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The reference power

1. Because the impugned provisions of the Code were not provisions that were part of the text set out in Sched 1 to the Victorian Reference Act, argument about the application of the reference power in the present matter focused upon the operation of s 4(1)(b) of that Act. The matter referred to the Parliament of the Commonwealth by s 4(1)(b) of the Victorian Reference Act was described in that provision as:

"the matter of terrorist acts, and actions relating to terrorist acts, but only to the extent of the making of laws with respect to that matter by making express amendments of the terrorism legislation or the criminal responsibility legislation".

"[E]xpress amendment" of the terrorism legislation or the criminal responsibility legislation was defined in s 3 of the Victorian Reference Act as:

"the direct amendment of the text of the legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the legislation".

1. The critical question in the present matter is whether the 2005 Act, in so far as it inserted the impugned provisions in the Code that provide for the making of control orders, is a law with respect to a matter referred by the Victorian Reference Act. The answer to that question depends immediately upon whether the 2005 Act is a species of the genus: "laws with respect to that matter [of terrorist acts, and actions relating to terrorist acts] by making express amendments of the terrorism legislation". If the impugned provisions are laws of that kind, there then is a further issue about the operation to be given to s 100.8 of the Code, as enacted in pursuance of the reference of power to enact provisions in the terms of the text set out in Sched 1 to the Victorian Reference Act. Section 100.8 provided that it applied to "an express amendment" of Pt 5.3 of the Code and that:

"(2) An express amendment to which this section applies is not to be made unless the amendment is approved by:

(a) a majority of the group consisting of the States, the Australian Capital Territory and the Northern Territory; and

(b) at least 4 States."

1. The Commonwealth submitted that the subject‑matter of the reference made by s 4(1)(b) of the Victorian Reference Act was "terrorist acts, and actions relating to terrorist acts". It further submitted that the succeeding words of the provision (introduced by "but only to the extent") indicated the way in which that reference should be implemented. That is, the Commonwealth submitted that there was a reference of power to make laws with respect to a defined subject‑matter but that the reference was qualified by the requirement that the law had to be enacted in a particular form - as part of the original Act identified as the provisions whose text was set out in Sched 1 to the Victorian Reference Act.
2. The plaintiff contended that the matter referred by s 4(1)(b) of the Victorian Reference Act was not to be understood in this way. Rather, so the plaintiff argued, the amendments of the Code made by the 2005 Act's insertion of provisions relating to control orders constituted "the insertion of an entirely new regime, one that 'will have [substantive] effect otherwise than as part of the text of the legislation'[[573]] and is thus excluded from the matter referred by s 4(1)(b)". The plaintiff further submitted that there had not been consent to the amendments made by the 2005 Act that was of a kind required by s 100.8 of the Code as enacted pursuant to the reference.
3. For the reasons that follow, the plaintiff's construction of the Victorian Reference Act should be rejected and the Commonwealth submission accepted. The text of the Victorian Reference Act requires that conclusion.
4. First, it is important to recognise that the text and structure of that Act are consistent only with there being two distinct and different references of power: one made by s 4(1)(a) by reference to the scheduled text; the other made by s 4(1)(b). Section 4(3) of the Act provided expressly that the operation of each of pars (a) and (b) of s 4(1) "is not affected by the other paragraph". It follows that "the matter of terrorist acts, and actions relating to terrorist acts" referred to in s 4(1)(b) is not to be read as confined by reference to the particular provisions set out in the scheduled text: the "referred provisions".
5. Next, and separately, the provisions of the Victorian Reference Act dealing with "express amendment" are consistent only with the Commonwealth submission about the way in which that Act operates. That appears most immediately from the definition of "express amendment". The definition has two parts. First, it is said that an express amendment means "the direct amendment of the text of the legislation" and various examples of the ways in which that may be done are spelled out: "whether by the insertion, omission, repeal, substitution or relocation of words or matter". Then there is a qualification: "but does not include the enactment ... of a provision that has or will have substantive effect otherwise than as part of the text of the legislation".
6. How do these two parts of the definition mesh? At first sight, the two parts appear to be contradictory. The first part contemplates direct amendment by insertion, omission, repeal, substitution or relocation of words or matter; the second part limits that by excluding enactment of a provision that has or will have "substantive effect otherwise than as part of the text of the legislation".
7. If, however, as the Commonwealth submits, the reference made by s 4(1)(b) permits amendment by insertion of new matter (in this case provisions for control orders) so long as that new matter falls within the description of a law with respect to the matter referred ("terrorist acts, and actions relating to terrorist acts") and that is done by express amendment to the law that was enacted in the form of the scheduled text, there is no contrariety between the two parts of the definition of "express amendment". By contrast, if the plaintiff is right to submit that no change may be made to legislation enacted in the form of the scheduled text if that change introduces a new provision having "substantive effect", the definition of express amendment cannot be given sensible meaning. On the hypothesis advanced by the plaintiff, the qualification to the definition of express amendment would swallow the body of the definition and, no less importantly, s 4(1)(b) would not constitute the reference of a second, and separate subject‑matter.
8. For these reasons the provisions about control orders introduced into Pt 5.3 of the Code by the 2005 Act are supported by the reference of power made by s 4(1)(b) of the Victorian Reference Act.
9. The point then made by the plaintiff about the operation of s 100.8 may be dealt with briefly. In its terms, s 100.8 is a provision of federal law which purports to fetter the federal Parliament in its future action: certain amending laws may be made only if prior approval is given. That law is invalid. The federal Parliament may not fetter the future exercise of its legislative powers. It has no power to do so. It is therefore not necessary to consider how approvals of the kind for which s 100.8 provides may be signified or by what person or institution of a State or Territory such an approval would be given.
10. For these reasons the impugned provisions, in their operation in the facts and circumstances of this case, are provisions that meet the description of laws with respect to the heads of legislative power set out in s 51(vi) and s 51(xxxvii). But those grants of legislative power are, of course, "subject to this Constitution". It is, therefore, necessary to consider the Ch III questions that are presented by the impugned provisions.

Judicial power

1. Examination of the judicial power questions that arise in this matter must begin from two well‑established principles. First, R v Kirby; Ex parte Boilermakers' Society of Australia[574] decided that the express statement in ss 75 and 76 "of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is ... clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction"[575].
2. Secondly, it is well established that a single legislative provision may perform the double function of dealing with substantive liabilities or substantive legal relations and giving jurisdiction with reference to them[576]. Even though the liability and the jurisdiction are created by the one provision, it is possible to identify the two separate conceptions and "fit them into the pattern of Chapter III of the Constitution"[577]. That is, it is possible to identify a law made under s 76(ii) conferring jurisdiction on a federal court in a matter arising under a law made by the Parliament.
3. It is, of course, clear that the legislation now in issue gives jurisdiction to federal courts. The determinative issue in the case is whether the authority given to federal courts to make control orders is authority to decide a matter arising under a law made by the Parliament.
4. That question must be answered by giving close attention to the relevant legislation. Before doing that, however, it is necessary to say something further about the first of the premises just identified as established by Boilermakers. In its oral submissions, the Commonwealth placed heavy emphasis upon the "chameleon doctrine"[578] by which, so it was submitted, the nature of a power takes its character from the body to which it is given.
5. It may readily be accepted that, as Kitto J said in R v Spicer; Ex parte Australian Builders' Labourers' Federation[579]:

"It is true ... that there is nothing necessarily foreign to the nature of judicial power in the fact that its exercise is conditional upon the formation of an opinion described in broad terms [and that it] is true also that sometimes a grant of a power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial."

But the fact that the recipient of statutory power is a federal court does not conclude the question whether the power thus given to the court is the judicial power of the Commonwealth.

1. Nor is that question to be answered on an assumption that the doctrine of separation of powers is "a product of abstract reasoning alone [or is] based upon precise definitions of the terms employed"[580]. As Kitto J rightly pointed out in R v Davison[581], the doctrine, as developed in political philosophy, was based upon observation of the experience of democratic states. That is why, as Kitto J also remarked in Davison[582], the distribution by the Constitution of the functions of government amongst separate bodies, by requiring a distinction to be maintained between powers described as legislative, executive and judicial, "is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise".
2. The well‑recognised difficulties in framing any comprehensive definition of what is the exercise of the judicial power of the Commonwealth[583] do not deny the centrality of the concept of "matter" in ss 75 and 76 and the importance, in the understanding of that concept, of "arbitrament upon a question as to whether a right or obligation in law exists"[584].
3. When, in Huddart, Parker & Co Pty Ltd v Moorehead, Griffith CJ spoke[585] of judicial power as "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property", the notion of "arbitrament upon a question as to whether a right or obligation in law exists"[586] lay at the centre of the conception that was described. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J elaborated the point when he said[587]:

"a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". (emphasis added)

As Kitto J went on to say[588]:

"a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified".

1. That does not mean that the exercise of judicial power will not often require the discretionary exercise of power. Conferring discretionary powers on a court is a frequent feature of conferring judicial power. But the conferral of discretionary power may, in some cases, present particular questions[589].
2. In Queen Victoria Memorial Hospital v Thornton[590], the task given to a court of summary jurisdiction (described by this Court[591] as "making an appointment in substitution for the appointment made by an employer") was so unconfined that the legislation was held not to confer judicial power. No issue of fact was submitted to the court for decision, no antecedent right existed which the court was called upon to ascertain, examine or enforce.
3. The legislation in issue in Thornton may be contrasted with s 37 of the Stevedoring Industry Act 1954 (Cth), considered by this Court in R v Spicer; Ex parte Waterside Workers' Federation of Australia ("the Waterside Workers' Case")[592]. Of that legislation, four members of the Court said[593]:

"The validity of s 37 depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under a law made by the Parliament of the Commonwealth within the meaning of s 76(ii) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature: see Barrett v Opitz[594]; Hooper v Hooper[595]. The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards." (emphasis added)

It is the need to identify an ascertainable test or standard which is to govern the grant or refusal of an interim control order which is critical in the present case. That will require close attention to the relevant provisions of the Code. Before undertaking that task it is necessary, however, to say more about discretion and judicial power.

1. It may be thought that what was said in the Waterside Workers' Case was qualified, even departed from, in R v Joske; Ex parte Shop Distributive and Allied Employees' Association ("the Shop Distributive Employees' Case")[596]. It was argued in the Shop Distributive Employees' Case that a provision of the Conciliation and Arbitration Act 1904 (Cth) that permitted the Industrial Court, upon finding that there was an invalidity in the affairs of an industrial organisation, to "make such order as it thinks fit to rectify or cause to be rectified the invalidity, or to negative, modify or cause to be modified the consequences in law of the invalidity"[597] did not confer judicial power. Before making such an order, the Industrial Court was required to satisfy itself that such an order "would not do substantial injustice to the organization" or to members or third parties having dealings with the organisation.
2. Of these provisions, Mason and Murphy JJ said[598]:

"It involves, so the argument runs, the conferment on the Court of functions which differ markedly from the ascertainment and declaration of existing rights, involving as they do, the making of determinations by reference to criteria not enunciated and the making of orders creating new rights. In addition, it is urged that the concept of 'substantial injustice' is so vague as not to lend itself to an exercise of judicial power. These considerations, it seems to us, are not enough to bring us within reach of the conclusion which the prosecutors seek to attain. Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v Cominos[599]). It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decision; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under sub‑s (2)(a) and the impact which such an order will have on the interests of persons who may be affected." (emphasis added)

1. Two observations may be made about this aspect of the reasons of Mason and Murphy JJ. First, their Honours did not suggest that the propositions they formulated were at odds with the earlier decision of four members of the Court in the Waterside Workers' Case. Secondly, and more fundamentally, what is said in the Shop Distributive Employees' Case must be understood in the light of some basic principles.
2. The Boilermakers' Case, and many other decisions of the Court both before and after Boilermakers, establish beyond argument that the Constitution provides a separation of powers. It follows inevitably that the bare fact that legislation gives power to a federal court does not mean that no Ch III question can arise. Whatever the ambit of the so‑called chameleon doctrine, by which a power that may be exercised administratively or judicially may take its colour from the body to which it is given[600], the doctrine does not strip the concept of separation of powers of all meaning. Contrary to the submissions of the Commonwealth, the chameleon doctrine does not mean that Boilermakers "does not matter much any more"[601]. There remains a real and radical difference between the judicial power of the Commonwealth and executive and legislative power.
3. Although Mason and Murphy JJ concluded, in the Shop Distributive Employees' Case[602], that the exercise of the power given to the Industrial Court to grant or withhold relief according to the consideration of "substantial injustice" was itself an exercise of judicial power, it is important not to divorce that conclusion from the context in which it was reached. In particular, it is important to recognise that the power to grant relief was predicated upon the Court's finding that there was some invalidity in the affairs of the organisation. On any view, then, the issue about whether there was an "invalidity" in the affairs of the organisation constituted a "matter". There was a controversy between parties about whether past action or inaction accorded with identified legal standards. The notion of "substantial injustice" was to be engaged in considering what orders should be made if an "invalidity" were established.
4. Now it may be thought, from the manner in which the joint reasons in the Waterside Workers' Case were expressed, that it is useful to divide the problem into two questions: first, whether there is a claim of right depending upon the application to facts as ascertained of "some legal criterion provided by the legislature"[603] and second, whether the remedy is discretionary. The utility of such a segmented approach to the problem of whether a power given to a court is a judicial power may be doubted. The whole of the relevant legislative provisions must be considered. Observing that a discretion is given to a federal court does not, standing alone, require the conclusion that the power is not judicial power. The decisions in the Waterside Workers' Case and the Shop Distributive Employees' Case (and many other decisions of the Court[604]) show that to be so. But power cannot validly be given to a federal court if the decisions whether and when to exercise the power that is given are not governed or bounded by a "defined or definable, ascertained or ascertainable"[605] standard. Such power is not power to decide a matter. There may be "a legal proceeding"[606], but there is not that "arbitrament upon a question as to whether a right or obligation in law exists"[607].
5. It is with these principles in mind that the impugned provisions must be examined. That examination will show that the impugned provisions have a number of features common to many forms of the exercise of judicial power. There is the giving of the power to courts, the requirement to find facts, the specification of a standard of proof, the articulation of the connection that is to be drawn between premise and conclusion using terms familiar to judges and lawyers ("reasonably necessary" and "appropriate and adapted"). But what sets the impugned provisions apart from an exercise of judicial power is the indeterminacy of the criterion that the courts are required to apply - "for the purpose of protecting the public from a terrorist act".
6. That criterion is unlike any that hitherto has been engaged in the exercise of judicial power. It is a criterion that does not call for the judicial formulation of standards of conduct or behaviour. It is a criterion that does not require the application of any familiar judicial measure of a kind found in fields as diverse as the law of tort ("reasonable"[608]), matrimonial causes ("just and equitable" or "necessary ... to do justice"[609]), corporations law or related fields ("just and equitable"[610]), regulation of contractual relations ("inequitable or unduly onerous"[611]) or industrial relations ("oppressive, unreasonable or unjust"[612]). It is a criterion that does not direct attention to whether an identified person is likely to offend against the criminal law if released from prison[613]. It is a criterion that seeks to require federal courts to decide whether and how a particular order against a named person will achieve or tend to achieve a future consequence: by contributing to whatever may be the steps taken by the Executive, through police, security, and other agencies, to protect the public from a terrorist act. It is a criterion that would require a federal court to consider future consequences the occurrence of which depends upon work done by police and intelligence services that is not known and cannot be known or predicted by the court.
7. Standards expressed in general terms, like those that are referred to earlier, are susceptible of "strictly judicial application"[614]. The criterion that is fixed by the impugned provisions is not. To explain why that is so, it is necessary to say something more about the impugned provisions, and to do that by reference to the Commonwealth's submissions.
8. The Commonwealth submitted that in exercising the powers under Div 104 a court issuing an interim control order, or confirming such an order, gives effect to the rights created by the Division. The Commonwealth contended that the issuing court "is required to examine past facts relating to [the person concerned], and to assess those facts against the standards specified in the Division". Those standards were identified as specified in ss 104.3, 104.4 and 104.12A of the Code and were said to be "sufficiently precise to engage the exercise of ... judicial power"[615]. Yet at the same time, the Commonwealth acknowledged that "[t]he area of operation of Division 104 adjusts with the level of threat", that is, threat to the public constituted by the possibility of commission of a terrorist act. What then are the standards specified in ss 104.3, 104.4 and 104.12A?
9. Section 104.3 is directed to the manner in which an interim control order is requested. It says nothing about the criteria to be applied in deciding whether an interim control order should be granted. Section 104.12A regulates procedures for confirming an interim control order, but again says nothing about what criteria are to be applied by the issuing court in deciding whether to confirm the interim order. Whether to confirm an interim control order is a subject dealt with by s 104.14 which provides[616] that the court may revoke the interim control order if "not satisfied as mentioned in paragraph 104.4(1)(c)".
10. In the end, it is s 104.4(1) which states the only criteria that an issuing court is to apply in deciding whether to grant an interim control order or confirm such an order. Two conditions must be met. First, the court must be satisfied on the balance of probabilities that either (i) "making the order would substantially assist in preventing a terrorist act" or (ii) "the person has provided training to, or received training from, a listed terrorist organisation"[617]. The second condition is that "the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act"[618].
11. Several features of this second condition should be noted. Each of the obligations, prohibitions and restrictions to be imposed by the order must have two characteristics: (a) that it is "reasonably necessary" for the purpose of protecting the public from a terrorist act, and (b) that it is "reasonably appropriate and adapted" for that purpose. In a case where it is not contended that the person concerned has provided training to or received training from a listed terrorist organisation, there is an evident overlap between the requirement of the alternative element of the first condition, that the court be satisfied that making the order would substantially assist in preventing a terrorist act, and the requirement that the particular obligations imposed are both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
12. In the present case, it was alleged that Mr Thomas was a person who had received training from a listed terrorist organisation. That is, the second element of the first condition was said to be engaged. This element, provided by s 104.4(1)(c)(ii), that a person has provided training to or received training from a listed terrorist organisation would, on its face, appear to extend to any and every form of training. So much would appear to follow from the distinction drawn in s 101.2 between a person providing or receiving training, and the training being "connected with preparation for, the engagement of a person in, or assistance in a terrorist act". But the significance of the apparent reach of the provision need not be explored.
13. The facts explicitly agreed in the special case included only that:

"In March 2001, [Mr Thomas] left Australia and travelled to Pakistan, and then to Afghanistan. Whilst in Afghanistan, he undertook paramilitary training at the Al Farooq training camp for a period of three months. This training included training in the use of firearms and explosives."

