no further reference obtained for Act 144 of 2005.
MR MERKEL: No, so as was said in Attorney-General v Marquet 217 CLR 545 - if I could hand up copies of that to your Honour so your Honours have it - the question that came up and was discussed in the joint judgment of your Honours Chief Justice Gleeson, Justices Gummow, Hayne and Heydon, paragraph 46 at page 564, the meaning of “amend” as against “repeal” was discussed. The passage we rely upon, we say, and applicable to the present case, is at paragraph 52 at 565. Your Honours start at the bottom of the page:
To read “any Bill to amend this Act” as confined to a Bill which will leave at least one provision of the Electoral Distribution Act remaining in force, whether with the same or different legal operation, would defeat the evident purpose behind the introduction of the provision in 1904 . . . The evident purpose of the provision should not be defeated by preferring form over substance.
We say both vices are present in the construction as contended for. The evident purpose of the referral was to give a power of amendment to amend the statutory text and provisions referred which were to amend the offences created and, if need be, amend provisions of Chapter 2, and the construction contended for against us would defeat the evident purpose. But also, the evident purpose should not be defeated by preferring form over substance. The bottom line of the argument against us is as long as it is put in Part 5.3 because it amends the part, and as long as it falls within “terrorist acts” that is the matter, then as a matter of form it is permitted by the Victorian referral Act. We would say that no clearer case of violence to the legislative intent can be demonstrated.
GLEESON CJ: On your argument, the matter referred was punishment of terrorist acts and Divisions 104 and 105 deal with the subject of prevention of terrorist acts.
MR MERKEL: If I could just reframe it within the spirit of what your Honour has put to me, the matter referred were the creation of the offences in relation to terrorism set out in the schedule and a Chapter 2 incorporation in relation to responsibility for those offences and what was referred was the enactment of those laws under the referral and the amendment of those offences and possibly Chapter 2, but that it is it. That was the outer limit.
GLEESON CJ: The question is whether what was referred, bearing in mind the provisions about amendment, covered prevention as well as punishment.
MR MERKEL: What was referred covered prevention - in addition the enacting legislation never covered prevention until Division 104 and 105 were enacted.
GLEESON CJ: It was punitive legislation.
MR MERKEL: Yes, that is correct, your Honour.
GLEESON CJ: Is that a convenient time, Mr Merkel?
MR MERKEL: Yes, it is, your Honour.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 DECEMBER 2006
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