XYZ v Commonwealth of Australia
[2005] HCATrans 957
[2005] HCATrans 957
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M14 of 2005
B e t w e e n -
XYZ
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 17 NOVEMBER 2005, AT 10.06 AM
Copyright in the High Court of Australia
MR S.J. GAGELER, SC: If the Court pleases, I appear with MS K.L. WALKER for the plaintiff. (instructed by Buxton & Associates)
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MS R.J. ORR, for the defendant. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: Your Honours, sections 50BA and 50BC of the Crimes Act are sufficiently extracted in our written submissions at page 17, or alternatively your Honours could look at the current reprint. There has been no material amendment. For present purposes, there is no material distinction between them, but read with section 50AD each purports to prohibit an Australian citizen or Australian resident from engaging in specified conduct outside Australia.
It is common ground that “outside Australia” means beyond the low‑water mark of Australia. The question is whether by reference to its legal or practical operation a prohibition in those terms is a law with respect to external affairs. The problem we face at the outset is that on the authority of Polyukhovich, and we accept on the reasoning of every member of the seven member Court in Polyukhovich, the answer to that question is no. On the reasoning of five members of the Court the answer is no because “external” means outside, “affairs” means anything and the external affairs power extends, without more, to anything done outside Australia.
KIRBY J: In your footnote 24 you say that you submit “that it is not necessary to seek leave to reopen Hughes” but you accept that it is necessary to overcome the decision in Polyukhovich and Horta.
MR GAGELER: Yes, we accept that, and really that is what I am leading to. That is the reasoning of the five member part of the majority. On the reasoning of Justice Brennan in the same case, as we understand it, it is necessary to have some additional connection with Australia.
GLEESON CJ: On his reasoning, a sufficient connection would be the fact that this is an Australian citizen?
MR GAGELER: Absolutely, so we lose on that reasoning as well, and on the reasoning of Justice Toohey it is sufficient for Parliament to have recognised in some way that the subject matter of the prohibition touches or concerns Australia, which it presumably did in enacting the legislation. We lose on that reasoning as well. On the basis that we need leave to reopen Polyukhovich we propose to go immediately to that question and to why we say Polyukhovich was wrong.
GLEESON CJ: Is there anybody who has been a member of the Court in the past whose reasoning supports you?
MR GAGELER: Yes, and that is really one of the points we wanted to make. In our submission, although we will have to say something a little separately about Justice Brennan’s reasoning and Justice Toohey’s reasoning, if we focus at least first on the reasoning of the majority in Polyukhovich that is the reasoning of five members of the Court, in our submission, it adopts a construction of the words “external affairs” which is wrong basically for four reasons and I propose to develop those four reasons.
GLEESON CJ: We do not get to the reasoning of what you describe as the majority. We do not need to get to that, do we, because of the fact that we are dealing with the conduct of an Australian citizen?
MR GAGELER: Your Honour, in our submission, Justice Brennan’s view, which was the view of only one member of the Court was, in effect, an adoption of the majority view with a gloss and that is, he appears to have accepted that an affair is something external to Australia but his focus was on the need to be an external affair of Australia. So really it is an adoption of almost identical reasoning with a slight gloss, so we need to deal with that.
Your Honours, in our submission, what I have called the majority view was wrong for four reasons. One, we say it is wrong in principle as an exercise in constitutional interpretation – I will develop these in a moment. Two, we say it is inconsistent with the mainstream construction of the same words adopted in cases before and after Polyukhovich and I will take your Honours back to Burgess to make that point good. We say three, it confuses the content of a particular head of power, the external affairs power, with the extraterritorial reach of Commonwealth legislative powers generally and four, it falsely assumes that there would otherwise be a gap or a lacuna in Commonwealth and State legislative power. Dealing first with the question of construction ‑ ‑ ‑
KIRBY J: Could you help me? What is the limit now of State extraterritorial jurisdiction under the doctrine of the Court because the primary function of the Constitution in section 51 and of this Court is to allocate the power, the federal balance and, at least upon the view taken in Polyukhovich you do not really get a federal question unless a State enacts a law for extraterritorial criminal operation. Now, what is the limit of the State power to do that now?
MR GAGELER: Your Honour, there is no straightforward answer to that but there are really two doctrines in play or two streams of legal principle in play. One is the ability of a State to make laws having extraterritorial reach. That is what is addressed in the Australia Act’s section 2 and was addressed by this Court in Union Steamship v King, that is subject to perhaps some minimal restrictions not completely explored in Union Steamship v King, the States can be treated as having general power now to legislate extraterritorially.
Separately and really flowing from the Seas and Submerged Lands Case there was what is generally described as the offshore constitutional settlement. I have not bought the legislation with me but there is Commonwealth legislation enacted at the request and with the consent of the States. I think it is entitled the Coastal Waters (State Powers) Act which addresses the extent to which State laws operate extraterritorially. I think they deal with the three‑mile limit and then the 12‑mile limit but the precise detail of that, your Honour, I cannot elucidate at this moment.
KIRBY J: But it does not look on the face of things to be an area where you are going to get a lot of conflict between State laws and federal laws having operation extraterritorially on a citizen of Australia.
MR GAGELER: Well, it depends. States traditionally have enacted laws dealing with criminal conduct. It is entirely a matter for the States now how far they wish to take the reach of those laws in respect of persons who would ordinarily be resident in those States.
GLEESON CJ: If it were desired to enact anti-terrorist legislation to make it a criminal offence to conspire anywhere in the world, whether you were an Australian citizen or not, to kill Australians or to destroy property belonging to Australians, would it be within the law-making power of the Federal Parliament to do that?
MR GAGELER: Yes it would, at least on two bases. One, if we are talking about foreigners doing that then it is the aliens power.
GLEESON CJ: I am talking about anyone doing it.
MR GAGELER: Well, I am just dealing with two bases, your Honour. There is no doubt that the aliens power would permit a law of that nature and, separately, if one is talking about ‑ ‑ ‑
KIRBY J: Query aliens – it is aliens and naturalisation, and query whether everybody outside Australia is an alien to Australia if they have no association or relationship with us.
MR GAGELER: Well, that perhaps is entirely another case.
CALLINAN J: It would probably be an offence under the Crimes Act anyway, already.
MR GAGELER: Yes, it would, but of course one would need to find the constitutional basis of the offence under the Crimes Act.
CALLINAN J: Yes.
MR GAGELER: In our submission, if an alien – and there may be shades of definition of “alien”, and I know your Honours have looked at this in a number of contexts recently, but if an alien is someone who at least owes allegiance to a foreign power and is not an Australian citizen, then that power would seem to be sufficient to cover most of the territory that your Honour the Chief Justice had in mind. But, separately, we would say this, that the power that supports the conferral of the status of Australian citizenship would also support laws designed to protect Australian citizens from violent conduct directed towards them because they are Australian citizens, and the power that supports the conferral of the status of Australian citizenship, I think, was the subject of Justice McHugh’s very last judgment sitting as a single Judge in the Court, where he ascribed it to the implied national power, and we have no difficulty with that.
KIRBY J: Later in your argument you will no doubt reconcile that answer to your proposition that the Communist Party Case would have been decided differently if the view of “external” means anything relevant to or matters external to Australia and the answer you just gave on terrorist acts?
MR GAGELER: I will, but we did not ‑ ‑ ‑
KIRBY J: Do not take yourself – I have already taken you off your track.
MR GAGELER: Your Honour, the Communist Party point does not really arise in respect of matters external to Australia. It really arises in respect of the proposition upon which the Commonwealth relies as a fallback position which is that provided a matter is of international concern, then the external affairs power will allow a law to be enacted that deals with that matter. It is in that context that we invoked the Communist Party Case.
Your Honours, can I come back to what we say is the correct construction of external affairs and it is simply this, that you read “external affairs” as a composite expression, as synonymous with or at least analogous to foreign affairs and as so read what it is referring to is Australia’s relations with foreign or external politics including, as at 1900, its relations with countries within the British Empire. That has been the standard or core construction of those words before and after Polyukhovich and, as we read the cases, it has been the explanation for the outcome of and has been the ratio of every external affairs case decided in this Court with the exception ‑ ‑ ‑
KIRBY J: It sounds awfully like an originalist interpretation. Do not assume that I go along with that.
MR GAGELER: Your Honour will not hear anything so limited coming from my lips.
KIRBY J: I hope not.
MR GAGELER: It has an historical basis but it also has a very contemporary understanding of constitutional terminology.
CALLINAN J: I am comfortable with talk about originalism, Mr Gageler.
KIRBY J: But you will have to address both arguments. Just do your best, Mr Gageler.
MR GAGELER: I will do both, and I am not limiting myself, your Honours, in any way.
GUMMOW J: That is not quite right, is it? You have not referred to a case of child abduction which we decided called De L 187 CLR 640 at 650 about the Hague Convention and the abduction of children. There was a complaint that the legislation did not implement accurately the Convention, and we said it does not matter. The abduction of children to Australia or from Australia is an external affair.
MR GAGELER: Yes. Your Honour, we have overlooked that case. Can I have a look at the ‑ ‑ ‑
GUMMOW J: Yes, it is 187 CLR 640 at 650.
MR GAGELER: Thank you, your Honour, we will need to address it properly. We have not done so. Your Honours, what we say was done in the reasoning of the five members of the Court in Polyukhovich that was wrong in principle was to take really the two words of the composite expression, to give to each word its widest range of dictionary definitions and then to put those two words back, each carrying a range of meanings. What doing that achieved was the rather odd result that the same words “external affairs” have a dual operation. On the one hand “external affairs” means foreign relations which except in a very artificial sense are things that exist without having a particular situs and on the other hand ‑ ‑ ‑
GUMMOW J: Do you mean between nation States, do you?
MR GAGELER: Yes.
KIRBY J: But it is not only that now. This is the problem with any originalist view. You have all sorts of international organisations and agencies.
MR GAGELER: Your Honour, I can accept that foreign relations can have a richer meaning and, indeed, Justice Murphy pointed that out in the Tasmanian Dam Case ‑ ‑ ‑
GUMMOW J: There was the Universal Postal Union before Federation.
MR GAGELER: Yes. I can accept that before and after Federation, although I referred to relations with foreign States, relations of a diplomatic nature would be comfortably encompassed within the notion.
GUMMOW J: That is this word “diplomatic” becomes the weasel word, does it not?
MR GAGELER: Your Honour, it recognises a penumbra, and I am comfortable with that, but it is just a different concept; that is all. It is a different concept from saying that the same words that mean foreign relations, accepting the richness and flexibility of that concept, also mean outside things, things that are simply physically situated externally to Australia. What it is doing is using the same words in a composite expression in two quite different senses. In our submission, that is simply a wrong exercise in construction.
Your Honours, if I can move to what we say has been the mainstream construction before and after Polyukhovich and in doing that take your Honours to R v Burgess; Ex parte Henry 55 CLR 608. A version of the “external to Australia” argument was put and rejected in this case but it was only a version.
Your Honours will the version of the argument that was rejected at page 614 at about point 4 of the page in the argument of Mr Flannery.
GUMMOW J: In understanding Burgess, though, we have to understand what seemed to be at stake and what seemed to be at stake was federal control of the whole of civil aviation throughout Australia.
MR GAGELER: Yes, of course. The argument that was being put ‑ ‑ ‑
GUMMOW J: Without a commingling doctrine.
MR GAGELER: Yes. At page 614 point 4 in the argument of Mr Flannery, your Honours will see he said:
“External affairs” referred to in sec 51(xxix) of the Constitution are those affairs of the Commonwealth as a political entity which are external in the sense that they cannot be wholly completed within the territory of [Australia].
So it was not quite the Polyukhovich argument but it was an argument that said external affairs needed to have some physically external element to them. That was rejected by each member of the Court. If your Honours go to Chief Justice Latham’s judgment, his rejection of that argument begins at page 639, again at about point 4 of the page. The rejection proceeds over quite some pages but at page 643 he came to state positively what he saw as the meaning of the phrase “external affairs”. He says at about point 3 of the page that he is proceeding to do that. He says at about point 5 of the page:
The regulation of relations between Australia and other countries, including other countries within the Empire, is the substantial subject matter of external affairs.
Then, at about point 8, after referring to the British North America Act he says:
Consideration of the cases of States which are limited in their powers by reason of an arrangement under which the control of their foreign relations is committed to another government will show that it must be recognized that no more limited meaning than that which I have stated can be given to such phrases as external or foreign affairs or relations – terms between which I can draw no distinction.
GLEESON CJ: All that in response to the argument that the provision:
should be construed as giving power to make laws only with respect to some external aspect of the other subjects mentioned in sec 51.
MR GAGELER: Your Honour, I think that may have been one shade of the argument but I think ‑ ‑ ‑
GLEESON CJ: It is stated in the middle of 639.
MR GAGELER: Yes. There is also another version of the argument which is closer to the one that I took you to in Mr Flannery’s argument referred to at page 640 – “Then it is argued”. Yes, it was said in a context but it was also a ‑ ‑ ‑
CALLINAN J: There is further argument stated on 640 at about point 3, is it not?
Then it is argued that the power ‑ ‑ ‑
MR GAGELER: Yes, your Honour. I think that is closer to the argument that I referred to in Mr Flannery’s argument. Then your Honours will see Justice Starke at page 658 at about point 2 who stated his conclusion in the form of a ‑ ‑ ‑
KIRBY J: That seems too be a historical rather than a textual explanation for rejecting the argument that “external” means anything external to Australia.
MR GAGELER: It is more than – I have not taken you to the full reasoning that goes over many pages but it is more than that. Sir John Latham, of course, by reason of his experience of these things, knew and he did not take a particularly originalist approach to the construction of the Constitution.
KIRBY J: I just think that if you read a lot of these cases you come ultimately to a view that the closer the original Justices were to the circumstances of the making of the Constitution, the bigger the pull they felt of the meaning that it had at the time it was made and the further the century progressed and the further distant they came to those circumstances, the more they then looked back to the text and the context of the document to give meaning.
MR GAGELER: His Honour’s construction is not particularly text based, your Honour. It surveys over those pages that I have not taken you to the experience of the Commonwealth in the first 35 years of operation ‑ ‑ ‑
KIRBY J: You are taking us to Justice Starke?
MR GAGELER: Justice Starke, page 658 about point 2, really, it is the rhetorical question:
But what else are external affairs of a State – or, to use the more common expression, the foreign affairs or foreign relations of a State – but matters which concern its relations and intercourse with other Powers or States and the consequent rights and obligations?
To somewhat similar effect is Justice Dixon, page 669 in the fourth line:
I think it is evident that its purpose –
and here he is referring to the purpose of the external affairs power –
was to authorize the Parliament to make laws governing the conduct of Australians in and perhaps out of the Commonwealth in reference to matters affecting the external relations of the Commonwealth.
KIRBY J: That is a difficult statement for your argument, is it not?
MR GAGELER: No, your Honour. In fact, it is a very helpful statement for my argument because, as I will be demonstrating to your Honours, when you go to the conduct that is prohibited by these particular offences, it is not confined to the conduct that has excited and might well be seen of its nature to excite the concern of foreign bodies, whether countries or agencies of various sorts. It is an attempt to impose Australian standards on Australians travelling abroad, nothing more. But I will come to that and I will demonstrate that in due course.
