[2007] HCA 33
HIGH COURT OF AUSTRALIA
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon And Crennan JJ
M119/2006
R Merkel QC and S G E McLeish and K L Walker for the plaintiff (instructed by Robert Stary & Associates)
Submitting appearance for the first defendant
T M Howe for the second defendant (instructed by Australian Government Solicitor)
D M J Bennett QC, Solicitor-General of the Commonwealth and H C Burmester QC with T M Howe, S P Donaghue and G J D del Villar for the third defendant (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with B C Wells and S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (SA))
Constitutional law (Cth) — Div 104 of the Criminal Code (Cth) confers power on Ch III courts to make interim control orders imposing obligations, prohibitions and restrictions upon an individual for the purpose of protecting the public from a terrorist act — The plaintiff is subject to an interim control order made by the first defendant, Mowbray FM, at the application of the second defendant, an officer of the Australian Federal Police — Whether the interim control order was validly made against the plaintiff.
Constitutional law (Cth) — Legislative power — Defence — Whether Div 104 is a law with respect to defence — Whether the defence power is limited to defence against external threats — Whether the defence power is limited to defence of the Commonwealth and the several States as bodies politic — Whether the defence power extends to defence against non-state actors — Relevance of purposive power.
Constitutional law (Cth) — Legislative power — External affairs — Whether Div 104 is a law with respect to external affairs — Relevance of relations with foreign countries — Relevance of definition of ‘the public’ in Div 104 including the public of a foreign country — Whether Div 104 concerns a ‘matter or thing’ external to Australia — Whether Div 104 implements a treaty obligation.
Constitutional law (Cth) — Legislative power — Matters referred by the Parliament of a State — Whether Div 104 is a law supported by the Terrorism (Commonwealth Powers) Act 2003 (Vic) — Presumption against alteration of common law rights.
Constitutional law (Cth) — Judicial power — Meaning of judicial power — Justiciable controversy — Whether Div 104 confers jurisdiction upon a Ch III court to make an interim control order — Whether power conferred by Div 104 gives rise to a justiciable controversy — Whether Div 104 concerns non-justiciable matters — Relevance of political matters — Meaning of ‘non-justiciable’.
Constitutional law (Cth) — Judicial power — Meaning of judicial power — Whether interim control order proceedings involve the exercise of judicial power — Whether reposing the power to make an interim control order in a Ch III court imparts a judicial character to that power — Relevance of historical analogues to power conferred by Div 104.
Constitutional law (Cth) — Judicial power — Meaning of judicial power — Discretion — Whether the criteria in Div 104 impermissibly concern non-judicial matters — Whether the criteria in Div 104 repose a discretion in the court making an interim control order — Relevance of ‘legal criteria’ — Relevance of ‘policy’ — Meaning of ‘may’ — Meaning of ‘reasonably necessary’.
Constitutional law (Cth) — Judicial power — Meaning of judicial power — Future conduct — Whether Div 104 impermissibly confers power upon a Ch III court to make orders by reference to future risks or conduct rather than by reference to past conduct or existing rights and obligations.
Constitutional law (Cth) — Judicial power — Exercise of judicial power — Whether Div 104 compels the exercise of judicial power in a manner contrary to Ch III — Relevance of ex parte hearing — Relevance of standard of proof — Relevance of withholding evidence — Relevance of restrictions upon personal liberty — Relevance of historical analogues to power conferred by Div 104.
Evidence — Constitutional facts — Manner in which constitutional facts are to be established — Scope of judicial notice in constitutional cases.
Words and phrases — ‘constitutional fact’, ‘control order’, ‘defence’, ‘external affairs’, ‘judicial notice’, ‘judicial power’, ‘jurisdiction’, ‘legal criteria’, ‘matter’, ‘naval and military defence’, ‘non-justiciable’, ‘policy’, ‘procedural fairness’, ‘reasonably appropriate and adapted’, ‘reasonably necessary’, ‘terrorism’, ‘terrorist act’.
Constitution, ss 51(vi), 51(xxix), 51(xxxii), 51(xxxvii), 68, 69, 71, 75, 76(ii), 76(iii), 77(i).
Acts Interpretation Act 1901 (Cth), s 15C.
Criminal Code (Cth), Div 104, s 100.8.
Terrorism (Commonwealth Powers) Act 2003 (Vic).
High Court Rules 2004, r 27.08.5.
The questions stated in the further amended special case filed on 15 February 2007 be answered as follows:
(1)
Q. Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
(2)
Q. Is Division 104 of the Criminal Code invalid because in so far as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?
A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
(3)
Q. Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?
A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
(4)
Q. Who should pay the costs of the special case?
A. The plaintiff should pay the costs of the Commonwealth of the special case.
Gleeson CJ. The first defendant, a Federal Magistrate, on 27 August 2006 made an interim control order, under the Criminal Code (Cth) (‘the Criminal Code’), against the plaintiff. The grounds on which the order was made were summarised in Sched 2 of the order as follows:
‘1. Mr Thomas has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code Act 1995. Mr Thomas also admitted that while at the Al Qa'ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons.
2. There are good reasons to believe that given Mr Thomas has received training with Al Qa'ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa'ida or related terrorist cells. Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.
3. Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community. Mr Thomas's links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas's vulnerabilities.
4. Furthermore, the mere fact that Mr Thomas has trained in Al Qa'ida training camps, and associated with senior Al Qa'ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.
5. The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas's knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.’
The interim control order was made under Pt 5.3, Div 104, subdiv B, s 104.4 of the Criminal Code. The order required the plaintiff to remain at his residence in Williamstown, Victoria, between midnight and 5 am each day unless he notified the Australian Federal Police of a change of address. It also required him to report to the police three times each week. It required him to submit to having his fingerprints taken. He was prohibited from leaving Australia without the permission of the police. He was prohibited from acquiring or manufacturing explosives, from communicating with certain named individuals, and from using certain communications technology. The order was made ex parte. In the ordinary course, a hearing in the Federal Magistrates Court would have taken place within a short time in order to decide whether to confirm or revoke or vary the order (s 104.5(1A), s 104. 12, s 104.12A, s 104.14). In the events that have occurred, including the present challenge to the validity of the legislation, no such hearing has yet occurred. There are pending criminal proceedings against the plaintiff in the Supreme Court of Victoria, which may be part of the explanation for the delay in holding a hearing. It is not suggested by the parties that such delay has any bearing on the outcome of the proceedings in this Court. It is simply to be noted that the interim order has subsisted for a much longer time than is contemplated by the legislation.
The plaintiff commenced proceedings in this Court to quash the...