Who provided that training was not recorded as a fact agreed for the purposes of the special case.

1. The special case included both the Federal Magistrate's reasons for granting the interim control order against Mr Thomas and the order itself. Schedule 2 to the order set out a "Summary of the grounds on which this order is made". Paragraph 1 of that schedule recorded that Mr Thomas had "admitted that he trained with Al Qa'ida in 2001" and that "Al Qa'ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the [Code]". It went on to record that Mr Thomas also admitted that "while at the Al Qa'ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons".
2. As noted earlier in these reasons, the special case is drawn in such a way that it is by no means clear whether the findings made by the Federal Magistrate, and recorded in the summary of grounds on which the interim control order was made, are to be taken to be established facts for the purposes of the special case. The better view may well be that they are not agreed facts. It is, however, not necessary to go beyond the point of noticing that one asserted basis for the grant of the interim control order was that Mr Thomas received training of the kind described with Al Qa'ida.
3. Now as counsel for Mr Thomas pointed out, in reply, the assertion was that Mr Thomas trained with Al Qa'ida in 2001, before Al Qa'ida was listed as a terrorist organisation in 2002. That temporal observation may or may not be relevant to the application of the first condition of s 104.4(1). That is, there may be a question whether, on its true construction, s 104.4(1)(c)(ii) requires that the training be given to or received from an organisation that is a listed organisation at the time of the training. That question need not be decided. But the facts agreed do not assert, and the parties did not assert in argument, that it is relevant to consider whether, at the time of Mr Thomas undertaking training, he was acting in breach of federal law, whether as stated in the Code or elsewhere.
4. Assuming, without deciding, that the way in which the two conditions specified in s 104.4(1)(c) are framed presents no separate question about the sufficiency of the statute's specification of the rights and obligations to be determined by a court in exercise of the judicial power of the Commonwealth, particular attention must be directed to the requirements that the court is satisfied, to the requisite standard, that the obligations, prohibitions and restrictions to be imposed are both reasonably necessary for the purpose of protecting the public from a terrorist act and reasonably appropriate and adapted for that purpose.
5. Again, some questions of construction of the provision arise. In particular, what is meant by the cumulative requirement that the court be satisfied that each of the obligations, prohibitions and restrictions to be imposed is reasonably necessary and reasonably appropriate and adapted for the stated purpose?
6. The expression "reasonably necessary" would make no sense if "necessary" were to be understood as "indispensable"[619]. The better view may therefore be that "reasonably necessary" is used to convey some less intense connection.
7. In oral argument it was suggested that it should be understood as having substantially the same meaning as the word "necessarily" has been construed to have in income tax law allowing deductions for expenditure "necessarily incurred" in the carrying on of a business[620]. In that context "necessarily" has been understood to mean "clearly appropriate or adapted for", not "unavoidably". As Gleeson CJ pointed out in Mulholland v Australian Electoral Commission[621], there is, in Australia, "a long history of judicial and legislative use of the term 'necessary', not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted". And the latter expression, "reasonably appropriate and adapted", can be traced to McCulloch v Maryland[622].
8. If "reasonably necessary", when used in s 104.4(1)(d) and s 104.4(2) of the Code, were to be understood in this way, the further reference in those provisions to the orders being "reasonably appropriate and adapted" for the purpose of protecting the public would be superfluous. That may be a strong reason to think that "reasonably necessary" should be understood in some other way but no other construction of the expression was offered in the course of argument.
9. In the end, it is not necessary to resolve these issues of construction. For present purposes, it is sufficient to notice that the statutory question presented to a court asked to make an interim control order requires the court to draw a connection between the order and "the purpose of protecting the public from a terrorist act" (s 104.4(1)(d)) and then, under s 104.4(2), to take into account "the impact" of each element of the order that is to be made "on the person's circumstances (including the person's financial and personal circumstances)". The nature or intensity of the connection between the order and that purpose which is to be understood as being conveyed by the expressions "reasonably necessary" and "reasonably appropriate and adapted" need not be decided.
10. What is of critical importance is that the focus of the statutory question for a court asked to make an interim control order is upon protecting the public from a terrorist act. What is the standard which is thus engaged?
11. A court deciding whether to grant an interim control order, and deciding how that order would be framed, would usually, perhaps inevitably, give close attention to what the evidence adduced reveals about what the person who is to be the subject of the order would do, or would be likely to do, if the order were not made. The Code does not require, however, that the court decide, or even consider, whether the conduct to be restrained would otherwise be lawful or not. The Code offers no legal standard of that kind as a standard against which threatened or intended conduct on the part of the person who is to be the subject of the order is to be measured. No question of antecedent right or liability is to be determined. Rather, the focus of the relevant provisions of the Code falls exclusively upon a future consequence: the order's achieving, or tending to the achievement of, "the purpose of protecting the public from a terrorist act".
12. The indeterminacy of the inquiry requires the conclusion that the task assigned to a federal court by s 104.4 is not the authority to decide a "matter". The task assigned is not to exercise the judicial power of the Commonwealth.
13. As noted earlier, the impugned provisions have a number of features common to many forms of the exercise of judicial power. Further, courts exercising the powers and functions given by the impugned provisions would inevitably approach the task according to the "skills and professional habits"[623] of the judicial branch of government. In particular, courts would look to past decisions, especially past decisions made under s 104.4 of the Code, for any guidance that the reasons given in those cases may provide for the disposition of issues presented in the instant case. But to say that the courts might thus "develop and elaborate criteria regulating the discretion"[624], does not conclude the questions about Ch III of the Constitution that are presented by the impugned provisions. There are several points to make about the significance that may properly be attached to the observation that courts given the powers and functions that are now in issue will seek to do so in accordance with established judicial method.
14. The fact that the legislature reposes power in a court does not conclude any question about the nature of that power. It would be contrary to the fundamental basis for all that this Court has decided about Ch III to hold otherwise. Likewise, to observe that courts called upon to decide questions of the kind presented by s 104.4 would do so by the application of judicial method does not conclude the question that must be decided.
15. To say that the courts will develop criteria regulating the exercise of the powers given by the Code is a proposition that, at best, assumes rather than demonstrates that there is a basis to be found in the impugned provisions for the development of those criteria. If it does not make that assumption, it asserts no more than that courts given the relevant powers will seek to employ judicial method when considering whether to exercise those powers. That is an assertion that does not advance the argument.
16. The impugned provisions offer no legal standard against which an application for a control order is to be judged. Because that is so, a court which is asked to make an order under the impugned provisions is necessarily left to decide the case according to nothing more definite than its prognostication about the order's achieving, or tending to the achievement of, "the purpose of protecting the public from a terrorist act". The repeated exercise of that power would yield a succession of factually specific predictions made by individual judicial officers, each necessarily based on its own particular evidentiary foundation. Judicial method may very well have been used in undertaking the evaluation of the evidence that is tendered in connection with what, in the end, would be a particular species of fact‑finding. But it is far from clear how a course of such decisions would yield any rule or standard of law that subsequent courts could identify and apply. If, however, a discernible pattern did emerge from a series of cases, and it was thought possible to distil some legal principle governing the making of the relevant prediction, the principle discerned would not come from the Code. The courts, not the legislature, would have created the legal standard that governs the application of the legislation.
17. All of these considerations point only to the conclusion that the task given to federal courts by the impugned provisions is not the exercise of the judicial power of the Commonwealth.
18. It is necessary to return to and amplify the proposition that the impugned provisions offer no legal standard against which an application for a control order is to be judged.
19. To decide what will (tend to) protect the public from a terrorist act it is necessary to know more than the fact that there is a threat to commit such an act. Even assuming that a particular threat is well defined (and much more often than not in the case of threats of terrorist acts, it will not) the utility of making an order to restrain a person in one or more of the ways specified in s 104.5(3), and in particular the tendency of such an order to secure public protection, cannot be assessed without knowing what other measures are being taken to guard against the threat. Knowing what other measures are being taken to guard against the threat may be seen as a matter for evidence that would prove the measures that have, or have not, been taken to thwart the threat that is under consideration. But it is the evaluative judgment that the criterion requires to be made by the court asked to make a control order that is a judgment ill‑fitted to judicial determination. Several considerations point to the conclusion that it is not a question that is to be resolved by application of a criterion or criteria which would suffice to govern or bound the decision "by some ascertainable tests or standards"[625].
20. First, the statute says nothing about how a court is to decide whether or when its orders will (tend to) protect the public from a terrorist act. It may be accepted that the conditions stated in s 104.4(1)(c) are jurisdictional facts to be established before the power given by s 104.4 may be exercised. But taken as a whole, the section is not to be read as requiring a court, on establishment of the jurisdictional facts specified in s 104.4(1)(c), to make an order containing one or more of the obligations, prohibitions or restrictions specified in s 104.5(3). Section 104.4(1) is cast in a form that is radically different from provisions of the kind considered in cases like Finance Facilities Pty Ltd v Federal Commissioner of Taxation[626]. The several conditions identified in pars (a) to (d) of s 104.4(1) are stated as qualifying what otherwise is a general discretion given to the court ("[t]he issuing court may make an order ... but only if" the conditions are met). Further, no party to the present proceedings contended that satisfaction of the conditions stated in pars (a) to (d) of s 104.4(1) required the court to make an order. All accepted that the court could nonetheless refuse to make an order if, for example, there had been undue delay in making the application or there were some other disqualifying reason.
21. Secondly, whether or not the impugned provisions of the Code are supported in every aspect of their possible operation by the defence power, they are provisions which, at least in part, are to be understood as being directed to the protection of the public from threats which include threats of a kind that engage the defence power. As Kitto J pointed out in the Communist Party Case[627]:

"This Court has always recognized that the Parliament and the Executive are equipped, as judges cannot be, to decide whether a measure will in practical result contribute to the defence of the country, and that such a question must of necessity be left to those organs of government to decide." (emphasis added)

The subject‑matter of the particular power given to federal courts by s 104.4 (the power to make orders for the purpose of protecting the public from a terrorist act) is public protection. That is a subject which is quintessentially for the Parliament and the Executive to consider and it is for those branches of government to decide what steps are to be taken to achieve that purpose. It is not for the judicature to establish criteria that will decide those questions. It is for the judicature to decide whether the steps taken by the legislative and the executive branches are lawful. That role of the judicature is fundamental to the system of government for which the Constitution provides and is as important in times of threat as it is in other, more peaceful times. It is a role that must not be abdicated[628].

1. Subject to this important qualification, the defence of the nation is peculiarly the concern of the Executive[629]. The wartime cases like Lloyd v Wallach[630], Ex parte Walsh[631], Little v The Commonwealth[632] and Wishart v Fraser[633] recognise that "in war the exigencies are so many, so varied and so urgent that width and generality are a characteristic of the powers which [the Executive] must exercise"[634].
2. But that does not mean that if, as I would hold to be the case, the present legislation is invalid for contravention of Ch III, it could validly be re‑enacted in a form that confers powers on the Minister like those that the impugned provisions give to federal courts. As noted earlier in these reasons, there is a real question (that need not be decided in this matter) whether the point would come in a time of "ostensible peace" where the defence power would sustain a law conferring upon a Minister power to order either the detention of persons or their subjection to restraints like those which the impugned provisions of the Code allow a court to make as part of a control order, if the Minister believes it is necessary to detain or restrain those persons. It is not to be supposed that such extraordinary measures would be supported by the defence power except in extraordinary circumstances. And again, although the point does not arise here, the Communist Party Case reveals that there are limits to the capacity of the Parliament (or, I would add, the Executive) to recite those arms of government into a valid exercise of the defence power. The ultimate limit is provided by the duty of this Court to pronounce on the validity of legislative or executive action when challenged on the ground that it exceeds constitutional power: "It is, emphatically, the province and duty of the judicial department, to say what the law is."[635]
3. The fact that the defence of the nation is particularly the concern of the Executive has two relevant consequences that must be considered. First, there are some consequences for what questions can validly be submitted to federal courts for their determination.
4. The Executive's decisions about what steps can or should be taken to protect the public from a terrorist act will often be affected by intelligence and other material of a kind not readily made available in courts which, at least as a general rule, transact their business in public on the basis that the parties to the litigation know what evidence is led and what arguments are advanced.
5. Difficulties that are presented for courts by reference to intelligence material are well illustrated by the decision of the House of Lords in A v Secretary of State for the Home Department[636]. The majority of the House formed its conclusions about whether "there was an emergency threatening the life of the nation"[637] upon its examination of only some of the material that had been placed before the relevant administrative decision‑maker: by reference to only the "public" as distinct from the "closed" material. Thus, although the question was one in which it was

"open to the judiciary to examine the nature of the situation that has been identified by government as constituting the emergency, and to scrutinise the submission by the Attorney General that for the appellants to be deprived of their fundamental right to liberty does not exceed what is 'strictly required' by the situation which it has identified"[638]

that task was undertaken by reference to only so much of the available material as the Executive chose to make public.

1. The desirability of keeping intelligence material secret is self‑evident. Often it will be essential. But the problem presented by the use of intelligence material is more deep‑rooted than any question of preserving secrecy. Even if taking steps to secure the continuing secrecy of intelligence material is, or can be made, consistent with the generally open and adversarial nature of litigation in the courts, it is the nature of the material to be considered that presents issues of a kind not suited to judicial determination. In particular, by its very nature, intelligence material will often require evaluative judgments to be made about the weight to be given to diffuse, fragmentary and even conflicting pieces of intelligence. Those are judgments of a kind very different from those ordinarily made by courts.
2. For the most part courts are concerned to decide between conflicting accounts of past events. When courts are required to predict the future, as they are in some cases, the prediction will usually be assisted by, and determined having regard to, expert evidence of a kind that the competing parties to the litigation can be expected to adduce if the point in issue is challenged. Intelligence information, gathered by government agencies, presents radically different problems. Rarely, if ever, would it be information about which expert evidence, independent of the relevant government agency, could be adduced. In cases where it could not be tested in that way (and such cases would be the norm rather than the exception) the court, and any party against whose interests the information was to be provided, would be left with little practical choice except to act upon the view that was proffered by the relevant agency.
3. These difficulties are important, but not just because any solutions to them may not sit easily with common forms of curial procedure. They are important because, to the extent that federal courts are left with no practical choice except to act upon a view proffered by the Executive, the appearance of institutional impartiality and the maintenance of public confidence in the courts are both damaged[639]. To that extent, "[t]he judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature"[640]. These are signs or symptoms of a more deep‑seated problem. The difficulties that have been mentioned both emerge from and reveal a fundamental feature of the impugned provisions: that a decision about what is necessary or desirable for public protection is confided to the judicial branch of government.
4. There is a second consequence that follows from the observation that the defence of the nation is particularly the concern of the Executive. It is for that arm of government to decide what is necessary for public protection. To achieve that end the Executive may well wish to intercept and prevent certain conduct before it occurs. But absent specific statutory authority, the Executive may not lawfully detain or restrain persons. If the conduct that is to be intercepted or restrained would, if undertaken, be contrary to law, legislation empowering a court to grant orders restraining a person from undertaking that conduct would be an orthodox and unremarkable conferral of jurisdiction. What sets the present legislation apart is that it seeks to give to the courts the decision of what is necessary to protect the public and, for the reasons earlier given, offers the courts no standard by which to decide that question.
5. An important and revealing contrast may be drawn between the provisions now under consideration and certain provisions of the Canadian Criminal Code[641] (particularly s 83.3 of that Code) which are directed to the same general end. The Canadian provisions hinge about conclusions reached by a "peace officer". If that officer "believes on reasonable grounds that a terrorist activity will be carried out" and "suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity" the officer may, with the consent of the Attorney General of Canada, lay an information before a judge[642]. The issue that is then presented for judicial determination is whether the judge is "satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion"[643]. That is an issue of a kind that courts deal with frequently. It requires consideration and evaluation of what the relevant official puts forward as the grounds upon which the impugned decision has been made. It does not require, as the provisions now in issue do, the court to decide for itself what is necessary or desirable for protection of the public.

Conclusions and orders

1. Many rules applied by the courts are expressed in abstract terms of great generality. Phrases like "just and equitable" and words like "reasonable" require difficult judgments to be made in particular cases. Those judgments are to be made, however, in the context of deciding the rights and duties of identified parties. They are judgments that depend upon applying recognised, if imprecise, measures of what is "just and equitable" or "reasonable". By contrast, the provisions now in issue require an assessment of how to protect the public from the conduct of persons who may have no direct connection with the person to whom the order is directed. By hypothesis the persons whose terrorist acts are to be impeded by the making of the order are themselves unwilling to obey Australian law. The federal courts are asked to make orders that will (help to) impede their conduct but are given no standard by which to decide when such an order should be made except the tendency of the order to protect the public.
2. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[644], a majority of the Court concluded that a statutory power for a State Supreme Court to grant an injunction "in all cases in which it shall appear to the Court or judge to be just and convenient" required that Court, when asked to grant an interlocutory injunction, to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought. The provision was held not to expand the jurisdiction of the Supreme Court to permit the grant of an interlocutory injunction where no legal or equitable rights were to be determined. Gaudron J identified[645] the root of that conclusion as being found in a proposition "beyond controversy[,] that the role of Australian courts is to do justice according to law - not to do justice according to idiosyncratic notions as to what is just in the circumstances". To require a Ch III court to decide whether to impose upon a person obligations, prohibitions or restrictions of the kind specified in s 104.5(3), by reference only to the relationship between those orders and the protection of the public from a terrorist act, would require the court to apply its own idiosyncratic notion as to what is just. That is not to require the exercise of the judicial power of the Commonwealth.
3. For these reasons I would answer the first question stated in the Further Amended Special Case filed on 15 February 2007:

"Is Division 104 of the Criminal Code invalid because it confers on a federal court non‑judicial power contrary to Chapter III of the Commonwealth Constitution?"

as follows:

"In so far as Div 104 purports to confer on a federal court the power to make an interim control order or to confirm an interim control order it is not a valid law of the Commonwealth."

1. It would not then be necessary to answer questions 2 or 3. Question 4 should be answered: "The Commonwealth".
2. CALLINAN J. The plaintiff's liberty is restricted by an Interim Control Order ("ICO") made by a Federal Magistrate pursuant to s 104.4 of the Criminal Code (Cth) ("the Code"), enacted in the Criminal Code Act 1995 (Cth). The question which this case raises is whether the Code in its application to the facts of the case is constitutionally valid.