Justices Evatt and McTiernan have a long discussion at pages 679 through to 684. Can I take your Honours just to the conclusion of that discussion which is text based and is historically based to a significant degree. Page 684 at about point 7 their Honours say this:
Therefore the real question is – what is comprehended by the expression “external affairs.” It is an expression of wide import. It is frequently used to denote the whole series of relationships which may exist between States in times of peace or war. It may also include measures designed to promote friendly relations with all or any of the nations . . . It would seem that, in sec 51 of the Constitution, the phrase “external affairs” was adopted in preference to “foreign affairs,” so as to make it clear that the relationship between the Commonwealth and other parts of the British Empire, as well as the relationship between the Commonwealth and foreign countries, was to be comprehended.
Several illustrations may be given. In 1887 Sir Charles Dilke used the phrase “external affairs” as inclusive, from a British standpoint, both of foreign and of “colonial affairs” –
and then so the discussion goes on over the next couple of pages.
Your Honours, the next case I wanted to go to was Koowarta v Bjelke-Petersen (1982) 153 CLR 168. At page 188, about point 4, in the judgment of the Chief Justice this is said:
The expression “external affairs” is imprecise and indeed ambiguous. It might in one sense be understood as referring to matters or things geographically situated outside Australia. The meanings of the words “external” and “affairs”, considered separately, are wide enough to support that interpretation. However, if the phrase is considered as a whole, its natural meaning is matters concerning other countries. When the word “affairs” is used in the phrase “foreign affairs” it has the sense of “public business, transactions or matters concerning men or nations collectively” . . . and the word “foreign” indicates that such business transactions or matters take place in or with other countries, or concern other countries. In the first case in which the nature of the power was considered at length, R v Burgess; Ex parte Henry, it was held by all members of the Court that the words of s 51(xxix) are used in that sense.
At page 190 his Honour mentions New South Wales v Commonwealth, the Seas and Submerged Lands Case, to which I will need to come, mentions the holding in that case but goes on to note at about point 4 that:
three members of the Court, Barwick CJ, Mason and Jacobs JJ, relied on the further ground that the power given by s 51(xxix) was not limited to authorizing laws with respect to Australia’s relationships with foreign countries, but extended to any matter or thing situated or done outside Australia.
What his Honour says about that is that it is unnecessary to consider whether the words in paragraph (xxix) can have this dual operation, that is whether the phrase “external affairs” can be used to mean matters outside the Commonwealth as well as matters involving a relationship between Australia and other countries.
Now, the basic conception of “external affairs” as meaning foreign relations, in effect, was repeated and explained by three other members of the Court and I will simply give your Honours the references: in the judgment of Justice Stephen at page 211, in the judgment of Justice Murphy at page 237 and in the judgment of Justice Brennan at page 258. Everything that is there said is a discussion of the power referring to Australia’s relations. Justice Mason alone, at pages 222 to 223, sought to adhere to the view that he had taken in the Seas and Submerged Lands Case.
GLEESON CJ: What about what Justice Murphy said in the middle of 237, in the sentence beginning with the words “More broadly”?
MR GAGELER: I am sorry, your Honour, I had overlooked that. That may be an adoption of the wider view. Certainly his Honour did not in the Seas and Submerged Lands Case take the wider view and certainly, with the exception of that sentence, the entire discussion that begins under the heading “External Affairs” and continues over several pages is all about ‑ ‑ ‑
GUMMOW J: Well, the next paragraph is important too, the absence of international personality for the States.
MR GAGELER: Yes, your Honour. I am sorry, your Honour, I had overlooked that particular sentence. But Justice Mason, at the pages that I had referred to, really did not seek to advance the position that he had taken in the Seas and Submerged Lands Case, simply preserved it. It was necessary for the discussion in Koowarta to take it further. Your Honours, the discussion in the Tasmanian Dam Case can perhaps be – they are just simply snippets here and there and they are collected in Polyukhovich. I will not go to that. Can I come next to a case after Polyukhovich and Horta, which is the Industrial Relations Act Case 187 CLR 416. There are really just two short passages that I wanted to refer your Honours to in this case. In the joint judgment at page 482 at about point 4 it is said:
The phrase “External affairs” was adopted in s 51(xxix) of the Constitution in preference to “foreign affairs” so as to make it clear that the power comprehended both the relationship between the Commonwealth of Australia and other parts of the then British Empire and the relationship with foreign countries . . . It would be a serious error to construe par (xxix) as though the subject matter of those relations to which it applied in 1900 were not continually expanding.
Of course, we accept that entirely. At page 485, however, there is a reference to Polyukhovich and it is said:
Of course the scope of the legislative power is not confined to the implementation of treaties.
Of course, we accept that entirely, but it goes on:
The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted –
and we say that is quite correct –
adopted in Polyukhovich –
and then there is a quotation from Justice Dawson. It is noted that other statements are found in the judgments of other members of the Court in Polyukhovich and it is said they must now be taken as representing the view of the Court. Now, that, of course, was in this context an obiter comment and its authority, in our submission, does not rise higher than the authority for Polyukhovich itself. Your Honours, can I go ‑ ‑ ‑
GUMMOW J: Look at page 650 while you have volume 187 open, Mr Gageler.
MR GAGELER: Yes. This is De L?
GUMMOW J: Yes, the paragraph at about point 5, “The subject matter of the Regulations”.
MR GAGELER: Yes, your Honour, I will need to consider that. Obviously that sentence would be contrary to the argument we are putting, a sentence so wide. Whether in the context it could be more confined I am not sure, but I will need to consider that. But may I say this, your Honour, if this legislation was concerned, as its title suggests, with child sex tourism, then the matter may be different with movements to and from Australia for a particular purpose, as is the American legislation.
GUMMOW J: The American cases seem to rely on the foreign commerce power.
MR GAGELER: That is right. But the legislation there is also, in the criteria for its legal operation, true to its title and this legislation is really something quite different. We are not concerned with movements to and from Australia. We are concerned with what he has done in some place outside Australia, nothing more than that.
GLEESON CJ: In Polyukhovich on page 565, Justice Brennan quotes the Privy Council as saying:
according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed –
Under the Australian Constitution, what Parliament or Parliaments have power to exercise the jurisdiction recognised by international law in that respect?
MR GAGELER: Each of the Parliaments of the States, each of the Parliaments of the Territories, and the Commonwealth Parliament, to the extent that a criminal prohibition it imposes falls within the head of Commonwealth constitutional power.
GUMMOW J: You are saying the Parliament of Tasmania can make a law applying to what is done in another country by a resident of Western Australia?
MR GAGELER: No. It must have some – Union Steamship v King suggested a need for some nexus with the State, but certainly in respect of what is done by what might loosely be called the people of Tasmania, or a person of Tasmania in a foreign place, in any foreign place, yes.
GLEESON CJ: But if what you said earlier about the citizenship power is correct, then the Federal Parliament could make a law prohibiting an Australian citizen from joining a terrorist force overseas on the basis of its citizenship power, is that right?
MR GAGELER: No, I was talking about the protection of citizens, your Honour.
GLEESON CJ: I see. Well, what power if any would the Federal Parliament have to enact a law prohibiting an Australian citizen from joining a terrorist organisation overseas?
MR GAGELER: Your Honour, I am not sure about the most recent batch of legislation, but there has ‑ ‑ ‑
GUMMOW J: There has been provision in the Crimes Act for some time.
MR GAGELER: Yes. There is also a particular piece of legislation called the Foreign Incursions Act.
GUMMOW J: Yes.
MR GAGELER: It has been around since the 1970s, I think.
GUMMOW J: Well, there was imperial legislation at one stage.
MR GAGELER: Your Honour, it depends how you define terrorism, but we have no difficulty with the concept in Sharkey, for example, which was a sedition case, and it was a sedition directed to a foreign power. We have no difficulty with the external affairs power ‑ ‑ ‑
CALLINAN J: You might have the defence power anyway ‑ ‑ ‑
MR GAGELER: It may be the defence power. There may be a range of powers, but terrorism in itself may give rise to some questions of definition, but there would be a range of powers that would, in our respectful submission, appropriately focus legislation to address that issue – in part, the external affairs power, but not the geographically external to Australia aspect of it, your Honour.
Your Honours, can I go to the Seas and Submerged Lands Case (1975) 135 CLR 337 and I go to this because it is really, as Chief Justice Gibbs noted, the origin of the thoughts that then find their way into Polyukhovich. So far as we can see, this is really the first mention in the cases of the notion of the external affairs power extending to things geographically simply because they are geographically external to Australia.
We would ask your Honours to note that the discussion – and it is rather fleeting discussion – occurs in the context of a case that is undeniably inherently concerned with a subject matter that was related to Australia’s relations with other countries, that is, the whole case was about claims of territorial sovereignty by the Commonwealth beyond the low‑water mark, and it is in that context at page 360 that one finds the entirety of the discussion of Chief Justice Barwick on this topic, and I will not read the paragraph, but it is a very short statement and it is in the context to which I have already referred.
One finds slightly more in the judgment of Justice Mason at pages 470 to 471 and it is here that one finds for the first time a text‑based analysis that involves breaking up – we say, wrongly breaking up – the composite expression into its two words, and giving the second of those words, “affairs”, the range of possible meanings. One sees at the bottom of page 470 an invocation in support of that approach of the principle in the Public Vehicles Licensing Appeal Case.
What we say about that, that is the principle, your Honours, that constitutional language should be construed with all the generality which the words used admit. What we say about that is that it is, properly applied and as stated in the Public Vehicles Licensing Appeal Tribunal Case a principle that says you should not read down the plain meaning of the constitutional language by reference to some implication drawn from some notion of federalism or from some notion of convenience. It is not a counsel in favour of reading up the plain meaning of words or of giving them a meaning that does not accord with their plain meaning, and for better or for worse, one sees an application of that in the Incorporation Case, for example, 169 CLR 482 at 498 where although the same principle is referred to it did not stop a corporation formed within the limits of the Commonwealth needing to be a formed corporation.
GLEESON CJ: The argument on which you see to rely is that that was put by Mr Aickin on page 347, was it not, in the middle of the page?
MR GAGELER: Not quite so narrowly, your Honour – I am sorry, yes:
The subject matter is restricted to things which are the subject of the relations ‑ ‑ ‑
GLEESON CJ: Yes.
MR GAGELER: Yes, that it is, yes.
GLEESON CJ: Was that argument rejected in this case?
MR GAGELER: No, it was not addressed by the majority. I think the passage that I have taken your Honour to in the Chief Justice’s judgment is somewhat ambiguous as to whether it is an outright rejection of that argument. I would have to say it is rejected by Justice Mason and it is rejected by Justice Jacobs in a passage that I will come to. The other aspect that I wanted to draw your Honours’ attention to in the judgment of Justice Mason at the bottom of page 471 is that his Honour ‑ ‑ ‑
GUMMOW J: You have also to look at Sir Maurice’s argument at 342 at about point 3:
“External” simply means external to the Australian land mass.
MR GAGELER: Yes, I have not overlooked that, your Honour. Yes, an argument which Sir Maurice put at an appropriate point of his otherwise lengthy arguments. The other thing I wanted to point out about Justice Mason is at the bottom of page 471. He saw some support for the view, the “external to Australia” view, as coming from Justices Evatt and McTiernan in Burgess. We have looked at those passages and we simply cannot see that support. Can I come then to the judgment of Justice Jacobs on this point, pages 496 and following?
KIRBY J: I can understand your argument if it is anchored in history, that if it is anchored in the purpose of the founders of making “external affairs” relevant to the whole world, including the Empire and relations with the Empire, I can understand that, but if you look at the Constitution from a functional view anchored in the text, then save for one matter the text “external affairs” is big enough to encompass this expansion into anything “external to the Australian land mass”.
The problem that is then created for Australia and its federal arrangement is that so many things now have an external, global, international aspect that that formula, unanchored in something relevant to Australia, could very easily become a source of power to completely override all of the heads of power in section 51 and become a total blanket for federal power. That is what leads you then back not to history but to some way of reading the external affairs power in a way that is more limited than Sir Maurice Byers was urging on the Court in Polyukhovich.
MR GAGELER: Yes. Your Honour, I do not want to be repetitive but there is, in our submission – if you confine yourself to the text – a difficulty in making the words do two quite distinct jobs. There is a difficulty in the dualism, and I have already pointed that out. If you look at the position in 1900, as did Justices Evatt and McTiernan in Burgess, you see that the concept of “external affairs” was a single concept and it fitted comfortably with the world view that your Honour has already mentioned.
If you look in the Macquarie Dictionary, contemporaneously, you will see entries for the word “external”, you will see an entry for the word “affairs” and they can have a range of meanings, but you will also see a single entry for the words “foreign affairs”, a single concept with its own definition. In our submission, it is the same concept, the words slightly different because we no longer have to worry about the Empire but it is the same concept that has flowed through to contemporary usage. But your Honour raises these larger structural questions and they are really the points that excited the interest of Justice Jacobs. Can I come to his judgment in the Seas and Submerged Lands Case, now?
It is at page 496 and the discussion continues through to page 499. The question that his Honour was addressing was a question he identifies by the number (5) towards the bottom of page 496. Given that his Honour was dealing with sovereign rights, an international law concept in itself, in our submission, the answer to that question did not necessarily involve his Honour making some of the broad statements that he in fact made. At page 497 at about point 4 his Honour said this:
In my opinion the Commonwealth has the power to make laws in respect of any person or place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth.
The power to make laws in respect of any place outside and any matter or thing done or to be done outside the boundaries of the Commonwealth is clearly not vested in the States. It is in my view now vested in the Australian Crown by virtue of the external affairs power.
And he goes on over the next page and a half to explain why that should be so. The reasoning, in effect, comes down to this. What his Honour is saying in effect – and the same idea is reflected, to a greater or lesser degree, in all of the judgments in Polyukhovichi – is that while section 51(xxix) might have been subject to a territorial limitation in 1900, with the passage of time and particularly with the passage of the Statute of Westminster, it can now be given an unrestricted territorial operation and one that ensures that there is no gap in the constitutional framework.
KIRBY J: An argument for that is that that is simply the natural progression of Australia and its national Parliament to the power that the United Kingdom Parliament, from which it historically derived its powers, had long enjoyed.
MR GAGELER: Yes. Your Honour, we say there are really a number of problems with this and I need to point these out. It is appropriate to point them out at this stage because they really do permeate Polyukhovich. The first is if you take his Honour’s first sentence that I read out at page 497 about point 5, “the power to make laws in respect of any person or place outside and any matter or thing . . . to be done outside the boundaries of the Commonwealth”, is clearly not vested in the States, is clearly wrong. That is a wrong starting point. The States have extraterritorial legislative power. The plenitude of that power is now spelt out or confirmed by section 2 of the Australia Acts and it is confirmed by a decision of this Court in Union Steamship v King.
Then his Honour’s discussion of the march of history in respect of Commonwealth legislative powers, in our submission, makes the basic error of conflating and therefore confusing the content of a particular head of power with the territorial or extraterritorial reach of Commonwealth legislative power generally. What the march of history confirmed, particularly with the Statute of Westminster in 1932, was the extraterritorial reach of Commonwealth legislative power generally. It did not change in any way the content of the head of power. It did not change the subject matter of any particular head of power.
There is a discussion of that in a case I will just take your Honours to very briefly in a moment, the Eastern and Australian Steamship Case, which held, during the Dixon Court era, that section 51(xxxv), the interstate industrial dispute power, extends to disputes outside Australia. I will take your Honours to the passages in a moment ‑ ‑ ‑
KIRBY J: Of course, the top down view is that these powers were granted by the Imperial Parliament. The other view is that they were a natural evolution bottom up within Australia from the powers of the sovereign people of Australia exhibited in their federal arrangements and internationally in the Federal Parliament.
