Alqudsi v Commonwealth of Australia; Alqudsi v R

Court of Appeal (NSW)|2015-10-26|Before: Basten JA, Leeming JA, McCallum J

Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Leask v Commonwealth (1996) 187 CLR 579 Lodhi v The Queen [2006] NSWCCA 121 McCloy v New South Wales [2015] HCA 34 New South Wales v The Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2015] HCATrans 256 Plaintiff S156/2013 v Minister for Immigration [2014] HCA 22; 88 ALJR 690 Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 88 ALJR 690 Polyukhovich v Commonwealth (1991) 172 CLR 501 Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 Queensland v Commonwealth of Australia (1989) 167 CLR 232 R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222 Richardson v Forestry Commission (1988) 164 CLR 261 Souliotopoulos v LaTrobe University Liberal Club [2002] FCA 1316; 120 FCR 584 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 The King v Burgess; Ex parte Henry (1936) 55 CLR 608 The King v Sharkey (1949) 79 CLR 121 The Real Estate Institute of NSW v Blair (1946) 73 CLR 213 Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101 Thomas v Mowbray [2007] HCA 33; 233 CLR 307 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130 Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 Texts Cited: O Jones, Bennion on Statutory Interpretation, (6th ed 2013, LexisNexis) S Murray, "Back to ABC after XYZ: Should we be Concerned About 'International Concern'?" (2007) 35 Fed L Rev 317 Oppenheim's International Law (9th ed 1992, Longman) A P Simester, "The Mental Element in Complicity" (2006) 122 LQR 578 at 582 L Zines, The High Court and the Constitution (5th ed 2008, The Federation Press) Category: Principal judgment Parties: Hamdi Alqudsi (Appellant) Commonwealth (Respondent in civil appeal) Crown (Respondent in criminal appeal) Representation: Counsel: D Hume (Appellant) C Lenehan, E Bathurst (Commonwealth) D Staehli SC, J Single (Crown)

Solicitors: Zali Burrows Lawyers (Appellant) The Australian Government Solicitor (Commonwealth) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2015/267642; 2013/363649 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 1222 Date of Decision: 27 August 2015 Before: Adamson J File Number(s): 2015/226628; 2013/363649

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Hamdi Alqudsi, has been charged and committed for trial for seven offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (the Act), in operation with ss 6(1)(a) and 6(3)(aa) of the Act (now repealed). Section 7(1)(e) made it an offence to "give money or goods to, or perform services for, any other person ... with the intention of supporting or promoting the commission of an offence against section 6". Section 6(1)(a) made it an offence to "enter a foreign State with intent to engage in a hostile activity in that foreign State", and s 6(3)(aa) defined engaging in hostile activities in a foreign State as "doing an act with the intention of … engaging in armed hostilities in the foreign State". Mr Alqudsi was arraigned on 8 May 2015. He pleaded not guilty to each charge. The trial was originally fixed for hearing to commence on 21 September 2015 with an estimate of six weeks. The trial was vacated by reason of the steps taken by Mr Alqudsi to challenge the validity of s 7(1)(e). On 18 June 2015, Mr Alqudsi commenced proceedings in the original jurisdiction of the High Court, seeking a declaration that s 7(1)(e) was invalid. Mr Alqudsi also sought to remove the criminal prosecution to the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth). On 20 July 2015, the High Court dismissed the removal application and remitted the civil proceeding to the Supreme Court pursuant to s 44 of the Judiciary Act. On 27 July 2015, Mr Alqudsi filed a notice of motion in the criminal proceeding seeking orders that the indictment be quashed and the prosecution permanently stayed. On 21 August 2015, this motion and the remitted proceeding seeking declaratory relief were heard together by the primary judge. By judgment delivered on 27 August 2015, the primary judge held that s 7(1)(e) was a valid law with respect to the external affairs power conferred by s 51(xxix) of the Constitution on four separate bases: geographic externality, external relations, international concern and recommendations of international agencies. The primary judge dismissed both the civil proceeding and the motion in the criminal proceeding. Mr Alqudsi's appeal challenged each of the four bases on which the decision of the primary judge rested. Held, dismissing the civil and criminal appeals, by the Court:

Section 7(1)(e), in its application to ss 6(1)(a) and 6(3)(aa), was a valid law with respect to external affairs, by reason of the geographical externality aspect of the power.
The external affairs power, as it relates to matters outside Australia, is not a purposive power and does not involve a proportionality assessment: at [12], [114], [171]-[173].
The external affairs power is not limited to the implementation of treaties and extends to laws with respect to "places, persons, matters or things physically external to Australia": at [16]-[18], [91]-[97], [171]-[173]. Polyukhovich v Commonwealth (1991) 172 CLR 501; Horta v Commonwealth (1994) 181 CLR 183; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, followed; De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640; XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 considered
The "places, persons, matters or things" required to be external to Australia are not confined to conduct and tangible things. There is no structural or textual basis in the Constitution for implying such a limitation on the power: at [3], [107]-[108], [171]-[172]. Polyukhovich v Commonwealth (1991) 172 CLR 501; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, followed
An offence against s 7(1)(e) involves conduct undertaken by the offender with the intention of supporting or promoting an offence against, in this case, s 6(1)(a). An offence against s 6(1)(a) necessarily involves an object external to Australia. The combination of the external aspect of the offender's mental state and the conduct undertaken to support or promote an offence against s 6(1)(a) provides a sufficient connection between the head of power and the practical operation of the law: at [3], [113]-[114], [171]-[172]. Polyukhovich v Commonwealth (1991) 172 CLR 50; Grain Pool of Western Australia v Commonwealth [2000] HCA 14; 202 CLR 479, followed
Section 7(1)(e) would alternatively be supported by the incidental power, for which a proportionality analysis is not required: at [3], [115], [171]-[172]. Leask v Commonwealth (1996) 187 CLR 579; Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101, followed
There is no separate aspect of the external affairs power based on international concern: at [3], [126]-[147], [171]-[172]. Koowarta v Bjelke-Petersen (1982) 153 CLR 168; The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261; Polyukhovich v Commonwealth (1991) 172 CLR 501; XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532, considered and applied Souliotopoulos v LaTrobe University Liberal Club [2002] FCA 1316; 120 FCR 584, disapproved
The external affairs power is not engaged merely by the fact that legislation has as its purpose the implementation of a recommendation of an international agency: at [3], [148]-[167], [171]-[172]. The King v Burgess; Ex parte Henry (1936) 55 CLR 608; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, considered and applied By Basten JA, McCallum J agreeing:
Section 6(3)(aa) had as its objective, "engaging in armed hostilities in the foreign State". This was the only paragraph in s 6(3) which did not involve the objective of challenging the government or stability of a foreign State. Nonetheless, the law, in its application to s 6(3)(aa), was valid as a law relating to the relations between Australia and other countries: at [22]-[25], [173]. The King v Sharkey (1949) 79 CLR 121, considered and distinguished in part
The High Court has held that laws regulating terrorist acts are laws with respect to Australia's relations with other countries, and are therefore laws with respect to external affairs. This recent authority supports the validity of s 7(1)(e), in operation with ss 6(1)(a) and 6(3)(aa), as a law within the external affairs power: at [28]-[30], [173]. Thomas v Mowbray [2007] HCA 33; 233 CLR 307; Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, followed and considered

