Australia's territorial and border integrity
53 No submission was advanced challenging the Constitutional competence of the Commonwealth Legislature to enact the Anti-People Smuggling and Other Measures Act 2010 (Cth) ("Anti-People Smuggling and Other Measures Act") and, in particular, Schedule 2 to that Act. It was that Act which (inter alia) inserted paragraph (aa) into the definition of "security" in s 4 of the Australian Security Intelligence Organisation Act.
54 The submission that was advanced, however, was that:
a confined meaning should be given to para (aa) of the definition of "security" set forth in s 4 of the Australian Security Intelligence Organisation Act; and that
such a confined meaning was supported by the Constitutional heads of power that under-pinned the Australian Security Intelligence Organisation Act (and amending Acts).
Paragraph (aa) relevantly refers to "the protection of Australia's territorial and border integrity".
55 This phrase, it was submitted, had a well-accepted meaning in international law. The Max Planck Encyclopaedia of Public International Law thus stated that:
… territorial integrity and political independence are two core elements of Statehood. Territorial integrity refers to the territorial 'oneness' or 'wholeness' of the State [while] political independence refers to the autonomy in the affairs of the State with respect to its institutions, freedom of political decisions, policy making, and in matters pertaining to its domestic and foreign affairs": (Oxford University Press, 2011).
Such a meaning, it was then submitted, confined a threat to "territorial integrity" for the purposes of para (aa) to a threat "to attack a State or to subject it to division, secession, occupation or annexation…". The term "integrity", on this approach, was said to refer "to the indivisibility of Australia's territory and borders, and their immunity from armed attack, division, secession, occupation or annexation".
56 "People smuggling", on this approach, was said to fall short of what constituted a "serious threat" to the "protection of Australia's territorial and border integrity…".
57 It is unnecessary to resolve any question as to whether the phrase "territorial integrity" has such an accepted meaning in international law as is advanced on behalf of Mr Jaffarie.
58 Such a confined meaning is neither supported by the natural and ordinary meaning of the phrase employed in paragraph (aa) nor by any of the Constitutional heads of power that were relied upon as supporting the Anti-People Smuggling and Other Measures Act. That Act would be amply supported by the immigration power in s 51(xxvii) of the Constitution. The source of the suggested limitation advanced on behalf of Mr Jaffarie was nevertheless said to be found by reference to s 51(vi), (xxvii), (xix) and/or (xxix). No such limitation or constraint upon the natural and ordinary meaning of the phrase employed in paragraph (aa) is to be found in any of these provisions.
59 There is certainly no constraint within s 51(vi) which would confine the competence of the Commonwealth legislature to define the term "security" in a manner consistent with the confined interpretation sought to be distilled from international law. The ambit of the power conferred by s 51(vi) to make laws with respect to "the naval and military defence of the Commonwealth and of the several States" is, it is well-recognised, not to be "narrowly construed": White v Director of Military Prosecutions [2007] HCA 29 at [106], (2007) 231 CLR 570 at 611 per Kirby J. And, "unlike some other powers, its application depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law": Andrews v Howell (1941) 65 CLR 255 at 278 per Dixon J. But, whatever may be the operation of s 51(vi) in times of war as opposed to times of peace, the power conferred "is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public": Thomas v Mowbray [2007] HCA 33 at [7], (2007) 233 CLR 307 at 324 per Gleeson CJ. "The operation of s 51(vi) is 'not confined to time[s] of war'…": [2007] HCA 33 at [240], (2007) 233 CLR 307 at 392 per Kirby J (in dissent). The amendments there under challenge, it may be noted, were enacted in 2005 when Australia was not at war and were held to be valid. See also: The Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 259 per Fullagar J.
60 Nothing in the manner in which s 51(vi) has been construed provides support for the limitation of meaning sought to be ascribed to paragraph (aa). There is, in particular, no reason why a "serious threat" to "territorial and border integrity" is confined to an "attack" which threatens the "oneness" of Australia. There is nothing inherent in the defence power conferred by s 51(vi) which would limit the power in that manner. Indeed, a reading of s 51(vi) which confines the legislative competence of the Commonwealth Legislature to resisting an "attack" upon the borders of Australia is a reading which is not self-evidently correct and one which is inconsistent with the manner in which that power has been construed to-date.
61 Section 51(xxvii) provides even less reason for any constraint being imposed upon the natural and ordinary meaning of the words employed in paragraph (aa). That placitum confers the power to make laws with respect to "immigration and emigration". That power is "clearly ample enough to authorize Parliament to control the entry of persons into Australia" (Ex parte De Braic (1971) 124 CLR 162 at 164 per Barwick CJ, McTiernan and Owen JJ agreeing). The right to exclude persons from Australia is included within the power to regulate immigration: Robtelmes v Brenan (1906) 4 CLR 395 at 415 per Barton J. That power would clearly extend to steps to prevent or monitor "people smuggling" and to protect "Australia's territorial and border integrity from serious threats". That subject-matter would either fall within s 51(xxvii) or that power together with the "incidental power" conferred by s 51(xxix) of the Constitution: cf. Williamson v Ah On (1926) 39 CLR 95 at 108 per Isaacs J.
62 And, with reference to s 51(xix) Starke J in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 132 to 133 observed:
… the Parliament has ample power to authorize the Executive to exclude persons and to suppress and prevent acts detrimental to the Commonwealth, in respect of subjects over which it has power. Thus it would be a valid law, in my opinion, if the Parliament provided that any alien who in the opinion of the Minister was an undesirable resident of Australia might be deported: it would be valid because the Parliament has full power over the subject of aliens…
See also: NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 at [8], (2014) 220 FCR 44 at 47 per Allsop CJ and Katzmann J.
63 Nor can any reason to limit the natural and ordinary meaning of the words employed in para (aa) be found within the external affairs power, namely s 51(xxix). Although the expression "external affairs" is "imprecise and indeed ambiguous" (Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 188 per Gibbs CJ), the expression is "wide enough to cover places, persons, matters or things" and "is unqualified": Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 632 per Dawson J. Section 51(xxix) is not confined to the execution of treaties or conventions: R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687 per Evatt and McTiernan JJ.
64 The term "security" and the phrase "the protection of Australia's territorial and border integrity" is thus not to be read in the confined manner advanced on behalf of Mr Jaffarie. Nothing in paragraph (aa) suggests that the phrase should be given anything other than the natural and ordinary meaning of the words employed; indeed, if anything, the statutory context in which the phrase is employed strongly suggests that no pedantic or unnecessary construction should be placed upon the phrase. And nothing in s 51(vi), (xxvii), (xix) or (xxix) suggests any different conclusion. Nor does the confined role entrusted to ASIO, as opposed to the role entrusted to law-enforcement agencies to monitor compliance with those who seek to illegally enter Australia, dictate a confined meaning to be given to paragraph (aa).
65 It may be further observed that such a confined construction of paragraph (aa) of the definition of "security" employed in s 4 of the Australian Security Intelligence Organisation Act could well set "the bar too high" and frustrate the ability of ASIO to properly monitor and assess threats to Australia's national interests: cf. Suresh v Canada (The Minister of Citizenship and Immigration) [2002] SCC 1 at [88], [2002] 1 SCR 3 at 50 to 51. To give the phrase "the protection of Australia's territorial and border integrity" the confined meaning advanced on behalf of Mr Jaffarie may well hamstring ASIO in its ability to confront the ever growing threat of terrorism and associated evils.
66 The submission is thus rejected that the Director-General had either misconstrued the ambit of the definition of "security", or exceeded the powers conferred by not confining his assessment to that which constituted an "attack" on the "oneness" of Australia.