MR GAGELER: Yes, I think for the purposes of my argument the differences between those two views coalesces in the distribution of powers that was effected in the Commonwealth Constitution, and really, as a result of those two errors, a third error creeps into his Honour’s reasoning and it is this. Because there is an ignoring of the fact that States have pretty general extraterritorial legislative power and because there is an ignoring of the fact that other heads of Commonwealth legislative power operate, and can operate, and have operated since 1932, at the very least extraterritorially, there is this assumption that unless section 51(xxix) is given this expanded operation of operating on any matter external to Australia, that there will be a gap in legislative power within Australia.
Now, the response to that is that there is no such gap because it proceeds from those two false premises but, in any event, what his Honour overlooked is the operation of section 51(xxxviii) of the Constitution which means that, subject to overriding constitutional prohibitions, there can never be a gap in the scope of Commonwealth and State legislative power because the Commonwealth and the States can always combine, through the request and consent procedure, to do anything that the Parliament of the United Kingdom could have done in 1900.
GLEESON CJ: That is provided they all agree on what should be done. One of the points of having States is that they legislate differently. If they all legislated in the same way, there would not be much point in having States.
MR GAGELER: No, but, your Honour, I am addressing the theoretical gap and the theoretical gap simply does not exist. The absence of such a gap is ‑ ‑ ‑
GLEESON CJ: What about a practical gap?
MR GAGELER: There may be a practical gap. Very interesting your Honour raises that, because amongst the legislation that your Honours have been given is this very odd piece of Commonwealth legislation called the Crimes at Sea Act which apparently in some parts of its operation, or perhaps in the major part of its operation, appears to rely upon the “external to Australia” aspect of the external affairs power. The oddity of it is that, frankly, it is a very sloppy co‑operative federalism. What could have been done very easily through a request and consent procedure under section 51(xxxviii) has been done through an intergovernmental agreement that is then given effect by Commonwealth legislation. So there may be practical issues, your Honour, but there are proper ways and constitutional ways of addressing them.
KIRBY J: This may be just another example of bypassing Parliaments. Executive Governments can reach all sorts of cosy agreements but going to Parliament is often a bit of a nuisance.
MR GAGELER: Yes. So, in respect of that legislation, there was a proper way of doing it and the proper way of doing it was not followed.
KIRBY J: But if the theory of external being external of the land mass is right then ‑ ‑ ‑
MR GAGELER: Then it is right. No problem.
KIRBY J: ‑ ‑ ‑ they did not need any agreement with the States.
MR GAGELER: No, they did not need the underlying agreement in any event. I was just going to refer your Honours, in relation to the scope of section 51(xxxviii), it was held to support the offshore constitutional settlement legislation in Port MacDonnell Fisheries v South Australia 168 CLR 340, with particular focus on its amplitude at page 381, about point 9 where it is said to be a power:
to ensure that a plenitude of residual legislative power is vested in and exercisable in co-operation by the Parliaments of the Commonwealth and the States –
So there can be no gap.
Your Honours, I will mention the Eastern and Australian Steamship Company Case 103 CLR 256. I have mentioned it already. There are just two short passages that I wanted to draw your Honours’ attention to. At the bottom of page 300, in the judgment of Justice Menzies, the point is made that the effect of the Statute of Westminster – whether it is the Statute of Westminster or the more general march of history really does not greatly matter – is that prima facie the grant under section 51(xxxv) authorises laws with extraterritorial operation as, we would say, any other laws. He goes on at the bottom of that page and just at the top of the next page to point out that what it does not mean is that the constitutional language is now to be interpreted differently from how it was previously interpreted.
At page 306 there is really quite a general exposition by Justice Windeyer of the point that Commonwealth legislative power extends generally to things within Australia and outside Australia. We have no difficulty with that, that it applies to all legislative powers.
Your Honours, can I then come to Polyukhovich, and very much the reasoning in Polyukhovich is a repetition by the majority, in varying degrees, of the themes to which I have already taken your Honours and a repetition, in our submission, of the same errors. The judgment of the Chief Justice at pages 528 through to 530 really adds nothing new. It is a reference back to the views earlier expressed and, in particular, the bottom of page 529 to 530 a picking up of the views of Justice Jacobs in the Seas and Submerged Lands Case.
The judgment of Justice Deane at page 599, under the heading “External affairs”, has a similar text-based analysis. It is one, your Honours see, similar to that adopted by Justice Mason earlier in the Seas and Submerged Lands Case of breaking up the two words and giving each a very broad meaning.
Can I ask your Honours just to pause there and contrast what his Honour Justice Deane had earlier said in passing in The Tasmanian Dam Case which, in our submission, was the correct approach that his Honour ought to have followed also in Polyukhovich. The Tasmanian Dam Case, of course, 158 CLR 1, and it is simply what his Honour had said at the bottom of page 253 that I wanted to draw attention to and, of course, his Honour was here, to be absolutely fair, not dealing with the same argument at all, but what he said, in our submission, is entirely right. At the bottom of page 253 about point 9:
The phrase “external affairs” is, like the phrase “foreign affairs” and “foreign relations”, a composite one in which the noun exists in its plural form . . . The use of the singular “external affair” to refer to a particular matter or aspect of ”external affairs” is not only inapposite: it is liable to convey incorrect shades of meaning which will assume added significance if one proceeds to engage in the reverse process of defining the limits of the external affairs power by reference to whether a particular matter or object can or cannot properly be described as an “external affair”.
Now, the adoption – although his Honour was not addressing an “external to Australia” argument, that approach is simply inconsistent with saying that the power extends to any affair, matter, thing that is geographically external to Australia.
GUMMOW J: Perhaps one should look at page 255 of the Dams Case. Sir Henry Parkes makes a return appearance there. The idea was that Australia would have, to the extent then possible and thereafter to a greater extent, international personality amongst other things.
MR GAGELER: Yes.
GLEESON CJ: That metaphor, the metaphor of an “uncrippled power” is one that has been repeated. The usual rhetorical flourish with which the argument against you is often put is that if it were otherwise Australia would be an international cripple.
MR GAGELER: Australia like the United States and like many federal polities encounters difficulties in its international relations that do not beset governments like the United Kingdom used to be.
GLEESON CJ: But the fact that Australia is a federation does not mean, does it, that if it exercises the jurisdiction, well recognised as international law, of penalising certain kinds of foreign conduct by Australian citizens, it requires the agreement of all the States?
MR GAGELER: No. It is simply, your Honour, the product of the federal distribution of powers. In Canada, the central government has power in respect of criminal law.
GLEESON CJ: Because it has the residual power?
MR GAGELER: No, because it is – I may be wrong. I thought it had a specific head of power.
GLEESON CJ: Does that include criminal law overseas?
MR GAGELER: It has the power in respect of criminal law, and then it has power to legislate territorially and extraterritorially. All we are saying, your Honour, really just comes down to this, that the same distribution of power that exists territorially exists extraterritorially. Does that create problems? Does that mean that Australia is an international cripple? Not at all. It simply means that the Commonwealth Parliament faces the same limitations within Australia as it faces outside Australia.
HAYNE J: On the lacuna argument, take for example Part 5.4 of the Criminal Code which deals with “Harming Australians”. It hinges among other things upon the victim of the offence being an “Australian citizen or a resident of Australia”.
MR GAGELER: Your Honour, can we say this, that on our argument that law could not in those terms of course be supported simply because we are concerned with conduct outside Australia could it otherwise be supported? It could if it could be read down or recast in a number of different ways. In those broad terms the answer would be no.
HAYNE J: The point to which I want to direct your attention is, you say there is no gap because the States and Territories have the breadth of extraterritorial legislative power that they do.
MR GAGELER: Yes.
HAYNE J: What of the case of the Australian citizen resident overseas perhaps for an extended period of time, which State or Territory could exercise extraterritorial legislative power in respect of harm to that person, an Australian citizen who has not been resident in a State or Territory of Australia perhaps for some years?
MR GAGELER: Yes, your Honour may well find the odd Australian citizen who has lost their domicile. But if there are forms of nexus that could be readily created, in our submission, under State law that would survive the minimal Union Steamship v King test ‑ ‑ ‑
HAYNE J: Yes, can you give examples of those forms of nexus that would be apposite to the kind of case I posit?
MR GAGELER: The domicile, even the domicile of origin, residence, perhaps other connections, your Honour, yes. But, your Honour, the protection of Australian citizens overseas is really something I have already addressed in answer to his Honour the Chief Justice. In that broad form that legislation is problematic. The legislation could readily be recast to bring it within heads of constitutional power for the Commonwealth to do it, not simply the States. Your Honour the Chief Justice, I was referring to the Canadian Constitution section 91 paragraph 27 which gives the Canadian Parliament specific power with respect to criminal law.
Your Honours, in the judgment of Justice Gaudron the relevant passages are at 695 to 696. They really add nothing to the discussion in the other judgments that I have already taken your Honours to. That is the bottom of 695, the top of 696. Justice McHugh, at pages 712 to 713 and following, then repeats similar notions. Interestingly, his Honour at page 713 refers to the dictionary meaning, the contemporaneous dictionary meaning of the word “affair”. What his Honour overlooked was the contemporaneous dictionary definition in the same dictionary of the composite expression “foreign affairs” and I have already mentioned that to your Honours.
GLEESON CJ: Could I just take you back to Justice Deane at page 599?
MR GAGELER: Yes, your Honour.
GLEESON CJ: There is no inconsistency, is there, between what he said there and what he said in the Tasmanian Dams Case? What he said in the Tasmanian Dams Case was that the word “affairs” is plural and has to be understood in that context, not as a collection of individual things each of which is an affair. But he looked at the word “external” and he looked at the word “affairs”.
MR GAGELER: Your Honour, I do not really want to make it a debating point but it ‑ ‑ ‑
GLEESON CJ: I am talking about page 599.
MR GAGELER: Yes, I follow. I understand what your Honour is putting to me. But there is a tension between saying on the one hand, as he said in the Tasmanian Dam Case, that you have to treat this as a composite expression and that it is wrong to look for some singular affair and then to attach to that – there is a tension between that and saying on the one hand you can find an affair that is simply a thing and if it is outside Australia it is an external affair and then you can legislate with respect to it. We see a tension between those two positions.
Your Honours, at 632, the fifth member of the Court to adopt the unrestricted “external to Australia” approach, one finds a passage in the opening words of Justice Dawson’s judgement that the Commonwealth seizes upon and quotes in its written submissions to the effect that even Justice Dawson, who had particularly constrained views of the external affairs power, was prepared to go with the “external to Australia” argument. The point about that opening passage of Justice Dawson’s judgment is what his Honour really highlights is that we are referring here to two quite different uses of language, one of which he can accept but the other of which he was simply unable to accept. The real difficulty lies, in our submission, in accepting them both simultaneously.
The minority, if I can call it that, judgment of Justice Brennan relevantly begins at page 549 under the heading “External acts” and continues over for some pages. His Honour at page 550 rejects – in our submission, correctly rejects – the lacuna argument, although for a slightly different reason from the ones that I have been putting to your Honour – I have said there is no lacuna – but what his Honour said about the middle of page 550 we would also adopt, where he says:
The legislative powers of the Parliament are limited by the terms of the Constitution, and the connotation of the phrase “external affairs” must be ascertained from its context and purpose.
So that if there is a gap and it is the product of the constitutional division of powers, then so be it, according to his Honour. But it appears to us, without reading what there occurs and to the top of the next page, that although his Honour correctly, in a sense, identifies the reference to “external affairs” as one to “the external affairs of Australia”, what he appears to do, at least implicitly, is to adopt the view that an external affair of Australia can be any matter or thing outside Australia and all that one needs to show for it to be an external affair of Australia is some connection with Australia. So his view, it seems to us, is very close to the view of the majority.
GLEESON CJ: And it is also clear from what he says on 565, is it not, that an obvious form of connection with Australia is regulating the conduct of an Australian citizen?
MR GAGELER: Absolutely, at page 552 at about point 7 he says that in as many terms, yes. So, as I said, if one adopts that view, which is very, very little different from the view of the five members, then obviously we lose. But what I really wanted to point out is that although it appears and to some extent does proceed slightly differently, it in substance adopts the same approach as the majority to external affairs, adding the gloss that it must be an external affair of Australia, therefore the need for a connection.
Finally, Justice Toohey adopted a really quite different approach at pages 653 to 654. When I say a slightly different approach, he appears to be closer to Justice Brennan than to the majority. He says that there must be some connection with Australia for there to be an external affair, but he appears there and over the next page to go on and say the connection with Australia is sufficiently established by Parliament itself determining there to be a connection. That is the only way in which we can read what he says at pages 653 to 654 and the way in which he later expressed his general conclusions.
If that is the right way of understanding Justice Toohey’s judgment, then, in our submission, it involves a pretty clear violation of the principle in the Communist Party Case. That is, if it is necessary to have a connection between Australia and the relevant affair, then whatever that connection is really must be one that is determined objectively by the Court. Put in another way, the Court really must be satisfied of every fact the existence of which is necessary to provide the constitutional basis of the legislation.
Your Honours, as I said, the only other case to invoke the Polyukhovich reasoning is the case of Horta 181 CLR 183 ‑ ‑ ‑
KIRBY J: Was Polyukhovich criticised in any of the scholarly writing on the basis that you are urging on us? There was quite a lot of discussion of it at the time. Some of that was addressed to the retrospectivity of the operation of the law. Has there been any discussion of these issues in the writing?
MR GAGELER: There has been discussion of the issues but we are unaware of any criticism along the lines that we are now putting.
KIRBY J: If there are any articles or any commentaries on Polyukhovich that you think throw light on the issues that are before the Court, I would like to read them, if we could have reference to them.
MR GAGELER: Yes, we will check them out. Your Honours, Horta 181 CLR 183 contains at pages 193, bottom of the page, to 194 what is nothing other than a repetition of the range of views that one sees in Polyukhovich. It is a repetition without further discussion and it is a repetition of views that occurs in the context of discussing legislation which on any view had as its subject matter a subject matter concerning Australia’s international relations. That was the legislation concerned the implementation of what was in fact an agreement between Australia and Indonesia. So even it Polyukhovich is wrong for the reasons that we say, we could find nothing objectionable about the outcome in Horta. It is simply the adoption of the reasoning in Polyukhovich that is problematic.
KIRBY J: Is the net result of this analysis of the case law that the theories are it is external relations and imperial relations at political level, or it is matters external to the territory of Australia, and then you get a subdivision between external is enough and those who say external plus some connection with Australia?
MR GAGELER: That is pretty much the divide.
KIRBY J: What is your third theory? What is the postulate you are urging upon us because you have to have a postulate?
MR GAGELER: I think it is the first, your Honour, and that ‑ ‑ ‑
KIRBY J: Your theory is the first theory?
MR GAGELER: The first theory, yes, what I might call the traditional theory, the sufficient theory to explain every case except for one, yes.
KIRBY J: You are not always traditional, Mr Gageler, but you are on this occasion.
MR GAGELER: Correct. I move with the times and I simply wanted to, in partial answer to what your Honour was saying and in partial answer to an earlier question of Justice Gummow, I would not seek to differ from what was said by Justice Murphy in the Tasmanian Dams Case 158 CLR 1 at 171, where his Honour was saying that Australia’s relationship with something other than nation States may well be encompassed within the notion of external affairs. We would accept that. It is a rich concept but it is a different concept from simply external to Australia. Your Honours that is really what we wanted to say about the reopening of Polyukhovich. The balance of my argument, if we are correct about the connotation of the external affairs power, will take no more than half an hour.