Judgment

BASTEN JA: The applicant has been charged with a number of offences under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("Foreign Incursions Act"). Each of the seven charges alleges that the applicant had, between 25 June and 14 October 2013, at Sydney, performed services for another named individual with the intention of supporting or promoting that person's entry into Syria with intent to engage in armed hostilities in Syria, being an offence against s 6 of the Foreign Incursions Act.
The applicant challenges the constitutional validity of these provisions, each of which was repealed on 1 December 2014, with similar (though not identical) equivalent provisions being introduced into the Criminal Code 1995 (Cth).
The primary contention of the Commonwealth is that the provisions were validly enacted pursuant to s 51(xxix) of the Constitution, being "laws for the peace, order, and good government of the Commonwealth with respect to … external affairs". That contention was accepted by Adamson J: R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222. As explained by Leeming JA, that conclusion was correct. Subject to what follows, I agree with the reasons given by Leeming JA and the orders he proposes.
Challenges to Commonwealth laws which depend for their constitutional validity on the external affairs power have tended to fall into two broad categories, namely (i) those where the subject matter is foreign and the connection with Australia remote, and (ii) those where the subject matter is local and the external element is remote. Cases falling within the first category include challenges to statutes involving criminal activity outside Australia, such as Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 and XYZ v The Commonwealth of Australia (2006) 227 CLR 532; [2006] HCA 25 (creating offences of sexual intercourse with a child under 16 years in a foreign country). The second category, involving conduct within Australia, include challenges to statutes protecting world heritage properties in Australia - Commonwealth of Australia v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v Commonwealth of Australia (1989) 167 CLR 232 - and laws protective of individual rights, such as Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (racial discrimination) and Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 (employment). In each case in the second category, Commonwealth legislation was upheld on the basis of obligations arising under an international instrument to which Australia was a State party.
The present case fell into the latter category, in the sense that the offence for which the applicant was charged involved conduct carried out entirely within Australia; indeed, as the indictment put it, "at Sydney, in the State of NSW". However, the Foreign Incursions Act did not purport to give effect to any international instrument or obligation.
The relevant statutory provisions are set out in the judgment of Leeming JA and need not be repeated. The offences with which the applicant was charged under s 7 may conveniently be described (consistently with the heading of the section) as involving preparatory offences. The conduct alleged was preparatory to an offence under s 6. The preparatory offence took what otherwise might be entirely innocent conduct, namely the giving of money or goods to, or performing services for, any other person and, with the addition of the prescribed intention, created a new substantive offence. The prescribed intention was the objective of "supporting or promoting the commission of an offence against s 6": s 7(1)(e).
The applicant submitted that, had the Commonwealth wished to punish offenders for aiding, abetting, counselling or procuring a substantive offence committed overseas, or even for conspiring to commit such an offence, there was no need to introduce the new preparatory offences under s 7 with which the applicant was charged. It was sufficient that s 3A of the Foreign Incursions Act picked up Ch 2 of the Criminal Code, which includes principles of accessorial liability. Indeed, the creation of the preparatory offences, which were themselves subject to extension by way of accessorial liability, effectively created offences which had no tangible connection with any conduct undertaken or event taking place overseas. The connection with any place, thing or relationship external to Australia was therefore both remote and contingent.
A similar "remoteness" argument arose within the terms of the substantive prohibitions in s 6 itself. Thus it was an offence under s 6(1) to "engage in a hostile activity in a foreign State": see s 6(1)(b). That composite term was separately defined in s 6(3) so that engaging in a hostile activity in a foreign State "consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved) … engaging in armed hostilities in the foreign State": s 6(3)(aa). Depending on who the person is who must do the act, it may be that any preparatory act, beyond those included in s 7, undertaken with the necessary intention, will itself constitute a breach of s 6(1)(b).
This analysis supported the applicant's contention that conduct, which is almost unlimited in kind, may involve a breach of s 7 (or perhaps s 6(1)(b)) if undertaken with the prescribed intention. The conduct need not be effective, nor necessarily likely to be effective, to achieve the proscribed objective. Such conduct, in the applicant's submissions, is too remote from any relevant external consequence to qualify as an exercise of the Parliament's power to legislate with respect to external affairs.
There are two difficulties with this approach. First, the submissions raised issues of statutory interpretation which are not directly relevant to the charges laid against the applicant. It is true that the validity of a statute will depend upon the scope of the relevant provision, properly construed, and not upon the factual circumstances of a particular case. On the other hand, the fact that a provision not engaged in the particular case may have a broad, and possibly overbroad, operation will not necessarily lead to the striking down of the provision in issue. Thus, the applicant was charged neither with accessorial liability based on the extended preparatory offence, nor with supporting or promoting conduct constituting an offence under s 6(1)(b), with the broad and uncertain scope noted above. Rather, each charge was directed to supporting or promoting the conduct of a named person, being the entry of that person into a foreign State, namely Syria, with the proscribed objective.
In some cases, it may be arguable that the validity of a specific provision should take into account the presence of similar related provisions which may be invalid in circumstances where there is, arguably, no reasonable likelihood that the provision can be read down or severed. However, that is not so in the present case. Were it the case that s 6(1)(b) could operate with respect to conduct too far removed from any action in a foreign country, so as not to engage the necessary connection with external affairs, there is no reason to suppose that it might not be read down so as to operate within power or indeed severed, without affecting the operation of s 6(1)(a). The same may be said of the potentially broadening effect of accessorial liability with respect to preparatory offences under s 7. Without any question of constitutional invalidity, there would be large questions as to the proper construction of such provisions. This case can be determined without addressing those issues: see The Real Estate Institute of NSW v Blair (1946) 73 CLR 213 at 227 (Starke J), 230 (Dixon J).
Secondly, the applicant's submissions invited an assessment of the Commonwealth law according to the strength of its connection with a matter external to Australia. The need for a close connection appears to derive from cases dealing with the implementation of a treaty, a matter which gives rise to a question whether the law is appropriate and adapted to that end, because the subject matter of the law is the implementation in domestic law of the provisions of the treaty; it is not sufficient that the law be one with respect to the subject matter of the treaty: Richardson v Forestry Commission at 326 (Dawson J), quoted with approval in the Industrial Relations Act Case at 487. The external affairs power is not, in relation to matters external to Australia, a purposive power and the court should not accept an invitation to assess the proportionality of the Parliament's response to the apparent mischief identified in the statute.
Further, as Spigelman CJ noted in Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303 at [66]: "Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. … A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."
Indeed, as Professor Andrew Simester has noted, the creation of separate preparatory offences in relation to assistance and encouragement of wrongdoing may provide clearer and more definite guidance to citizens about their freedoms and obligations than would reliance on general principles of accessorial liability: A P Simester, "The Mental Element in Complicity" (2006) 122 LQR 578 at 582.
Putting to one side any implicit appeal to undermine the policy judgment accepted by the Parliament, and putting to one side the practical difficulties which could arise in relation to the broadest construction of certain provisions read in combination, it is not clear that the applicant's argument asserts any more than that the offence charged is limited to conduct undertaken in Australia with a specific intention, with respect to an objective involving armed hostilities in a foreign country.
On that approach, the question is quite simply one of whether a law with respect to external affairs cannot criminalise conduct in Australia unless undertaken pursuant to a treaty or some similar obligation arising under international law. However, as five members of the High Court explained in the Industrial Relations Act Case at 485, "the scope of the legislative power is not confined to the implementation of treaties." The Court adopted the language of Dawson J in Polyukhovich (at 632) that "the power extends to places, persons, matters or things physically external to Australia."
Criticism of the linguistic approach to construing the Constitution in Polyukhovich was noted by Gleeson CJ in XYZ at [19]: "The reasoning in Polyukhovich was criticised as being based upon inappropriate literalism. In particular, it was said to be erroneous to consider, separately, the meanings of 'external' and 'affairs', and build a composite meaning from the result. There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts…. The argument, however, does not do justice to the reasoning in Polyukhovich, which was based upon a consideration of the constitutional consequences of Australia's emergence as a nation, and its independence of Great Britain."
In XYZ, the plaintiff sought to challenge the constitutional validity of Commonwealth legislation making it a criminal offence for an Australian to engage, in a foreign country, in sexual activity involving children under 16 years of age. In order to establish invalidity, the plaintiff needed to establish that the external affairs power was limited to legislation which affected Australia's relationship with other nations and did not extend to matters which were merely external to Australia. That required a return to the more restricted language accepted in The King v Burgess; Ex parte Henry (1936) 55 CLR 608, a case involving a challenge to the Air Navigation Act 1920 (Cth) regulating aircraft traffic within Australia. That approach, which would have required the Court to overrule Polyukhovich, was rejected.
The present case raised different issues, with one qualification. It is convenient to deal with the qualification first, as it raised an argument which, taken in isolation, was reminiscent of the plaintiff's submissions in XYZ. In broad terms, s 7(1), through its various paragraphs, prohibited acts undertaken with the intention of assisting, supporting or promoting the commission of an offence under s 6. Section 6 prohibited entering a foreign State or engaging in "hostile activity" in a foreign State. That activity must, with one exception, involve, as its objective, a challenge to the government or stability of the foreign State. It was the exception upon which the applicant relied, being the objective of "engaging in armed hostilities in the foreign State": s 6(3)(aa). That objective, it was submitted, was too amorphous to bear any necessary connection with Australia's relationship with the foreign state (it could be any foreign state, including one with which Australia did not enjoy friendly relations), nor did it necessarily engage any interest of Australia in international affairs. Thus, even if the other objectives within s 6(3) were legitimate matters for legislation with respect to external affairs, par (aa) was not.
Taken in isolation, the argument involved a restricted reading of s 51(xxix) which cannot survive the sufficient test of legislation with respect to a matter geographically external to Australia.
The main thrust of the applicant's submissions, however, raised an issue not dealt with in Polyukhovich or XYZ. It concerned the connection between Australia and the external matter. On the one hand, the preparatory act might be undertaken by a person either within or outside Australia, but in the latter case a relevant connection (including citizenship or ordinary residence) was required: s 7(1) (chapeau) and (2). On the other hand, the commission of the offence required no conduct or activity in any place external to Australia. That circumstance took the law outside the reasoning in both Polyukhovich and XYZ. The closest precedent was The King v Sharkey (1949) 79 CLR 121.
To the extent that it is relevant, Sharkey supported the validity of the law; however, its relevance is limited. Sharkey concerned provisions of the Crimes Act 1914 (Cth) which rendered it an offence to utter or publish words expressing a seditious intention. Such an intention was defined in terms which were largely protective of the Australian polity, including the Sovereign. However, one purpose was identified as exciting disaffection against the government or constitution of any of the King's dominions: Crimes Act, s 24A(1)(c). Latham CJ stated at 136-137: "The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs …. The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth. The prevention and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other Dominion may reasonably be thought by Parliament to constitute an element in the preservation of friendly relations with other Dominions."
Rich J did not refer to provisions extending beyond sedition directed towards the Australian government, no doubt because Mr Sharkey's carefully worded statement did not appear to go beyond that subject matter. Dixon J, who took a similar view as to the scope of the publication, referred but briefly to the external affairs power. Having expressed some doubt as to whether exciting disaffection against the government or constitution of the United Kingdom was protective of the Australian polity (ultimately concluding that it was) he continued at 149: "In any case there is the power to make laws with respect to external affairs. Perhaps only under that legislative power can par (c) be supported. The paragraph makes the purpose of exciting disaffection against the Government or Constitution of any of the King's Dominions a seditious intention."
Dixon J then expressly declined to reach a firm conclusion in that regard, on the basis that it was "impossible to treat the utterance set forth in the indictment as expressive of an intention to effect the purpose of causing disaffection against the constitutions or institutions" of the United Kingdom or other dominions.
McTiernan J also dealt with the matter succinctly, at 157: "Section 24A(1) refers to the Constitutions and Governments of other Dominions. … I think that the sections are justified by the power vested by s 51 (xxix) to legislate with respect to external affairs. This expression has a wider meaning than strictly foreign affairs. It covers the relations between the Government of this country and the Government of another Dominion. These relations could be affected if seditious offences against the Government or Constitution of another Dominion were committed here with impunity. The power to legislate with respect to external affairs extends to the punishment in Australia of such offences."
Williams J added nothing on this issue; Webb J agreed with the Chief Justice, at 163.
Sharkey is distinguishable on a number of grounds. First, the provision upheld under the external affairs power was protective of friendly relations with undoubted allies, that is other countries within the King's dominions. The present law applies indiscriminately to all foreign countries, including those whose internal affairs may be of little interest to Australia. Secondly, the relevant provision in Sharkey was directed to the protection of the government and the constitution of the country; it did not extend to hostile activities generally within a country, as did s 6(3)(aa). Thirdly, the language adopted by the Chief Justice and McTiernan J (being the only members of the Court to deal with the issue definitively) was limited to relations between the governments of Australia and another dominion. As in XYZ, the applicant in the present case submitted that the relevant provisions of the Foreign Incursions Act were not so limited.
More recent authority provides stronger support for the validity of the law. In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33, the Court upheld the validity of provisions in the Criminal Code (Cth) providing for the imposition of interim control orders in order to protect the public from terrorist acts, being acts having the object of coercing or intimidating a government or "the public". Three members of the majority in Thomas (Gummow and Crennan JJ, Gleeson CJ agreeing) upheld the validity of the laws in part by reference to the external affairs power. The other two members of the majority (Callinan and Heydon JJ) did not address that issue. However, Gummow and Crennan JJ expressly noted that the object of coercion or intimidation "may be the government of a foreign country or of a part thereof and 'the public' includes reference to the public of a country other than Australia": at [149]. Their joint reasons continued, at [151]: "The pursuit and advancement of comity with foreign governments and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs. In XYZ v The Commonwealth, [at [18]] Gleeson CJ noted (with evident approval) that it was accepted that the external affairs power at least includes power to make laws in respect to matters affecting Australia's relations with other countries. The commission of 'terrorist acts' in the sense defined in s 100.1 of the Code is now, even if it has not been in the past, one of these matters."
Gummow and Crennan JJ then referred (at [152]) to the statement in Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at 50: "It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid."
The joint reasons referred to the passage in the Industrial Relations Act Case adopting the reasoning of Dawson J in Polyukhovich and continued, at [153]: "The legislative scheme in Div 104 of the Code for prevention through the interim control order system of 'terrorist acts' done or threatened with the intention of coercing or influencing by intimidation the government of a foreign country or part thereof or intimidating the public or a section of the public of a foreign country is a law with respect to a 'matter or thing' which lies outside the geographical limits of Australia. The 'matter or thing' is the apprehended intimidation or injury to the government or public of a foreign country."
Against this background, it is appropriate to refer to the opinion of McHugh J in Polyukhovich (at 716-717) which was expressly directed to the Foreign Incursions Act. "In my opinion, the external affairs power extends to conduct engaged in in Australia for the purpose of carrying out some object external to Australia. Thus, a law which prohibits persons from doing any act or thing in Australia with intent to overthrow by force or violence a foreign government is a law with respect to external affairs: cf. s 24AA of the Crimes Act 1914 (Cth). Similarly, the external affairs power would support a law which prohibits persons from preparing in Australia for an incursion into a foreign State for the purpose of engaging in hostile activities: cf. s 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Although the acts which ss 6(1), 7 and 9(1) of the Act penalize were acts occurring within Australia, they were acts which were committed in the course of or for the purpose of events occurring outside Australia. Consequently, ss 6(1), 7 and 9(1), which punish such acts, were validly enacted under the external affairs power."
No doubt the opinion was obiter, being an application of the approach to the external affairs power which was not necessary for the determination of Polyukhovich itself. Nevertheless, the approach adopted by McHugh J on the question of construction was consistent with that adopted by other members of the majority in that case and approved in the Industrial Relations Act Case and in Thomas. The dictum is therefore entitled to significant weight. At the very least it can be said that the submissions in this Court did not identify any relevant flaw.
It follows that s 7(1)(e) and s 6(1)(a), in combination with s 6(3)(aa), of the Foreign Incursions Act are valid laws of the Commonwealth, supported by s 51(xxix) of the Constitution, being laws with respect to external affairs. It is appropriate to grant declaratory relief in this form. I therefore agree with the conclusions reached by Leeming JA and the orders proposed by him.
LEEMING JA: The issue in these appeals is whether the power to legislate with respect to external affairs sustains s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (the Act). I have concluded that the primary judge's conclusion that the law is valid was correct, although I respectfully disagree with aspects of her Honour's reasoning.