The nature of the challenged order

1. There has as yet been no trial. The ICO, by reason of its temporary but urgent nature, may be compared to an interim or interlocutory injunction in civil proceedings, or a grant of bail on conditions in pending criminal proceedings. Legislation or Rules of Court usually provide a lower threshold of proof to ground orders of those kinds[646]. The counterweight to this, in the case of the former, is the requirement that the applicant give an undertaking to pay damages in the event that it turn out that the relief ought not to have been granted. An accused person however, receives no recompense in respect of restrictions imposed upon him, or indeed even incarceration pending trial, in the event of subsequent acquittal. The point, for present purposes is, if a person chooses to challenge a temporary or interlocutory order, usually by appeal, but here, by proceedings in the original jurisdiction of this Court, seeking prerogative and related relief pursuant to s 75(v) of the Constitution[647], this Court (or any other whose jurisdiction is invoked) may only proceed upon the basis of the facts credibly alleged and proved according to a lower standard, compelled by the exigencies of the case, and accepted therefore only provisionally by the court making, and for the purposes only of, the interlocutory order.
2. Section 104.28A of the Code is headed "Interlocutory proceedings" and expressly provides that on a request for an ICO, s 75 of the Evidence Act 1995 (Cth) is to apply. The latter permits the reception of hearsay evidence in interlocutory proceedings provided that the source be stated. I refer to other interlocutory proceedings because they are, in many respects, analogous to what has occurred here, and because, although this plaintiff has joined in the statement of the special case to this Court in the form that it bears, he does not unqualifiedly accept the truth of various of the facts stated, even perhaps for the limited purpose of the constitutional challenge. Indeed, the equivocal stance that the plaintiff adopts in relation to the facts alleged, requires that attention be directed to the evidentiary value and significance of them.
3. It is on the basis of the evidence, uncontradicted by other evidence, much of which appears to have been before the Federal Magistrate, and therefore this Court, set out in the special case which incorporates the Magistrate's findings, notorious facts of which judicial notice may be taken, and constitutional facts to which I will refer, that I intend to proceed. Accordingly I do not need to resolve the tension between the plaintiff's participation in the stating of the special case to enable a timely disposition of the constitutional issues which it raises, and the ambiguous reservations[648] that he makes about the facts in it.

Establishment of constitutional facts

1. It is necessary to examine and to characterize the relevant facts in general, and some in particular. At the outset this point must be made: however constitutional facts are to be established, each party must be accorded natural justice in relation to any proposed finding of, or inferentially from, them. Inevitably, in some cases, both historical and current affairs will be relevant. Judges need to be careful to ensure that they are not influenced by any preconceived, personal, or idiosyncratic views about these[649], and that it is made clear to the parties, in any case of doubt, which of them may be of relevance. What I have just said applies with equal force to judicial notice: facts of which it may be taken do truly need to be notorious. Judges should keep in mind that distortion, bias, sensationalism, emotion and self-interest are at times common currency in ordinary social intercourse, and in the media. That does not mean that judges should disregard reliable reports and the genuine photographic depiction of, for example, relevantly here, the circumstances preceding, and after, the destruction of the Twin Towers in New York, the bombing of trains in Madrid, and of people and buildings in Bali, and the like.
2. There is a modern tendency, of which I take judicial notice, to disparage the work of most, if not all historians, on the asserted ground that no-one, not even the most rigorous of scholars, can research and write without the intrusion of an inevitable, unintentional, personal bias. Whether this is categorically so, I cannot say. That it may be, however, provides reason for judges to be cautious, and to be especially diligent to ensure natural justice in cases in which recourse to historical writings is to be made.
3. The internal content of statutes, including preambles, may themselves be useful, not simply by identifying the mischief to be corrected, but also, by providing an insight into the circumstances in which the mischief has occurred. Again, however, they require caution in their use as factual material. The utility of preambles, in particular, for factual purposes, is at best slight, as will plainly appear when I refer to the Communist Party Case. Explanatory memoranda and second reading speeches can have some utility. Provision for their use is expressly made by s 15AB of the Acts Interpretation Act 1901 (Cth)[650]. Nothing can however compel this Court to act upon material that it does not think reliable, valid, relevant and useful when it comes to the interpretation and application of the Constitution.
4. A comprehensive and satisfactory definition of constitutional facts is not easy to state. In my view, constitutional facts in cases of contested constitutional powers should be taken to be facts justifying, or calling for, the exercise of the relevant power, and as to which its exercise is reasonably capable of applying. They are, if in controversy, no less required to be established, than any other facts in issue. This means they must be proved in the same way as other facts are proved, or be sufficiently notorious to be within judicial notice, or ascertainable by reference to indisputably reputable and broadly accepted historical writings, or within a special category which I would describe as "official facts", being, for example, official published statistics[651], scrupulously collected and compiled, information contained in parliamentary reports, explanatory memoranda, second reading speeches, reports and findings of Commissions of Inquiry, and, in exceptional circumstances, materials generated by organs of the Executive. A deal of care needs to be taken with respect to "official facts" which of course the Court will not be bound to accept in any or all cases.
5. I have thought it appropriate to draw particular attention to these matters because, in the past, the use of materials not proved in evidence, or the subject of informed submissions on both sides has been controversial. An instance of this is the reliance by this Court in Clark King & Co Pty Ltd v Australian Wheat Board[652] upon general information on the wheat industry neither asserted in the pleadings nor proved in evidence[653]. Reliance upon that information was said to be justified by a passage in the joint judgment of Dixon, McTiernan and Fullagar JJ in Wilcox Mofflin Ltd v State of New South Wales[654], even though the passage cited also deplored the failure of the parties to enter into "formal or full proof" of matters relevant to constitutional interpretation[655]:

"Unfortunately the parties did not enter into formal or full proof of these and other matters which would have enabled us, at all events, to obtain an understanding which we felt more adequate of the real significance, effect and operation of the statutes, information of a kind that we have come to think almost indispensable to a satisfactory solution of many of the constitutional problems brought to this Court for decision; though we are bound to say that it is not an opinion commanding much respect among the parties to issues of constitutional validity, not even those interested to support legislation, who, strange as it seems to us, usually prefer to submit such an issue in the abstract without providing any background of information in aid of the presumption of validity and to confine their cases to dialectical arguments and considerations appearing on the face of the legislation. But from what appears in evidence, from the inferences to be drawn from the regulations and statutes themselves, from the statements made at the bar and from general knowledge and experience of Australian affairs, some picture of the industry can be constructed."

1. In Uebergang v Australian Wheat Board[656], Barwick CJ expressed his views[657] about the absence of cogent evidence of constitutional facts in Clark King, and the need for it to have been adduced and proved in both of those cases. In Uebergang, Gibbs and Wilson JJ also referred to the need for proof of that kind[658].
2. In Woods v Multi-Sport Holdings Pty Ltd[659], although it was not a constitutional case, I expressed my concern[660] that the statistics relied upon by McHugh J[661] were by no means probative of the state of affairs said to justify the conclusions of fact and law reached by his Honour, and the risk of unfairness to which their use gave rise. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd[662] I expressed a similar concern, this time as to the completeness of the facts assumed by the Court in Bryan v Maloney[663] as a basis for the statement of a rule of law about liability for defects in a residential building[664]. Problems of reliance are no less acute in constitutional cases.

The Communist Party Case

1. The Communist Party Case[665] is instructive here for several reasons. First, it was concerned with legislation enacted, as here, to enhance national security. Secondly, reliance for its validity was placed in substance upon the defence power. Thirdly, it was enacted at a time when there was a perception that a particular ideology presented a current and future risk to the Australian polity and people. Fourthly, the legislation sought to make a factual connexion with the foregoing. Fifthly, it came to the Court by way of a form of stated case. Something more needs to be said about each of these.
2. The Act there, the Communist Party Dissolution Act 1950 (Cth) ("the CPA"), was enacted with a preamble of nine paragraphs which indicate its objectives. They were summarized by Latham CJ[666]:

"The first three paragraphs recite the terms of the Constitution, s 51(vi), s 61 and s 51(xxxix), to which reference has already been made. The other recitals are as follows: 4. 'And whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat:' 5. 'And whereas the Australian Communist Party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic industrial or political ends by force, violence, intimidation or fraudulent practices:' 6. 'And whereas the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King's dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble:' 7. 'And whereas certain industries are vital to the security and defence of Australia (including the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry and the power industry):' 8. 'And whereas activities or operations of, or encouraged by, the Australian Communist Party, and activities or operations of, or encouraged by, members or officers of that party and other persons who are communists, are designed to cause, by means of strikes or stoppages of work, and have, by those means, caused, dislocation, disruption or retardation of production or work in those vital industries:' 9. 'And whereas it is necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the Australian Communist Party, and bodies of persons affiliated with that Party, should be dissolved and their property forfeited to the Commonwealth, and that members and officers of that Party or of any of those bodies and other persons who are communists should be disqualified from employment by the Commonwealth and from holding office in an industrial organization a substantial number of whose members are engaged in a vital industry:' It will be observed that these recitals refer not only to the Australian Communist Party as a party operating in Australia, but also to the basic theories of communism, in accordance with which it is alleged that that Party engages in activities in order to bring about a revolutionary situation (par 4). The Party is stated to be an integral part of the world communist revolutionary movement (par 6). Persons who are communists are said to be engaged in activities designed to cause dislocation, disruption or retardation of work in vital industries (par 8). Thus the recitals are not limited to allegations with respect to the Australian Communist Party. They contain allegations with respect to communism generally and with respect to the association of the Party with communism, and with respect to persons who are communists. Paragraphs 4 to 8 consist of allegations of fact. Paragraph 9 expresses the opinion of the Commonwealth Parliament that it is necessary for reasons of defence and the maintenance of the Constitution to enact the provisions of the Act." (emphasis added)

1. It is apparent from the preamble, as Latham CJ observed, that the Parliament regarded the Australian Communist Party, and its ideologies as seriously threatening the common weal in many ways. The ideology was political, and not, as is implicit here, both political and religious, but nothing turns on that.
2. The timing of the enactment of the CPA is a point of departure from the timing of the legislation here. The Communist Party was part of an international political movement, but one which was not merely dominated, but almost entirely controlled by the Communist Party of the Soviet Union. Only five years before, the Soviet Union had been an important ally of Australia, and the other western democracies. There had certainly been manifestations of Soviet communist imperialism[667], but it is probably right to say that it was only after the collapse of the Iron Curtain nearly forty years later, that all of the designs of the communist state upon the rest of the world, and the ruthlessness with which it was prepared to pursue them, were fully realized and acknowledged[668]. In short, much of what is now known and undoubted was not apparent in 1951, such that judicial notice would universally be taken of it. It may also be that some residual tenderness for a recent ally, and a naïveté about Soviet grand imperial designs affected the thinking of the Court in the Communist Party Case. But whether that is so of that case, it is certainly not here because in this one there is an abundance of uncontradicted, cogent, factual and notorious matter, having the character of constitutional and other facts upon which this Court may and should act. This marks another important point of distinction between this case and the Communist Party Case. In the latter, the Commonwealth sought to rely, for the establishment of the constitutional facts justifying the invocation of the defence power, factually solely on the allegations made in the preamble to the CPA. It is one thing for a court to accord some respect to preambles[669], but another entirely to regard them as conclusive or binding upon the court as the Commonwealth sought to do there[670], especially when the Australian Communist Party, the plaintiff, joined issue on all of them by filing affidavits in contradiction of them. Those important issues had not been resolved by the time that the matter came before the High Court. By contrast, here, not only are the relevant facts proved and uncontradicted, but they are also the subject of provisional findings by the Court whose decision is sought to be challenged. It is a matter of speculation whether, had either of those circumstances obtained in the Communist Party Case, the result would have been different. Furthermore, for the purpose of testing of the constitutional validity of the legislation here, the plaintiff has actually joined in the stating of the special case which narrates the necessary constitutional facts. In the Communist Party Case, the stated case descended to much less particularity of fact: it did little more than recite the procedural history of the case and raise questions of the validity of the CPA, and of the admissibility of the plaintiff's evidence[671]. Indeed, it was essentially on the basis that the Commonwealth failed to provide the necessary evidentiary linkage between the CPA, and s 4 of it in particular, and the defence power, that Webb J held the Act to be invalid[672]. Dixon J thought it unnecessary to determine the facts because, in his opinion, the Commonwealth there had only argued that the preamble was conclusive as to the legislative opinions that it expressed. Even so, his Honour remarked upon the absence of any proposal by the Commonwealth to establish facts that might make a sufficient connexion between the defence power and the CPA[673]. And despite his Honour's disavowal of the need for factual proof to decide the case, he himself made repeated reference to facts and events not mentioned in the preamble[674]: for example, the Korean War then being fought; the principles of Communism, the Berlin blockade, and the "problem of Formosa". In short, his Honour did not consider the issues in a constitutional factual vacuum.

The relevant constitutional and other facts

1. On 25 August 2006, when the plaintiff was not subject to a conviction of any kind, the second defendant, an authorized federal police officer, with the consent of the Attorney-General, applied ex parte for the issue of the ICO. The second defendant has alleged, and caused to be set out in, or as annexures to, the special case many facts, some only of which will need reference. When I do refer to them, I will indicate their source and the basis for their reception and reliance upon them, although this is not strictly necessary in view of the plaintiff's participation in the stating of the special case, albeit with an ambiguous reservation. That does not mean of course that the plaintiff may not contest the facts, to the extent that they may be contestable, in other proceedings.
2. The plaintiff is an Australian citizen. In March 2001 he travelled to Pakistan and to Afghanistan. There he undertook paramilitary training, which included training for three months in the use of firearms and explosives, at the Al Farooq training camp. He was subsequently arrested in Pakistan, in transit to Australia. In this country, in November 2004, he was arrested and charged with offences under Pt 5.3 of the Code and the Passports Act 1938 (Cth). (Not in issue for the purposes of this special case.)
3. In February 2006, the plaintiff was tried in the Supreme Court of Victoria by a judge and jury. He was acquitted of two of the offences with which he was charged[675]. They related to the provision of resources to a terrorist organization. He was convicted however of intentionally receiving funds from a terrorist organization (Al Qa'ida), contrary to s 102.6(1) of the Code, and of having in his possession an Australian passport that had been falsified, contrary to s 9A(1)(e) of the Passports Act. (Not in issue for the purposes of this special case.)
4. The plaintiff appealed against the convictions to the Court of Appeal of Victoria. On 18 August 2006 that Court set aside the convictions[676], and on 20 December 2006 ordered that there be a new trial. The plaintiff has been admitted to bail pending the retrial, on less restrictive conditions than those imposed by the Federal Magistrate by the ICO. (Not in issue for the purposes of this special case.)
5. Among the allegations made by the second defendant were these. The plaintiff was training at the Al Farooq training camp where he saw and heard Osama Bin Laden on several occasions, as well as other senior Al Qa'ida figures. It is an irresistible inference that the training was provided at Al Farooq by Al Qa'ida to equip him to undertake terrorist activities. After terrorist attacks by Al Qa'ida in New York and Washington on 11 September 2001, the plaintiff attempted to join the Taliban forces fighting the military forces of the United States of America in Afghanistan. I am prepared to take judicial notice of the fact that Bin Laden is the, or a principal, leader of Al Qa'ida, that Al Qa'ida is a terrorist organization and that it has either carried out, inspired or at least approbated vicious attacks on military targets, civilians and property in various countries, including those to which I have specifically referred. These are notorious matters. There has been video footage shown on many reputable television channels in many countries of Bin Laden advocating and claiming responsibility for terrorist activities.
6. The Australian Security Intelligence Organisation ("ASIO") has prepared annual reports relating to the threat posed by terrorists to the people and property of Australia. One states this[677]:

"The threat to Australian interests overseas has increased, particularly in the Middle East and parts of South and Southeast Asia. At home, we face a sustained high level of threat to US, UK and some other foreign interests, and overall threat levels have been raised in respect of civil aviation, national symbols and attacks involving Chemical, Biological, Radiological and Nuclear weapons."

1. Other statements made were: "[n]ew intelligence obtained in 2002-03 confirmed that Australia was viewed by al-Qa'ida as a target prior to 11 September 2001 and continues to be viewed as a legitimate target"[678]; and, "[i]t is clear attacks on Australian interests here and abroad have been part of al-Qa'ida's strategic vision for some years"[679]. The Federal Magistrate was right to have regard to the material put before him. Even though it was hearsay, to the extent, if any, that it was not admissible as opinion evidence, coming as it does, from a reputable source and being uncontradicted by other evidence, it should be accepted.
2. What already emerges from the matters so far stated is that Al Qa'ida poses a threat to the nation, and that the plaintiff has aligned himself and had been trained with Al Qa'ida or an associated organization to undertake terrorism.
3. In Shaw Savill and Albion Co Ltd v The Commonwealth[680], Dixon J was concerned with proof in final proceedings[681]. He pointed out, even then, that "[t]he extent to which the Court should receive the statement of an officer of State as conclusive ... is not well defined". There the Commonwealth had denied liability in tort for damage arising out of a collision in which one of its warships was involved. An officer of the Commonwealth deposed that the warship was engaged in active naval operations, and that no liability for improper navigation should, or could attach to them. Dixon J was prepared to accept the first, but not the second of those claims[682]. His Honour thought irrelevant there, but did not discountenance for all purposes, the existence of an "exceptional rule giving conclusive effect to official statements"[683]. Some of the statements to which I have referred which have been made under oath by officers of the Executive here are analogous to the first category of statements referred to, and accepted by Dixon J in Shaw Savill: they pertain to a state of affairs which may readily be accepted to exist, for example, the indiscriminate bombings, and the international co-operation that has occurred to apprehend the attackers and prevent further like events. In any event, the Federal Magistrate was entitled to take judicial notice of the notorious circumstances of international terrorism and the threats posed by them, and Al Qa'ida's claims of responsibility for them.
4. Those circumstances include the activities of groups of zealots forming part of, or associated with Al Qa'ida, in many countries throughout the world, making common cause of hatred, against communities posing no threat to them, in which sometimes they reside, and by which they and their families have been given residence, naturalization, comfort and education, have been granted religious and ideological tolerance, and social security and other support. They have conspired with others, and independently planned, to undertake violent, literally suicidal attacks upon even the institutions and peoples of those communities. In order to effectuate those attacks they have shown a willingness and capacity to use whatever weapons they can obtain, and to inflict casualties upon many innocent persons and property, both private and public. (These are notorious facts.)
5. Populations today are both more numerous and more concentrated. They, and property both personal and public, are more vulnerable. Modern weapons, and not just such horrific ones as nuclear bombs, germs and chemicals, are more efficient and destructive than ever before. The means of international travel and communication are more readily open to exploitation by terrorists than in the past. These matters too are blindingly obvious[684]. In argument, the plaintiff was asked to identify any historical precedent for this frightening combination of circumstances. It is not surprising that he was unable to do so[685]. The scale and almost inestimable capacity of accessible, modern, destructive technology to cause harm, render attempts to draw analogies with historical atrocities, as grave and frightening to their contemporary targets as they may have been, unconvincing.
6. Among published statements by persons associated with Al Qa'ida were these. On 23 February 1998, Bin Laden, Ayman al-Zawahiri and three other terrorist leaders issued a declaration under the banner of "The World Islamic Front". This formed part of the declaration:

"On this basis, and in accordance with God's will, we pronounce to all Muslims the following judgment:

To kill the American and their allies - civilians and military - is an individual duty incumbent upon every Muslim in all countries, in order to liberate the al-Aqsa Mosque and the Holy Mosque from their grip, so that their armies leave all the territory of Islam, defeated, broken, and unable to threaten any Muslim. This is in accordance with the words of God Almighty: 'Fight the idolators at any time, if they first fight you'; 'Fight them until there is no more persecution and until worship is devoted to God'; 'Why should you not fight in God's cause and for those oppressed men, women, and children who cry out: "Lord, rescue us from this town whose people are oppressors! By Your grace, give us a protector and a helper!"?'