GUMMOW J: One of the considerations in any reopening is what has been done on the faith of the case.
MR GAGELER: Yes.
GUMMOW J: And what has been done on the faith of the cases you attack seems to be Part 2.7 of the Criminal Code which contains very detailed geographical jurisdiction provisions in Commonwealth criminal law.
MR GAGELER: Yes.
GUMMOW J: Now, it is a consequence of your argument that the nexus that is found there in nationality or residence is insufficient.
MR GAGELER: Your Honour, it is difficult to say that in globo. One would really need to put the provisions together with the substantive operation of the offence. I am sorry - certainly, insofar as the provision blandly proceeds upon a notion of geographical externality, yes, it would be invalid, but does that mean that a particular offence in particular circumstances would not be supported by a head of constitutional power? No. One would need to put the provisions together in each case.
GUMMOW J: What sort of acts committed outside Australia by an Australian national do you say is supported by the external affairs power?
MR GAGELER: Any act of sedition against Australia that would affect Australia’s relationship with another country, the Sharkey‑type case. I am just concentrating on the external affairs power. Any act that would in practical terms have an effect on Australia’s relations with an external polity or body and there are plenty that one could imagine, but can I say there are also the plenitude of other powers that the Commonwealth has to make things a crime in Australia. Those crimes can exist outside as well.
GLEESON CJ: A possible reason for reopening Polyukhovich would be to permit us to look at it and if we came to the conclusion that it was appropriate to do so to say that we agree with it.
MR GAGELER: Yes.
GLEESON CJ: You go ahead and put whatever arguments you want to put on the merits.
MR GAGELER: Yes, thank you, your Honour. Your Honours, if we are then right in identifying the power as limited in the way that was identified in Burgess’s Case, for example, as one that is concerned with Australia’s foreign relations, then the touchstone for validity of any law, in our submission, is the application of the general test that one sees, for example, in Leask v The Commonwealth 187 CLR 579.
GUMMOW J: It has currency power.
MR GAGELER: Exactly. It is the same test. Page 621, going to your Honour Justice Gummow’s judgment, where your Honour picked up Justice McHugh’s general test in Dingjan’s Case 183 CLR 579 at 621. I am going to this, and it is a currency power case, and Dingjan’s Case was the corporations power case, because we are concerned simply with the application of general principles of characterisation. What one does is one looks relevantly to the liabilities or duties that the law creates and one asks does a law that creates those liabilities or duties exhibit in its legal or practical operation a connection with Australia’s foreign relations, and a connection that is real and not remote. That is just to apply to this particular head of power the same approach as one applies to any other head of power.
GLEESON CJ: Does not the criminalising of conduct abroad by Australian citizens have the capacity to affect Australia’s relations with the States in whose territory that conduct occurred?
MR GAGELER: In our submission, no, and I probably need to approach your Honour’s question at two levels. It cannot be, we say, that simply the effect of making the law is enough to bring the law within power. Can I take an analogous situation. It cannot be that the Commonwealth by enacting a law that so offends certain sections of the community as to create an interstate industrial dispute brings the law within section 51(xxxv) of the Constitution.
GLEESON CJ: Let me give an example of what I have in mind. The long arm United States laws on matters of anti-trust concern has affected from time to time the relations between the United States and other countries, has it not?
MR GAGELER: Yes, certainly. Of course the long-arm jurisdiction is based upon the trade and commerce power.
GLEESON CJ: Yes.
MR GAGELER: The point that I was seeking to make is that for the purposes of constitutional characterisation one cannot take a bootstrap approach. One has to find the subject matter of the law is itself something that comes within power and then the law can be made on that subject matter. It cannot simply be that the law gives such offence that it creates an interstate industrial dispute or gives rise to a war that one can get within section 51(xxxv) or the defence power, as the case may be, but that was the point that I was making.
HAYNE J: But does it not demonstrate the difficulty of taking as the content of the power something described as Australia’s diplomatic relations with other nations? What is the content that you are giving to that expression?
MR GAGELER: I would not necessarily ‑ ‑ ‑
HAYNE J: The content that is different from “external affairs” as understood in Polyukhovich?
MR GAGELER: Can I do it by going to this particular law, your Honour. It is a significant difference because ‑ ‑ ‑
CALLINAN J: As part of that, in answer to his Honour, you might take into account what the Solicitor refers to on page 12 of his submissions in which he refers to the second reading speech and the House of Representatives Standing Committee – the relevant Committee’s report that talked about Australians being brought into disrepute and the unenviable reputation in the world press, which might suggest concern of making it a matter of real international concern affecting Australia’s relations with other countries.
MR GAGELER: Yes. Your Honours, can I compositely answer those questions and they are questions I came prepared to answer in a slightly structured way, and could I do it in that structured way? I do want to go to the actual criterion of operation of these two provisions in a moment because, in our submission, they are not tailored to meet that concern that your Honour has identified, but can I say this generally about them. If one looks to the legal operation of these particular provisions, what one does not find, as you would find if you looked at what is said to be the equivalent provision, for example, in the United Kingdom, that the conduct prohibited needs to be an offence against the law of the place where it occurs.
So you are looking at conduct that is by no means necessarily offensive to the laws or public morals of the place where it occurs and you find in the legal criteria for the operation of the law no requirement that links the particular conduct to anything that is condemned in any bilateral or multilateral agreement to which Australia is a party or, so far as we can see, in any public international material that the Commonwealth has sought to marshal against us.
GLEESON CJ: Different countries might have different ideas about what constitutes a child, just for a start.
MR GAGELER: That is part of it, yes, that is entirely part of it. But if you look at what has excited international concern – and it is littered through the material that the Commonwealth has provided to the Court and has listed in its written submissions – what are the topics? Well, the topics that have excited international concern are inducement of children to sexual acts, coercion of children, exploitation of children, a phenomenon called sex tourism, child pornography, child prostitution. All of those, one would not quibble, are the subject of international concern, a notion that I will come back to in a moment, but none of those things are built in in any way to the criterion of legal operation of these provisions. There is a heading, your Honour, there is a heading “Child Sex Tourism”, but the actual provisions are not so confined, that is that their operation is ‑ ‑ ‑
HAYNE J: Whereas the premise for the provisions is that a person under the age of 16 cannot give any consent. It is effective.
MR GAGELER: Your Honour, what it involves ‑ ‑ ‑
HAYNE J: And once you make that premise, the characterisations that you otherwise said could be seen as matters of international concern run.
MR GAGELER: No, we do not accept that, your Honour. We say that what one has here is the imposition of Australian criminal or social standards on conduct of an Australian citizen or an Australian resident when outside Australia, quite irrespective of its perception in the place where it occurs and quite irrespective of any connection between the conduct and Australia’s relations with that place or with any other international entity, whether it be a polity or otherwise. Your Honours, can we go to the legislation itself, and it is section 50BA, start with that. All that is required to constitute an offence under section 50BA(1) is that the person, the Australian resident or Australian citizen “engage in sexual intercourse with a person who is under 16”. Now, we have pointed out, your Honour the Chief Justice has alluded to it, we have pointed out in our submissions in reply in paragraph 11 that there are many countries in the world where the age of consent is much lower.
GLEESON CJ: And there may be countries which actually permit child marriage.
MR GAGELER: Indeed, marriage is in fact a defence under later provisions. But there are many countries where the age of consent is 12, and if one even takes Canada, in Canada the age of consent is 14 and if you think about the operation of this provision, section 50BA, it is quite possible, more than conceivable that you have a scenario where, for example, you have an Australian citizen who is either living in Canada or visiting Canada or, even worse, a Canadian citizen resident in Australia returning to Canada who has sexual intercourse with a person who is 14 or 15, is thereby not engaging in any conduct which would be seen as offensive within Canada that would jeopardise in any way Australia’s relations with Canada and, yet, that would be an offence under this provision.
Now, there is no way, in our submission, of reading it down to exclude that scenario, but that scenario illustrates that although there may be a core area of international concern, which we fully accept, these provisions just are not tailored to that core area of international concern. Heading “Child Sex Tourism” execution, however, something that is not directed to that. Contrast, for example, the American provisions that again are said against us to be analogous legislation, they are focused on the phenomenon of child sex tourism, travelling to other countries for a particular purpose. That is not what we have here.
It becomes even more pronounced when you go to section 50BC, which is the other offence in issue here. There the offence is – relevantly it is subsection (1)(a) – to commit “an act of indecency on a person who is under 16”. Now, what is an act of indecency? Well, it is a defined expression and for that you go back to section 50AB(1) which says an act of indecency is (a) and (b) and (c) and (c):
is so unbecoming or offensive that it amounts to a gross breach of ordinary contemporary standards of decency and propriety in the Australian community.
You see, this has nothing to do with Australia’s relations with other countries, in our submission. It is all about imposing Australian moral standards on Australians when abroad, irrespective of the effect that that may have on Australia’s relations with any other country.
Your Honours, can I say a couple of things about the notion of international concern and whether international concern, of itself, is enough to invoke the external affairs power. We have said some things about this in our submissions‑in‑chief but can I just emphasise a couple of aspects of it. One is at one level, as is demonstrated by the inability to give international concern any content in a treaty‑making context, everything is or can be a matter of international concern.
If one takes, as an example, communism in the 1950s or terrorism in 2005 they were and are, as broad concepts, matters of international concern, but simply because they have excited the interests of the international community, in our submission, does not bring them within Commonwealth legislative power. It did not in the 1950s and does not now sweep away the constraints of federalism.
We accept that there may be matters, short of the assertion of rights or obligations in international law, that sufficiently affect Australia’s relations with other countries as to bring them within the concept of external affairs or, perhaps more precisely, so as to bring legislation addressing those matters within the external affairs power. We simply say that the mere potential or capacity to affect Australia’s relations with other countries is not enough and your Honour Justice Callinan referred to the Minister’s second reading speech. To the extent that he was referring to potential, in our submission, even if objectively established, that would not be enough to bring one within power, but even more so, the Minister’s mere assertion of the potential could not, consistently with the Communist Party principle, be enough to establish it objectively in any event.
What I have been saying about the difficulty with the whole notion of international concern really aligns pretty much with what Justice Brennan said about that topic in Polyukhovich 172 CLR 561 to 562. Your Honours need not turn to that. But, with that in mind, we do seek constructively to provide your Honours with what we would say is a workable test of when the external affairs power would support a law dealing with a matter of international concern.
May I state it for what it is worth. We would say there are really three elements to it. One is that one must be able to identify a specific concern expressed or manifested internationally in some concrete terms. That is the first element. The second element is that the specific ‑ ‑ ‑
KIRBY J: Is that one limited to a treaty or is that ‑ ‑ ‑
MR GAGELER: No, not at all. We do not seek to be so narrow. Secondly, the specific concern must have a real and not remote or hypothetical or potential bearing on Australia’s international relations and then, thirdly, the Commonwealth legislation on the topic of that concern must faithfully pursue addressing that concern. Put it in another way, it must be reasonably capable of being seen to be appropriate and adapted to meeting the concern. Now, what I just said is to apply pretty much the same test for the implementation of a treaty obligation that was laid down in the Industrial Relations Act Case 187 CLR 416 at 487. Same power, same underlying notion of connection with Australia’s international relations and, in our respectful submission, same approach ‑ ‑ ‑
KIRBY J: That third one does not seem to fit in with your answer to me on the first one. If you do not need a treaty, why do you have to impose the requirement of fitting in with treaty‑like provisions?
MR GAGELER: Theoretically it goes back to the core notion of the power being concerned either with laws which in their legal or practical operation are connected with matters affecting Australia’s international relations. So it is laws that are tailored to that subject matter that fall within it. That is at one level. At another more structural or basic or floodgates concern level, unless you introduce some sorts of limitations like that, you do not have to worry about treaties. It does not fall within the treaty. It really does not matter at all because the treaty demonstrates that there is a topic that is of concern and the topic has a penumbra that extends beyond the detail of the treaty and it is enough to just point to the treaty on the subject matter which is very much what our learned friends seek to do with the Convention on the Rights of the Child.
HAYNE J: Construing 51(xxix) in that way does not, at first blush, sit easily with the relationship that the courts have commonly taken, at least in other contexts, to dealing with the conduct of foreign policy in which there has been through the certificate mechanisms and matters of that kind, tendency to draw lines that keep the courts away from identifying the way in which international relations are conducted by the Executive Government. Is that a fair criticism, or not?
MR GAGELER: No, it is not. The line of cases to which your Honour refers, the executive certificate cases, for example, illustrate that an executive certificate is never treated as conclusive. If we go back to the 1950s or earlier in the English case law, you found that sort of thing but no longer and certainly not in the jurisprudence of this Court but more significantly, your Honour, and more immediately for constitutional purposes, you go back to the jurisprudence of this Court in time of war where if anything was a matter of – where the Executive could be expected to more comfortably determine a constitutional nexus than the Court, the Court never abrogated its duty to make the factual determination for itself. That really is the Communist Party Case.
CRENNAN J: Mr Gageler, can I ask you this. Would section 10.5 of the Criminal Code have any role to play in relation to paragraph 11 of your reply where you refer to other nations choosing to adopt a different age of consent, and you have your Canadian example in there.
MR GAGELER: I doubt, your Honour, that that would change the elements of the offence to say if the conduct were justified or excused – I am sorry. I doubt that it would operate to say that if the conduct was simply not criminal under the law of the place where the conduct occurred, then there would be a ‑ ‑ ‑
CRENNAN J: I was really directing attention to your point in paragraph 11 that it is not a defence to a charge under 50BA or 50BC, that the actions in question were legal in the jurisdiction in which they occurred.
MR GAGELER: Yes. I had not actually considered the operation of that provision, your Honour, but the justification or excuse under law, even if the reference to law could extend to a foreign law, in our submission, would not be sufficient to pick up the simple absence of prohibition, which is all that we are talking about.
HAYNE J: “A law” is a defined term, “a law of the Commonwealth”, and includes this Code.
MR GAGELER: Thank you, your Honour.
HAYNE J: The print I am working from, that is at page 391 of the print. It is in the schedule in the dictionary.
MR GAGELER: Yes. Thank you, your Honour, that is a helpful answer to her Honour’s question. Your Honour, that is as much as we wish to put. If the Court pleases.
GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Your Honours, this is probably a case where the refusal of leave in relation to the reopening of Polyukhovich and Horta would have the result that that is the end of my learned friend’s case. He has not put any submissions suggesting that if Polyukhovich and Horta are correct he can attack this legislation.
KIRBY J: There is a problem with that, that at least two members of the Court do not accept that leave is required and follow Justice Deane’s view that in Evda, a constitutional matter, the Constitution has no provision requiring leave and that you cannot impose by statute or practice anything that inhibits the proper construction of the Constitution.
MR BENNETT: Yes, your Honour.
CALLINAN J: And I agree with that view, with all due respect.
MR BENNETT: Yes. Your Honour, this may not be the case to argue that issue, but we certainly would submit that leave is required and that leave should not be granted in this case. If one looks at the general approaches taken in John’s Case and the criteria laid down in John’s Case, it is fairly clear, for the reasons we have put in our outline, that this is not a case for reopening.
GLEESON CJ: John’s Case was not a case about the Constitution.