Factual and procedural background

The appellant, Mr Hamdi Alqudsi, is an Australian citizen. He has been charged and committed for trial for seven offences against s 7(1)(e) of the Act. The indictment charges that: "Between about 25 June and 14 October 2013, at Sydney, in the State of NSW, did perform services for another person, namely Tyler Casey (also known as Abu Qaqa), with the intention of supporting or promoting the commission of an offence against section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978, being the entry by that person into a foreign State, namely Syria, with intent to engage in a hostile activity in Syria, in particular, engaging in armed hostilities in Syria."
The indictment contains materially identical charges alleging that Mr Alqudsi performed services at Sydney in the same period and with the same intention for six other men.
Mr Alqudsi was arraigned before Johnson J on 8 May 2015. He has pleaded not guilty to each charge. His trial, originally fixed for hearing to commence on 21 September 2015, with an estimate of six weeks, has been vacated by reason of the steps taken by him to challenge the validity of the federal law under which he has been charged. That has occurred in two ways.
First, on 18 June 2015, Mr Alqudsi commenced proceedings in the original jurisdiction of the High Court of Australia, seeking a declaration that s 7(1)(e) was invalid. By (separate) proceedings in the High Court, Mr Alqudsi sought to remove to that Court, pursuant to s 40 of the Judiciary Act 1903 (Cth), the criminal prosecution. Mr Alqudsi's removal application was dismissed on 20 July 2015 and his civil proceeding seeking declaratory relief remitted to the Supreme Court, pursuant to s 44 of the Judiciary Act: Alqudsi v Commonwealth [2015] HCATrans 166.
Secondly, on 27 July 2015, Mr Alqudsi applied by notice of motion filed in the criminal proceedings for orders that the indictment be quashed, and the prosecution permanently stayed.
The remitted proceeding seeking declaratory relief, and the motion seeking the quashing of the indictment and a permanent stay were heard together, on 21 August 2015, by the primary judge, Adamson J. In a lengthy judgment, delivered only six days later, her Honour dismissed the remitted proceedings, and dismissed the notice of motion filed in the criminal prosecution: R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222. Mr Alqudsi's trial is presently listed for hearing in February 2016.
The unusual background gives rise to some procedural complexities, which do not impact upon the substantive issues, but which are necessary to explain how this Court comes to have authority to decide Mr Alqudsi's appeals. Mr Alqudsi purported to appeal as of right from the final orders dismissing the summons which had been remitted to the Common Law Division. That was not correct. Although the orders are final, they do not involve directly or indirectly any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more, so that leave pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) is required. There was no opposition to the grant of leave, and given the general importance of the issues raised in the proceedings, there should be a grant of leave. The hearing proceeded before this Court on that basis.
Section 5F(3) of the Criminal Appeal Act 1912 (NSW) confers a right of appeal against an interlocutory judgment in proceedings for the prosecution of an offender on indictment in the Supreme Court, either by leave, or if the trial judge certifies that the order is a proper one for determination on appeal. Section 68(1)(d) of the Judiciary Act makes it clear that the section applies to interlocutory judgments arising out of prosecutions under federal laws. On 9 September 2015, the primary judge so certified, although on the incorrect basis that Mr Alqudsi enjoyed an appeal as of right in the civil proceeding, and had exercised that right. However, nothing turns on that oversight.
The appeal created by s 101 of the Supreme Court Act lies to the Court of Appeal. The appeal created by s 5F(3) of the Criminal Appeal Act lies to the Court of Criminal Appeal. Little (save for a different regime governing the power to order costs) turns on this. This bench constituted as the Court of Appeal will determine Mr Alqudsi's civil appeal, and, constituted as the Court of Criminal Appeal, will determine his interlocutory criminal appeal.

The Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)

What may be described as the primary offences are specified in s 6 of the Act. Sections 6(1)-(4) are as follows: "6 Incursions into foreign States with intention of engaging in hostile activities (1) A person shall not: (a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or (b) engage in a hostile activity in a foreign State. Penalty: Imprisonment for 20 years. (2) A person shall not be taken to have committed an offence against this section unless: (a) at the time of the doing of the act that is alleged to constitute the offence, the person: (i) was an Australian citizen; or (ii) not being an Australian citizen, was ordinarily resident in Australia; or (b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose. (3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved): (a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State; (aa) engaging in armed hostilities in the foreign State; (b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury; (c) causing the death of, or bodily injury to, a person who: (i) is the head of state of the foreign State; or (ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State. (4) Nothing in this section applies to an act done by a person in the course of, and as part of, the person's service in any capacity in or with: (a) the armed forces of the government of a foreign State; or (b) any other armed force in respect of which a declaration by the Minister under subsection 9(2) is in force." I will return below to address the amendments to s 6(1) and the insertion of s 6(3)(aa).
Subsections (5) to (8) of s 6 were inserted in 2004. Subsections (5) and (6) provide that paragraph (4)(a) "does not apply" in certain circumstances when a person is "in or with" an organisation which is a prescribed organisation. Subsections (7) and (8) deal with the definition of "prescribed organisation", principally by conferring regulation-making power upon the Governor-General to prescribe an organisation, and by qualifying the power such that the Minister must be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering a serious violation of human rights, armed hostilities against the Commonwealth or its allies, terrorist acts or acts prejudicial to the security, defence or international relations of the Commonwealth. The effect, in general terms, is to carve out from the exception provided by subsection (4) of service with the armed forces of the government of a foreign State, cases where the person is associated with a prescribed organisation.
Section 3A (which was inserted in 2001) provides that Chapter 2 of the Criminal Code applies to all offences against this Act. That picks up the Chapter dealing with "General principles of criminal responsibility", as a note to s 3A discloses. Within Chapter 2 is Part 2.4 dealing with extensions of criminal responsibility, including the ancillary or derivative offences of attempt (s 11.1), aiding, abetting, counselling or procuring (s 11.2), incitement (s 11.4) and conspiracy (s 11.5).
Mr Alqudsi compared those offences with the derivative offence created by s 7(1)(e) of the Act, with which he had been charged. Section 7 is, relevantly, as follows. "7 Preparations for incursions into foreign States for purpose of engaging in hostile activities (1) A person shall not, whether within or outside Australia: ... (e) give money or goods to, or perform services for, any other person ... with the intention of supporting or promoting the commission of an offence against section 6; [Each of paragraphs (a)-(f) of this subsection is directed to conduct connected with the commission of an offence against section 6. Paragraphs (g) and (h) are directed to permitting buildings, ships and aircraft being used in connection with the commission of an offence against paragraphs (a)-(f).] ... (1A) A reference in subsection (1) to the commission of an offence against section 6 is a reference to the doing of an act that would constitute, or would but for subsection 6(2) constitute, an offence against section 6. (1B) A person shall not be taken to have committed an offence against this section merely because of doing an act by way of, or for the purposes of, the provision of aid of a humanitarian nature. (2) A person shall not be taken to have committed an offence against this section in respect of the doing of an act outside Australia unless: (a) at the time of the doing of that act, the person: (i) was an Australian citizen; or (ii) not being an Australian citizen, was ordinarily resident in Australia; or (b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose." The penalty for the offence created by s 7 is imprisonment for 10 years.
Section 8 criminalises recruitment of persons in Australia to become members of organisations with any of the objectives in s 6(3). Section 9 criminalises recruitment of persons for the armed forces of other foreign States, and is subject to a power exercisable by the Minister by instrument published in the Gazette to disapply its provisions in respect of particular armed forces. The offences created by ss 8 and 9 carry penalties of imprisonment for seven years.

Issues arising in the appeals

The principal basis on which the Commonwealth submitted that s 7(1)(e) was valid was the external affairs power conferred by s 51(xxix) of the Constitution. The primary judge found that s 7(1)(e) was within the scope of that head of power on four separate bases.
The first basis was that it had the potential to affect Australia's external relations with other countries. Her Honour relied particularly on The King v Sharkey (1949) 79 CLR 121. Her Honour also relied upon some material tendered by the Commonwealth as "constitutional fact" evidence as confirmatory of that conclusion. The material included a passage from Oppenheim's International Law (9th ed 1992, Longman) at 396-397 addressed to the obligation of states to prevent their territories from being used to organise armed hostile expeditions against other states. It also included a resolution by the General Assembly of the United Nations made in 1970: the "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations" which included statements directed to the same subject matter. Her Honour also made it clear that she regarded the material as supportive of a conclusion reached on the face of the Act, but not essential to her decision. On the view I take, it is not necessary to summarise the material in any detail.
Secondly, her Honour considered that s 7(1)(e) was a law with respect to matters lying outside the geographical limits of Australia. Thirdly, her Honour considered that s 7(1)(e) was a law with respect to matters of "international concern", and rejected Mr Alqudsi's submission that matters of international concern were not, or at least were not any longer, an aspect of the external affairs power. Fourthly, her Honour found that carrying into effect legislation whose purpose was to implement recommendations of international agencies such as the United Nations, engaged the external affairs power.
Those conclusions made it unnecessary for the primary judge to consider the arguments advanced by the Commonwealth based on the defence power or the incidental power.
By his appeals, Mr Alqudsi challenges each aspect of the reasoning of the primary judge upholding the validity of s 7(1)(e). For its part, the Commonwealth, by notice of contention, maintained its reliance on the defence power and the incidental power. However, the notice distributed to the Attorneys-General pursuant to s 78B of the Judiciary Act identified only the issues raised on the appeals (based on the external affairs power and "any power incidental to the core of" the four aspects of that power), and not the Commonwealth's reliance, as a fallback, on the defence power. It was not possible, in those circumstances, for this Court to hear argument on the notice of contention. The Court indicated at the outset of the hearing that it would list the appeals for further argument if it were necessary to determine the notice of contention.
It will be convenient to adopt the parties' language, and refer to the "external relations", the "geographic externality", the "international concern" and the "recommendations of international agencies" aspects of the head of power. But before turning to those submissions and their resolution, it is necessary to address the legal meaning of the Act.