With God's permission we call on everyone who believes in God and wants reward to comply with His will to kill the Americans and seize their money wherever and whenever they find them. We also call on the religious scholars, their leaders, their youth, and their soldiers, to launch the raid on the soldiers of Satan, the Americans, and whichever devil's supporters are allied with them, to rout those behind them so that they will not forget it."

1. There is no contradiction of this statement and its source. It is consistent with events that have elsewhere occurred. It is set out in an annexure to the special case.
2. On 11 January 1999, Time Magazine published an interview of Bin Laden by a journalist, Rahimullah Yusufzai. When asked about the use of chemical and nuclear weapons he said this[686]:

"Acquiring weapons for the defense of Muslims is a religious duty. If I have indeed acquired these weapons, then I thank God for enabling me to do so. And if I seek to acquire these weapons, I am carrying out a duty. It would be a sin for Muslims not to try to possess the weapons that would prevent the infidels from inflicting harm on Muslims."

1. Although this is hearsay material, it is uncontradicted and consistent with other statements attributed to this person, is also consistent with events that have happened, and therefore admissible for the purposes of, and to support the jurisdiction for the making of an ICO. It in any event forms part of the special case.
2. Al Qa'ida has been identified as a terrorist organization by a Committee established by United Nations Security Council Resolution 1267 and by the governments of the United States, Canada, the United Kingdom and New Zealand. It is also listed by the European Union as an object of its anti-terrorism measures. In Australia, Al Qa'ida was first listed for the purposes of the definition of "listed terrorist organisation" in s 100.1(1) of the Code by regulations that were notified in the Gazette on 21 October 2002, and on 23 October 2002 were deemed by Sched 1, item 3 of the Criminal Code Amendment (Terrorist Organisations) Act 2002 (Cth) to have commenced on 21 October 2002. Al Qa'ida was re-listed as a "listed terrorist organisation" on 31 August 2004, and again on 24 August 2006. Before each listing, ASIO prepared a statement relating to Al Qa'ida, to which the Attorney-General of the Commonwealth had regard in determining his satisfaction for the purposes of s 102.1(2) of the Code. These are indisputable and notorious facts: they also form part of the special case.
3. The evidence here linked an organization based in Indonesia, Jemaah Islamiyah ("JI") with Al Qa'ida and demonstrated that the aims of both were similar. Evidence was also produced that terrorist attacks in Bali, Madrid, Nairobi, Dar es Salaam, Aden, Mumbai and London, as well as New York and Washington, some directly resulting in loss of life to Australians, had been made in recent times by Al Qa'ida or other organizations linked to, or incited by, it. These again are notorious facts of which judicial notice may be taken: they also form part of the special case.
4. In addition, in December 2001, state authorities in Singapore uncovered a plot to attack western targets in Singapore, including the Australian High Commission, by or on behalf of JI[687]. In June 2003 the police forces of Thailand uncovered a plan by JI to bomb the Australian Embassy in Bangkok, as well as the embassies of the United States and the United Kingdom[688]. This is hearsay, arguably admissible at this stage, but in any event uncontradicted and forming part of the special case.
5. Already in Australia there have been persons convicted or charged of conspiring or planning to undertake terrorist activities in this country. Much of this is a matter of public record.
6. There was other material in the special case which expressly made it clear, if it were not already obvious, that terrorism of the kind which gave birth to the attacks has engaged the attention of many nations and has moved them, including Australia, to co-operate with one another to combat it: in short that the relevant terrorism is a matter of international concern, that is to say, worry and fear. (These are both notorious and conventionally proved facts.)

The Interim Control Order

1. The ICO made by the Federal Magistrate (Mowbray FM) and annexed to the special case, imposed these restrictions and obligations upon the plaintiff:

"OBLIGATIONS

The following obligations form part of the interim control order and are imposed on you by virtue of sub-section 104.5(3) of the Criminal Code:

Upon personal service of the interim control order and thereafter for the duration of this interim control order:-

1. You are required to remain at your current place of residence in Williamstown, Victoria, between midnight and 5.00am each day, unless you notify the Coordinator of the Australian Federal Police Counter Terrorist Team, Melbourne Office, 383 Latrobe Street, Melbourne (the AFP CT Coordinator) in writing of another address that you will be residing at between these times.

and

2. You are required to report to the following specified persons at the following specified times and places:

(a) a member of Victoria Police;

(b) every Monday, Wednesday and Saturday, at any time between the hours of 9am and 9pm;

(c) at any of the following Victoria Police premises (the 'specified premises'):

(i) Werribee Police Station;

(ii) Footscray Police Station; or

(iii) Sunshine Police Station

(d) or any other person, time and/or place agreed in writing by the AFP CT Coordinator.

and

3. You are required to allow impressions of your fingerprints to be taken by the Victoria Police via the 'Fingerprint Live Scan' unit for the purposes of ensuring compliance with paragraph 2 of this interim control order:

(a) within 24 hours following the issuing of this interim control order; and

(b) where required by a member of Victoria Police, on any occasion you report at the specified premises.

and

4. You are prohibited from leaving Australia except with the prior written permission of the AFP CT Coordinator.

and

5. You are prohibited from carrying out the following specified activities:

(a) acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form) regarding:

• the manufacture or detonation of explosives;

• weapons; and/or

• combat skills;

(b) manufacturing, acquiring, taking possession of or using or attempting to manufacture, acquire, possess or use any commercial, military or home made and/or improvised explosives or explosive accessories, initiation systems or firing devices;

(c) subject to section 104.5(5) of the Criminal Code, communicating to any person, whether directly or indirectly (including via internet chat rooms, websites, media interviews, publications and group gatherings) in relation to:

• methodology, tactics and other knowledge connected with, or likely to facilitate, terrorist acts, including explosives, weapons and/or combat skills

• names or contact details of persons you know to be associated with a listed terrorist organisation (see Schedule 3).

and

6. You are prohibited from communicating or associating with:

(a) up to 50 individuals listed by the Department of Foreign Affairs and Trade pursuant to Part 4 of the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth), as notified to you in writing by the AFP CT Coordinator, with such prohibition to take effect from notification; and

(b) any individual that you know to be a member of a listed / specified terrorist organisation (see Schedule 3).

and

7. Following the expiration of 48 hours after this control order is served upon you, you are prohibited from accessing or using the following specified forms of telecommunications or other technology:

(a) any mobile telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one mobile telephone service is nominated in total and sufficient details to identify the service to be used are provided;

(b) a telephone service card, SIM card or account, incorporating a credit or 'top up' facility that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one telephone service card, SIM card or account, incorporating a credit or 'top up' facility is nominated in total and sufficient details to identify the service to be used are provided;

(c) any fixed or landline telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one fixed or landline telephone service is nominated in total and sufficient details to identify the service to be used are provided or is required in the case of an emergency;

(d) any public telephone except in the case of an emergency;

(e) any satellite telephone service;

(f) any Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service is nominated in total and sufficient details to identify the service to be used are provided;

(g) any internet service provider account that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one internet service provider account is nominated in total and sufficient details to identify the account to be used are provided;

(h) any electronic mail (e-mail) account that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one electronic mail (e-mail) account is nominated in total and sufficient details to identify the account to be used are provided.

and

8. You are prohibited from having in your possession, custody or control or using any firearm or ammunition except during the 48 hours after this control order is served upon you during which you must arrange for the surrender to police of any firearm or ammunition in your possession, custody or control."

9. Pursuant to the Act, in a schedule to the ICO the Magistrate summarized the grounds for it:

"SUMMARY OF THE GROUNDS ON WHICH THIS ORDER IS MADE

1. Mr Thomas has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code Act 1995. Mr Thomas also admitted that while at the Al Qa'ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons.

2. There are good reasons to believe that given Mr Thomas has received training with Al Qa'ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa'ida or related terrorist cells. Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.

3. Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community. Mr Thomas's links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas's vulnerabilities.

4. Furthermore, the mere fact that Mr Thomas has trained in Al Qa'ida training camps, and associated with senior Al Qa'ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.

5. The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas's knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act."

Procedural history

1. On 28 August 2006, the ICO was served on the plaintiff.
2. On 29 August 2006, the second defendant, acting pursuant to s 104.12A of the Code, elected to confirm the ICO and gave written notification of that election to the Federal Magistrates Court.
3. On 30 August 2006, an Australian Federal Police ("AFP") officer served the plaintiff personally with the material specified in s 104.12A(2)(a) of the Code. Identifying information in relation to some persons was omitted in reliance upon s 104.12A(3) of the Code.
4. The hearing before the Federal Magistrates Court under s 104.14 of the Code to determine whether the ICO should be confirmed was originally listed for 1 September 2006. Following resolution of various interlocutory issues, the confirmation hearing was subsequently adjourned at the plaintiff's request until 29 June 2007, with the parties being given liberty to apply, to await the outcome of the proceedings in this Court.
5. On 30 September 2006, the Attorney-General of the Commonwealth gave notice in writing to the parties, and the Federal Magistrates Court under s 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), that it applied in relation to the confirmation hearing.

The plaintiff's case in outline

1. The plaintiff advances these propositions. Division 104 of the Code is invalid because it confers on a court non-judicial power contrary to Ch III of the Constitution or, alternatively, it purports to confer judicial power on a federal court exercisable in a manner contrary to Ch III of the Constitution. Division 104 is invalid also because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution. The last of these propositions involves claims that neither the defence power[689], the external affairs power[690], the reference power[691], the incidental power[692], nor the implied nationhood power[693], is sufficient to support Div 104.
2. In developing his first argument, the plaintiff made the submission that Div 104 impermissibly conferred a power upon a federal court to create future legal rights and obligations, rather than a power, truly judicial, to determine a dispute about existing rights and obligations. The former, relevantly here, is a power to deprive a person of liberty on the basis of a prediction, essentially a prediction by the Executive, about a person's future behaviour rather than his conduct in the past. Further indications that what is involved is not an exercise of judicial power are: that an ICO may be made ex parte; that the power may extend to the deprivation of, or restriction upon personal liberties; that the order may be made on proof of relevant matters on the balance of probabilities only; and the absence of a power of enforcement by the issuing court.

The legislation

1. I go now to the Code.
2. Chapter 5 of the Code is concerned with the security of the Commonwealth, and Pt 5.3 in particular with terrorism. Division 101 creates offences in connexion with terrorist acts, Div 102 offences in connexion with terrorist organizations, and Div 103 offences in connexion with the financing of terrorism.
3. Section 100.1 is the definition section for Pt 5.3, which is headed "Terrorism". A "listed terrorist organisation" is defined as "an organisation that is specified by the regulations for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1".
4. The Code defines[694] "terrorist act" very broadly:

"terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public."

Sub-section (2) of s 100.1 provides:

"Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person's death; or

(d) endangers a person's life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system."

1. The conduct excepted by sub-s (3) is as follows:

"Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public."

1. Sections 100.4(4) and (5) contemplate the possibility that the Code might, in some circumstances, be read down:

"(4) Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:

(a) if the conduct is itself a terrorist act - the action or threat of action that constitutes the terrorist act; or

(b) if the conduct is a preliminary act - the action or threat of action that constitutes the terrorist act to which the preliminary act relates.

(5) Without limiting the generality of subsection (4), this Part applies to the action or threat of action if:

(a) the action affects, or if carried out would affect, the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) the threat is made to:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(c) the action is carried out by, or the threat is made by, a constitutional corporation; or

(d) the action takes place, or if carried out would take place, in a Commonwealth place; or

(e) the threat is made in a Commonwealth place; or

(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or

(g) the threat is made using a postal or other like service; or

(h) the action involves, or if carried out would involve, the use of an electronic communication; or

(i) the threat is made using an electronic communication; or

(j) the action disrupts, or if carried out would disrupt, trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between 2 Territories; or

(k) the action disrupts, or if carried out would disrupt:

(i) banking (other than State banking not extending beyond the limits of the State concerned); or

(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

(l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

(m) the threat is one in relation to which the Commonwealth is obliged to create an offence under international law."

1. Providing or receiving training connected with terrorist acts is an offence, as is possessing things connected with terrorist acts, and other acts done in preparation for, or planning terrorist acts[695]. Section 102.1 defines a "terrorist organisation":

"terrorist organisation means:

(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs); or

(b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4))."

1. A specification of a "terrorist organisation" may only be made after various preliminary steps are taken[696]:

"Terrorist organisation regulations

(2) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that the organisation:

(a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or

(b) advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

(2A) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

(3) Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

(a) the repeal of those regulations; or

(b) the cessation of effect of those regulations under subsection (4); or

(c) the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection)."

1. Section 102.3 makes it an offence knowingly to be a member of a terrorist organization. Similar provision is made in respect of directing a terrorist organization[697], recruiting or training, or being trained by one[698], being funded by or providing funds for one[699], supporting such an organization[700], associating with one[701], and, financing terrorism or a terrorist[702].
2. A person in the position of the second defendant may only apply for an ICO upon satisfaction of several conditions. Section 104.4 which is of central importance here provides as follows:

"Making an interim control order

(1) The issuing court may make an order under this section in relation to the person, but only if:

(a) the senior AFP member has requested it in accordance with section 104.3; and

(b) the court has received and considered such further information (if any) as the court requires; and

(c) the court is satisfied on the balance of probabilities:

(i) that making the order would substantially assist in preventing a terrorist act; or

(ii) that the person has provided training to, or received training from, a listed terrorist organisation; and

(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.

(2) In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances).

(3) The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction."

1. Section 104.5(1) requires an issuing court to state a number of matters:

"(1) If the issuing court makes the interim control order, the order must:

(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and

(b) specify the name of the person to whom the order relates; and

(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and

(d) state that the order does not begin to be in force until it is served personally on the person; and

(e) specify a day on which the person may attend the court for the court to:

(i) confirm (with or without variation) the interim control order; or

(ii) declare the interim control order to be void; or

(iii) revoke the interim control order; and

(f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and

(g) state that the person's lawyer may attend a specified place in order to obtain a copy of the interim control order; and

(h) set out a summary of the grounds on which the order is made."

1. It is not suggested that the order here is defective for want of any relevant formal or statutory requirements. So too, it is not argued that the restrictions imposed upon the plaintiff by the ICO fall outside the expansive language of s 104.5(3)[703].
2. After an ICO is made several steps are obligatory under s 104.12. They are intended to acquaint the subject of an order with its nature, and an understanding of it. In Queensland, the public interest monitor of the State must be given a copy of an ICO. Before an ICO expires, the applicant for it must elect whether to confirm it, and if he or she does, serve prescribed materials on the person bound by it, but not materials the disclosure of which would be likely to prejudice national security, risk compromising operations by law enforcement or intelligence interests, or the safety of persons.
3. Under s 104.14, a person in the plaintiff's position may contest the confirmation of an ICO by cross-examining, adducing evidence and making submissions. An applicant may, at any time, apply to the issuing court for the revocation or variation of the order[704].
4. Section 104.27 makes it an offence to contravene a control order. By s 104.32, an order ceases to have effect ten years after its making. The Code also sets up[705] a statutory regime for temporary detention to prevent an imminent terrorist act, or to preserve evidence relating to a recent terrorist act.
5. If an ICO is confirmed, an application may be made, by either the person affected[706] or the AFP Commissioner[707], for revocation or variation of that (confirmed) control order. The court may revoke or vary the order, or dismiss the application for its revocation or variation[708]:

"104.20 Revocation or variation of a control order

(1) If an application is made under section 104.18 or 104.19 in respect of a confirmed control order, the court may:

(a) revoke the order if, at the time of considering the application, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or

(b) vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of considering the application, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or

(c) dismiss the application if, at the time of considering the application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).

(2) A revocation or variation begins to be in force when the court revokes or varies the order.

(3) An AFP member must serve the revocation or variation personally on the person as soon as practicable after a confirmed control order is revoked or varied."

1. Thus, an issuing court may revoke a confirmed control order if the court is not satisfied, on the balance of probabilities, that the order would substantially assist in preventing a terrorist act, or is not satisfied that the person has provided training to or received training from a terrorist organization[709].
2. An issuing court may vary a confirmed control order if it is not satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act[710]. A control order must accordingly have a degree of proportionality for its making or variation, but proportionality is irrelevant for its revocation.
3. Proceedings for the confirmation of an ICO, or for the revocation or variation of a confirmed control order, may be the subject of an appeal[711] as with any other decision of the relevant issuing court[712].