MR BENNETT: No, it was not, your Honour. May I deal specifically, rather than attack it that way, with my learned friend’s arguments as to why he submits that Polyukhovich should be overruled. His first argument is that it is wrong in principle. He supports that largely by saying that one cannot break down the words “external affairs”. It is rather like a hendiadys, he submits ‑ ‑ ‑
KIRBY J: Not that expression again.
MR BENNETT: Your Honour, my learned friend did not use it ‑ ‑ ‑
KIRBY J: I have never heard you argue a case without slipping that in.
MR BENNETT: Your Honour, I plead not guilty to that charge. But I will adopt his composite phrase. What he does is apply what we would submit is illogical grammatical reasoning. He says you start with the concept of “foreign affairs”. Now, that is a composite phrase. He says it means governments having relations with other governments. He then says they changed “foreign” to “external” to accommodate problems in relation to the British Empire at the time and, therefore, we really still have a composite phrase. Well, your Honours, the answer to that is we do not. If you change a word in a composite phrase to create something which is not a generally accepted composite phrase or hendiadys, then one does not have one.
If one takes the classic hendiadys, talking of a cup of tea, that it is nice and hot, meaning, of course, not that it is nice and that it is hot, but that it is of a particularly desirable temperature; it is nicely hot, if one likes. If one changes the word “nice” to “strong” so one does not have a recognised phrase “strong and hot”, then one would not say the characteristics of the original composite phrase apply to the new one.
The phrase “external affairs” is not a common English phrase, at least it certainly was not in 1900 and if it is it has only become one because of its inclusion in the Constitution. So assuming that “foreign affairs” was and “external affairs” was not a recognised composite phrase having a meaning independent of its composite parts, one cannot apply that characteristic to the phrase “external affairs” merely because originally someone thought “foreign affairs” was a more appropriate phrase and one word was changed.
KIRBY J: The expression was used in the Canadian Constitution, was it not, the British North America Act, “external affairs”? Is it there?
MR BENNETT: I am not sure, your Honour.
KIRBY J: I think we should check that and see how, if it is there, it was developed in that country.
MR BENNETT: Yes, I will have that checked, your Honour. Of course, Canada is a different situation because there one has the residual powers in the Federal Government rather than in the States. We submit that it is a perfectly legitimate construction and, indeed, a correct construction to treat the two words separately, look at their meanings. One certainly may then look at the overall combination to see if it makes sense and how it works and so on, but one does not start with the assumption this is a composite phrase because some previous phrase that was used or discussed was a composite phrase if this is not.
The second matter to note is that my learned friend submits that Polyukhovich is inconsistent with mainstream construction in cases before and after it. We would submit that is not the case. When one goes through the various external affairs cases prior to Polyukhovich what one finds in virtually every case is that the case was one involving a treaty or international agreement of some kind and the attack which was made on the legislation was that the treaty could not go so far as to authorise something of such local character.
That was certainly the primary argument put against the Commonwealth in the R v Burgess; Ex parte Henry. What was said was – this is about planes flying intrastate within Australia – how can a treaty power allow the Commonwealth to legislate about that? The same sort of thing was said in a different way in cases like Koowarta and Tasmanian Dam, and the old academic example of the colourable treaty where the Commonwealth agrees with Liechtenstein that it will widen Pitt Street is sometimes called in aid. But that type of argument is concerned with the extent to which the Commonwealth can legislate pursuant to, or in relation perhaps to, a treaty or international agreement. One would not expect to find in such cases a discussion of the broader concept of externality.
The cases, by their nature, are dealing with events and things within Australia and the external connection is the treaty. So it is a very different area of discourse and not one where one would expect to find helpful comments in this area.
KIRBY J: I take the force of that submission, but when you have a treaty you have an anchor in something which has manifested itself as of concern to the external world because the States have got together and done it, but just about everything, as you know, is now the subject of international discussion and meetings and conferences and agency meetings and so on, and that is the concern that the external affairs power will become the Trojan horse of the Commonwealth to, in a sense, allow virtually everything to become a source of federal power, and somewhere between the reality of the advance of the international community but avoiding the peril of the Trojan horse we have to find where the federal power is and is not.
MR BENNETT: Your Honour, that is directed to my alternative and subsidiary argument about matters of international concern. What I am submitting ‑ ‑ ‑
KIRBY J: If there is a treaty, there is no problem, we just go through the orthodox steps of looking at the treaty, looking at the statute, is there a consistency with the treaty, and that is the end of the problem. But if you take an over‑wide view of matters of external concern, then why bother about the treaty?
MR BENNETT: Your Honour, my submission is that under the Polyukhovich principle one does not need a matter of international concern. That is a different head and it is a head which ‑ ‑ ‑
KIRBY J: So we have been wasting our time entirely on treaties because if it is a matter of international concern why bother with a treaty? All of that jurisprudence was a waste of time.
MR BENNETT: Your Honour, with international concern one has the same sort of problems one has with treaties, namely, the extent to which what is otherwise a purely internal matter is regulated by the Commonwealth because there is international concern about it. That is the same issue that can arise with treaties and was discussed in the cases I have referred to. But what I am putting at the moment is a separate limb, perhaps the principal limb ‑ ‑ ‑
GUMMOW J: Justice Dawson emphasised this in the passage we set out in the Industrial Relations Case. There was no one more vigilant than he is to the Trojan horse argument, but on this case it is a different realm of discourse.
MR BENNETT: Precisely, your Honour. We are dealing here squarely with conduct outside Australia. We are not dealing with internal conduct which is sought to be controlled by the Commonwealth because of some international aspect.
KIRBY J: No, but you have to test every case that comes before this Bench by what happens in the next step. If the test is that you can use the external affairs power on any matter which is of international concern, then you have a mighty power and it is a power that can be used in arguably understandable cases and it can be used in other cases. You have to get your principle right.
MR BENNETT: Yes. Well, your Honour, as I submit, we do not need to get to international concern, but in relation to international concern there are obvious questions of degree which have to be considered. Here one has international meetings to which governments send representatives, one has resolutions passed, one has material – and we have some United Nations material which discusses this issue. This is not like an international meeting of local government consultants discussing whether they are going to run local government in the same sort of way in different countries. This is not like that.
GLEESON CJ: International concern is a very loose concept. It does not, for present purposes, necessarily cover everything that is discussed at the gathering of travellers.
MR BENNETT: No, it does not, your Honour. It is a question of degree, but I will come to that when I come to that part of my argument. The proposition we put at the moment is that Polyukhovich and Horta are clearly correct when they lay down that anything external to Australia is covered by the external affairs power and we call in aid the various statements made in the line of authority which has been referred to. Polyukhovich was not the only case to deal with it. It was put by a number of Justices of this Court in cases before that and we have set some of those out in our materials.
KIRBY J: Can I just test that? Does that mean that if the Federal Parliament enacted a law that purported to regulate the side of the street on which the traffic in Buenos Aires would move, or the way Australian citizens would be dealt with at Heathrow Airport, that that would be a valid federal law?
MR BENNETT: Yes, your Honour.
KIRBY J: Well, that seems a curious result and it tends to lead you back to some connection with Australia, which is what Justice Brennan and Justice Toohey seemed to think was required. It does not necessarily help the plaintiff in this case, but if you look at the context of the Constitution, it is a Constitution for Australia and its people; it is not a Constitution for the world.
MR BENNETT: And constitutional lawyers had for years written that if the English Parliament prohibits a Frenchman from doing something in the streets of Paris, that is a valid law by a sovereign Parliament which the English courts would enforce, and in creating a new entity which was to become sovereign the question was whether the States or the central government should have that aspect of the sovereignty. The logical conclusion was that it was a matter on which the Federal Parliament could legislate.
It is not an exclusive power of course. The existence of the power does not prevent the States legislating extraterritorially. There may or may not be other restrictions depending on what one says about the cases leading up to the Australia Act and the Union Steamship Case. So there are different considerations in relation to States, but this was conferring upon the Federal Government that aspect of the British Parliament’s sovereignty and that really is, we would submit, the short and simple explanation of the inclusion of this power.
It was not just a matter of carrying out external relationships with other States. Indeed, that would be surprising bearing in mind that in 1900, if one takes an originalist view, the power of either the federal or the State governments to deal with foreign relations was extremely limited. It was all, of course, done through the English authorities. The external affairs at the time, on that definition, would have consisted of having a Commonwealth Agent General in London, as the colonies had had, and perhaps having someone sitting at the side of the British diplomat who is negotiating a treaty which may affect Australia.
We do not say, of course, that that consideration in any way restricts the foreign relations or the relationship with nations aspect of the power today. There has been a fresh denotation arising out of the development of Australia as an international person and to that extent 51(xxix) anticipated that development, but it is another thing to say that all it has covered was something that was not covered in 1901.
We submit that to limit it to relations with other nations would be limiting it to something that did not exist in 1901 which would be rather more surprising. It would make the power solely an anticipatory power instead of, as we submit, in part an anticipatory power. We submit the primary purpose was simply saying, well, this aspect of what a sovereign government can do, which is pass extraterritorial laws, possibly having limited or no connection with the forum, is something which is to be included in the powers of the Federal Government.
We also note the references in Victoria v The Commonwealth as well as, of course, Horta, to Polyukhovich containing the modern doctrine as to the scope of the power. This is established law in this Court and it has been followed in a line of cases since. We also call in aid, as we have said in our submissions, the earlier cases referred to in our footnote 8 which include statements in Burgess; Ex parte Henry, and the Seas and Submerged Lands Case, in Robinson v Western Australian Museum, in Koowarta and in Tasmanian Dam. All those cases, as my learned friend has largely demonstrated, contain statements by some Justices along the lines of the view which was laid down in Polyukhovich.
GLEESON CJ: To what extent, if at all, did what went on in the United Kingdom concerning General Pinochet depend upon the existence in the United Kingdom Parliament of a power similar to that recognised in Polyukhovich?
MR BENNETT: It was a simple case of extradition, your Honour. The only differential was that the country which had sought extradition ‑ ‑ ‑
GLEESON CJ: Spain, that was.
MR BENNETT: Spain, which itself had provisions of that type. Spain had the laws based on the passive citizenship principle, which is the principle under which a country legislates for damage done to its citizens overseas. Spain criminalised the alleged conduct of General Pinochet on the basis of that principle. It was not what he had done to Chileans, it was what he had done to Spaniards.
GUMMOW J: In Chile.
MR BENNETT: In Chile, yes. It was the passive nationality principle, as it is described in the academic writings.
KIRBY J: I think I referred to that distinction in international law in Re Colonel Aird.
MR BENNETT: Yes, your Honour.
GLEESON CJ: If Australia wanted to enact legislation of the kind that Spain had enacted ‑ ‑ ‑
MR BENNETT: It could, your Honour, under this power. I mean, that is done in the Crimes Act in Part 5.4 which makes it an offence to murder or otherwise harm an Australian citizen or resident outside Australia. That is a classic invocation of the passive nationality principle. This case of course is an invocation of the simple nationality principle – nationality or residence – because the legislation ‑ ‑ ‑
GLEESON CJ: It says conduct by an Australian.
MR BENNETT: I am sorry, your Honour?
GLEESON CJ: Yes, but does the argument against you depend upon the proposition that if Australia wanted to deal with General Pinochet in the same way as Spain did or attempted to do, it would require legislation of the States and Territories?
MR BENNETT: As I understand my learned friend’s argument, that is implicit in what he says because he says the external affairs power is not invoked by the fact that the act occurs outside Australia or it relates to something outside Australia and he would limit it to relationships with other countries. If he were right, the Commonwealth would have to find some sort of treaty or international agreement which it was implementing.
KIRBY J: He does refer to section 51(xxxviii) which is the Commonwealth acting at the request of the States.
MR BENNETT: Yes, your Honour, that is, as was pointed out I think by Justice Gummow in argument, a very difficult and inconvenient procedure. It is one that would, for practical purposes, involve all of the States. It is one that is invoked occasionally but the very paucity of cases where it is done demonstrates the difficulty with it and it cannot have been the intention of the framers when they inserted “external affairs”, to have assumed that they do not need a wide power because anything can be done under section 51(xxxviii). One could use that argument to limit any of the powers in section 51. One could say the Commonwealth does not need the power because it can always be done under 51(xxxviii).
KIRBY J: But the strength of your argument is not what the intention of the framers was. It is that the concept of “external affairs” has expanded in the course of the last century and that the Constitution uses that phrase and the Court has given it a functional interpretation anchored in the text and we should just continue to do so.
MR BENNETT: Yes, your Honour. The functional interpretation is certainly supported by the increasing globalisation which is occurring, but ‑ ‑ ‑
KIRBY J: The worry is going beyond treaties because then virtually everything today is discussed in international meetings and is a matter, at least generally, of international concern.
MR BENNETT: But, your Honour, that is not my primary submission.
KIRBY J: I realise that but we have to test these propositions by other ways in which they may be used.
MR BENNETT: And your Honours can see the sort of things which are done under the Polyukhovich interpretation of the power by looking at the range of acts which we have referred to in footnote 9. There is the child sex tourism provisions; there is the murder or otherwise harming an Australian abroad provisions; there is the Foreign Proceedings (Excess of Jurisdiction) Act which deals basically with the Westinghouse litigation in the United States and the American sort of defensive legislation in relation to the American long‑arm statutes and anti-trust law; the Crimes (Foreign Incursions and Recruitment) Act; the Crimes at Sea Act; the Historic Shipwrecks Act; the Privacy Act; the Space Activities Act; the Ozone Protection and Synthetic Greenhouse Gas Management Act and one gets down to the Weapons of Mass Destruction (Prevention of Proliferation) Act and the Conservation Act dealing with what is called the “Australian Whale Sanctuary”.
KIRBY J: What is your answer to the point though that if your construction is correct that the Communist Party Case should really have been decided in another way because at the time Australia was entitled to say, “We have a battalion fighting communists in Korea”. International communism is a world movement. The fall of other states is a matter of international concern and therefore the Commonwealth has the power to deal with it.
MR BENNETT: It was dealt with primarily under the defence power as ‑ ‑ ‑
KIRBY J: Well, that was attempted at the time but we would have to test the proposition by the suggestion in the plaintiff’s argument that if you are correct the Communist Party Case was wrongly decided because the Court did not address this issue, this aspect of communism.
MR BENNETT: Your Honour, the other aspect of the Communist Party Case was that it was concerned with Parliament bringing itself within a head of power by stating certain facts in a preamble and the extent to which it could do that without having to prove or demonstrate those facts. There were various other aspects of the Communist Party Case which are quite different to what is involved here.
Here we are dealing simpliciter with conduct outside Australia. Our primary argument does not depend on the international concern aspect. It simply says that one of the areas over which the Commonwealth Parliament was given power by the Constitution was so much of sovereignty as relates to passing laws about events external to the country. That is a very simple proposition which might not have availed the Commonwealth in the Communist Party Case, where one was dealing with a more indirect connection with overseas events.
GLEESON CJ: The Communist Party Case did not concern legislation about the Korean War.
MR BENNETT: No.
GLEESON CJ: It concerned legislation aimed at conduct within Australia.
MR BENNETT: Yes.
GLEESON CJ: And the dissolution of organisations within Australia.
MR BENNETT: Precisely, your Honour.
GLEESON CJ: I am just at the moment not sure what matter, event or thing outside Australia was the subject of the law, as distinct from the occasion for the introduction of the law.
MR BENNETT: Precisely, your Honour.