The construction of the Act

The drafting of ss 6 and 7 is complex. Indeed, it is unnecessarily complex. However, it is the essential starting point of legal analysis, as well as being central to some of Mr Alqudsi's submissions that the connection with external affairs was too remote to engage federal legislative power. This is a case where, in order to determine whether the law has the requisite connection with a head of Commonwealth legislative power, it is necessary to characterise it by construing it and determining its legal operation and effect: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 88 ALJR 690 at [23].
Sections 6 and 7 (as well as 8 and 9) create separate offences, with different elements and different maximum penalties. The offences created by s 6 underly the offences created by s 7. Mr Alqudsi described the offence contrary to s 7(1)(e) with which he had been charged as an "extended accessorial offence". He did so as an element in his submissions directed to the offence being too remote from, or insufficiently "tailored" to, the head of power in s 51(xxix). It may be accepted that s 7 may apply more broadly than the "traditional" cases of ancillary or accessorial liability, although, on the view I take, nothing turns on this.
I deal first with s 6, and then s 7.

Section 6

There are two disjunctive limbs to the prohibition in s 6(1), contained in paragraphs (a) and (b). Both limbs include the element of "engage in a hostile activity in a foreign State". Speaking generally, a person who enters a foreign State with intent to engage in a hostile activity there, who thereafter acts upon that intent, will prima facie have committed separate offences against both s 6(1)(a) and (b). It is not necessary to address the overlap between the two in any detail, because the indictment makes it clear that Mr Alqudsi is charged with performing services with the intention of supporting or promoting the commission of an offence contrary to s 6(1)(a), not s 6(1)(b).
The remaining subsections of s 6 qualify the legal meaning of subsection 6(1) using three distinct drafting techniques: negative deeming (in subsection (2)), disapplication (in subsections (4), (5) and (6)) and exhaustive definition (in subsection (3)).
The negative deeming provision in (2) takes the form "shall not be taken ... unless". The same mode of drafting may be seen in s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which Mason CJ identified in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 as restricting the scope of the "no evidence" ground in s 5(1)(h) qualified by it. It means no more than "A person will commit an offence against this section only if …".
The first disapplication provision, in subsection (4), causes the section not to apply to an act done by the person in certain circumstances (broadly, in the armed forces of a foreign government). The second two disapplication provisions, in subsections (5) and (6), qualify the first disapplication provision, by stating circumstances (broadly, membership of an organisation prescribed by regulation) which carve out from the general exception cases where the section does continue to apply.
Nothing turns for present purposes on the fact that the same section uses two different mechanisms to restrict its operation. That is because it is the exhaustive definition in subsection (3) which is central to this appeal.
The force of subsection (3) is to specify the meaning of "engaging in a hostile activity in a foreign State" for the purposes of both limbs of the offence created by subsection (1). That definition is "doing an act with the intention of achieving" one or more of the "objectives" in paragraphs (a), (aa), (b), (c) or (d).
There are two aspects of the application of the exhaustive definition in s 6(3) which are important for the construction of the provision and which are problematic. The problem in both cases is of the same nature. It arises because of the duplication of concepts between the defined term and the provision which incorporates the defined term. The first arises from the inclusion of an element of intention in the first limb offence in s 6(1)(a), and an inclusion of intention in the definition of "engaging in a hostile activity in a foreign State". The second arises from the inclusion as an element of the definition of "engaging in a hostile activity in a foreign State", of the objective of "engaging in armed hostilities in the foreign State". Both are instances of circularity, which, as Francis Bennion has observed, is a common difficulty in framing a definition: see now O Jones, Bennion on Statutory Interpretation, (6th ed 2013, LexisNexis) at 522.
On the view I take, it will not be necessary finally to resolve all aspects of the construction of the provision with which Mr Alqudsi has been charged. But it remains necessary, in order to resolve some of Mr Alqudsi's submissions, to address both problematic aspects.
As for the first, Mr Alqudsi relied upon a literalistic transposition of the defined term into the first limb, in accordance with Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], such that it is an offence to enter a foreign State with intent to do an act with the intention of achieving one or more subsection (3) objectives. The first intent is an intent held at the time of entry into the foreign State. On one view, the second intent looks forward to the time when the act constituting the hostile activity is done. But this is, self-evidently to my mind, a case where the definition as enacted does not fit comfortably into the text, resulting in the need for further analysis to ascertain its legal meaning: Commissioner of Police v Kennedy [2007] NSWCA 328 at [44]; Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [13].
The essential feature of s 6(1) is that it has two limbs. It creates two separate offences with two separate physical elements. It is clear that the first limb may be engaged before a person actually engages in hostile activity, so long as the person has entered a foreign State with the requisite intent. I think it follows that the self-same intent, established at the time of entry into the foreign State, is the element of the offence contrary to s 6(1)(a). Test the matter this way. Obviously, a doctor or a charity worker who travels to a foreign country without an intent to engage in a hostile activity, but who subsequently takes up arms against the government of the foreign country, cannot contravene s 6(1)(a), although he or she may contravene s 6(1)(b). But a person who travels to a foreign country with the intent, say, to join a militia group and thereafter to fight the government of the foreign country, will have at the time of entry an intent to engage in a hostile activity, including his or her intention in the future to do acts intended to overthrow the government. The nature of human intent is that it is forward-looking, so that the intent which is an element of the defined term "engaging in a hostile activity in a foreign State", although it is an intent to be held when the act of taking up arms etc is performed, can be and on a natural reading is an intent held at the time the person enters into the foreign country.
Or take another example. Suppose I make arrangements to travel to a foreign country next year and intend, when I am there, to visit libraries and meet people for the purpose of writing a book. When I enter the foreign country, I have, then and there, an intention to do some acts after arrival (visiting libraries and meeting people) with the intention of using the material to write a book. Not only would it be highly artificial to separate the intention possessed at the time of arrival in the foreign country and the intention possessed at the time of visiting the library or meeting the people, but to do so would disregard the forward-looking nature of human intention.
In short, I incline to the view that the "double intent" and indeed the "third layer of intent" to which Mr Alqudsi pointed between the offence in s 6(1)(a) and the definition in s 6(3) is, on analysis, illusory. Although there are three words connoting a state of mind ("with intent", "with the intention" and "the following objectives"), there is probably a single state of mind necessary to be established in order to make out the offence. The complexity is merely apparent. It is a consequence of unnecessarily convoluted drafting.
It is neither necessary nor desirable to express a concluded view on all aspects of the question of construction of the Act. That is something far better done in a concrete factual setting, after the trial, rather than in the abstract.
It is sufficient for present purposes to observe that it is plain that the offence created by s 6(1)(a) involves a physical act (entry into a foreign State) and a mental state held by the person at the time that physical act is performed. Although Mr Alqudsi's submissions emphasised the "additional layers of intention" which "simply increase the remoteness of connection between what happens in Australia and the relevant head of Commonwealth power", I did not understand there to be any issue that s 6(1)(a) involves a physical act outside Australia accompanied by a mental state.
The second problematic aspect of s 6(3) concerns paragraph (aa). Paragraph (aa) of subsection (3) was inserted in 1987 (by s 22 of the Crimes Legislation Amendment Act 1987 (Cth)). The same amending section broadened the scope of s 6. As originally enacted, s 6 was confined to engaging in a hostile activity against the government of a foreign country. It will be seen that the paragraphs (a), (b), (c) and (d) of subsection 3 (which had not been amended) are squarely addressed to activities destabilising the government of a foreign country. Section 22 expanded the offence to extend to engaging in hostile activity in a foreign State, and expanded the exhaustive definition to include new paragraph (aa).
The new paragraph (aa) is not necessarily directed to activities against the government of the foreign State. It identifies as an "objective" merely "engaging in armed hostilities in the foreign State". As amended, the definition of "engaging in a hostile activity in a foreign State" includes doing an act with the intention of achieving the objective of engaging in armed hostilities in the foreign State. The circularity is palpable.
The expressed purpose of the amendment was: "to fill the present gap in the Act by reason of which it is not an offence for an Australian to become involved in mercenary activities per se in a foreign State by extending the definition of 'hostile activity' to cover acts done for the purpose of engaging in 'armed hostilities' in the foreign State" (see Explanatory Memorandum, p 23).
Including an additional objective, in circumstances where doing an act with the intention of achieving that objective by itself is sufficient to satisfy the exhaustive definition, is necessarily to widen the operation of both the s 6(1)(a) and (b) offences. Taking the easier, second limb, the offence of engaging in a hostile activity in a foreign State will, as a result of the insertion of s 6(3)(aa), be made out if a person does an act with the intention of achieving the purpose of engaging in armed hostilities. That may be satisfied irrespective of the attitude of the government of the foreign State. The same is true, in connection with s 6(1)(a), where the foreign State permits or even encourages people to enter with such an intention. Thus Mr Alqudsi emphasised, in developing submissions directed to the lack of calibration (and therefore proportionality) of the legislation: "What is proscribed [is] entry into the foreign state with the intent to engage in a hostile activity and there is no carve out for entry that is permitted. Neither is there a carve out [for] entry that is even approved by the foreign state. The offence applies even if the person entering the foreign state is a national of that state, or a citizen, and the person has a right to enter that state."
Mr Alqudsi submitted that the additional breadth extended the offence to conduct far removed from what was central to Australia's relations with the governments of foreign countries.
The amendment gives rise to a difficulty when the two limbs of s 6(1) are compared. I struggle to see how the doing of an act with the intention of achieving the objective, inter alia, of engaging in armed hostilities in the foreign State adds a separate element of intention to the offences created by s 6(1). If an Australian citizen intentionally engages in armed hostilities in the foreign State, then he or she will be doing acts with the intention of engaging in armed hostilities in the foreign State, and so will contravene s 6(1)(b). If an Australian citizen enters a foreign State with the intention of engaging in armed hostilities in that State, then when he or she enters, he or she will have the intention in the future of doing acts with the intention of achieving the objective of engaging in armed hostilities, which suffices to contravene s 6(1)(a). It is often easy to criticise legislative drafting. However, the foregoing analysis is brought about by the near circular definition of "engaging in a hostile activity in a foreign State" which includes elements of intention and achieving an objective, but which seems largely unnecessary if the goal is to prohibit Australians taking up arms for any purpose in a foreign country. Happily, the provisions, now located in Part 5.5 of the Criminal Code, have been reworded, so the problem is historical.
But it is unnecessary to express a concluded view on the construction of the section. As stated above, it is sufficient, for the purposes of these reasons, to observe that there must be a physical act - entry into the foreign State - and a mental state of mind at the time, in order for the offence created by s 6(1)(a) to be made out.