Constitutional power

1. The first of the powers said by the Commonwealth to support the Division is the defence power. And, as I have foreshadowed, the submission to that effect is correct. That being so, no other head of power needs detailed consideration.
2. Defence is not something of concern to a nation only in times of a declared war. Nations necessarily maintain standing armies in times even of apparent tranquillity. Threats to people and property against which the Commonwealth may, and must defend itself, can be internal as well as external. With respect, insufficient critical attention to these matters was given by the majority in the Communist Party Case. The references by Dixon J to "ostensible peace"[713] and protection against external enemies as the "central purpose"[714] of the defence power evince both a preoccupation with the events of the recent past, of a declared war, uniformed, readily distinguishable external enemies, generally culturally, ethnically, ideologically and religiously homogenous states, and an incomplete appreciation, despite Hiroshima and Nagasaki, of the potential of weaponry for massive harm.
3. In saying that, I do not question the result in the Communist Party Case or the particular principle, properly identified and understood, for which it stands, and its importance which Fullagar J emphasized[715], that it is for the courts, and not the Parliament to have the final say on whether legislation is within constitutional power or not. That does not mean that any of the separate judgments in the Communist Party Case should be uniquely immune to critical examination and analysis. Nor does it mean that subsequent events which might tend to falsify some of the factual assumptions upon which parts of the reasoning were based, should be ignored. In that respect it is revelatory history itself, which gives rise to questions about aspects of the case.
4. The facts established here, are, in my view facts in respect of which the Commonwealth may legislate under s 51(vi) of the Constitution. That conclusion is so right and obvious that reference to authority is really unnecessary. Even in the Communist Party Case itself there are statements which lend some support to the conclusion that I reach. McTiernan J[716] contemplated that had the activities of the Australian Communist Party been more substantially threatening, either in peace, or time of declared war, members of, and the Party, might have been amenable to the legislation there. Although Williams J was of the view that the defence power could be invoked if the proved facts made it "reasonably necessary in order to prepare for the defence of Australia"[717], later his Honour was to say[718]:

"The defence power in peace time authorizes any legislation which is reasonably necessary to prepare for war … Any conduct which is reasonably capable of delaying or of otherwise being prejudicial to the Commonwealth preparing for war would be conduct which could be prevented or prohibited or regulated under the defence power."

1. His Honour did not however define "war". We cannot know how he would have regarded the facts with which the Court is confronted here.
2. Fullagar J was in no doubt that the defence power was not confined in its exercise to times of war[719].
3. The language of s 51(vi) of the Constitution is itself expansive. Under it, the Parliament may enact laws for the control of the forces to execute and maintain the laws of the Commonwealth. The real question in every case will be, is the Commonwealth or its people in danger, or at risk of danger by the application of force, and as to which the Commonwealth military and naval forces, either alone or in conjunction with the State and other federal agencies, may better respond, than State police and agencies alone. If the answer to that is affirmative then the only further questions will be, are the enacted measures demonstrably excessive, or reasonably within the purview of the power, or, to use the language of s 104.4(1)(d) itself, "reasonably necessary" or "reasonably appropriate and adapted" to protection against terrorism. With respect to the meaning and application of that language, and the relevance of the time of listing of relevant terrorist organizations, it is unnecessary to add to what has been stated by Gummow and Crennan JJ[720].
4. I have commented on aspects of the judgment of Dixon J in the Communist Party Case which time, to say the least, as well as the facts proved here, make questionable: the drawing by his Honour of a distinction, as if there were a clear line between them for constitutional and all practical purposes, between times of peace and serious armed conflict, and internal and external threats[721]. Perhaps it was the country's recent emergence from a prolonged and costly declared war during which liberties had been curtailed and rights suspended, that influenced his Honour's responses to the CPA. Latham CJ, although in dissent, was in a sense more perceptive and alive to the gravity of direct and indirect internal threats inspired externally, and the different manifestations of war and warfare in an unsettled and dangerous world. To regard war as a declared war only, to assume that a nation's foes would all identify themselves, and rarely act covertly, that they would act logically, and that they would not be people drawn from the Australian community was even then however to be somewhat naïve. As Latham CJ, well informed no doubt by his far reaching and diverse experience as head of Naval Intelligence during the First World War, member of the Australian delegation to the Versailles Peace Conference after it, busy counsel, parliamentarian, attorney-general, leader of the opposition, first minister to Japan, and Chief Justice[722], said[723]:

"Any Government which acts or asks Parliament to act against treason or sedition has to meet the criticism that it is seeking not to protect government, but to protect the Government, and to keep itself in power. Whether such a criticism is justified or not is, in our system of government, a matter upon which, in my opinion, Parliament and the people, and not the courts, should pass judgment. The contention that such an argument affects the validity of a law reminds me of the decision of a court in another country, when I was there, in a case of alleged treasonable conspiracy. The Court held that the accused did not intend to destroy government, but only to bomb public offices and assassinate ministers and generals and others. As they intended to take over the task of governing the country themselves, they were not guilty. I did not then, and do not now, agree with such a decision.

…

Actual fighting in the Second World War ended in 1945, but only few peace treaties have been made. The Court may, I think, allow itself to be sufficiently informed of affairs to be aware that any peace which now exists is uneasy and is considered by many informed people to be very precarious, and that many of the nations of the world (whether rightly or wrongly) are highly apprehensive. To say that the present condition of the world is one of 'peace' may not unfairly be described as an unreal application of what has become an outmoded category. The phrases now used are 'incidents', 'affairs', 'police action', 'cold war'. The Government and Parliament do not regard the present position as one of perfect peace and settled security, and they know more about it than the courts can possibly know as the result of considering legally admissible evidence. I have already referred to the authorities which show that neither the technical existence of war nor actual fighting is a condition of the exercise of the defence power. At the present time the Government of Australia is entitled, in my opinion, under the defence power to make preparations against the risk of war and to prepare the community for war by suppressing, in accordance with a law made by Parliament, bodies believed by Parliament to exist for the purpose (inter alia) of prejudicing the defence of the community and imperilling its safety. It is immaterial whether the courts agree with Parliament or not." (emphasis in original)

1. It could not be sensibly suggested however that too ready and ill-considered an invocation of the defence power, does not have the capacity to inflict serious damage upon a democracy. It is for this reason also that courts must scrutinize very carefully the uses to which the power is sought to be put. There will always be tensions in times of danger, real or imagined. They were present throughout the serious armed conflict of the Second World War as the numerous challenges to the National Security Regulations which were decided by this Court in those years and afterwards, show. They will no doubt continue while terrorism of the kind proved here remains a threat. The courts will simply have to do the best they can to ensure the proportionality that the Code itself admits must be applied in each and every case. The Commonwealth has however demonstrated that Div 104 of the Code, in its application to the plaintiff, is within the defence power.

Judicial power and its exercise

1. Justiciability and the exercise of judicial power are closely related and overlapping topics.
2. The plaintiff attacks the whole of Div 104 of the Code on the basis that it requires federal courts impermissibly to exercise non-judicial power. He does not present any argument in the alternative singling out any particular provision of it. Accordingly, there is no occasion for this Court to embark on any exercise of severance. He does, however, argue that even if the power in question might be regarded as judicial power, the Division, on its proper reading would compel its exercise non-judicially. In one sense these are curious submissions. If, as I have held, the Division is within the defence power in its application to this case, the submission might, if made out, have the consequence, subject to the application of s 75(v) of the Constitution, that the executive power rather than judicial power might be exercisable in respect of the plaintiff, thereby denying him access to the normal judicial process, including to appellate courts. It could also conceivably produce the consequence that a person in the plaintiff's position might be subjected to a form of administrative detention.
3. I have already set out the key provisions specifying the matters for proof on the making of an application, essentially, and relevantly here, that the person has received training from a listed terrorist organization, and that the order is reasonably necessary, appropriate and adapted to the purpose of protecting the public from a terrorist act.
4. In their judgment Gummow and Crennan JJ make five points with respect to the jurisdiction conferred by the Code upon the federal courts to issue ICOs[724]. I agree with each of those points.
5. The plaintiff argues that the issues raised by s 104.4 are political issues unsuited for judicial determination. I disagree. The making of orders by courts to intercept, or prevent conduct of certain kinds is a familiar judicial exercise. Every injunction granted by a court is to that end. And every application for an interlocutory injunction requires the court to undertake a balancing exercise, that is to say of the convenience of the competing interests, and the efficacy and necessity of the orders sought. Injunctions to restrain public nuisances require the same approach. Orders to prevent apprehended violence, to bind people over to keep the peace, and, more recently, as in Fardon v Attorney-General (Qld)[725], to approve curially continued detention as a preventative purpose to protect the public, are exercises undertaken, and, in my view, as here, better so undertaken by the courts. Protection of the public is frequently an important, sometimes the most important of the considerations in the selection of an appropriate sentence of a criminal. That too is necessarily both a balancing and a predictive exercise. It is one that necessarily takes account of the role of the police and other officials in preventing crime, and even of further criminal conduct on the part of the offender to be sentenced, as well as his personal circumstances.
6. I do not doubt that s 104.4 is concerned with justiciable controversies. It raises for trial issues on which evidence may be led and contested, the prospect of a terrorist act or otherwise, and whether an order would substantially assist in preventing it. Other familiar issues affecting the crafting of the order are similarly justiciable, these being as to its duration and other necessary, appropriate and reasonable components of it. The words of s 104.4 do state sufficient criteria for the resolution in a judicial way of the questions they raise. Whether an applicant for equitable relief comes to the court with clean hands, whether it would be just and equitable to make an order sought, whether conduct has been and might in the future be unconscionable, indeed a great deal of the jurisdiction of the courts, particularly in equity and much of it in common law, as well as under statute, is concerned with the balancing of interests and the assessment of past, current and future behaviour and circumstances. Examples of many of these are given in the joint judgment of Gummow and Crennan JJ and need no repetition by me. All legislation is, in a sense a "response" by Parliament to events and circumstances. The legislative response will frequently provide, as one of the criteria for the exercise of any judicial power conferred, the possibility or likelihood of an occurrence or its recurrence.
7. The court, in applying the Code looks to, and makes a determination about past conduct, for example, relevant training, and, in moulding the order has regard to both the prospective conduct of the subject of it in relation to future terrorist activities, and also possibly of others. Past and prospective conduct, well capable of being the subject of evidence, provide norms or standards for the making of orders of the kind made here. In this connexion, that the defence power is a purposive power is relevant: for its effective exercise it is not surprising that it is employable against a person or persons to serve its purpose.
8. The Code does not seek to impose upon the courts an obligation to exercise power contrary to Ch III of the Constitution. Urgent applications necessarily made ex parte are often made by courts. A requirement of proof beyond reasonable doubt might be preferable, but substitution of the balance of probabilities does not convert the judicial into the non-judicial.
9. Chapter III of the Constitution is not infringed by s 104.4. Division 104 makes and implies the usual indicia of the exercise of judicial power: evidence, the right to legal representation, cross-examination, a generally open hearing (subject to a qualification with respect to some sensitive intelligence material), addresses, evaluation of the evidence, the ascertainment and application of the law to the found facts, and in all other respects as well, the application of orthodox judicial technique to the making of a decision which may be the subject of an appeal on either or both fact and law. This is not the way that any arm of the Executive conventionally operates. Risks to democracy and to the freedoms of citizens are matters of which courts are likely to have a higher consciousness. That the material upon which the courts may be forced by the exigencies to rely, may be incomplete, fragmentary and conflicting does not deprive the process which the Code requires them to undertake of its judicial character, or mean that the issues are not justiciable. If courts could only decide cases in which the materials were complete and the facts not in conflict, there would be little work for them to do and many controversies left unquelled. The necessity and obligation to decide on what is available is well settled. Recently this Court reaffirmed the "best evidence rule"[726]. It and the principle restated in Vetter v Lake Macquarie City Council[727], that courts must evaluate the evidence having regard to the capacities of the respective parties to adduce it, reflect the necessary pragmatism and experience of the common law with respect to human affairs and evidence about them.
10. Subject only to what I have said in relation to justiciability and Ch III, I also agree generally with the reasoning and conclusions of Gummow and Crennan JJ on those matters. The arguments of the plaintiff as to them should be rejected.

Other matters

1. What I have said makes it strictly unnecessary for me to consider suggested heads of constitutional power, other than the defence power, and any other issues raised by the parties. I would however make these reservations about the referral power.
2. These reservations are as to the constitutional validity of the provisions in the Code for the making of changes to Pt 5.3 of it, that is, their supportability under the referral power[728]. For example, s 100.8 provides for the implementation of amendments to Pt 5.3 in circumstances in which a majority of the States and Territories approve the changes. Section 100.8 provides:

"Approval for changes to or affecting this Part

(1) This section applies to:

(a) an express amendment of this Part (including this section); and

(b) an express amendment of Chapter 2 that applies only to this Part (whether or not it is expressed to apply only to this Part).

(2) An express amendment to which this section applies is not to be made unless the amendment is approved by:

(a) a majority of the group consisting of the States, the Australian Capital Territory and the Northern Territory; and

(b) at least 4 states."

1. Section 100.8 might arguably therefore purport to bind a State that did not agree with an amendment, to accept it simply because a majority of States approves it. The referral power is as follows[729]:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

…

(xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law".

1. This provision contemplates a class of subjects that remained within the power of each of the States at Federation, but which in the future it might, from time to time, and by no means necessarily permanently, be considered best to be delegated to the Commonwealth.
2. Nowhere in the Convention Debates[730], nor in commentary upon the Constitution, is there any basis for a proposition that s 51(xxxvii) could validly be used to establish a regime in which a State might renounce or forgo its power in the future over a subject to a majority decision of the other States, and indeed also the Territories. The Constitution specifically states that the referral may be to the Commonwealth: it does not say that referral may be to the decision of a majority of States and Territories. Nor does it suggest that one State may refer its power to legislate on a particular matter to another State or Territory. Such an outcome was not within the intention, or even the contemplation, of the drafters of the Constitution. To construe s 51(xxxvii) as operating in this sense would be to effect a change to the plain meaning of the words of the Constitution. It is not to be used as a means of amending the Constitution without the approval of the people under s 128, a possibility against which Dr Quick spoke during the Convention Debates[731]:

"My principal objection to the provision [as it is proposed] is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution."

1. Nor, as Mr Symon said, may the States relieve themselves of their constitutional powers and obligations[732]:

"But here we are giving to any state the power of sending on to the Federal Parliament, for debate and legislation, some matter which it is purely for themselves to deal with, and I do not think we ought to put it in the power of states to relieve themselves from their own responsibilities in legislation or administration by any such easy contrivance as this might turn out to be."

1. In my tentative view, to construe s 51(xxxvii) to support the mechanism in s 100.8 of the Code could well be erroneous.
2. In any event, there is a further possible solution, and again my view on it is tentative only, that the States might themselves enact anti-terrorism laws, better able to be maintained and enforced by the military forces and other federal agencies than State agencies, and seek to have them maintained and carried into effect by and with the concurrence of the Commonwealth as an aspect of the "naval and military defence … of the several States" within the meaning of s 51(vi) of the Constitution.
3. I agree with the answer and orders proposed by Gummow and Crennan JJ.
4. HEYDON J. The terms of s 104.4(1)(c) and (d) of the Criminal Code (Cth) meant that the first defendant was not empowered to make the Interim Control Order he made against the plaintiff unless he was satisfied on the balance of probabilities of, inter alia, two conclusions. The first was either that making the order would substantially assist in preventing a terrorist act (s 104.4(1)(c)(i)) or that the plaintiff had provided training to, or received training from, a listed terrorist organisation (s 104.4(1)(c)(ii)). The second was that each of the obligations, prohibitions and restrictions to be imposed on the plaintiff by the order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act (s 104.4(1)(d)). The first defendant expressed himself to be satisfied on the balance of probabilities in relation to both elements of the first conclusion, and the second conclusion. The soundness of the first defendant's conclusions is not under examination in this case. Rather, the issue for decision is an issue not before the first defendant, namely whether s 104.4 is constitutionally valid - an issue far narrower than those raised by the questions asked in the Further Amended Special Case.

Defence power

1. Breadth of the defence power. I agree with Gleeson CJ[733], and Gummow and Crennan JJ[734], that the defence power is not limited to defence against external threats to the Commonwealth and the States from nation states, for the reasons they give. It is not necessary to consider whether the criticisms advanced by Callinan J of Australian Communist Party v The Commonwealth[735] are sound[736], although, subject to hearing contrary argument, there does not seem to be any significant difference between what Gleeson CJ, and Gummow and Crennan JJ have written about the defence power and what Callinan J has written about it.
2. Do the circumstances attract the defence power? This raises an issue as to how the facts relevant to constitutional validity are to be established. I agree that the facts listed by Callinan J may legitimately be taken into account[737]. That conclusion is reached by the following route, which differs a little from his.
3. Five categories of facts. By way of background it is convenient to divide the facts which may have to be established in litigation into five categories[738].
4. The first group comprises facts which are facts in issue, or relevant to facts in issue. Dixon CJ described them as "ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law"[739]. The second group concerns facts going to the constitutional validity of statutes, other enactments, or executive acts done under those statutes or enactments[740]. Dixon CJ sharply distinguished these facts from those in the first group in a respect set out below[741]. The third concerns facts going to the construction of non-constitutional statutes. The fourth concerns facts going to the construction of constitutional statutes. The fifth concerns facts which relate to the content and development of the common law.
5. The present case concerns the second group. It is desirable to make two preliminary points.
6. The first preliminary point is that a given factual controversy can arise under more than one head. An example may be taken from the present case. When the first defendant was considering whether making an order against the plaintiff "would substantially assist in preventing a terrorist act" within the meaning of s 104.4(1)(c)(i), it was relevant for him to reach the conclusion that in 2001: "The Al Farouk camp was run by Al Qa'ida." That fact, taken with the plaintiff's admission in par 6 of the Further Amended Special Case, that he attended the camp, tends to support the first defendant's conclusion that an order against the plaintiff would assist in preventing a terrorist act. But, although the constitutionality of s 104.4(1)(c)(i) was not in issue before the first defendant, the fact that the "Al Farouk camp was run by Al Qa'ida" also tends to support constitutional validity, because the running of such a camp, with its provision for training those attending in the use of weapons and explosives, is material to the existence of a threat to Australia. Hence the same fact may be within both the first and the second category. So far as it is within the first category, it must be proved by evidence complying with the rules which govern the admissibility of evidence in conventional litigation. Whether that is the case so far as it is within the second category is discussed below[742].
7. The second preliminary point is that in each category it is desirable to bear in mind that there are potentially three issues which arise. One is whether it is permissible to take the fact in question into account, and for what purpose. The second is whether any evidentiary rules affect admissibility, and how they can be satisfied. The third is the extent to which the court can consider the facts in question without giving the parties notice that they are doing so.
8. As to the last matter, I would agree with Callinan J that the parties must be given notice that there may be a finding against them of the particular fact[743]. They should also be given notice, at least in broad terms, of why the finding should be made. These propositions apply, surely, for all five categories. Save perhaps for the operation of specialised tribunals such as ecclesiastical courts[744], it is not open to courts to conduct their own factual researches without notice to the parties[745]. In a case within the first category, the parties will usually be on notice because of the pleadings or whatever other method of defining the issues has been adopted. In cases in that category where the parties are not on notice, and in the other four categories, it is difficult to understand how any view could be maintained other than that a party should not lose on a crucial point without being warned in advance that the point may arise, and invited to deal with it.
9. Rules of evidence apply to the first category. Subject to special statutory provisions and any contrary agreement of the parties, there is no doubt that where it is desired to prove a fact within the first category, the rules of evidence must be complied with. These rules can be restrictive. In particular, the general law doctrine of judicial notice is narrow. Where judicial notice is taken without inquiry, the fact noticed must be "open and notorious". Where judicial notice is taken after inquiry, the inquiry must be into the "common knowledge of educated men" as revealed in "accepted writings", "standard works" and "serious studies and inquiries"[746]. The words of Dixon J just quoted were used about historical events, but they apply equally to other facts. In short, matters judicially noticed at common law must be indisputable. Yet the contents of many works, particularly those dealing with historical or contemporary events, are far from being indisputable and are highly controversial.
10. Position in second category. But must the rules of evidence be complied with in relation to the second category? It appears often to be thought that only evidence admissible according to the rules applicable to the first category can be received. That view has developed partly because in Australian Communist Party v The Commonwealth[747] Dixon J's classical statement of the judicial notice rules, based on authorities within the first category, was enunciated in a second category case as though judicial notice could only be taken of facts in that category if those rules were complied with. It has also sprung up because of the caution of this Court, when considering the second category, in going beyond the rules of admissibility for the first category. Thus in 1944, in Stenhouse v Coleman, Dixon J said, speaking of constitutional facts[748]:

"[T]he existence of [the] state of fact may be proved or disproved by evidence like any other matter of fact. But ordinarily the court does not go beyond matters of which it may take judicial notice. This means that for its facts the court must depend upon matters of general public knowledge. It may be that in this respect the field open to the court is wider than has been commonly supposed".