KIRBY J: Well, the preamble of the Commonwealth certainly asserted that there was a worldwide movement, and the facts of the matter were that at the time a battalion of Australian soldiers were fighting in Korea. When you went through the list of the provisions in the Crimes Act some of them are anchored on international concerns. Therefore, at least it seems to me, you have to answer the argument that is put for the plaintiff that if you are correct, the Communist Party Case might well have had a different fate, which is a result that one does not embrace with enthusiasm, or at least I do not.
MR BENNETT: Your Honour, much would depend on the way in which that case was argued. In my submission, the primary issue on which we rely here is something purely external to Australia, whereas that case involved actions internal to Australia. It may well not have been caught by that limb of the external affairs power. There may have been a different argument in relation to the limb of the external affairs power concerned with matters of international concern, and there may have been questions of incidental power in relation to the defence power, and so on. Those were the issues which would have been involved in it.
KIRBY J: Anyway, it is pretty hard for us to revisit the Communist Party Case in 1951 with the knowledge and subsequent authority that has occurred in this Court since then.
MR BENNETT: Your Honour, in my respectful submission, my argument does not involve any challenge to the Communist Party Case nor does the proposition in Polyukhovich. None of the judges in Polyukhovich or Horta seem to have thought that they were overruling the Communist Party Case or saying anything which would be inconsistent with it, and we submit they were not.
So one has here then a principle worked out in a line of cases where judges are discussing the external affairs power. A number of them put it in terms later adopted in Polyukhovich, some do not, but the discussion is generally in a context of how far can you go under a treaty to do internal things rather than to what extent does the external affairs power concern itself with all matters external to Australia? So one has the working out and the final resolution in Polyukhovich ‑ ‑ ‑
KIRBY J: Is that the distinction Justice Dawson makes that Justice Gummow was referring to earlier, that there is a distinction between using the external affairs power to do internal things which, as it were, shakes the federal boat and using the external affairs power to do that which is the natural and normal or sovereign thing of the Australian Federal Parliament which the States are not normally concerned with?
MR BENNETT: It is a convenient division for the purpose of argument, but the ‑ ‑ ‑
KIRBY J: Does Justice Dawson touch on that in the Industrial Relations Case?
MR BENNETT: I am not sure if he puts it that way, your Honour.
GUMMOW J: We set out the passage in the joint judgment in the Industrial Relations Case referred to earlier this morning, what Justice Dawson had said on an earlier occasion in Polyukhovich.
MR BENNETT: Yes.
KIRBY J: Which is the case where Justice Dawson begins his reasons by saying, “I have never believed that you can use that”?
GLEESON CJ: Polyukhovich.
KIRBY J: That is Polyukhovich. It may be there that ‑ ‑ ‑
MR BENNETT: Yes. The Industrial Relations Case itself, of course, is a case which is concerned with a treaty and how far you can depart from a treaty and what you can do in turn pursuant to a treaty and so on.
KIRBY J: Presumably you have to develop the “of international concern” source of power in a way that does not make that completely redundant and irrelevant.
MR BENNETT: Well, your Honour, the “international concern” aspect is a third way one can invoke the ‑ ‑ ‑
GUMMOW J: It is 187 CLR 416 at 485.
MR BENNETT: Yes, that is the adoption of the Polyukhovich view, “The modern doctrine as to the scope of the power”, et cetera, but the quotation from Justice Brennan, as he then was, in Tasmanian Dam is perhaps more related to the “matters of international concern” aspect, or the extent to which treaties deal with matters of international concern although otherwise domestic. But one just does not need to get to that in this type of case where one is dealing with something purely external.
So not only then is this a principle which was developed in a number of cases that considered the alternatives and discussed it and ultimately expressed by the majority of this Court in Polyukhovich, but in subsequent cases that has been regarded as settled doctrine in this Court. Cases like Horta and Victoria v The Commonwealth have referred to it in that way. So those criteria are satisfied in our direction in relation to overruling it and it has been applied by the legislature in a great deal of legislation.
Much of the legislation in footnote 9 could be supported without resort to the Polyukhovich principle but some of it seems to require the Polyukhovich principle, particularly Part 5.4 of the Crimes Act dealing with murdering or injuring Australians overseas, the present provisions on child sex tourism. Much of the HistoricShipwrecks Act deals with shipwrecks totally external to Australia, within Papua New Guinea and in other areas. Some of it is concerned with an agreement with Holland but not all of it. The Crimes at Sea Act, part of it is done under a reference but part of it goes beyond the reference, particularly the parts dealing with things done on Australian ships. So this is something which has been acted on by the Parliament and that, we submit, is of importance.
GLEESON CJ: What was the Western Australian case concerning a shipwreck that preceded, I think ‑ ‑ ‑
MR BENNETT: Robinson v Western Australian Museum.
GLEESON CJ: Robinson, yes.
MR BENNETT: And of course Part 5.3 of the Criminal Code dealing with terrorism and receiving terrorist training and so on – and I should tell your Honours there is a case presently before the New South Wales Supreme Court set down for hearing in the next couple of weeks in which there is a challenge to that legislation on very much the same sort of basis as is being done here, although, of course, Polyukhovich will bind the court in that case.
GUMMOW J: When you say set down, what, as a step in a criminal trial or ‑ ‑ ‑
MR BENNETT: Yes, your Honour. It is a step in a criminal trial, in which we are intervening, before Justice Bell in the Supreme Court in ‑ ‑ ‑
KIRBY J: Has an attempt been made to remove that matter into this Court or not?
MR BENNETT: No, your Honour. I can give your Honours the name if your Honours wish. The case is called R v Ul‑Haque.
GUMMOW J: Do you know the date of this proceeding before Justice Bell?
MR BENNETT: Yes. I think, your Honour, it is Monday week.
GLEESON CJ: Yes, but what is going on?
MR BENNETT: It is the coming Monday.
GLEESON CJ: But what is “it”? Is it a trial?
MR BENNETT: It is a trial, your Honour.
GLEESON CJ: A criminal trial before a jury?
MR BENNETT: A criminal trial in which this point is taken as a preliminary point, the validity of ‑ ‑ ‑
GLEESON CJ: But is it a jury trial?
MR BENNETT: Yes, your Honour. This issue will not ‑ ‑ ‑
HAYNE J: You say a preliminary point; in what form?
MR BENNETT: Well, your Honour, as I understand it, it is just being argued at the trial and we are intervening on that aspect ‑ ‑ ‑
GLEESON CJ: There is not a motion to quash an indictment?
MR BENNETT: I am not sure, your Honour.
GLEESON CJ: I only mention it because we have said fairly emphatically in recent times that we do not interrupt the course of criminal proceedings.
MR BENNETT: Yes. Well, your Honour, I do not treat intervention under section 78A as being in breach of that ‑ ‑ ‑
GLEESON CJ: I just wondered what is going on on Monday week. Will there be a jury empanelled and evidence led? As I say, if this is a motion to quash an indictment, it might be another question.
MR BENNETT: I have not looked in detail at the procedural aspects, but I imagine it will be dealt with before the empanelment of the jury.
KIRBY J: Perhaps you should bring that exchange to the attention of the other side, the fact that the matter has been discussed in this Court. It would be unfair if they were to find it at some later time.
MR BENNETT: I will have that done, your Honour. Of course part of that legislation is supported by a reference, but it is also based on section 51(xxix). When one puts those matters together, we would submit that this is a case in which leave to reopen should not be given. It is the classic type of case where there is a challenge to something which has become established doctrine.
GLEESON CJ: What are the answers to the questions for which you contend? You will find the questions on page 15 of the case stated book. The answer to question (1) is yes, both of them; (2) does not arise ‑ ‑ ‑
MR BENNETT: Would your Honour just pardon me? I am just obtaining a copy of the book.
GUMMOW J: Page 15.
MR BENNETT: Yes, thank you. Well, the answers would be yes, both of them to (1); (2) does not arise; and (3) the plaintiff. So those are my submissions in relation to why leave should not be granted. Do your Honours wish to hear me generally ‑ ‑ ‑
GLEESON CJ: Yes. Anything you want to say on the merits?
MR BENNETT: Yes.
GLEESON CJ: How long do you expect to require for the remainder of your argument, Mr Solicitor?
MR BENNETT: Probably about half an hour, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Your Honours, I propose to conclude first dealing with matters external to Australia and then deal with international relations and then finally matters of international concern. I was asked about the Canadian position. The British North America Act 1867 in section 132 says:
The Parliament and Government of Canada shall have all Powers necessary or Proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.
So it is a fairly early version of the idea. The current computer printout of it has the heading “Foreign Affairs” but we are not sure if that is part of it. That certainly does not appear in the printed copy of the early statute that we have. There are provisions in the Indian Constitution if your Honours are interested in that. Section 355 talks about:
Duty of the Union to protect States against external aggression and internal disturbance.
Section 51 provides:
The State shall endeavour to . . .
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations –
Those matters do not really assist in dealing with the present problem. I was asked this morning about the precise nature of what is occurring on Monday. There is, I am told, a motion to quash the indictment and the ground of the motion is that the statutory provision is not authorised by the external affairs power. Now, there was a discussion this morning about whether the States could pass legislation of this type. Your Honour, that issue is really dealt with, so far as this Court is concerned, in the Union Steamship Case (1988) 166 CLR 1 at pages 13 to 14. At page 13 in the judgment of the whole of the Court there is a citation with approval of a passage from Justice Dixon, as he then was, in Broken Hill South v Commissioner of Taxation 56 CLR 337 at 375:
But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised.
At page 14 of the Union Steamship Case their Honours go on to discuss it and say at line 3:
And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation . . . That new dispensation is, of course, subject to the provisions of the Constitution . . . and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution.
I think some of this may have been discussed in argument in Sweedman in which your Honours are reserved, where there was the problem of legislation in one State affecting something which has connections with another State. Their Honours end by saying this:
Be this as it may, it is sufficient for present purposes to express our agreement with the commence of Gibbs J in Pearce where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject‑matter of the legislation and the State will suffice.
So legislation of this type, we submit, would be valid if there were some remote and general connection. It is a little more difficult to define that connection because unlike the United States we do not have the concept of citizenship of a state but no doubt residents of the States could be used and one might have to decide when the case arose connections such as presence in the States and so on, but when considering the extent to which the States could pass legislation which would have the same effect as the Commonwealth legislation there would still be some gaps. For example, one could have an Australian born overseas to Australian parents who had never been to Australia and such a person might be an Australian citizen with no particular connection with any State, merely the general connection to Australia.
It would be permissible under the aliens and naturalisation power for a power to be given to Australian ambassadors to naturalise people who had never been to Australia and such people might have no connection with any State but would of course be Australian citizens. So the connections with States may not fill the gap in the present type of case or in other cases where one is concerned with the conduct of Australians overseas.
My learned friend referred this morning to Victoria v Commonwealth and made the submission the adoption of Polyukhovich was mere obiter dicta. The significance of it for present purposes is first that Polyukhovich has been followed subsequently, that and other cases, but more importantly that the two dissentients – or partial dissentients in Polyukhovich – recognised in that judgment the correctness of the majority position, and that is really its importance for present purposes and for the purpose of any application to overrule it. Finally, in relation to matters external to Australia, it is significant to note ‑ ‑ ‑
KIRBY J: I do not understand that last submission. It just does not seem to be correct legally. You have derived the ratio of the case or the holding from the majority. You do not derive it from obiter of those in the minority?
MR BENNETT: No, your Honour, one does not, but when one is looking at the extent to which – there are cases where Justices in this Court have dissented and maintained their position in future judgments. The position of Justice Murphy in relation to section 92 in Buck v Bavone is perhaps the classic illustration of that. When one is looking at overruling a case it is relevant to note, one would have thought, if a dissentient or dissentients have adhered to their dissents or recognised the force of the majority decision and accepted it, and in my respectful submission, it is of relevance to say that the two Judges who expressed different views in Polyukhovich have both joined the majority which made the statement that has been cited in Victoria v Commonwealth.
The final submission in relation to matters external to Australia and Polyukhovich is that if one accepts for a moment the views of Justice Brennan or Justice Toohey, we still succeed. Justice Brennan accepted that the citizenship of the person accused as an Australian citizen is a sufficient basis for the invocation of the external affairs power.
KIRBY J: Could you explain how that happens, given that citizenship is not a constitutional term? I can understand the notion that nationality under the Constitution will be relevant to a constitutional power and its ambit. Citizenship is simply a statutory provision.
MR BENNETT: Your Honour, I suppose because of the denotation of the terms. If the position is that as a general matter it is recognised in international law and the comity of nations that nations may legislate in relation to the conduct of their citizens abroad, and then if the external affairs power were not as wide as we say it is, that would be a reason for holding it at least as wide enough to cover the conduct of people having a close connection with Australia abroad and the relevant close connection today, after the changes which have occurred, is that citizenship provides that link.
We have some material - your Honours, I have a small bundle. I have eight copies of material taken from Professor Harris’ book, cases and materials on international law. This is material which demonstrates that there is what Professor Harris describes as universal acceptance of the nationality principle. If your Honours start at the first page after the title, which is page 264, where at the beginning of the chapter Professor Harris says:
An analysis of modern national codes of penal law and penal procedure checked against the conclusions of reliable writers and the resolutions of international conferences or learned societies, and supplemented by some exploration of the jurisprudence of national courts, discloses five general principles on which a more or less extensive penal jurisdiction is claimed by states at the present time. These five general principles are: first, the territorial principle, determining jurisdiction by reference to the place where the offence is committed; second, the nationality principle . . . the nationality or national character of the person committing the offence; third, the protective principle . . . the national interest injured by the offence; fourth, the universality principle . . . fifth, the passive personality principle . . . Of these five principles, the first is everywhere regarded as of primary importance and of fundamental character. The second is universally accepted –
So the nationality principle, he says:
is universally accepted, though there are striking differences in the extent to which it is used in the different national systems.
Then he refers to others. A bit later, there is a report of the judgment of the International Court of Justice in France v Turkey, The Lotus Case. This case involved facts very similar to R v Keyn.
GUMMOW J: This is the era of Sir Cecil Hurst…..British judge.
MR BENNETT: Yes, well this case involved a collision on the high seas between a French vessel and a Turkish vessel and when the French vessel put into a Turkish port, the officer of the watch was charged with the equivalent of manslaughter, I think, under Turkish law and France took Turkey to the International Court and said you cannot charge our citizen with that; it is something he did on the high seas and not in Turkey. Your Honours will not be surprised to hear that France failed.
GUMMOW J: What are we reading The Lotus for, apart from sentimental memory of law school?
MR BENNETT: I am reading it for one sentence, your Honour, which appears at page 276. It appears in the dissent but it is simply a report of a factual situation where at point 7 of the page Judge Moore says:
No one disputes the right of a State to subject its citizens abroad to the operations of its own penal laws, if it sees fit to do so.
Of course it is a matter of notoriety that most European civil law systems impose penal sanctions on their own citizens in relation to conduct committed abroad which satisfies what extradition law describes as the dual‑criminality provision.
KIRBY J: I referred to all these matters in Re Colonel Aird from [122] on and quoted Professor O’Connell who said in 1970 that:
“There is no restriction on the competence in international law of a State to prosecute its own nationals for acts done on foreign territory.”
MR BENNETT: Yes. Well, your Honour, in any event, if Justice Brennan’s view were to prevail, clearly it applies in this case where the Act is limited to citizens or residents. His Honour’s judgment refers to “citizenship or residence” in the relevant passage and that is the same thing in the Act. We are dealing here of course with a person who is a citizen.
KIRBY J: Have you said everything that you want to say against adopting Justice Brennan’s approach which, I have to tell you, is the one which currently attracts me?