Section 7

The construction of s 7 is more straightforward. Paragraphs (a)-(f) of subsection 7(1) identify various acts, which may loosely be described as "preparatory" to the commission of an offence under s 6. Although there are familiar notions of conspiracy, incitement and attempt in criminal law, the idea of a substantive offence itself constituting preparatory acts is unusual, and Mr Alqudsi observed that s 3A confirmed that ancillary liability based on attempt applied directly to the preparatory offence created by s 7.
Section 7 in that respect illustrates what Spigelman CJ said in Lodhi v The Queen [2006] NSWCCA 121 at [66]: "Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."
Of course, as Mr Alqudsi submitted, Lodhi was not a constitutional case. Curial respect for legislative policy does not detract from curial obligation to determine the validity of a law.
Focussing on s 7(1)(e), it is clear that there can be no commission of an offence contrary to s 6(1)(a) unless an Australian citizen or resident enters a foreign State with the intention of engaging in hostile activity. Although an offence contrary to s 6(1)(a) may be committed even if the s 6(3) objective is not achieved, and although the offence constituted by s 7(1)(e) requires merely the supporting or promoting of the commission of an offence, it will be convenient to refer to the person accused of committing an offence against s 7(1)(e) as the "supporter", and the person who is intended to be supported or promoted as the "militant".
The supporter must, if an offence contrary to s 7(1)(e) is to be made out, be shown to have intended to support or promote the commission of an offence contrary to s 6. An offence under s 6 requires a mental state on the part of the militant. Hence the supporter must himself or herself be shown to have a state of mind about the state of mind of the militant. For example, to take a clear case, a person who gives money or goods or performs services to support a person going to a foreign country, but who actually and reasonably believes that that person is a doctor or charity worker who has no intention to take up arms, will not be guilty of an offence. Many cases will be less clear, and there is no occasion in this appeal to consider in any more detail the states of mind which are involved. (To be clear, in using the labels "supporter" and "militant", I am not expressing a view as to whether the supporter needs to know the identity of the militant, nor indeed whether any militant need in fact have been supported by the supporter's conduct.)
Section 7 is directed to preparatory conduct. On a natural reading, the offence created by s 7 will be committed before any offence contrary to s 6 has been committed, and indeed there may ultimately be no offence contrary to s 6 which is committed. For example, a supporter who provides money and an airline ticket to a would-be militant who is arrested before entering the foreign State may have committed an offence contrary to s 7 even though there was merely an unsuccessful attempt by the militant to commit an offence contrary to s 6.
The offence created by s 7(1)(e) may be committed whether or not the offender (that is, the supporter) is within or outside Australia. As Mr Alqudsi submitted, no physical element need take place outside Australia, and the indictment confines the conduct alleged against Mr Alqudsi to conduct in Sydney.
However, there is a necessary connection between s 7(1)(e) when applied to s 6(1)(a) and matters external to Australia. First, the physical conduct (giving money or goods or performing services) must be accompanied by an intention which relates to matters outside Australia. The supporter must be shown to have an intention of supporting or promoting someone entering a foreign State with the intention of engaging in a hostile activity.
Moreover, any offence against s 6(1)(a) requires the militant to be entering into a foreign country. The supporting or promoting of an offence against s 6(1)(a) is necessarily linked to the arrival of a militant in a foreign country. That said, Mr Alqudsi emphasised that a consequence of the preparatory nature of the offence is that the money or goods may be given, or the services performed by the "supporter", before the militant reaches the foreign country, and indeed the militant may never leave Australia. However, as Basten JA has explained in more detail at [7]-[11], it is necessary to confine attention to the provision impugned and others from which it is inseverable. I agree with what Basten JA has said. The position is as stated by Starke J in The Real Estate Institute of NSW v Blair (1946) 73 CLR 213 at 227 of a plaintiff seeking to impugn regulations as unsupported by the defence power: "But [the plaintiff] cannot roam at large over the regulations and attack them generally. He must be confined to those which affect his rights [in the litigation] and are unseverably tied up with them." Dixon J made the same point at 230, and in British Medical Association v Commonwealth (1949) 79 CLR 201 at 257.

The external affairs power

The content of the external affairs power has fluctuated since federation. It is as well at the outset to summarise those developments, in order to put in context the decisions on which the parties relied. As will be seen below, both Mr Alqudsi and the Commonwealth advanced submissions which drew upon the language of decisions of the High Court with insufficient regard to their context.
There are two relatively distinct aspects to the external affairs power. The power extends to legislation with respect to matters geographically external to Australia, and with respect to matters related to Australia's political relations with other countries. Those two meanings emerging from the term "external affairs" are cognate with the two meanings from the converse term "within the Commonwealth" in s 51(xxxviii). It has been said of that term that it may refer to the political structure of the federation or the geographical place: Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 at 378. So too, it is clear that "external affairs" may refer to what is external to the Australian landmass, or it may refer to the relations between the Australian nation and other nations.
It is convenient to address the geographic aspect of the power (which was the second basis relied on by the primary judge) first, and then deal with the three additional ways in which the validity of the Act was supported, all of which turn on Australia as a nation rather than Australia as a geographical landmass.

Geographic externality

Reference was made to a power to legislate with respect to things geographically external to Australia in New South Wales v The Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 at 360, 471, 497 and, arguably, 504, but it was in Polyukhovich v Commonwealth (1991) 172 CLR 501 that this aspect of the power was first held to sustain a federal law. The slightly divergent views are conveniently summarised in the second, unanimous, decision on this aspect of the power, Horta v Commonwealth (1994) 181 CLR 183. The High Court there upheld the validity of the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (Cth), in part because of geographic externality. The following passage at 193-194 captures what had been established and what remained unsettled, in relation to the geographic aspect of the external affairs power, by Polyukhovich: "In Polyukhovich v The Commonwealth, Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J all expressed the conclusion that a law with respect to a matter which is territorially outside Australia is a law with respect to 'External affairs' for the purposes of s 51(xxix) of the Constitution. The other two members of the Court, Brennan J and Toohey J, considered that some additional factor was necessary. Brennan J was of the view that s 51(xxix) confers power to enact 'laws affecting affairs' which are geographically external to Australia only if there 'be some nexus, not necessarily substantial, between Australia and the "external affairs" which [the] law purports to affect'. Toohey J was of the view that, even though geographically external to Australia, a 'matter does not qualify as an external affair' for the purposes of s 51(xxix) unless it be one 'which the Parliament recognises as touching or concerning Australia in some way'."
The Court considered that on the tests relied on by all members of the Court in Polyukhovich, the law was within power. There was, accordingly, no need to attempt to refine the principles any further.
Subsequently, in De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 650, a law dealing with children abducted from and to Australia was said to be valid irrespective of whether it implemented a treaty obligation, because the movements of children to and from Australia were "external affairs".
Thus, although the legislation in both Horta and De L was also supported by reason of a treaty, what was said concerning geographic externality was a separate and independent basis for each decision, and therefore part of the Court's ratio (see the authorities collected in Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; 85 NSWLR 335 at [32]).
What had been held in Polyukhovich and applied in Horta and De L was reargued in XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532. XYZ had submitted that those decisions should be overruled, principally on the basis that they gave to the composite expression "external affairs" a broader meaning based on the individual words, which was contrary to its natural meaning, which was contrary to ordinary principles of construction, and which failed to recognise that extraterritorial legislative competence was separate from that head of power. His submission was accepted by Callinan and Heydon JJ at [152]-[206] who would have overruled Polyukhovich, De L and Horta to that extent. Kirby J did not decide the point, although he too expressed doubts: at [114]-[117]. However, the submission was rejected by a majority of the Court: Gleeson CJ, Gummow, Hayne and Crennan JJ.
Gleeson CJ confirmed at [10] that the power: "includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct."
Gummow, Hayne and Crennan JJ upheld at [30] the expression of doctrine by Dawson J in Polyukhovich as the statement of the scope of the power: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'."
Mr Alqudsi recognised that this Court was bound by what had been held in Polyukhovich, Horta and De L and confirmed in XYZ. His submissions focussed on a limitation said to be found in "places, persons, matters or things" physically external to Australia. He submitted that what was required was conduct outside Australia, and that where, as here, "the only 'external' element of an offence is the offender's state of mind, there is nothing physically or territorially external to Australia" (original emphasis). He submitted that the power could not extend to intangible concepts. I understood his reference to the offender's state of mind to be a reference to the state of mind of a supporter, charged under s 7(1)(e), rather than the state of mind of the militant.
Mr Alqudsi made a separate submission directed to the following passage in the reasons of McHugh J in Polyukhovich at 716-717: "In my opinion, the external affairs power extends to conduct engaged in in Australia for the purpose of carrying out some object external to Australia. Thus, a law which prohibits persons from doing any act or thing in Australia with intent to overthrow by force or violence a foreign government is a law with respect to external affairs: cf s 24AA of the Crimes Act 1914 (Cth). Similarly, the external affairs power would support a law which prohibits persons from preparing in Australia for an incursion into a foreign State for the purpose of engaging in hostile activities: cf s7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)." Mr Alqudsi submitted that that statement "must be taken to have been superseded by the subsequent authoritative articulation of principle in Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 which unequivocally required physical externality" (original emphasis).
Mr Alqudsi submitted that "the critical question ... is whether s 7(1)(e), in its operation with ss 6(1)(a) and 6(3)(aa), is incidental to the regulation of some physically external event". That in turn reflected an acknowledgement that the limitation propounded by him to physical things geographically external would not of itself prevent legislation in the nature of s 7(1)(e), to the extent that it could be supported by the incidental power. However, his further submission was that a proportionality analysis was required.
To that end, Mr Alqudsi submitted that there was insufficient connection with the regulation of extraterritorial conduct and that it was not reasonably appropriate and adapted to effectuating an end within power. The matters emphasised by him included that (a) no physically external event ever need occur, nor need it be likely or even possible, (b) no person ever need intend to do something physically external, (c) there was nothing limiting the provisions to what was reasonably necessary or reasonably appropriate and adapted to preventing the occurrence of physically external events, in contrast with the provisions in Thomas v Mowbray [2007] HCA 33; 233 CLR 307, and (d) "the offence travels beyond traditional conceptions of accessorial liability".
The need for a proportionality analysis was disputed by the Commonwealth, which submitted that this was contrary to what had been established by Leask v Commonwealth (1996) 187 CLR 579 and confirmed most recently in Plaintiff S156/2013 v Minister for Immigration [2014] HCA 22; 88 ALJR 690 at [32].
The primary judge rejected Mr Alqudsi's submissions based on an absence of geographic externality. In response to the submission that a state of mind was insufficiently certain to ground the validity of a law, the primary judge pointed to the requirement that the Crown establish the mental state of the offender. Her Honour said that that would occur, no differently from any other trial, by reference to what would be inferred from Mr Alqudsi's acts and statements.
The primary judge also rejected the submission that the requirement for an external place, matter or thing outside the geographical limits of Australia was only satisfied by tangible things. Her Honour discerned no basis in limiting the geographic externality aspect of the power to tangibles, and indeed said, "I regard this submission as foreclosed by the dicta of Gummow and Crennan JJ in Thomas v Mowbray at [153]": at [56]. The passage in Thomas v Mowbray, which followed a quotation from the judgment of Gummow, Hayne and Crennan JJ in XYZ, was: "The legislative scheme in Div 104 of the Code for prevention through the interim control order system of 'terrorist acts' done or threatened with the intention of coercing or influencing by intimidation the government of a foreign country or part thereof or intimidating the public or a section of the public of a foreign country is a law with respect to a 'matter or thing' which lies outside the geographical limits of Australia. The 'matter or thing' is the apprehended intimidation or injury to the government or public of a foreign country."
The primary judge then said (at [157]-[159]): "An offence against s 7(1)(e) is committed if the act of performing the services is done with the objective of supporting an offence against s 6. Thus, although the act might be done wholly within Australia, the associated mental element has an external purpose. The connection with the external purpose is, in my view, neither 'remote', nor 'fortuitous', nor 'insubstantial'. ... Nor is it an answer to say that, where the external component on which the law depends for its validity is intention, and the person with the relevant intention is located in Australia, the law cannot be a law with respect to external affairs. Such a proposition is inconsistent with The King v Sharkey. As long as the mental element of the offence, as here, requires a connection with an external matter (providing services with the intention of supporting entry into a foreign State with the intention of engaging in hostile activity there), it does not matter that the putative offender is, at all material times, in Australia or that the services were performed wholly in Australia. Nor does what the plaintiff described as the lack of 'real world effect' deprive the prophylactic measures incorporated in s 7(1)(e) of their character as a law with respect to external affairs. In my view, s 7(1)(e) of the Act is a law with respect to external affairs, in the sense in which that term has been authoritatively understood: namely, to extend to a matter outside Australia."
I respectfully agree with the conclusion of the primary judge, and with much of her Honour's reasoning.
No differently from the primary judge, I see no reason to confine the subject matter regulated by the power to physical things. The issue is what is meant by "places, persons, matters or things" when that collocation of words was used in Polyukhovich and the Industrial Relations Act Case to describe the scope of a power to legislate with regard to geographically external affairs. I find it difficult to conceive how in that context those words could be confined to tangibles. The High Court has used a collocation of four unqualified nouns, including two ("matters" and "things") which need not necessarily be confined to tangibles, to explicate a wide constitutional term "affairs". There is no textual or structural basis in the Constitution for discerning such an implied limitation upon power. It would not be sensible to do so. Why would there be power to regulate, say, the movement outside Australia of physical precursors to nuclear or biological weapons, but no power to regulate the dissemination outside Australia of information as to how to construct such a weapon? Why would there be power to regulate, say, overseas transfers by cash or cheque or other negotiable instruments that were associated with organised crime or terrorism, but no power to regulate overseas electronic transfers?
To the contrary, on a fair reading of what Dawson J said in Polyukhovich, his Honour was deliberately using open-ended words to make plain that the power extended to laws regulating all manner of things, whether they be tangible or intangible, so long as they were physically external to Australia.
In reply, and in effect by way of an acknowledgment of the force of such considerations, counsel for Mr Alqudsi advanced a narrower submission: "[I]n my submission what it is directed to, even if it does extend to intangibles, are intangibles that could properly be said to be situated overseas. Say, for example, intellectual property rights that are protected by foreign law, contracts that [are] formed overseas, judgments that are given overseas. My submission is those kinds of matters [are] what is referred to and it certainly does not extend to states of minds that are situated within Australia, which is what this Act is directed to."
The narrower proposition is less unattractive than the broader. The premise of a power to legislate with respect to things geographically external to Australia must be that the things themselves have a location. However, I do not think it means that there is no power to sustain s 7(1)(e).
It is artificial and in my view unduly narrow to strip s 7(1)(e) into its physical and mental elements and to contend that because the physical elements may be in Australia, the external affairs power needs to be engaged exclusively by the supporter's mental state. That is not how characterisation for constitutional purposes works.
What is required by s 7(1)(e) is some conduct by the supporter (say, giving money, giving a plane ticket or a false passport, or providing information about routes and contacts) with the supporter having an intention that the conduct will support or promote an offence against s 6(1)(a). It follows that there must be an intention that the conduct will support or promote a militant's entry into a foreign State. Undoubtedly, as the primary judge observed, the mental state has a connection with a matter which is geographically external to Australia (entering into a foreign State with s 6(3) intent). But so too does the conduct, if it is to be conduct which is undertaken with the intention of supporting or promoting the commission of an offence against s 6(1)(a).
Fundamentally, I cannot accept Mr Alqudsi's submission that the only external element is an offender's state of mind. The conduct which is undertaken with the intention of supporting or promoting the commission of an offence against s 6 is itself conduct which is linked to a place outside Australia, even if the only physical activities by the supporter take place in Australia. Only if the conduct is intended to support or promote the entry of a militant into a foreign country can the offence against s 6(1)(a) be made out. In other words, what is regulated is conduct intended to support something happening in a foreign State. Consistently with the approach taken in Thomas v Mowbray at [153], I think that is sufficient for the law to be one which is with respect to external affairs.
To reiterate, there must be a sufficient connection between the head of power and the practical or legal operation of the law: Grain Pool of Western Australia v Commonwealth [2000] HCA 14; 202 CLR 479 at [16]. I think that conduct which is intended to promote or support an offence under s 6(1)(a) is sufficiently connected with external affairs when it is borne in mind that s 6(1)(a) necessarily involves entry into a foreign State with a hostile intent. It is the combination of the external aspect of the supporter's mental state and the conduct undertaken by the supporter to support or promote an offence against s 6(1)(a) which cause me to conclude that s 7(1)(e) is within the head of power. The supporter's mental state concerns something external to Australia. The offence against s 6(1)(a) sought to be supported or promoted is necessarily an object external to Australia, as McHugh J stated in Polyukhovich. Far from being overtaken by later authority, as Mr Alqudsi submitted, I consider that what McHugh J said in Polyukhovich is aligned with principle enunciated in subsequent cases. On the view I take, questions of incidental power, purposiveness and proportionality simply do not arise.
I may be wrong about that. If so, then I would regard s 7(1)(e) as supported by the incidental power. On this view, the incidental power would sustain the criminalisation of acts preparatory to the commission of a s 6 offence, which itself is a law with respect to geographically external affairs. I do not regard the potential remoteness of the offence against s 7(1)(e) which Mr Alqudsi emphasised, or the fact that it may travel beyond traditional notions of criminal accessory liability, as causing s 7(1)(e) to fall outside the incidental power. And I would also reject Mr Alqudsi's submission that a proportionality analysis would be required on this characterisation of legislative power. His submission is closely analogous to the submission rejected in Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101 at [68]-[70] by reference to what had been held in Leask v Commonwealth, and fails for the same reasons.
That suffices to determine the outcome of both appeals. I turn to the remaining aspects of the external affairs power.