On the one hand, that hinted at a wider and different kind of judicial notice than appears in category one. On the other hand, it revealed a considerable suspicion of anything in the nature of a Brandeis brief, and it implied that not only was it the case that the existence of constitutional facts "may" be proved by evidence in the ordinary way, but also that it must be proved pursuant to the admissibility rules applicable to the first category. Similarly, in 1951 Williams J in Australian Communist Party v The Commonwealth said[749]:

"But it does not seem to me that the Court should be confined to notorious public facts of which it can take judicial notice. All the facts which are relevant to the decision of the constitutional issue must be admissible in evidence and the fact that the Court can take judicial notice of some facts merely expedites the manner of their proof. The facts which are not capable of proof in this way must be proved in such other ways as the laws of evidence allow."

This insistence that the ordinary rules of evidence apply to the proof of constitutional facts has other support[750].

1. However, the more modern authorities deny that constitutional facts can only be proved by material admissible under the rules of evidence. The starting point in that denial is, in Brennan J's words, the proposition that the "validity and scope of a law cannot be made to depend on the course of private litigation"[751].
2. Why is this so? The courts do not strike down legislation of their own motion, without one party taking the initiative. Statutes and subordinate legislation are ordinarily presumed to be valid[752]. But "to the extent that validity depends on some matter of fact, there is no onus on a challenging party which, being undischarged, will necessarily result in a declaration of validity"[753]. Why is the task of factual proof not left in the hands of the party alleging invalidity? Why, if the party which alleges invalidity fails to prove the facts on which invalidity depends, does the Court not simply treat the statute as valid and reserve the question of its potential invalidity for resolution in a battle to be conducted on another occasion, in another field and by a better-prepared litigant?
3. Brennan J justified a liberal approach to constitutional facts thus: "validity is a question of law and questions of law do not depend upon a party's discharge of an onus of proof of facts"[754]. But that is not generally true: for many an important question of law is posed in ordinary litigation, contingent upon proof of a particular factual state of affairs, and yet the courts do not embark upon the legal question if the necessary factual basis is not laid.
4. A better explanation is that sometimes a failure to deal with a constitutional question, feeble though the factual foundation laid by the parties may be, will create worse evils. It is repugnant for a court to convict and punish an accused person for breach of a statutory provision alleged to be constitutionally invalid without deciding on the soundness of that allegation. It is more repugnant than an inquiry into validity based on a factual examination conducted by the court without effective assistance from the parties and unconstrained by the rules applying to facts in issue[755]. That will not, however, explain every application of the doctrine, for often no question of criminal punishment is involved.
5. Another explanation is that the Court has an overriding duty to enforce the Constitution for all citizens or residents which it must fulfil even if the limited class of citizens or residents who comprise the parties before it will not adequately assist it to do so. From the earliest times this Court has seen itself as having, in general, a duty to determine the validity, one way or the other, of legislation alleged to be unconstitutional[756]. It is a duty which not even statute can interfere with, "because under the rigid federal Constitution of the Commonwealth a provision is not valid if it would operate to withdraw from the courts of law, and so ultimately from this Court, the decision of any question as to the consistency of a statute or an executive act with the Constitution"[757]. Putting to one side the political consequences of a legislature embarking on the enactment of unconstitutional legislation, there is no body other than the judiciary capable of preventing an abuse of legislative power. These factors are seen as outweighing the difficulty of finding the facts relevant to validity.
6. Since this Court has ultimate responsibility for the enforcement of the Constitution, it has ultimate responsibility for the resolution of challenges to the constitutional validity of legislation, one way or the other, and cannot allow the validity of challenged statutes to remain in limbo. It therefore has the ultimate responsibility for the determination of constitutional facts which are crucial to validity. That determination "is a central concern of the exercise of the judicial power of the Commonwealth"[758].
7. This principle of necessity - that constitutional facts must be investigated by this Court if it is to fulfil its duty to conduct judicial review of the constitutional validity of legislation - also accounts for the width of the principles pursuant to which it finds constitutional facts.
8. That width is also to be explained by the fact that questions in relation to constitutional facts "cannot and do not form issues between parties to be tried like" ordinary facts in issue[759]. Over the centuries common law rules and legislative enactments have grown up to regulate the proof of facts in issue in category one. But the rules were never directed to constitutional facts and it is wrong to import them from their proper sphere into a quite different one.
9. Hence the Court can receive evidence of constitutional facts which complies with the rules of admissibility applying to category one[760]. But it is not limited to that material. Thus, for example, the Court may take judicial notice on conventional principles[761]. However, many constitutional facts (and facts falling within categories three, four and five) are incapable of being judicially noticed by recourse either to common law principles or to statutory principles applying to facts in category one because they are controversial rather than beyond dispute[762]. The Court may seek to draw inferences from the challenged legislation[763]. It may, of course, rely on agreed facts, whether the agreement stems from admissions on the pleadings, or is reflected in a stated case, or arises from a formal admission, or has some other source. It may rely on the accuracy of allegations of fact made in a statement of claim to which the defendant has demurred. It has been said that it may require the parties to provide further factual material[764]. But beyond these possibilities, all relevant material may be brought to the Court's attention, independently of any of the general law rules as to admissibility in relation to facts in issue[765].
10. Thus in 1952 McTiernan J said in relation to whether a law was supported by the defence power[766]:

"The Court may decide that the law is within the legislative power, if upon facts which the Court may judicially notice, or facts proved to the Court's satisfaction, or upon any rational considerations, the Court is of the opinion that the law may conduce to making the country ready for war, if it should come."

That is, "any rational considerations" may be taken into account even if they are not factual considerations which are being judicially noticed or established by evidence.

1. In 1959, Dixon CJ, with the agreement of McTiernan and Fullagar JJ[767], said[768]:

"Highly inconvenient as it may be, it is true of some legislative powers limited by definition, whether according to subject matter, to purpose or otherwise, that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law. In Griffin v Constantine[769], in order to decide the validity of the law there impugned some knowledge was necessary of the nature and history of methylated spirits but it was considered proper to look at books to obtain it. In Sloan v Pollard[770] facts were shown about arrangements between this country and the United Kingdom which gave constitutional validity to an order. In Jenkins v The Commonwealth[771] the validity of the statutory instruments was upheld on evidence as to the place of the mineral mica in electronic devices used in naval and military defence. There is no need to multiply examples. All that is necessary is to make the point that if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity."

In the first of the three cases Dixon CJ referred to, judicial notice was taken after inquiry into some facts about the history of methylated spirits to be found in Encyclopaedia Britannica and Chambers's Encyclopaedia[772]. In the second[773] and third[774] the relevant facts were proved by evidence. Thus none of the three cases affords an example of a constitutional fact being proved without compliance with the rules of evidence. However, Dixon CJ then continued by referring to some evidence adduced by a party, and said that it was "not necessary to consider now" whether the course of adducing that evidence had been essential[775]. The expressions "facts which somehow must be ascertained by the court" and "as best it can", coupled with the leaving open of the possibility that the evidence was not necessary, not only raise a doubt about whether the rules of evidence need to be complied with, but tend to go further.

1. In 1961, in Breen v Sneddon, Dixon CJ drew a distinction between facts in category one and facts in category two. He said[776]:

"It is the distinction between, on the one hand, ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law and, on the other hand, matters of fact upon which under our peculiar federal system the constitutional validity of some general law may depend. Matters of the latter description cannot and do not form issues between parties to be tried like the former questions. They simply involve information which the Court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts."

The primary rules which govern how category one "issues between parties [are] tried" are the rules of evidence. Dixon CJ's statement that issues about constitutional facts are "not ... to be tried" in the same way as issues about facts in category one is thus excluding the application of those rules to category two facts.

1. In 1975, Jacobs J said of constitutional facts[777]:

"The court reaches the necessary conclusions of fact largely on the basis of its knowledge of the society of which it is a part. The supplementing of that knowledge is a process which does not readily lend itself to the normal procedures for the reception of evidence. ... I only wish to state my view that parties should not feel bound to channel the information which they or any of them desire to have before the court into a pleading or statement of agreed facts or stated case (as was done in the instant cases). All material relevant (in a general, not a technical, sense) to the matter under consideration may be brought to the court's attention, though it is obviously desirable that it should be previously exchanged between the parties."

That is, the Court can take into account its knowledge of society (apparently whether the information it knows is noticed in compliance with the rules of judicial notice or not), and while it can take into account evidence and agreed facts, all other relevant material may be considered whether or not it is technically admissible.

1. In 1985, Brennan J said in Gerhardy v Brown[778]:

"There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants. When the validity of a State law is attacked under s 109 of the Constitution and the scope of the Commonwealth law with which it is thought to be inconsistent depends on matters of fact (which I shall call the statutory facts) the function of a court is analogous to its function in determining the constitutional validity of a law whose validity depends on matters of fact."

Since his central concern was the "scope" - the construction - of a Commonwealth law, his remarks were directed to category three facts[779]. But he treated the applicable rules for category three as being the same as those for category two ("validity ... of a law") and category four ("scope of a [constitutional] law"). That is revealed by the fact that he then quoted the passage from Dixon CJ's judgment in Breen v Sneddon[780], which has just been set out[781], and also quoted from Dixon CJ's judgment in Commonwealth Freighters Pty Ltd v Sneddon[782]:

"[I]f a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity."

Brennan J concluded[783]:

"The court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources. Perhaps those sources should be public or authoritative, and perhaps the parties should be at liberty to supplement or controvert any factual material on which the court may propose to rely, but these matters of procedure can await consideration on another day. The court must ascertain the statutory facts 'as best it can' and it is difficult and undesirable to impose an a priori restraint on the performance of that duty."

1. The correctness of the approach to which McTiernan J, Dixon CJ, Fullagar J, Jacobs J and Brennan J appeared to adhere - that in category two the Court can rely on matters of fact even though they have not been proved by evidence admissible under the rules of evidence - is suggested by authorities holding that that approach is to be adopted in relation to matters of fact in category three[784], category four[785] and category five[786].
2. Thus the rules of evidence do not restrict the material which the Court can consider in deciding on facts falling within category two. However, as Jacobs J said, "it is obviously desirable that it should be previously exchanged between the parties"[787]. And even if this were not done - because, for example, the matter is not raised by either party but is seen as important by the Court - it would be astonishing if there were not a duty on the Court to advise the parties both of any constitutional fact it may find and of any material not tendered or referred to in open court upon which it proposes to rely in reaching a conclusion that that fact exists. It is scarcely satisfactory for a party to learn of some supposed fact by reason of which that party lost the litigation only on reading the Court's reasons for judgment, without having any opportunity to dispute the materiality of the fact, or its accuracy, or the trustworthiness of the sources from which it was taken, or the validity of the reasoning from those sources. In Woods v Multi-Sport Holdings Pty Ltd[788] Callinan J said that he did not take Brennan J's remarks in Gerhardy v Brown[789]:

"to be a warrant for the reception and use of material that has not been properly introduced, received, and made the subject of submission by the parties. What his Honour said cannot mean that the interests of the litigants before the court can be put aside. They retain their right to an adjudication according to law even if other, conceivably higher or wider, interests may ultimately be affected."

This is entirely correct, with respect, save that if the words "introduced" and "received" call for compliance with the rules of evidence applying to facts in issue, they are out of line with other authority.

1. Underlying these processes of notification, whether inter partes or curial, is perhaps a theory that "the nature and importance of constitutional facts" is such that, even if they are not "utterly indisputable", they may "be regarded as presumptively correct unless the other party, through an assured fair process, takes the opportunity to demonstrate that [they] are incorrect, partial, or misused"[790]. In that respect, while Brennan J left open the question whether the parties should be at liberty to supplement or controvert any factual material on which the Court may propose to rely[791], it would be strange if they were not.
2. Whether or not a category one fact of which a court proposes to take judicial notice can be the subject of contrary evidence, the circumstance that this Court proposes to take judicial notice of a constitutional fact, or ascertain it without recourse to admissible evidence, ought not to deprive a party of the right to present evidence on the point[792].
3. Important questions remain. If the rules of evidence need not be complied with, what limits are there on the capacity of the Court to take constitutional facts into account? The material ought to be sufficiently convincing to justify the conclusion that it supports a material constitutional fact, but does any more restrictive rule exist? Is it sufficient to rely on a natural inhibition against finding constitutional facts in a manner open to later public and professional criticism, and on the capacity of the parties, once advised of what possible constitutional facts may be found, and how, to protest, to argue for a contrary position, to call contrary evidence, and to point to other material not receivable under the rules of evidence[793]? In Gerhardy v Brown Brennan J left open the question whether the sources to which the Court may have resort "should be public or authoritative"[794]. Just as it is difficult to see how the legislature can "recite" its legislation into validity, so it is difficult to see how spokesmen can "pronounce" legislation proposed by the executive into validity. But it may be that, as Callinan J suggests, "official facts", or at least those evidenced by materials not prepared with an eye to litigation about the constitutional validity of the relevant statute, will come to play a central role in determining constitutional facts[795]. Issues of constitutional validity - not only in relation to the defence power, but also in relation to any other aspect of the Constitution - can be of vital significance. If judicial power to find constitutional facts were wholly untrammelled, there would be risks of great abuse. The questions just posed are thus important ones, and it is necessary to reserve them for resolution in future cases. In the present case there was ample material, of which the plaintiff had notice, and which he did not contradict, otherwise than by occasional bald assertions, to justify inferring the necessary constitutional facts. In part that material is to be found in what was agreed between the parties in the Further Amended Special Case. In part it comes from other sources.
4. The factual material in this case. In this case the factual material relevant to the question whether the defence power supports the legislation which is available to the Court from the Further Amended Special Case falls within the following groups.
5. First, there is the material in the agreed part of the Further Amended Special Case. Rule 27.08.5 of the High Court Rules 2004 permits inferences and conclusions to be drawn from that material. However, there is a substantial limitation on the agreement arising from the fact that it is, unless otherwise expressly stated, subject to the following conditions:

"(a) any statements stated ... to have been made were made or were likely to have been made as stated or alleged but there is no agreement between the parties as to the truth of the matters stated; and

(b) any documents referred to ... were or were likely to have been published as stated or alleged but there is no agreement between the parties as to the truth of the matters contained in the documents."

If these conditions bound the Court, they would prevent the statements made in various reports of the Australian Security Intelligence Organisation and other governmental and intergovernmental agencies from being evidence of the truth of what is said. They would also exclude inferences from statements made by Osama Bin Laden and others associated with Al Qa'ida that representations made were true, and perhaps that threats made reflected the truth of important matters of underlying fact (namely that the states of mind of the makers were sincere). A further limitation arises from the cautious terms of some of the agreed facts. Thus par 19 states:

"Terrorist groups or organisations ... and terrorists exist whose objectives and capabilities are such that terrorist acts ... could occur outside or within Australia and such acts may involve the infliction of significant harm and damage ...". (emphasis added)

1. Secondly, there is material in the findings of the first defendant - both a one-page summary forming Sched 2 to the Interim Control Order, and the eight pages forming the transcript of the first defendant's orally delivered reasons for decision. In order to be used against the plaintiff in the hearing before the first defendant, the evidence underlying those findings had to comply with the rules of evidence, because in that hearing the facts being considered were facts within the first category. The first defendant did not have to concern himself with constitutional facts, but before this Court the findings can be used to establish constitutional facts whether or not their reception, or the evidence apparently underlying them, complies with the rules of evidence. That conclusion is not disturbed by the circumstance that the plaintiff stated that he disagreed with the correctness of the findings. The plaintiff submitted that the one-page summary is "not relevant" to questions of constitutional validity. That is not wholly true, but it is partly true. Many of the findings are of limited use for the purpose of establishing constitutional facts, because they are directed only to the personal position of the plaintiff as distinct from any wider threat to Australia. The plaintiff also submitted that the one-page summary "cannot be given effect without ascribing validity to the law which conferred jurisdiction on" the first defendant. That proposition is a non-sequitur and it was erroneous for the Commonwealth to have agreed with it. The materiality of the one-page summary to the ascertainment of constitutional facts depends on the inherent probability of its contents, and that remains the same whether or not the first defendant had jurisdiction. The plaintiff's submission reveals a confusion between category one facts (in relation to which the submission could have validity) and category two facts (in relation to which it has no validity).
2. However, in view of the Commonwealth's agreement with the plaintiff's submission, it is desirable to leave the findings of the first defendant out of account.
3. There are other relevant categories of material.
4. In the first place, contrary to one of the plaintiff's submissions, in determining what constitutional facts exist, the Court is not limited to the facts set out in the Further Amended Special Case for reasons given below[796]. Nor is it bound by the conditions agreed by the parties in relation to the facts set out in the Further Amended Special Case. The plaintiff's submission that the Court could not go beyond the Further Amended Special Case, repeated in other contexts, is without warrant. It is completely inconsistent with the statement of Jacobs J quoted above[797]. The plaintiff had notice of the statements and documents referred to. He did not attempt to challenge them by evidence (whether or not admissible pursuant to the rules of evidence), or by reasoning directed to show their unreliability. Provided the Court thinks they are reliable enough to be taken into account, there is no error in doing so. Examples include statements in the Australian Security Intelligence Organisation annual reports: they were made under a statutory duty[798], they have been available for public perusal and criticism for years, they have not been contradicted by more convincing material, and they have not been placed in doubt by other material of sufficient reliability.
5. Secondly, whether or not items of information learned by members of the Court over past years from news broadcasts, the print media and public discussion are sufficiently open, notorious and within the common knowledge of educated persons[799] to justify judicial notice being taken of them under the law of evidence applicable to category one cases, they may be employed in determining constitutional facts.
6. The utilisation of these processes of reasoning entitles this Court to reach factual conclusions stronger than the sometimes guarded and limited ones stated in the Further Amended Special Case. They also enable this Court to concur in the following propositions advanced by the Solicitor-General in order to demonstrate the particular vulnerability of Australia:

"The first is the ready availability today of explosive substances, highly toxic poisons, germs and other weapons or things which can be used as weapons ... The second matter is that [Australia] contains cities with very large localised populations and of necessity many people are frequently concentrated in a small area. The third factor is the very high value our society places on human life. A society which had no regard for human life including that of its own members would not suffer from the vulnerability that our society does suffer from. The fourth matter is the dependency of modern society on a variety of types of infrastructure. The fifth is the high value placed by our society on a number of iconic structures ... The sixth is that infrastructure and iconic structures can easily be destroyed by explosives. Water supplies can be poisoned and in other ways great damage can be done to infrastructure and human life by individuals.