MR BENNETT: Yes, your Honour, I have. We would submit it can be regarded as an additional basis or as an alternative basis for the ‑ ‑ ‑
KIRBY J: Not really. It is something that adds a precondition to simply enacting a law to deal with matters and things that are external to Australia. It requires that there be some connection. It is a little bit like my response to Mr Gageler’s statement that aliens are the whole world whereas the notion of alienage might import some relationship to Australia where it appears in our Constitution, similarly external affairs.
MR BENNETT: Yes. Your Honour, the other answer to the argument that the purpose of the power is merely to rebut a common law presumption of territoriality is that it appears in section 51 in the middle of a list of powers as a power. It is not something which is put as a qualification or some sort of extension of other powers. It is a power in its own right. Of course, I do not need to take the Court to the jurisprudence on not reading down one power by reference to another.
On international relations I can be very brief and simply remind your Honours of what we had said in paragraphs 26 and 27 of our submissions. It is clearly designed to protect Australia’s relations with people overseas. Whether something affects Australia’s foreign relations is a matter peculiarly the responsibility of the Executive. I think your Honours have seen the second reading speech. My learned friend I think took your Honours to this. There is a statement:
“the Asian countries which are chiefly involved . . . welcome any assistance in curing the trade in children’s bodies that other governments can give”.
We have given your Honours references to the House of Representatives Standing Committee.
GUMMOW J: Did Justice Brennan in Polyukhovich give any consideration to non‑human actors?
MR BENNETT: I do not think so, your Honour.
GUMMOW J: No, that is a problem, is it not, particularly when one comes to the protective principle which you have given us in this material, namely, jurisdiction by reference to the Australian national interest being injured. The Australian national interest may be the interest of Australian corporation.
MR BENNETT: Yes, it may be, your Honour, not in this type of case.
GUMMOW J: No.
MR BENNETT: Although, interestingly, there is an attempt to use the corporations power in that the offence can be committed by a corporation – it might require some imagination to imagine how, but I suppose there are ways in which it could be done.
GUMMOW J: Suffered by one.
GLEESON CJ: What about an offence against the property of an Australian corporation?
MR BENNETT: That would come within the protective principle in international law.
GUMMOW J: But it would not come within Justice Brennan’s formulation, that is what is ‑ ‑ ‑
MR BENNETT: No, it would not, your Honour.
KIRBY J: But a corporation has a domicile?
MR BENNETT: Yes, but his Honour did not need to deal with that because it just did not arise in the ‑ ‑ ‑
GUMMOW J: Exactly.
MR BENNETT: He was dealing was a specific situation where there was a person who was not an Australian citizen.
KIRBY J: So you are just not fazed with the possibility of a federal legislation that applies to the speed limit in Outer Mongolia?
MR BENNETT: No, your Honour, I am not.
KIRBY J: You just say we do not care about that. If that is enacted, well, local judges just have to uphold it?
MR BENNETT: Yes, your Honour.
KIRBY J: That does not seem right.
MR BENNETT: Well, your Honour, that was always the case in England.
KIRBY J: Well, it may be, but this is a Commonwealth where there is a written Constitution and specific powers and division of powers and a court to uphold the division.
MR BENNETT: And the States which used to have a limitation based on extraterritoriality now have a very, very slight limitation, but States would have difficulty in passing that law because there would be no conceivable connection in that example, no conceivable relationship with the State. So if someone is going to have the power in a sovereign country, there is a logic in saying it should be the Commonwealth.
KIRBY J: But these are laws for the peace, order and good government of the Commonwealth.
MR BENNETT: Your Honour, that opens up the whole argument about extraterritoriality and, your Honour, in my respectful submission, the current view is that no such limitation is implied by those words.
GUMMOW J: Anyhow, those are words of extension, not limitation. I thought we had been down that track, time out of ‑ ‑ ‑
MR BENNETT: Yes, we have, your Honour.
GLEESON CJ: There was a time not very long ago when it was thought that for a nation to enact legislation, anti-trust legislation, with extraterritorial operation, for example, legislation affecting the conduct of shipping conferences would constitute an international indiscretion, but views on that seem to have changed.
MR BENNETT: Your Honour, it depends on the legislation, no doubt, but that perhaps illustrates that such matters would be included within this power.
GUMMOW J: Horta is authority for the proposition that the external affairs power may be exercised in a manner at variance with customary international law. It is what the case decided.
MR BENNETT: Precisely, yes.
GUMMOW J: I do not think Mr Gageler wants to overrule it. I am not sure. I do not think so.
MR BENNETT: No.
KIRBY J: What about the point raised by Justice Crennan and mentioned in the plaintiff’s submissions concerning disparity between the Australian legislation and the local legislation? Take Canada, for example. It does not seem as though that defence in the Criminal Code is relevant because the law referred to there is an Australian law, but what is your answer to that complaint?
MR BENNETT: Your Honour, that the matter of international concern exists whether or not the particular country in which the event occurs tolerates the conduct. If one found that Ruritania encouraged child prostitution as a matter of national policy and had no legislation prohibiting it, that would not invalidate this legislation. It would still be a matter of international concern in other countries that Australians went to Ruritania and were prime customers of the child brothels there. The international concern is not concerned only with the country in which the conduct takes place. It is wider than that. I come then to international concern ‑ ‑ ‑
GLEESON CJ: That expression “international concern” might be a bit like the expression “public interest” which some people insist on representing as meaning something in which the public have a curiosity. Something is not of international concern, is it, just because it is discussed at meetings of people from different nations?
MR BENNETT: No, your Honour. If – and I think I half gave this example earlier – a group of local government councillors from all over the world meet to discuss common problems in relation to zoning and compare notes on what they do and improve their practices by their international consultation, that does not make zoning a matter of international concern. But there is a difference where there are conferences where the people attending are not attending as individuals but attending as representatives of their countries and the resolutions which are passed are resolutions which relate to legislation which the participants consider should be passed by different countries.
Obviously “matter of international concern” is a very ill‑defined concept and obviously the matters that come within it are matters which themselves may have ill‑defined boundaries. One can list things like global warming, genocide, race relations, torture, terrorism, exploration of space, exploitation of children and so on – one can list a range of matters which are clearly of international concern. Each of those might have a fuzzy boundary. One then calls in aid the old cliché – which, again, I apologise, it is something I have referred to very frequently – from, I think, Chapman v Chapman that I know not exactly when day ends and night begins but I do know that midday is day and midnight is night. The mere fact that a concept has fuzzy edges where there is a difficulty of definition does not mean that one cannot put things squarely within it or squarely without it.
When one adds to that a further factor, my friend’s submission falls down. My friend says there must be a precise finding that the international concern is with people having sexual relations with children under 16. Now, of course, it is both wider and narrower than that. As with any other area of law, when one passes legislation prohibiting conduct there are going to be cases caught up in it which the proponents of the legislation and the policy behind it may regard justly as not falling within it.
In relation to this legislation one could take the example of two 15 year olds from Australia who go overseas together and engage in sexual relations. There is clearly no element of exploitation of children involved there. They would each be committing an offence under this legislation. That is because this legislation, like any other legislation, has to draw lines and those lines may sometimes operate in a way which is outside the central policy of the legislation.
It is dealt with, of course, in the criminal area by a sensible application of the decision to prosecute or not to prosecute and ultimately by judicial discretions in relation to sentencing and provisions which I think all Australian States and Territories have, as does the federal crimes legislation, empowering a sentencing court to, without proceeding to conviction, impose no penalty notwithstanding finding the offence proved. That is the way we deal with those extreme cases. It does not invalidate the legislation, even in relation to those cases, that such cases may fall outside.
We see an example of that in Milicevic v Campbell where there was power to deal with imported heroin. Legislation dealing with heroin reasonably suspected of having been imported was held to be valid. That was discussed recently by this Court in Ruddock v Taylor in the context of the Migration Act, which was capable of applying in some of its sections to people who were Australian citizens reasonably suspected of being unlawful non-citizens. There is no legislation one can think of which does not have some application beyond what one might have thought was its policy and that can apply in relation to power.
Another example – and this will be the last example – suppose a multimillionaire has a small judgment against him, declines on principle to pay it, ignores a bankruptcy notice and bankruptcy petition and becomes bankrupt. Now, that is within the Bankruptcy Act. It is not what one would generally call the subject matter of bankruptcy or insolvency. One would not hold the Bankruptcy Act invalid in its application to that case, nor of course would one hold it invalid generally because of the possibility of that case. It is simply caught up in laying down general principles dealing with bankruptcy and insolvency which may in some cases, as in Milicevic, go beyond that.
That is all that my friend’s examples do. When he says but there may be a case where we are dealing with a country which has an age of consent below 16 and the conduct is lawful in that country, that is caught up in the same way that my example of the two 15 year olds is caught up or, if one wanted another example, sexual activity engaged in below low-water mark on an Australian beach. That is not itself, one would have thought, a matter of international concern, but it is caught up in a general provision and it is legitimately covered by it. It is perhaps the implied incidental power which exists in relation to any federal power.
In my respectful submission, it is simply no answer to say, as my learned friend says, the international concern is with the exploitation of children – maybe the sexual exploitation of children – this is capable of going beyond that, therefore it is invalid. It is not invalid and it is not invalid pro tanto for the same reason that the legislation was valid in Milicevic and in Ruddock v Taylor.
Your Honours have annexures A and B to our submissions which set out the material showing that this is a matter of international concern. Now, in relation to annexure A, I have an amended copy which corrects a number of minor matters in annexure A. I would invite your Honours to substitute this for the annexure A your Honours have.
GLEESON CJ: Thank you.
MR BENNETT: Your Honours will see in annexure A a huge list of countries which one way or another have legislation criminalising sexual conduct with children extraterritorially. Annexure B shows a range of material showing international concern.
CALLINAN J: How do we know this, I mean in an evidentiary sense? I am not suggesting it is not useful or relevant, but how do you get it before us? It is foreign law that you want to prove, is it not? Do you not have to prove that?
MR BENNETT: Your Honour, it has always been the practice, I think, in this Court where one deals with foreign statute law, certainly, to deal with it simply by citation.
CALLINAN J: Why? It has to be proved, does it not? It may raise issues. It may raise issues as to its construction, what it really means. I am very uncomfortable about receiving it.
MR BENNETT: Your Honour, it is constitutional fact, if one likes.
CALLINAN J: How can it be? It is other legislation in other countries. It is not a constitutional fact.
MR BENNETT: Well, your Honour, to the extent that being a matter of international concern is a constitutional fact, one of the ways one demonstrates it as part of a whole panoply is to show that other countries have passed similar legislation.
CALLINAN J: By proving it. I mean, Mr Gageler may not object. I do not know. For myself, I would have thought he should be given the opportunity of doing so.
MR BENNETT: Your Honour, I certainly would have no objection for my friend to have liberty to make any submissions ‑ ‑ ‑
CALLINAN J: This case is in original jurisdiction?
MR BENNETT: It is, your Honour, yes.
CALLINAN J: Yes. You can prove it as foreign law.
MR BENNETT: Yes.
GLEESON CJ: Is there any objection to this, Mr Gageler?
MR GAGELER: No, not a technical objection.
CALLINAN J: That is the end of the matter.
MR BENNETT: If your Honour pleases. I move to annexure B. We refer to the Convention on the Rights of the Child, known as CROC. Your Honours will see that contains a number of general provisions. There are more specific provisions in an optional protocol, to which Australia has not yet subscribed. Your Honours will find the optional protocol at page 90 of our bundle of documents. Your Honours see there are special references on page 91 in Article 3.1(a)(i) to:
a. Sexual exploitation of the child –
and in Article 4.2 of the optional protocol on page 92 there is reference to:
State Party make take such measures . . .
(a) When the alleged offender is a national of that State or a person who has his habitual residence in its territory -
Now, I stress I am not putting this on the basis of a treaty pursuant to which we legislated. First of all, the optional protocol is not in force yet, although it is presently before the parliamentary committee on treaties being considered by that, but I use this merely to demonstrate that this is a matter of international concern.
The material also refers to the World Summit for Children held by the United Nations in New York, where 71 countries participated and a further 87 were represented by state observers, and we set out a number of meetings and congresses of that sort. They are all set out in our annexure B. I will not take your Honours through them, but it is a wealth of material ‑ ‑ ‑
GLEESON CJ: I am not suggesting it is comparable in any way to the topic with which we are concerned, but is smoking a subject of international concern?
MR BENNETT: Probably not, your Honour, in the relevant sense.
KIRBY J: Why not?
MR BENNETT: For this reason, your Honour. Ultimately, the question is one of degree. One would look at a number of ‑ ‑ ‑
KIRBY J: An awful lot of people are dying from the sale of tobacco in a lot of countries and, indeed, there is suggestion that tobacco corporations, having suffered some fall of sales in western countries, are now targeting developing countries.
MR BENNETT: Your Honour, that aspect certainly might be regarded as a matter of international concern, rather than smoking generally.
KIRBY J: If that were so, you would not worry about the corporations power or any of the problems it presented. You would simply enact federal legislation based on that concern, on your theory.
MR BENNETT: In relation to the exportation of tobacco products to developing countries, very possibly.
GLEESON CJ: Could the Federal Parliament enact legislation to prohibit smoking in restaurants?
MR BENNETT: Your Honour, I hate, even in answer to a question of that nature, to deny power, but in that example, your Honour ‑ ‑ ‑
KIRBY J: I do not think I have ever heard you ‑ ‑ ‑
HAYNE J: You are not going to answer the question, is that where you are coming to?
MR BENNETT: No, your Honour, I will answer it. Probably not, almost certainly not.
GLEESON CJ: Or drinking?
MR BENNETT: The same, your Honour, although it may be that if the United Nations organised a congress in which the problem faced by the world generally as a result of either smoking or drinking were discussed and it was said at that congress that nations should pass legislation prohibiting those things and adopting prohibition both in relation to cigarettes and in relation to alcohol, it may well be then that it would be a matter of international concern.
GLEESON CJ: You can understand then why people would be concerned about the implications for what is sometimes called the federal balance of a particular interpretation of the external affairs power.
MR BENNETT: Yes, and that is why, your Honour, we say it is a question of degree. International concern really is limited to a fairly small number of matters and I have listed most of them: global warming, genocide, race relations, torture, terrorism, exploitation of children, air safety, I suppose maritime safety.
KIRBY J: But they are only the list that the Federal Parliament has acted on. The point that is being put to you is that you can find a conference on virtually every day of the year which is addressed to some issue which is of great concern to some people, and they are international meetings and resolutions are made and then is it said the Federal Parliament is given a foothold to enact a law nationally on that matter?
MR BENNETT: Much would depend on whether those conferences were attended by accredited government representatives as opposed to individuals who are concerned. Much might depend on whether the suggested solutions to the problem involve legislation. Much would depend upon the extent to which the particular problem has actual international implications or elements. The exploitation of children is something which does have substantial international implications because ‑ ‑ ‑
GLEESON CJ: That suggests that the Executive Government of the Commonwealth can expand a federal legislative power by sending an accredited representative to a United Nations health gathering on alcoholism.
MR BENNETT: Your Honour, as in the case of treaties there would be a qualification in relation to colourable treaties or colourable matters of concern. A group of federal nations with constitutions having a division of power could not, by meeting together and discussing ways in which they would like to legislate within their constituent bodies, increase the scope of the external affairs power. Clearly there are limitations. But where one has a matter, and I have listed a number of them, which is of genuinely international concern and there is a concern, an international concern, that it should be legislated about and where there are international implications in relation to it, then, in my respectful submission, it clearly falls within the external affairs power. We have given your Honours the authorities which ‑ ‑ ‑
GLEESON CJ: It may be you are boundary riding at the moment, Mr Solicitor. We seem a long way from Polyukhovich.