Foreign relations

The first basis upon which the primary judge relied was the potential to affect Australia's external relations with other countries. It was common ground that the power conferred by s 51(xxix) was engaged by laws with a sufficient connection to the foreign relations of Australia. However, the parties proffered different tests. Mr Alqudsi submitted that it was necessary for a law to have the discernible purpose of pursuing the foreign relations of Australia. He insisted that it was a purposive power, and involved the application of a test of proportionality.
The Commonwealth maintained that the power was broader. It embraced as a test what Brennan J had said in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 258: "When a particular subject affects or is likely to affect Australia's relations with other international persons, a law with respect to that subject is a law with respect to external affairs. The effect of the law upon the subject which affects or is likely to affect Australia's relationships provides the connexion which the words 'with respect to' require.'"
Further, the Commonwealth submitted that the position was governed by The King v Sharkey (1949) 79 CLR 121, and required, first, identifying a "subject" which "affects or is likely to affect" Australia's international relations, and secondly, assessing whether the law was a law with respect to that subject, which essentially involved an inquiry into the effect upon that subject. Mr Alqudsi submitted that this was an unduly wide reading of Sharkey.
I have difficulties with parts of both parties' submissions. The first difficulty is that it is far from clear to me what difference there is between a test based on the pursuit of Australia's foreign relations and a test based on what ultimately amounts to an effect on its foreign relations, if there is anything more than whether or not some form of proportionality is an element of validity.
The second difficulty is, as both other members of the Court observed during argument, that Sharkey would be decided for different reasons today. Mr Sharkey was charged with publishing seditious words, contrary to s 24D of the Crimes Act 1914 (Cth), being words which, inter alia, were for the purpose of "excit[ing] disaffection against the Government or Constitution of any of the King's Dominions". The law provided exceptions directed to good faith attempts to procure legislative change by lawful means or to point out matters tending to produce ill-will or hostility with a view to removing them. Such a law would today require examination in light of the implied freedom of communication on political and governmental matters. In any such examination, questions of whether the law is reasonably appropriate and adapted would be central. I do not consider that one can, without more, safely rely on what was said more than 60 years ago in the very different legal context following the identification and repeated reformulations of the implied freedom of political communication in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1 and McCloy v New South Wales [2015] HCA 34, especially if the submission is directed to whether or not there is need for a proportionality analysis. I also agree with what Basten JA has written about Sharkey.
Thirdly, the Court was told, very properly, that these matters had been, three weeks previously, the subject of argument before the High Court (indeed this Court had the benefit of hearing from junior counsel who had appeared in that case; as will be apparent, the standard of written and oral advocacy was high). The transcript discloses that precisely the same submissions were advanced before the High Court constituted by seven Justices: Plaintiff M68/2015 v Minister for Immigration and Border Protection [2015] HCATrans 256. The Commonwealth maintained that "what Justice Brennan said in Koowarta (1982) 153 CLR 168 at 258 is a sufficient statement of principle for this type of case", and then read the passage from Koowarta extracted above.
The Commonwealth also submitted that the introduction of purposive elements and proportionality into the power was "not consistent with principle. This has not been seen to be a purposive power to date and we would resist that endeavour".
These two appeals are urgent. One is interlocutory; the other is collateral to a pending trial. Both have been given a very substantial degree of expedition, with a hearing some 5 weeks after the notice of appeal was filed. The trial has been once vacated and is now listed for February 2016. Whatever the precise test to be applied for the foreign relations aspect of the external affairs power, and its application to s 7(1)(e) of the Act, cannot affect the outcome of these appeals, and will either be stated definitively by the High Court, or else will be affected by what is said by the High Court, when its decision is delivered.
I have considered in accordance with Kuru v New South Wales [2008] HCA 26; 236 CLR 1 at [12] whether to determine all aspects of the appeals, and concluded that in the present circumstances, I should not say anything more about the first basis on which the primary judge concluded that s 7(1)(e) was valid. However, I have concluded that I should consider and determine the third and fourth ways in which the primary judge upheld the validity of the Act. I do so because the position is considerably clearer and because these questions appear not to have been squarely addressed in the appeal presently reserved before the High Court.

International concern

Her Honour's reasons at [160]-[161] on "international concern" were relatively brief, and may be reproduced in their entirety. "I reject the plaintiff's contention that matters of international concern are not (or no longer) an aspect of the external affairs power. The dicta set out above (including the statements of Stephen J in Koowarta v Bjelke-Petersen at 217, which were approved by Brennan J in Polyukhovich v The Commonwealth at 561) support the continued relevance of matters of international concern to validity under the external affairs power. The reservations expressed by three members of the court in XYZ v The Commonwealth (Kirby, Callinan and Heydon JJ) about 'international concern' as a basis for validity of a law under the external affairs power neither indicate a concluded view, nor amount to a decision to overrule earlier dicta. "For the reasons given above, the constitutional fact evidence (including the Friendly Relations Declaration) established that the use of foreign fighters (including, but not limited to, mercenaries) in internal State conflicts was of international concern before the date of royal assent of the Act, as originally passed, and continued to be of international concern up to (and after) the date of royal assent of the 1987 Amending Act. The evidence also established that States were expected, if not required, to take prophylactic measures to prevent and deter conduct within their own territories which was intended to support such incursions into the territories of other States. In these circumstances, I regard s 7(1)(e) as valid because it falls within the international concern aspect of the external affairs power."
The Commonwealth sought to defend that reasoning. It drew attention to the reservations expressed by three members of the Court in XYZ about the use of "international concern" in relation to the external affairs power. However, it submitted that those reservations did not represent the concluded view of any of those judges, let alone the view of the majority, and it invited this Court to "follow the weight of existing authority, exemplified by Stephen J's reasons in Koowarta" (written submissions, para 56).
I respectfully disagree. I think that the primary judge was incorrect to accept the Commonwealth's submission. I do not consider that what Stephen J said in Koowarta is of any appreciable precedential authority in respect of the proposition that international concern alone is sufficient to engage the power.