The seventh matter is the particular vulnerability of aviation and, to a lesser degree, ships, buses and trains. The eighth is the growth of fanatical ideological movements which compass the destruction of western civilisation and, in particular, of Australia, or elements of it. The archetypical examples of the combination of factors I have referred to, or some of them, are the events of 11 September 2001, the events of Bali, Madrid, London, Nairobi and Dar es Salaam, Jakarta."

1. The plaintiff submitted that these facts could not be relied on so far as they went beyond the facts agreed in the Further Amended Special Case. There is no warrant for that submission[800]. The plaintiff also submitted that these facts could not be judicially noticed: he said that they were not "commonly known" and were in part simply "assertions ... as to possible future occurrences". The latter proposition is incorrect and even if the facts are not all commonly known, which is questionable, that is not a condition for reception of them as a basis for inferring a constitutional fact.
2. On the bases outlined above it is to be inferred that there are constitutional facts favouring the conclusion that Australia faced a threat sufficient to support a characterisation of the impugned legislation as falling within the defence power.

Other heads of legislative power

1. It is not necessary to consider whether the legislation is supported by the powers conferred by s 51(xxix), s 51(xxxvii), s 51(xxxix) or the implied nationhood power.

Chapter III

1. The plaintiff's arguments in relation to Ch III are to be rejected for certain of the reasons given by Gummow and Crennan JJ[801] and Callinan J[802]. I also agree with what Gleeson CJ has said on the subject[803].

Orders

1. I agree with the answer and order proposed by Gummow and Crennan JJ.

2. Greenwood, "International Law and the 'War Against Terrorism'", (2002) 78 International Affairs 301 at 307-308. ↑

3. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 278 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. ↑

4. Willoughby, The Constitutional Law of the United States, 2nd ed (1929) at 1619-1620. ↑

5. cf Fardon v Attorney-General (Qld) (2004) 223 CLR 575. ↑

6. (2004) 223 CLR 575. ↑

7. Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 3. ↑

8. Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 13(2). ↑

9. (2004) 223 CLR 575 at 596-597 [34]. ↑

10. Blackstone, Commentaries on the Laws of England, (1769), Bk IV at 248. ↑

11. (2004) 223 CLR 575 at 586 [2]. ↑

12. cf (1992) 176 CLR 1 at 28. ↑

13. It is not necessary to decide in this case the limits of these exceptions, or whether their disparate character calls into question the accuracy of the formulation of general principle. ↑

14. cf Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 196-200 [31]-[40]. ↑

15. [1919] AC 548 at 562-563. ↑

16. (1922) 30 CLR 315 at 323-324. ↑

17. (1971) 125 CLR 353 at 376. ↑

18. As to the United Kingdom, see Wilberforce, Campbell and Elles, The Law of Restrictive Trade Practices and Monopolies, 2nd ed (1966) at 385, 387. ↑

19. (1937) 37 SR (NSW) 394 at 415. ↑

20. (2004) 218 CLR 530 at 587-590 [161]-[171]. ↑

21. In re Chemists' Federation Agreement (No 2) [1958] 1 WLR 1192; [1958] 3 All ER 448. ↑

22. Stanford v Roberts [1901] 1 Ch 440 at 444. ↑

23. (1975) 134 CLR 559 at 615. ↑

24. (1992) 177 CLR 106 at 143. ↑

25. (1997) 189 CLR 579 at 614-615. ↑

26. Jones v Pritchard [1908] 1 Ch 630 at 638. ↑

27. (1998) 43 NSWLR 504. ↑

28. (1998) 195 CLR 424 at 453-454 [48]. ↑

29. (1886) 11 App Cas 197 at 203. ↑

30. The 2002 edition of the American publication Words and Phrases, vol 36A at 223-230 cites 83 United States cases construing "reasonably necessary" in American statutes. ↑

31. (1988) 164 CLR 465. ↑

32. (2004) 223 CLR 575 at 593 [22], 606 [60], 657 [225]. ↑

33. (1988) 166 CLR 69 at 78. ↑

34. (1956) 94 CLR 554 at 560. ↑

35. The Criminal Code is contained in the Schedule of the Criminal Code Act 1995 (Cth). Division 104 is contained in Pt 5.3. ↑

36. Schedule 4, Pt 1, Item 24. ↑

37. More precisely, the 2005 Act, Sched 4, Pt 1, Item 24, which inserted Div 104 into the Code. ↑

38. (1997) 191 CLR 119. ↑

39. (2002) 209 CLR 372. ↑

40. These are as follows:

    "(a) causes serious harm that is physical harm to a person; or

    (b) causes serious damage to property; or

    (c) causes a person's death; or

    (d) endangers a person's life, other than the life of the person taking the action; or

    (e) creates a serious risk to the health or safety of the public or a section of the public; or

    (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

    (i) an information system; or

    (ii) a telecommunications system; or

    (iii) a financial system; or

    (iv) a system used for the delivery of essential government services; or

    (v) a system used for, or by, an essential public utility; or

    (vi) a system used for, or by, a transport system".

    The persons and property in question may be situated within or outside Australia (sub‑s (4)). ↑

41. Subdivision C (ss 104.6‑104.11) is headed "Making an urgent interim control order" and provides in certain circumstances for the making of applications by a senior AFP member without first obtaining the consent of the Attorney‑General under s 104.2. ↑

42. It states:

    "(1) A control order that is in force at the end of 10 years after the day on which this Division commences ceases to be in force at that time.

    (2) A control order cannot be requested, made or confirmed after the end of 10 years after the day on which this Division commences." ↑

43. Re Colina; Ex parte Torney (1999) 200 CLR 386 at 395 [16], 428 [109]. ↑

44. cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165‑166. ↑

45. See Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 560; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at 491 [7]; Civil Aviation Safety Authority v Boatman (2004) 138 FCR 384 at 394. ↑

46. (1997) 74 FCR 7 at 11‑12. ↑

47. Meat and Allied Trades Federation of Australia (Queensland Division) Union of Employers v Australasian Meat Industry Union of Employees (Queensland Branch) (1989) 90 ALR 187. ↑

48. (1953) 89 CLR 78 at 90. ↑

49. cf Leach v The Queen (2007) 81 ALJR 598 at 608 [38]; 232 ALR 325 at 337; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 at [28]. ↑

50. Sub-section (2A) was added by Sched 1 of the Statute Law (Miscellaneous Provisions) Act 1987 (Cth) which commenced on 18 December 1987. ↑

51. (1999) 199 CLR 462 at 520‑521 [145]-[149]. See further the reasons of McHugh, Gummow, Hayne and Heydon JJ in Baker v The Queen (2004) 223 CLR 513 at 531‑532 [40]‑[42]. ↑

52. (1957) 100 CLR 277 at 305. See also the remarks of Gaudron J in Nicholas v The Queen (1998) 193 CLR 173 at 208-209 [74]. ↑

53. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 351‑352 [30]. ↑

54. [2007] HCA 29 at [45]‑[47]. ↑

55. [2007] HCA 29 at [49]. ↑

56. (1996) 189 CLR 1 at 11. ↑

57. Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 101, quoted by Evatt J in Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 117. The learned author added: "The danger of the usurpation of judicial power by the Legislature or the Executive furnishes a long chapter in our constitutional history which is familiar to every student." ↑

58. In addition, there are certain traditional species of jurisdiction which do not require the quelling of controversies: see R v Davison (1954) 90 CLR 353 at 368. ↑

59. Fencott v Muller (1983) 152 CLR 570 at 608. ↑

60. The Commonwealth v Grunseit (1943) 67 CLR 58 at 82. See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 512-513 [101]-[102]. ↑

61. Builders' Labourers' Case (1957) 100 CLR 277 at 289‑290. ↑

62. (1960) 103 CLR 368. ↑

63. (1960) 103 CLR 368 at 383. ↑

64. (1953) 89 CLR 78 at 90; cf Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151. ↑

65. (1972) 127 CLR 617. ↑

66. (1972) 127 CLR 588. ↑

67. (1972) 127 CLR 588 at 608 (footnote omitted). ↑

68. See, generally, Dietrich, "Giving Content to General Concepts", (2005) 29 Melbourne University Law Review 218 at 233‑236 in the section headed "General Concepts Operating 'At Large' through Statute". ↑

69. (1943) 67 CLR 25 at 54‑56. ↑

70. SR 1942 No 65. ↑

71. (1957) 100 CLR 277. ↑

72. (1963) 114 CLR 582. ↑

73. Attorney‑General (ex rel Lumley) and Lumley v T S Gill & Son Pty Ltd [1927] VLR 22. ↑

74. (1952) 87 CLR 267 at 289-290. ↑

75. See, for example, Crimes Act 1900 (NSW), ss 562AE and 562AI; Domestic and Family Violence Protection Act 1989 (Q), s 13; Domestic Violence Act 1994 (SA), s 4; Family Violence Act 2004 (Tas), s 16; Crimes (Family Violence) Act 1987 (Vic), s 4; Restraining Orders Act 1997 (WA), ss 34 and 35; Domestic Violence and Protection Orders Act 2001 (ACT), s 8; Domestic Violence Act (NT), s 4. ↑

76. (2006) 81 ALJR 254; 231 ALR 277. See also Cattanach v Melchior (2003) 215 CLR 1. ↑

77. (1951) 83 CLR 1 at 277. ↑

78. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. ↑

79. Stenhouse v Coleman (1944) 69 CLR 457 at 469 per Dixon J; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 255 per Fullagar J. ↑

80. Holmes (ed), The Oxford Companion to Military History, (2001) at 466‑467. ↑

81. (1991) 173 CLR 167. ↑

82. R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 365‑366. ↑

83. (1970) 123 CLR 361 at 401. ↑

84. R v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 at 217. ↑

85. (1957) 100 CLR 277 at 289. ↑

86. (1957) 100 CLR 277 at 310. ↑

87. Zines, The High Court and the Constitution, 4th ed (1997) at 195. ↑

88. (1960) 103 CLR 368 at 383. ↑

89. Dietrich, "Giving Content to General Concepts", (2005) 29 Melbourne University Law Review 218 at 238‑240. ↑

90. 4 Wheat 316 at 413‑414 [17 US 159 at 203] (1819). ↑

91. 4 Wheat 316 at 357 [17 US 159 at 177] (1819). See also Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 344; Farey v Burvett (1916) 21 CLR 433 at 440; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199‑200 [39]‑[40]. ↑

92. (1955) 92 CLR 157. ↑

93. (1907) 4 CLR (Pt 2) 1497. ↑

94. Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 370. ↑

95. South Australia v The Commonwealth (1962) 108 CLR 130 at 141. ↑

96. Gerhardy v Brown (1985) 159 CLR 70 at 138‑139. ↑

97. Gerhardy v Brown (1985) 159 CLR 70 at 138‑139; cf Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 44‑45, 53‑54. ↑

98. (1988) 164 CLR 465 at 476. ↑

99. (1998) 193 CLR 173 at 208‑209 [74]. ↑

100. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 411 [247]. ↑

101. (1938) 60 CLR 336. ↑

102. Nicholas v The Queen (1998) 193 CLR 173 at 188‑190 [23]‑[24], 203 [55], 234‑236 [152]‑[156]; 272‑274 [234]‑[238]. ↑

103. (2004) 223 CLR 575. ↑

104. (2004) 223 CLR 575 at 612 [80]. ↑

105. (2004) 223 CLR 575 at 613 [84]. ↑

106. (1971) 1 SASR 103. ↑

107. Story, Commentaries on Equity Jurisprudence, as administered in England and America, 13th ed (1886), vol 2, s1477. See also Baynum v Baynum (1746‑47) Amb 63 [27 ER 36]. ↑

108. Lansbury v Riley [1914] 3 KB 229. ↑

109. Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed (1985) at 628‑629 [5‑116]; see also Archbold, Criminal Pleading, Evidence and Practice, (2007) at 606 [5‑121a]. ↑

110. (1984) 154 CLR 404 at 469. ↑

111. cf Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-357 [45]‑[49]; Smith v ANL Ltd (2000) 204 CLR 493 at 510‑511 [39]. ↑

112. (1996) 187 CLR 579 at 600. ↑

113. Hamilton, Madison and Jay, The Federalist, Wright (ed), (1961) at 200. ↑

114. Hamilton, Madison and Jay, The Federalist, Wright (ed), (1961) at 199-200. ↑

115. (1916) 21 CLR 433 at 440. ↑

116. (1916) 21 CLR 433 at 466. ↑

117. (1951) 83 CLR 1 at 194. ↑

118. (1951) 83 CLR 1 at 259. ↑

119. (2006) 81 ALJR 34 at 94 [212]; 231 ALR 1 at 63‑64. ↑

120. See, for example, The Riot Act of 1715 (1 Geo I, stat 2, c 5) which was directed to preventing "tumults" and "riotous assemblies" which disturbed "the publick peace". ↑

121. See the text of The Treason Act of 1351 (25 Edw III, Stat 5, c 2) set out in Joyce v Director of Public Prosecutions [1946] AC 347 at 365. ↑

122. 3 Coke's Institutes ss9, 10; R v Frost (1839) 9 Car & P 129 at 161 [173 ER 771 at 785]. ↑

123. R v Lord George Gordon (1781) 2 Dougl 590 at 592 [99 ER 372 at 373]. ↑

124. In the course of the Gordon Riots, Lord Mansfield's house on Bloomsbury Square was sacked and the contents burned in the Square: Heward, Lord Mansfield, (1979) at 157‑158. ↑

125. 24 Hen VIII, c 12. ↑

126. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559‑560. ↑

127. 63 & 64 Vict, c 12. ↑

128. Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 67. ↑

129. (1951) 83 CLR 1 at 259. See also the judgment of Dixon J in Burns v Ransley (1949) 79 CLR 101 at 116. ↑

130. (1988) 166 CLR 79 at 92‑95. ↑

131. Farey v Burvett (1916) 21 CLR 433. ↑

132. Wertheim v The Commonwealth (1945) 69 CLR 601. ↑

133. Queensland Newspapers Pty Ltd v McTavish (1951) 85 CLR 30. ↑

134. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 192. Fullagar J spoke of the Communist Party Case in similar terms in Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 253. ↑

135. (2006) 80 ALJR 1036 at 1044 [18]; 227 ALR 495 at 502‑503. ↑

136. [2002] 1 SCR 3 at 50. ↑

137. [2002] 1 SCR 3 at 50. ↑

138. (2006) 80 ALJR 1036 at 1046 [30]; 227 ALR 495 at 505. ↑

139. Victoria v The Commonwealth (1996) 187 CLR 416 at 485 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. ↑

140. (1991) 172 CLR 501. ↑

141. Polyukhovich (1991) 172 CLR 501 at 632. ↑

142. Polyukhovich (1991) 172 CLR 501 at 528‑531. ↑

143. Polyukhovich (1991) 172 CLR 501 at 599‑603. ↑

144. Polyukhovich (1991) 172 CLR 501 at 695‑696. ↑

145. Polyukhovich (1991) 172 CLR 501 at 712‑714. ↑

146. For the purposes of Australian domestic law, a "terrorist act" is defined in the Code, s 100.1. ↑

147. The Act, s 3 and Sched 4. ↑

148. See Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at 53‑54 [94]-[95]; Young, "Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and its Influence on Definitions in Domestic Legislation", (2006) 29 Boston College International and Comparative Law Review 23 ("Young") at 24, 27-29; Saul, Defining Terrorism in International Law, (2006) ("Saul") at 1‑7; Hocking, Terror Laws: ASIO, counter-terrorism and the threat to democracy, (2004) ("Hocking") at 1‑12. ↑

149. Australia, House of Representatives, Parliamentary Debates (Hansard), 23 February 1978 at 152‑155. ↑

150. Hope, Protective Security Review: Report, Parliamentary Paper No 397/1979, unclassified version, (1979) at 271 (Appendix 7 - Terms of Reference). ↑

151. Hope Review at xv. ↑

152. Hope Review at 16-17 [2.20] citing J Bowyer Bell, Columbia University. See Bell, Transnational Terror, (1975) at 75. See also Hope Review at 9‑10 [2.2]-[2.3]. ↑

153. "Opinion of Sir Victor Windeyer, KBE, CB, DSO on certain questions concerning the position of members of the defence force when called out to aid the civil power", reproduced as Appendix 9 to Hope Review ("Windeyer Opinion, Hope Review"). ↑

154. Windeyer Opinion, Hope Review at 291-292. See also Young (2006) 29 Boston College International and Comparative Law Review 23 at 58-59. ↑

155. Table 2 of Appendix 11 of the Hope Review at 306 recorded that 2,690 international terrorist incidents had occurred between 1968 and 1977. Appendix 12 at 311-313 recorded the number of incidents (265) of politically motivated violence and vandalism in Australia over the period 1963-1977. A selection of motivations listed included "anti war/conscription", "anti apartheid", "anti uranium/environment" and "aboriginal rights". ↑