MR BENNETT: Yes.
CALLINAN J: Mr Solicitor, there is this about conventions and treaties. There is an element of reciprocity. Australia is going to get some advantage if it agrees to something and some other country is going to get an advantage or disadvantage. That, it seems to me, singles out the notion of treaties or conventions. There is some element of reciprocity. Now, I am not too sure that that is not really a relevant consideration and something that you need to look for.
MR BENNETT: Not necessarily, your Honour. Foreign aid, of course, does not depend on reciprocity.
CALLINAN J: Well, it might. It might give us a particular seat at the United Nations and it might give us more influence somewhere. I do not accept that there would not be reciprocity in that situation.
MR BENNETT: That sort of reciprocity might well exist in this sort of case.
CALLINAN J: It may, and that is why I was interested in the admissibility and relevance of this. I am not saying it does not necessarily. Remember, I said to you I conceded this could be relevant, but if one confines it to conventions and treaties, then at least that element of reciprocity is present and can be seen to be present.
MR BENNETT: Your Honour, in my submission, it is wider than that. I have referred to the parliamentary material where there was reference to Australians getting a bad international reputation because of the conduct of certain people in certain countries in Asia ‑ ‑ ‑
CALLINAN J: I put that to Mr Gageler. I asked Mr Gageler about that, you will remember.
MR BENNETT: Yes. That is an example, I suppose, of reciprocity in the sense your Honour is describing, the reputation of Australians as a group. That was discussed, as your Honour says, in Alpert, the proposition that it is of importance to Australians generally that Australians overseas do not give Australia a bad name in particular areas.
CALLINAN J: It is the sort of thing that was discussed was Tasmanian Dam but it was never shown anywhere there or there was never any reference anywhere there to what Australia was getting out of it.
MR BENNETT: No, that is an area where there is simply a general international concern to preserve certain things in the world and, of course, the main purpose of the ‑ ‑ ‑
CALLINAN J: It could easily have been done by Tasmania, of course.
MR BENNETT: Yes, it could have.
CALLINAN J: But it did not want to do it in the end, so Australia did it, but no reciprocal advantage to Australia was identified there, although it was suggested that there were advantages, but none of them were identified.
MR BENNETT: Your Honour, I suppose the advantage that Australians have from knowing that the Parthenon is being preserved or that things overseas are being preserved – it was a matter of general concern to people around the world that certain things be preserved.
CALLINAN J: It justified Lord Elgin, did it?
MR BENNETT: Your Honour, customary international law is covered by section 51(xxix) on any view it whether or not there is reciprocity in the particular case. We stress, your Honours, the passage in the judgment of Justice Brennan in Polyukhovich at pages 560 to 562 which goes through this question of international concern in some detail.
GUMMOW J: The problem, Mr Solicitor, is this notion of international concern is not coextensive with customary international law.
MR BENNETT: No, it is not, your Honour.
GUMMOW J: It is law inchoate.
MR BENNETT: If one looks at cases like Koowarta, I suppose, race relations is the classic matter of international concern. One of the factors there which makes it of international concern is that some countries have a predominance of people of particular races and they are concerned if people of that race are discriminated against in another country, but that is merely one of a number of such subjects and, as I have said, there are a number of them. It is always a question of degree how much of an international concern the particular subject matter is and it may ‑ ‑ ‑
GUMMOW J: The problem is the identification of whose concern.
GLEESON CJ: And what “concern” means. As I said, it is like the word “interest” in the phrase “public interest”. It is a word that has quite different meanings depending on the context.
MR BENNETT: Yes. It is certainly a broad concept and it is certainly a concept which is difficult to define with precision ‑ ‑ ‑
GLEESON CJ: But the fact that a lot of travellers, even accredited government travellers, are concerned about a particular topic does not mean the topic is a matter of international concern.
MR BENNETT: No, your Honour. It of its own does not. One has to look at the overall situation. That is why we have produced here a huge volume of material and it may well be that around 5.30 it is difficult to tell if something is day or night and in many areas it may be difficult to tell if something is a subject matter of international concern. But this case is midday. It is clearly within it on any view of it. It is in the same sort of category as the examples I have given to your Honours and it is a very clear example of something which is conduct which is discussed by States at conferences, where the making of legislation is exhorted by international bodies and conferences of representatives of States and where many States have done so.
GUMMOW J: Are you saying that the Commonwealth could legislate as to the commission of these offences inside Australia against children? That seems to be the only point in entering into this debate and it is not a point that arises in this case, so why are we here?
MR BENNETT: Your Honour, one could imagine it getting to a situation if one had a large number of States agreeing that all States should pass laws dealing with this internally and the internal exploitation of children were regarded as being squarely within what was being considered, then it might be but, your Honour, it is a question of degree in every case. We are dealing here with what is loosely described as child sex tourism, although the legislation is, for Milicevic‑type reasons, a little wider than that. This is Australian citizens or residents doing something overseas, so one has a reason why it might be more of international concern than the example your Honour gives me.
I come back to say that, at the end of the day, it is always a question of degree and there are going to be difficult cases and there are going to be cases where one says that is stretching the envelope. This is not such a case. This is a case of clear and demonstrated international concern where many countries have legislated to deal with extraterritorial conduct and we ought not to be, one would have thought, in the situation where, to use the
cliché that was used this morning, we are the international cripple who has to say the six States have to do it, even though they may not be able to do it as comprehensively as we can.
So, for those reasons, your Honour, it is my submission that on each of the three bases which we say fall within placitum (xxix) – and we put them as being cumulative rather than alternative – this legislation falls within it. It is matters external to Australia; it is matters concerned with international relations and it is matters of international concern. May it please the Court.
GLEESON CJ: Thank you, Mr Solicitor.
MR BENNETT: Your Honours asked this morning about commentaries on Polyukhovich. I am reminded that at page 206 of our materials volume there is a chapter by Professor Zines in a book entitled Commentaries on the Constitution and there is a passage discussing the particular issue concerning the external affairs power at page 254. That is the only useful one of which we are aware.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Gageler.
MR GAGELER: Thank you, your Honours. The Commonwealth seeks to defend the validity of the legislation on three bases: matters external to Australia, matters affecting international relations and matters of international concern. Can I briefly touch on the third before returning to the first two. The list of topics your Honours were given of matters of international concern are all topics that are the subject matter within international law either of detailed rules of customary international law or of detailed and crystallised rules in treaties. There is no general topic within international law that covers the exploitation of children.
Your Honours were taken, for example, to the optional protocol that is contained in the defendant’s bundle of materials and it was said that by looking somehow at the language of that your Honours could discern this broad topic of international concern. That optional protocol is not only something to which Australia has not subscribed, it is something that was not in existence at the time of the legislation in question being enacted.
HAYNE J: Is the international position sufficiently described in the report of the House of Representatives Committee reproduced at pages 295 and following of the Commonwealth bundle? I have in mind particularly section 1.2 at page 301 through to 303. Does that sufficiently capture the position internationally at the date of enactment, including, apparently, Australia having drafted a protocol – whether it is this one I do not know – to deal with matters that may touch these particular aspects?
MR GAGELER: I will give your Honour a qualified yes, if your Honour would allow me to perhaps put in a note afterwards if on further reflection we take issue with any of the detail of that.
HAYNE J: It seemed to me that the international position or a version of the international position is summarised there. What are described as foreign policy issues which may relate to the second of the matters mentioned by the Solicitor are dealt with at 309, section 2.4 and following, in particular, the proposition that:
The conduct of Australians overseas impacts –
One wonders what that means -
on our bilateral and multilateral relations.
MR GAGELER: Of course, it may in some circumstances, and the point I was going to make about the protocol, your Honours - you can see it really from the title of the protocol itself. It is about the sale of children, child prostitution, and child pornography. All of those things, obviously, are the topics of detailed rules, detailed obligations that are gradually being crystallised and implemented as matters of international law. They might point to a general concern amongst the international community about broader topics. What they do not demonstrate is a sufficient concern as to an effect on Australia’s international relations that one could say that a failure of the Commonwealth to enact legislation of the type in question here would impact on Australia’s external relations. One simply cannot say that.
Your Honours, can I say something also about the attempt by our learned friends to rely upon the list of legislation that is contained in annexure A? Now, we do not take any issue with the need technically to prove that material. Your Honours can find it in the books and on the Internet. What we do question is the utility of producing a list of legislation in different terms from what amounts to, in our calculation, less than one‑sixth of the countries in the United Nations and attempting to gain some support for legislation in the precise terms that your Honours have before you and particularly, if you go to the most analogous jurisdictions, the United Kingdom and the United States, the legislation in question in there is in very materially different terms.
Your Honours, can I return briefly to Polyukhovich, the first way in which the Commonwealth seeks to sustain the legislation “matters external to Australia” and just say a couple of things. One is our learned friend’s linguistic argument that it is linguistically permissible to take the phrase “external affairs” and break it up into constituent words because “external affairs” was not in 1900 a meaningful composite expression. That proposition, as a matter of history, is just wrong.
I took your Honours to Burgess’ Case where at pages 684 to 685, Justices Evatt and McTiernan went to some lengths to demonstrate the colonial usage of the term “external affairs”. On 1 January 1901 one of the first departments created within the new Commonwealth was the Department of External Affairs. Sir Edmund Barton became the Minister for External Affairs. Subsequently, Sir John Latham became the Minster for External Affairs and Sir Garfield Barwick in the 1960s was the Minister for External Affairs. It was in 1900 a meaningful composite expression. It remained so throughout much of the 20th century, and when it was overtaken, and I cannot tell your Honours exactly when, by the term “foreign affairs” it was ‑ ‑ ‑
GUMMOW J: McMahon Government.
MR GAGELER: Was it?
GUMMOW J: Yes.
MR GAGELER: We could not actually pinpoint it, but it was just a change in terminology, again, just substituting one meaningful composite expression for another. With the benefits of research on the Internet we can tell your Honours that the relevant Indian Minister is still called, currently called, the Minister for External Affairs.
The second linguistic argument that we need to address is this. It is said really external affairs covers all things external to Australia and foreign relations is just one of those things, so there are not two usages, there is really just the one usage – foreign relations being one of the external things. The problem with that, in our submission, is it involves a different use of language. Foreign relations refers to the nature of the relations, not the place of the relations, and it is in no sense meaningful to talk about the place of a foreign relation as being something outside Australia. That is one thing to say.
The other thing to say is this. It is really the beginning of the slippery slide because once you say things external to Australia cover relations external to Australia why limit it to relations? Why not concerns external to Australia, and then if its concern is external to Australia why does it need to be the concerns of any particular person or body or polity and why does the legislation need to operate only extraterritorially? If you can point to something external to Australia, if you can point to a connection between this legislation and that thing that is external to Australia that is it. It is really for that reason that we seek to have your Honours adhere to what we see is the traditional view, that what we are concerned with at its core is foreign relations. We are not concerned with different aspects of things external to Australia.
The third thing I wanted to address under this heading is this. Your Honours have been told that there are a number of Commonwealth laws collected in footnote 9 of the Commonwealth submissions that depend for their operation on the Polyukhovich view of things. The point about those laws is one, they are not many in number; two, not many of them, if any, rely for their whole operation solely on the Polyukhovich view; and, thirdly, if and insofar as they do rely upon the Polyukhovich view, it is very easy to see how they could be framed in just slightly different ways, or the legislative process could have been addressed in slightly different ways to overcome any of the problems.
Just by way of example, one of the laws referred to there is something I referred to obliquely in-chief. It is the Crimes (Foreign Incursions and Recruitment) Act 1978. What it is concerned about is Australian citizens doing things either in Australia or overseas that are concerned with hostile activity against a foreign state.
Now, obviously on any view and certainly on our view and on the Sharkey view of the external affairs power, that legislation is entirely within power, and your Honours are also referred to section 102.5 of the Criminal Code which is the offence that is apparently the subject of proceedings in another court next week. What there is to be said about that is that insofar as it operates in respect of activities in Australia, it operates by virtue of a reference of powers from each of the States under section 51(xxxvii) of the Constitution, and if one is looking at practicalities there is very little difference between a reference of powers from all of the States under section 51(xxxvii) and a request and consent of all of the States under section 51(xxxviii) which we say would be enough comfortably to allow the Commonwealth to legislate extraterritorially.
Can I then finally move to another topic which is our learned friend’s reliance upon the nationality principle as being sufficient in itself to say this legislation affects Australia’s relations with other countries. The nationality principle is stated in Oppenheim and our learned friends have cited this but I think not provided your Honours with a copy of it. It is stated in these terms:
International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority.
GUMMOW J: Is that the 1994 edition?
MR GAGELER: It is the Ninth Edition, your Honour, and we think it is 2002, we are not sure. I was reading from section 138, page – I am sorry, it is 1992.
GUMMOW J: 1992?
MR GAGELER: It is the ninth edition, your Honour. We think it is 2002, we are not sure. I was reading from section 138 – I am sorry, it is 1992. It is a ninth edition, 1992, page 462 of volume 1. The point about it is that although it might be sometimes said to be a permissive principle of international law, what it is on analysis is simply the absence of any international prohibition. That is made even clearer, if your Honours wanted to recreate your Honours’ law school days and re-read the Lotus in the extract from Harris that your Honours were provided with at the bottom of page 268 and the top of the next page.
To say that there is an absence of prohibition in international law is a long way from saying Australia’s relations with other countries would be affected if Australia did not do it. That is one point about it and the second point about the nationality principle in any event is that it says nothing about whether within the State that is exercising criminal jurisdiction it is the national government or a provincial government that is doing it. It is just simply not the concern of international law. For those reasons, in our submission, the nationality principle can be put to one side.
So far as it is then said that these laws deal with a subject matter that of its nature affects Australia’s relations with other countries, we simply say two things, and it may be repetitive of what was said in‑chief. One is that is not so simply because the Executive says that it is so and the second is, while in some operations we accept that that may be so, this is not a law which is in any way tailored to apply only in those situations. This is a blanket law which on analysis applies in a blanket way Australian standards to Australians abroad. If the Court pleases.
GLEESON CJ: Thank you, Mr Gageler. We will adjourn for a short time to consider the course that we will take in this matter.
MR BENNETT: Your Honour, might I just in relation to that have liberty to say one thing? It is, of course, entirely a matter for your Honours when judgment is delivered but the trial has been set down for April in the County
Court and there are overseas witnesses who will take some time to organise. That is a matter which ‑ ‑ ‑
GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take.
AT 3.28 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.31 PM:
GLEESON CJ: At least a majority of the Court is of the opinion that the questions reserved in the case stated should be answered as follows:
Question
Is either of sections 50BA and 50BC of the Crimes Act 1914 (Cth) a
law “with respect to . . . External affairs” within section 51(xxix) of the Constitution?
Answer
Yes, both of them.
Question
If the answer to question (1) is “no”, is either of sections 50BA and
50BC of the Crimes Act 1914 (Cth) otherwise a valid law of the Commonwealth?
Answer
This question does not arise.
Question
By whom should the costs of the case stated in the Full court of this
Honourable court be borne?
Answer
The plaintiff.
The order of the Court is that the questions be answered accordingly.
We will deliver our reasons at a future date.
AT 3.32 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Constitutional Law
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Jurisdiction
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Procedural Fairness
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