The context of Koowarta

In order to explain why, it is necessary to place Koowarta in context. In Koowarta, the dissentients (Gibbs CJ, Aickin and Wilson JJ) said that a law giving effect to a treaty would only be valid if the international agreement could itself be described as an "external affair". The majority was split. Mason J said that the treaty itself "evidences the existence of international concern and gives the subject-matter of the treaty a character which is international": at 231. Murphy J's language was equally broad: at 240. Brennan J's view was substantially similar, and his Honour observed at 259-260 that: "[T]o search for some further quality in the subject, an 'indisputably international' quality, is a work of supererogation. The international quality of the subject is established by its effect or likely effect upon Australia's external relations and that effect or likely effect is sufficiently established by the acceptance of a treaty obligation with respect to that subject".
But Stephen J's view was narrower. His Honour said that "to fall within power a treaty must deal with a matter of international rather than merely domestic concern": at 216. He sought to use "international concern" as a limit upon Commonwealth legislative power, so as to avoid the result that entry into any treaty would engage s 51(xxix). Hence the statement at 216-217: "It will not be enough that the challenged law gives effect to treaty obligations. A treaty with another country, whether or not the result of a collusive arrangement, which is on a topic neither of especial concern to the relationship between Australia and that other country nor of general international concern will not be likely to survive [an examination of the subject-matter, circumstance and parties]."
In so reasoning, Stephen J was following the original use of "international concern" as a limit upon the powers conferred by the treaty-making provisions of the United States Constitution: see XYZ at [51].
Hence the ratio of Koowarta was determined by Stephen J's narrower view. Things have moved on since then.

The Tasmanian Dam Case

In The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 it was the minority (Gibbs CJ, Wilson and Dawson JJ) who adopted Stephen J's "international concern" limitation upon the power: see at 99-102, 197-199 especially at 199 ("the element of international concern is cumulative upon, and not alternative to, the presence of a relevant international obligation") and 306-307 especially at 307 (where Dawson J's conclusion rested upon the assumption that "what was said by Stephen J in Koowarta v Bjelke-Petersen about the significance of international concern ought to be accepted"). Stephen J had, of course, resigned.
But the majority took a broader view, concluding that once a bona fide treaty had been entered into, the Commonwealth had power to implement treaty obligations. One reason for doing so was the difficulty in a court assessing the "international character or concern" of a treaty. Mason J said at 125-126: "The point is that if a topic becomes the subject of international cooperation or an international convention it is necessarily international in character - the existence of cooperation and the making of a convention establish that the subject-matter is an appropriate vehicle for the creation of international relationships or, in the case of a bilateral treaty, a relationship between the parties to it. And participation in a convention indicates a judgment on the part of participating nations that they will derive a benefit from it. All this indicates an absence of any acceptable criteria or guidelines by which the Court can determine the 'international character' of the subject-matter of a treaty or convention. The existence of international character or international concern is established by entry by Australia into the convention or treaty. In any event, as I observed in Koowarta, the Court would undertake an invidious task if it were to decide whether the subject-matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the executive government and Parliament. The fact of entry into, and of ratification of, an international convention, evidences the judgment of the executive and of Parliament that the subject matter of the convention is of international character and concern and that its implementation will be a benefit to Australia. Whether the subject-matter as dealt with by the convention is of international concern, whether it will yield, or is capable of yielding, a benefit to Australia, whether non-observance by Australia is likely to lead to adverse international action or reaction, are not questions on which the Court can readily arrive at an informed opinion. Essentially they are issues involving nice questions of sensitive judgment which should be left to the Executive Government for determination. The Court should accept and act upon the decision of the Executive Government and upon the expression of the will of Parliament in giving legislative ratification to the treaty or convention."
Thus Stephen J's approach has been overtaken by the broader reasoning of the majority in the Tasmanian Dam Case and was criticised by Mason J writing in that majority. It is, with respect, wrong to regard Stephen J's statements as to international concern, made in support of a long-superseded and (as it turns out) unduly narrow view of the scope of the external affairs power, as supportive of yet further expansion of that head of power. The occasion for his Honour's qualification disappeared when a broader view (to which he was opposed) was adopted in the Tasmanian Dam Case.
There is another point: Stephen J's view of "international concern" was confined to cases where there was a treaty. It is in the teeth of Stephen J's reasoning to invoke international concern in cases which do not involve a treaty.
True it is that Brennan J within the majority in the Tasmanian Dam Case went further and added that if a treaty "does not impose an obligation, then it would be necessary to consider whether the subject with which it deals is nevertheless a matter of international concern": at 220. Consistently with his earlier views, he was conscious of the difficulties in the inquiry to be undertaken in such a case. Those difficulties are not presently relevant. But it is important to distinguish the different uses of "international concern" to which both Stephen J and Brennan J referred in those cases. For Stephen J, "international concern" was a cumulative restriction upon the engagement of the external affairs power, in addition to the need to identify an obligation at international law. For Brennan J, "international concern" was irrelevant so long as there was a treaty obligation, but could be a further source of power if a treaty fell short of imposing an obligation upon the Commonwealth. Again, no differently from Stephen J, Brennan J was not referring to cases where there was no treaty.

There is no separate "international concern" aspect of the external affairs power

I turn to why I would reject the Commonwealth's alternative submission based on "international concern".
First, although I accept that Kirby J had not expressed a concluded view in XYZ, I do not regard the dissent of Callinan and Heydon JJ as anything other than a reasoned and concluded statement of their Honours' position. In any event, Heydon J unequivocally confirmed in Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 at [471]-[473] his views on the wrongness of the "international concern" aspect of the power. The primary judge was, with respect, wrong to proceed on the basis that no Justice of the High Court had expressed a "concluded view" contrary to her own.
Secondly, the submission made by the Commonwealth both at first instance and in this appeal, which was accepted by the primary judge, placed particular reliance on what was said by Stephen J in Koowarta.
Stephen J was writing at a time before the Tasmanian Dam Case and thus when the scope of the external affairs power was much narrower than it has since been held to be. His Honour's purpose was to limit federal power to a subclass of cases when the Commonwealth had subjected itself to a treaty obligation. His Honour's words cannot, in my respectful view, support the broader proposition that the power extends to cases where there is not only no treaty obligation, but also no treaty. Given the subsequent course of authority, his words no longer carry any appreciable precedential weight.
Thirdly, her Honour relied on the fact that Brennan J in Polyukhovich "approved" what Stephen J had said in Koowarta. In its written submissions, the Commonwealth claimed that Brennan J had approved that statement. I respectfully disagree.
Eight years after the Tasmanian Dam Case had been decided, and the delineation of power proposed by Stephen J had been rejected, Brennan J invoked one aspect of Stephen J's reasons to support another aspect of the power. His Honour, immediately after reproducing the passage from Stephen J's reasons, acknowledged the fact that the term "international concern" possessed no very precise meaning. Responding to the criticisms (including by Dawson J in Richardson v Forestry Commission (1988) 164 CLR 261 at 322-323), Brennan J considered that a law vesting a jurisdiction recognised by international law as a universal jurisdiction would be supported by the head of power (a matter discussed by S Murray, "Back to ABC after XYZ: Should we be Concerned About 'International Concern'?" (2007) 35 Fed L Rev 317). His Honour dissented in the result in Polyukhovich. Brennan J's view has not been followed, so far as I am aware, by any other judgment in the High Court or any other court.
At the level of authority, the concept of "international concern" has been forcefully criticised by Mason J in Tasmanian Dam Case, Dawson J in Richardson, and by Kirby J and Callinan and Heydon JJ in XYZ. Such support as may be found in the reasons of Brennan J in Polyukhovich recognised the difficulties in the doctrine, and was much more qualified than the concept for which the Commonwealth contended and the primary judge found. I do not consider that the state of authority precludes recognition of the doctrine, but to do so it would be necessary to address the criticisms which have been made in the three decades since Koowarta. Although the Commonwealth sought to defend this aspect of the reasons of the primary judge, it did not seek to take that course.
There is one first instance decision - not relied on by the primary judge nor the subject of submissions in this Court - which supports this aspect of the head of power: Souliotopoulos v LaTrobe University Liberal Club [2002] FCA 1316; 120 FCR 584. That decision was criticised in XYZ. It proceeds on the same erroneous approach of extracting dicta from cases and using them contrary to their context as I have sought to explain above.
There are to my mind large difficulties attendant upon a separate aspect of the external affairs power based on "international concern". Those difficulties were identified, more powerfully than I can state, by Mason, Dawson, Kirby, Callinan and Heydon JJ in the decisions referred to above. The essential problem is an absence of, to use Mason J's language, "any acceptable criteria or guidelines". How is it to be determined that something which ex hypothesi is insufficient to generate the ordinary formal processes of treaty-making nevertheless is sufficient to engage federal legislative power? How is the area of international concern identified? What is the relationship between the content of federal legislative power and the subject? Mr Alqudsi summarised the critique in XYZ concisely: "The concept of 'international concern' is impermissibly vague. There are no identified limits. Recognition of an 'international concern' power would be inconsistent with the Communist Party Case. It would facilitate the Executive reciting itself into power. If the concept were accepted as a criterion of power 'the concept would ... be virtually limitless and potentially destructive of Australian federal arrangements': XYZ at [124] per Kirby J."
The absence of a principled basis for the doctrine, the weight of High Court authority against it and the fact that the submission involves a misuse of what Stephen J wrote in Koowarta lead me to conclude, respectfully, that there is no separate aspect of the external affairs power based on "international concern".

Recommendations of international agencies

The primary judge also accepted the Commonwealth's submission that s 51(xxix) was engaged by a recommendation of international agencies. Her Honour said at [162]: "[T]he Commonwealth submitted that the recommendations of international agencies such as the UN, in pursuit of international objectives, enlivened the external affairs power. I regard the express approval by the majority in the Industrial Relations Act Case at 483 of the dicta of Evatt and McTiernan JJ in The King v Burgess; ex parte Henry as establishing the proposition for which the Commonwealth contended. Thus, it is not, in my view, to the point that, unlike treaties, the 'recommendations' do not necessarily impose legal duties on States to take certain steps and enact laws with a particular effect."
On that basis, her Honour concluded at [163] that "the external affairs power authorised the Commonwealth to carry into effect legislation which can be regarded as having as its purpose the implementation of the recommendations in the Friendly Relations Declaration."
I respectfully disagree. I regard this Court as bound to hold to the contrary. The Commonwealth's submission proceeds on a misreading of the Industrial Relations Act Case.
The plaintiff States in the Industrial Relations Act Case had submitted that "what has come to pass with the legislation they seek to impugn [was] something beyond contemplation at the time of the adoption of the Constitution": at 483. That submission was rejected. Its rejection was entirely unsurprising. It involved a "serious error" (at 482), which was such that it could be readily demonstrated. The joint judgment said, at 483, "Any such proposition is, as we have endeavoured shortly to illustrate, too widely stated".
The explanation which their Honours had "endeavoured shortly to illustrate" was given in the immediately preceding paragraph of the judgment: "At the time of federation the source of such obligations was action taken by the Imperial authorities. However, given the scope of the legislative power, it was at least implicit that it would authorise the implementation of treaty obligations accepted independently by the Commonwealth of Australia, if and when the Executive Branch of government attained the competence to do so."
That explanation had been anticipated by Evatt and McTiernan JJ in The King v Burgess; Ex parte Henry (1936) 55 CLR 608. It was for that reason that the passage on which the primary judge and the Commonwealth rely was reproduced at 483: "Thus, as long ago as 1936, Evatt and McTiernan JJ said: 'But it is not to be assumed that the legislative power over "external affairs" is limited to the execution of treaties or conventions; and ... the Parliament may well be deemed competent to legislate for the carrying out of "recommendations" as well as the "draft international conventions" resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations.'"
The point of reproducing the passage was to observe that it was long ago noted that Australia's capacity to act as a sovereign international State was, entirely correctly, anticipated to be evolving. In other words, the error in the State's submission would have been apparent decades ago. The passage from the Industrial Relations Act Case is not, in my respectful opinion, to be read as an endorsement of a power to legislate where there has been a request or recommendation by an international organisation.
I think that is the natural reading of the passage, considered alone. That conclusion is strengthened by the words used in the critical passage itself, and by two statements later in the same judgment.
Not even Evatt and McTiernan JJ expressed unequivocal support for this aspect of the head of power. The passage on which the Commonwealth relies is expressly speculative ("may well be deemed competent"). There was good reason for the lack of definitiveness. What was involved in Burgess well illustrated Australia's lack of international competence. In that case, Henry Goya Henry successfully challenged the validity of the Air Navigation Regulations made under the Air Navigation Act 1920 (Cth). The latter Act contained a single operative provision (s 4), empowering the Governor-General to make regulations for the purpose of carrying out and giving effect to the Convention signed in Paris on 13 October 1919. True it is that an Australian Minister of Defence had signed that Convention. However, the treaty records that he was one of six plenipotentiaries appointed by the King. The important matter, from the perspective of international law, was that the treaty was ratified by the King on 1 June 1922. Australia had not ratified the Convention, nor was it a high contracting party. That occurred because the parties to the treaty proceeded on the basis that the high contracting party was the British Empire, not the colony of Australia. Were there any doubt about this, it would be resolved by the fact that Article 40 provided: "The British Dominions and India shall be deemed to be States for the purposes of the present Convention".
Of course there was by 1936 a growing appreciation that Australia could itself ratify international treaties. Australia's status in international law changed in the mid 1920s, following the "Balfour Declaration" at the Imperial Conference of 1926. However, there remained a lack of legislative competency about basic matters, because both federal and state laws continued to be subject to the Colonial Laws Validity Act 1865 (Imp). For example, in 1925 the Commonwealth submitted that the captain of a British registered ship discharging or engaging seamen at an Australian port had to comply with the Navigation Act 1912 (Cth). The High Court rejected this submission on the basis that the Navigation Act was a colonial law repugnant to the Merchant Shipping Acts 1894 and 1906 (Imp) and therefore "absolutely void and inoperative": Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130. In 1936 the Statute of Westminster had not been adopted, and the Colonial Laws Validity Act remained in force in Australia.
To return to the true status of what was said of Burgess in the Industrial Relations Act Case, the fact that it was restricted to a rejection of a submission based on the implementation of treaties is confirmed by the fact that, after resolving this aspect of the States' submissions, and before turning to geographic externality, the joint judgment stated at 485: "Of course, the scope of the legislative power is not confined to the implementation of treaties."
That tends to confirm that the reference to Burgess was not intended to be expressed to extend beyond implementing treaties.
Later in the reasons of the Industrial Relations Act Case the joint judgment turned to two recommendations made by the ILO which qualified the conferral of power upon the Commission in s 170BC of the Industrial Relations Act 1988 (Cth) by reference to whether an order was reasonably regarded as appropriate and adapted to giving effect to those recommendations. Unlike the passages on which the Commonwealth relied, the following passage at 509 is squarely directed to whether a recommendation by an international organisation will engage the s 51(xxix) power: "That provision can be supported under s 51(xxix) if, but only if, the terms of these Recommendations themselves can reasonably be regarded as appropriate and adapted to giving effect to the terms of the Conventions to which they relate. In our view, they can be so regarded. Hence measures that fall within the terms of s 170BC(1) and implement the terms of the Recommendations will fall within the terms of s 170BC(3)(b)(i). On this line of reasoning, the words 'can reasonably be regarded as appropriate and adapted to' in s 170BC(3)(b) may be superfluous in relation to the Recommendations but are obviously designed to cover the situation where the Recommendations are relied upon of themselves to support an exercise of the external affairs power. This is a point which, at this stage, it is not necessary to decide" (emphasis added).
The first sentence emphasised above states a necessary as well as a sufficient condition for legislation to be supported by a recommendation. I do not see how such formal language can be disregarded. It is simply inconsistent with the stated necessary condition to contend, as the Commonwealth submits, or to hold, as the primary judge held, that implementing a recommendation can of itself engage the power. On the current state of authority, that can occur only if the recommendation is itself reasonably regarded as appropriate and adapted to give effect to some Convention.
If there were any doubt about that, it is dispelled by the second emphasised sentence. The High Court was, expressly, not deciding whether a recommendation is relied upon itself, in the absence of a treaty, to support the exercise of the external affairs power. I do not see how one can read general language earlier in the judgment, in a section dealing with the implementation of treaties, as undermining passages which were precisely directed to the particular issue, in that part of the judgment where the issue was determined.
The same reading of the Industrial Relations Act Case was advanced by the Commonwealth in Pape. It was rejected by Heydon J, for reasons mirroring those I have summarised above. Moreover, in the same decision, Hayne and Kiefel JJ proceeded on the basis (consistently with the understanding stated above of the effect of the Industrial Relations Act Case) that the external affairs power was only engaged if Australia had undertaken an international obligation: at [370]-[374]. Neither French CJ nor Gummow, Crennan and Bell JJ considered the external affairs power: at [136] and [256].
The view I hold of the effect of the Industrial Relations Act Case is thus shared by all three members of the High Court who were asked to determine the same submission in respect of it as has been advanced by the Commonwealth in this appeal.
True it is, as the Commonwealth submitted, that Professor Zines expressed a broader view. Professor Zines was critical of the passage I have reproduced above: "It is not easy to see why this qualification is required unless the treaty itself confines the recommending power of the international organisation to matters related to the terms of the treaty. In that case, a recommendation could be invalid at international law, because it did not conform to the provision conferring the power": L Zines, The High Court and the Constitution (5th ed 2008, The Federation Press) at 387.
The academic views of Professor Zines are to be accorded great weight. However, this Court - unlike that distinguished Australian - is bound by the decisions of the High Court of Australia. It is not open to me to do other than apply what a majority of the High Court has said in the Industrial Relations Act Case is a necessary and sufficient condition of a mere recommendation engaging the external affairs power.
I conclude that I am bound to reject the Commonwealth's submission, and bound to conclude that the primary judge was wrong to reason to the contrary.

Conclusion and orders

In its application to s 6(1)(a) read with s 6(3)(aa), s 7(1)(e) of the Act is a law with respect to geographically external affairs, because it criminalises conduct which is intended to support or promote persons entering foreign countries with hostile intent. The primary judge was correct to so conclude, and the appeals must therefore be dismissed. However, the primary judge was, with respect, wrong to rely on "international concern" or the recommendations of international bodies as further bases for upholding the validity of the law.
It is appropriate to grant declaratory relief in the civil appeal which only sought a declaration. The form of declaration I propose reflects the character of the submissions resolved in this appeal, and accords with the orders made in Attorney-General (Cth) v Alinta Limited [2008] HCA 2; 233 CLR 542.
The parties proceeded on the basis that costs would follow the event in the civil proceeding seeking declaratory relief. The effect of the orders proposed below is that Mr Alqudsi should not bear the costs of the Commonwealth Director of Public Prosecutions, who was a necessary party, but who (entirely properly) adopted the submissions of the Commonwealth. I propose these orders: In 2015/267642 in the Court of Appeal: 1. Grant leave to appeal. 2. Appeal dismissed. 3. Declare that s 7(1)(e), in connection with ss 6(1)(a) and 6(3)(aa) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), was not invalid on the ground that it exceeded the external affairs power in s 51(xxix) of the Constitution. 4. Mr Alqudsi to pay the costs of the Commonwealth. In 2013/363649 in the Court of Criminal Appeal: 1. Appeal dismissed.
McCALLUM J: I agree with the orders proposed by Leeming JA, for the reasons his Honour has stated. It is accepted that the physical element of the offences alleged against Mr Alqudsi is conduct alleged to have occurred within Australia; it does not follow that the inquiry as to whether the impugned provisions operate on conduct geographically external to Australia is answered determinatively by reference to the metaphysical inquiry into the location of Mr Alqudsi's state of mind (the fault element of the offence). That is an artificial analysis which, I would respectfully suggest, produces an artificial conclusion. As Leeming JA has explained, the issue reduces to what is ultimately a relatively simple proposition, which is that conduct undertaken with the intention of supporting or promoting a militant's entry into a foreign State has a connection with a matter which is geographically external to Australia.
As noted by Mr Alqudsi, the Act potentially prohibits conduct that is not contrary to the law of the place in which it occurs, and so may operate in a manner described by the minority in XYZ as "arguably" unjust: at [202] per Callinan and Heydon JJ. That is an important recognition but it is not relevant to the present inquiry. On the current interpretation of the external affairs power, Leeming JA's conclusion as to geographical externality (with which I respectfully agree) is determinative.
Basten JA has reached the same conclusion by reasoning that is different from that of Leeming JA but not, I think, inconsistent with it. On that understanding, I agree with his Honour's separate judgment.

Amendments 16 November 2015 - Coversheet - solicitor for the Crown - "Department" replaced with "Director" [32] - "external affairs powers" replaced with "external affairs power" [45] - "upon the Minister" replaced with "upon the Governor-General" [61] - "by the Minister" replaced with "by regulation" [79] - comma after "preparatory" deleted [159] - "reference in Burgess" replaced with "reference to Burgess" [162] - "an external affairs power" replaced with "the external affairs power" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2015

Air Navigation Regulations 1921(Cth)

Crimes Legislation Amendment Act 1987(Cth)

Industrial Relations Act 1988(Cth)

(Imp) Navigation Act 1912(Cth)

Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990(Cth)

(UK) Supreme Court Act 1970(NSW)

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