156. Year Book (1477) 17 Edw IV 1. See also Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159 at 182 [65]. ↑

157. Constitution, ss 75(iii) and (v), 76(i); Judiciary Act 1903 (Cth), s 30(a). ↑

158. Criminal Code Act (NT), ss 50‑55. Those provisions entered into force on 1 January 1984. See further Williams, "The rule of law and the regulation of terrorism in Australia and New Zealand", in Ramraj, Hor and Roach (eds), Global Anti‑Terrorism Law and Policy, (2005) 534 at 538. ↑

159. See Rose and Nestorovska, "Australian counter‑terrorism offences: Necessity and clarity in federal criminal law reforms", (2007) 31 Criminal Law Journal 20 ("Rose and Nestorovska") at 24‑25. ↑

160. See, for example, Security Legislation Amendment (Terrorism) Act 2002 (Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Border Security Legislation Amendment Act 2002 (Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth); Criminal Code Amendment (Terrorist Organisations) Act 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Criminal Code Amendment (Terrorism) Act 2003 (Cth); ASIO Legislation Amendment Act 2003 (Cth); Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth); Anti‑terrorism Act 2004 (Cth); Anti‑terrorism Act (No 2) 2004 (Cth); Anti‑Terrorism Act 2005 (Cth); Anti-Terrorism Act (No 2) 2005 (Cth); Telecommunications (Interception) Amendment Act 2006 (Cth); ASIO Legislation Amendment Act 2006 (Cth). See further Lynch and Williams, What Price Security? Taking Stock of Australia's Anti-Terror Laws, (2006). ↑

161. Terrorism (Commonwealth Powers) Act 2002 (NSW); Terrorism (Commonwealth Powers) Act 2003 (Vic); Terrorism (Commonwealth Powers) Act 2002 (SA); Terrorism (Commonwealth Powers) Act 2002 (Q); Terrorism (Commonwealth Powers) Act 2002 (WA); Terrorism (Commonwealth Powers) Act 2002 (Tas). ↑

162. Australia, House of Representatives, Parliamentary Debates (Hansard), 3 November 2005 at 102‑104. ↑

163. See reasons of Gummow and Crennan JJ at [43]‑[51]; reasons of Callinan J at [564]-[581]. ↑

164. For the text of this provision see the reasons of Gummow and Crennan JJ at [64]; reasons of Callinan J at [572]. ↑

165. The definition is reproduced in the reasons of Callinan J at [566]. See also reasons of Gleeson CJ at [8]; reasons of Gummow and Crennan JJ at [44]; reasons of Hayne J at [404]; cf Rose and Nestorovska (2007) 31 Criminal Law Journal 20 at 26-30. ↑

166. Reasons of Gummow and Crennan JJ at [48]. ↑

167. See Jabbour v Thomas (2006) 165 A Crim R 32 at 39 [50]. ↑

168. (2006) 165 A Crim R 32 at 33 [3]. ↑

169. An edited version of the judgment is reported as Jabbour v Thomas (2006) 165 A Crim R 32. ↑

170. (2006) 165 A Crim R 32 at 34 [7]-[9]. ↑

171. See the Code, ss 104.4(1)(c)(i) and 104.4(1)(c)(ii). Note also reasons of Hayne J at [480]‑[487]. ↑

172. See the Code, s 104.4(1)(d). ↑

173. See (2006) 165 A Crim R 32 at 34 [8]. ↑

174. (2006) 165 A Crim R 32 at 37 [36]. ↑

175. (2006) 165 A Crim R 32 at 37 [36]. It will be necessary later to consider the nature of the evidence of the second defendant relied upon by Mowbray FM in making the interim order. See below at [255]-[261]. ↑

176. (2006) 165 A Crim R 32 at 38-40 [45]-[62]. ↑

177. See reasons of Gleeson CJ at [2]; reasons of Callinan J at [554]. ↑

178. Subject to the Code, s 104.5(6). ↑

179. (2006) 165 A Crim R 32 at 39 [52]-[56]. ↑

180. The list was approximately 300 pages long. See (2006) 165 A Crim R 32 at 39 [56]‑[57]. ↑

181. The Code, s 102.6(1). ↑

182. Pursuant to Passports Act 1938 (Cth), s 9A(1)(e). See R v Thomas (No 3) (2006) 14 VR 512 at 513 [1]. ↑

183. The Code, s 102.7(1). ↑

184. R v Thomas (No 3) (2006) 14 VR 512 at 513 [1]. ↑

185. See R v Thomas (No 3) (2006) 14 VR 512 at 513 [2]-[3]; R v Thomas (2006) 14 VR 475. ↑

186. R v Thomas (2006) 14 VR 475 at 509 [120]. ↑

187. R v Thomas (No 3) (2006) 14 VR 512 at 521 [37]-[38]. ↑

188. See eg reasons of Gleeson CJ at [3]. ↑

189. See the Code, ss 100.3, 100.4(2)-(6). ↑

190. See Referring Act, s 4(1)(b). ↑

191. Referring Act, s 3 (emphasis added). ↑

192. Referring Act, s 3. ↑

193. [2007] HCATrans 078 at 15366-15375. ↑

194. cf reasons of Gleeson CJ at [4]-[6]; reasons of Gummow and Crennan JJ at [127]‑[131]; reasons of Hayne J at [446]-[456]. ↑

195. See Corporations Referral, s 3. ↑

196. Above at [188]. ↑

197. See Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2001 at 303. ↑

198. See [2007] HCATrans 078 at 13865-13871. ↑

199. (1964) 113 CLR 207. ↑

200. (1964) 113 CLR 207 at 226 per Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ. ↑

201. See "Commonwealth Powers Bill: A Repletion of Opinions", (1943) 16 Australian Law Journal 323 at 325, referring to arguments made by the Commonwealth legal advisers (Sir Robert Garran, Sir George Knowles and Professor K H Bailey) in respect of the Commonwealth Powers Bill produced following a Constitutional Convention in Canberra in December 1942. See also Australian National Airways (1964) 113 CLR 207 at 209-210. ↑

202. Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 25 March 2003 at 525. ↑

203. Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2001 at 302. ↑

204. Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2001 at 302. ↑

205. Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 20 March 2001 at 304. ↑

206. Agreement on Counter-terrorism Laws, (2004), Annexure AE to the special case. ↑

207. See Australia, House of Representatives, Parliamentary Debates (Hansard), 3 November 2005 at 102. ↑

208. See Interpretation of Legislation Act 1984 (Vic), s 35(a). ↑

209. Australian National Airways (1964) 113 CLR 207 at 225‑226 per Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ. ↑

210. Australian National Airways (1964) 113 CLR 207 at 226. ↑

211. Referring Act, s 4(1)(b). ↑

212. cf Attorney‑General (WA) v Marquet (2003) 217 CLR 545 at 564‑566 [46]‑[52]. ↑

213. See Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006) at 176‑177 [5.16], 188-189 [5.29]. ↑

214. See Potter v Minahan (1908) 7 CLR 277 at 304; Coco v The Queen (1994) 179 CLR 427 at 437, 446; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381 [89]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30]; Al‑Kateb v Godwin (2004) 219 CLR 562 at 577‑578 [19]-[21], 643 [241]. ↑

215. See Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363; Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181; Polites v The Commonwealth (1945) 70 CLR 60 at 69, 75, 77, 79; Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10 at 31; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38; Coco (1994) 179 CLR 427 at 437; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288. ↑

216. See below at [379]-[382]. ↑

217. Jumbunna (1908) 6 CLR 309 at 363‑364. ↑

218. cf New South Wales v Commonwealth ("Work Choices") (2006) 81 ALJR 34; 231 ALR 1; Attorney‑General (Vic) v Andrews (2007) 81 ALJR 729; 233 ALR 389. ↑

219. See below at [381]-[382]. ↑

220. See reasons of Hayne J at [456]; cf reasons of Callinan J at [602]-[607]. ↑

221. Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 25 March 2003 at 525. ↑

222. Referring Act, s 5. ↑

223. Referring Act, s 5(2). ↑

224. cf [2007] HCATrans 078 at 14035. ↑

225. The Code, s 104.32. ↑

226. The Act, s 4. ↑

227. See the Code, ss 100.3, 100.4(2)-(6); cf reasons of Callinan J at [568]. ↑

228. See the Code, s 100.3. ↑

229. See Farey v Burvett (1916) 21 CLR 433 at 440‑441; Andrews v Howell (1941) 65 CLR 255 at 278; Stenhouse v Coleman (1944) 69 CLR 457 at 471; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 273‑274; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 597. See also Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 218, 256; Zines, The High Court and the Constitution, 4th ed (1997) ("Zines") at 222‑223. ↑

230. See Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 191‑192, 195, 268, 275, 278. ↑

231. (1951) 83 CLR 1. See also Marcus Clark (1952) 87 CLR 177. ↑

232. The recitals to the Dissolution Act stated, inter alia, that the Australian Communist Party was "an integral part of the world communist revolutionary movement", and was engaged "in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices". See also Zines at 225-226. ↑

233. See [2007] HCATrans 076 at 8484-8487, 10080-10086; cf at 10799-10884. ↑

234. See Communist Party Case (1951) 83 CLR 1 at 9-10, 191‑192, 197‑198, 200; reasons of Hayne J at [428]-[431]. ↑

235. Communist Party Case (1951) 83 CLR 1 at 206 per McTiernan J. See also at 222, 263‑265. The doctrine is commonly expressed by reference to the maxim "the stream cannot rise above its source": see Heiner v Scott (1914) 19 CLR 381 at 393 per Griffith CJ, cited in Zines at 219. ↑

236. See further the Code, s 100.3(1). ↑

237. The Code, s 100.3(1)(b). ↑

238. The Code, s 100.4(2)-(6); cf reasons of Callinan J at [568]. ↑

239. See reasons of Hayne J at [427]; Communist Party Case (1951) 83 CLR 1 at 200‑203 per Dixon J. ↑

240. See Communist Party Case (1951) 83 CLR 1 at 189; the Code, s 100.4(2)-(6); cf reasons of Callinan J at [568]. ↑

241. (1951) 83 CLR 1 at 222 per Williams J, affd in Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127 at 165. See also Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630. ↑

242. (1941) 65 CLR 255 at 278. See also Stenhouse (1944) 69 CLR 457 at 471‑472. ↑

243. (1999) 199 CLR 462 at 484 [38]. ↑

244. Kenny, "Constitutional Fact Ascertainment", (1990) 1 Public Law Review 134 ("Kenny") at 155. ↑

245. (1998) 193 CLR 128 at 149 [53]-[54] (citations omitted). ↑

246. Andrews v Howell (1941) 65 CLR 255 at 278. ↑

247. (1944) 69 CLR 457 at 471. ↑

248. Stenhouse (1944) 69 CLR 457 at 471. ↑

249. Stenhouse (1944) 69 CLR 457 at 469 per Dixon J. See also Breen v Sneddon (1961) 106 CLR 406 at 411‑412; Queensland v The Commonwealth (1989) 167 CLR 232 at 239; Levy v Victoria (1997) 189 CLR 579 at 598‑599; Kenny (1990) 1 Public Law Review 134 at 154. ↑

250. Communist Party Case (1951) 83 CLR 1 at 262‑263; Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 118; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564. See also Kartinyeri (1998) 195 CLR 337 at 381 [89]; Plaintiff S157/2002 (2003) 211 CLR 476 at 492 [31], 513-514 [103]-[104]. ↑

251. (1951) 83 CLR 1 at 262-263 (citation omitted). ↑

252. Communist Party Case (1951) 83 CLR 1 at 141 per Latham CJ. See also at 188 per Dixon J. ↑

253. Zines at 226; see also Marcus Clark (1952) 87 CLR 177 at 215-216, 253‑254. ↑

254. Marcus Clark (1952) 87 CLR 177 at 253. ↑

255. Hope Review at 32 [3.16]. ↑

256. Marcus Clark (1952) 87 CLR 177 at 215-216. See also Communist Party Case (1951) 83 CLR 1 at 198, 201‑202; Zines at 225-229. ↑

257. See below at [238]‑[252]. ↑

258. See reasons of Hayne J at [405]. ↑

259. See Burns v Ransley (1949) 79 CLR 101; R v Sharkey (1949) 79 CLR 121. ↑

260. See [2007] HCATrans 076 at 10028. See generally at 9975‑10031. ↑

261. Bank of NSW v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 185 per Latham CJ. ↑

262. Lamshed v Lake (1958) 99 CLR 132 at 154; cf Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 372‑373 [130]‑[131]; Work Choices (2006) 81 ALJR 34 at 145 [491]; 231 ALR 1 at 133. ↑

263. Contrast Farey (1916) 21 CLR 433 at 441; R v Foster (1949) 79 CLR 43 at 81. ↑

264. (1991) 172 CLR 501 at 592‑593, citing Richardson v Forestry Commission (1988) 164 CLR 261 at 326 per Dawson J. ↑

265. See Farey (1916) 21 CLR 433; Attorney‑General (Vict) v The Commonwealth (1935) 52 CLR 533; Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1; Ferguson v The Commonwealth (1943) 66 CLR 432; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25; de Mestre v Chisholm (1944) 69 CLR 51; Miller v The Commonwealth (1946) 73 CLR 187; cf The Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1; R v University of Sydney; Ex parte Drummond (1943) 67 CLR 95; Victorian Chamber of Manufactures v The Commonwealth (Industrial Lighting Regulations) (1943) 67 CLR 413; Wertheim v The Commonwealth (1945) 69 CLR 601. ↑

266. Farey (1916) 21 CLR 433 at 453 per Isaacs J; cf Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency, (2006). ↑

267. Foster (1949) 79 CLR 43 at 81. ↑

268. (1949) 79 CLR 43 at 83 per Latham CJ, Rich, Dixon, McTiernan, Williams and Webb JJ. ↑

269. See reasons of Hayne J at [414]-[416]. ↑

270. Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 522‑523 [111]. ↑

271. Communist Party Case (1951) 83 CLR 1 at 253‑254 per Fullagar J, citing Farey (1916) 21 CLR 433 at 453 per Isaacs J. See also Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 132‑133 per Latham CJ; Hume v Higgins (1949) 78 CLR 116 at 133‑134 per Dixon J; Koon Wing Lau v Calwell (1949) 80 CLR 533 at 585; Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 328 [63] per Gummow J. ↑

272. See, for example, Communist Party Case (1951) 83 CLR 1 at 195, 206‑207, 227‑230, 258‑259 and also Lloyd v Wallach (1915) 20 CLR 299; Ex parte Walsh [1942] ALR 359; Polyukhovich (1991) 172 CLR 501 at 592‑593. ↑

273. It should be noted that, following the attacks in the United States on 11 September 2001, the United States of America and Australia invoked Art IV of the ANZUS Treaty. Article IV provides:

"Each Party recognizes that an armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security." ↑

273. See Blackshield and Williams, Australian Constitutional Law and Theory, 4th ed (2006) at 870; Winterton, "The Communist Party Case", in Lee and Winterton (eds), Australian Constitutional Landmarks, (2003) ("Lee and Winterton") 108 at 115‑124. ↑

274. (1951) 83 CLR 1 at 196. ↑

275. Reasons of Callinan J at [589]. ↑

276. Ayres, Owen Dixon, new ed (2007) at 115-218. ↑

277. Communist Party Case (1951) 83 CLR 1 at 187: "History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power." ↑

278. See Marcus Clark (1952) 87 CLR 177 at 261‑262. See also Communist Party Case (1951) 83 CLR 1 at 188‑189; Hope Review at 29-30 [3.7]; Dennis v United States 341 US 494 at 587‑588 (1951) per Douglas J (diss). Cf reasons of Hayne J at [442]. ↑

279. See White, "The Executive and the Military", (2005) 28 University of New South Wales Law Journal 438 ("White") at 444‑445. ↑

280. See Windeyer Opinion, Hope Review at 278-279. See also Australia, House of Representatives, Parliamentary Debates (Hansard), 23 February 1978 at 159, cited in "Legal and constitutional problems of protective security arrangements in Australia", (1978) 52 Australian Law Journal 296 at 298. ↑

281. See Johnston, "Re Tracey: Some Implications for the Military-Civil Authority Relationship", (1990) 20 University of Western Australia Law Review 73 ("Johnston") at 81, citing Blackshield, "The Siege of Bowral - The Legal Issues", (1978) 4(9) Pacific Defence Reporter 6 at 6-9; "Legal and constitutional problems of protective security arrangements in Australia", (1978) 52 Australian Law Journal 296. ↑

282. See Johnston (1990) 20 University of Western Australia Law Review 73 at 77, where it was suggested that s 119 may amount to an implied prohibition. ↑

283. See Hope Review at 32-33 [3.18]. ↑

284. See further White (2005) 28 University of New South Wales Law Journal 438; Johnston (1990) 20 University of Western Australia Law Review 73 at 75-81. ↑

285. See Sharkey (1949) 79 CLR 121 at 151; Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) ("Quick and Garran") at 964‑965. Section 119 was modelled on Art IV, s4 of the United States Constitution. ↑

286. See Sharkey (1949) 79 CLR 121 at 151‑152; Quick and Garran at 964; White (2005) 28 University of New South Wales Law Journal 438 at 444. ↑

287. See Dennis v United States 341 US 494 at 587‑588 (1951) per Douglas J (diss). ↑

288. Re Aird (2004) 220 CLR 308 at 327‑328 [61] per Gummow J (Gleeson CJ and Hayne J agreeing at 314 [9] and 356 [156] respectively). See further Communist Party Case (1951) 83 CLR 1 at 195 per Dixon J, 259 per Fullagar J. ↑

289. (2004) 220 CLR 308 at 318 [28], 327‑328 [61]. ↑

290. See also Adelaide Company of Jehovah's Witnesses (1943) 67 CLR 116 at 132, 137; Communist Party Case (1951) 83 CLR 1 at 259. ↑

291. Lee, Hanks and Morabito, In the Name of National Security: The Legal Dimensions, (1995) at 21, citing Commonwealth, Royal Commission on Intelligence and Security, Fourth Report, (1977), vol 1 at 16. See also Greenwood, "International Law and the 'War Against Terrorism'", (2002) 78 International Affairs 301 at 307. ↑

292. See further Farey (1916) 21 CLR 433 at 440 per Griffith CJ. See also at 452. ↑

293. See [2007] HCATrans 076 at 9075. See also at 8786-8814, 9808-9810. Cf reasons of Heydon J at [647]-[648]. ↑

294. See also reasons of Hayne J at [411]-[422]. ↑

295. Contrast reasons of Callinan J at [520]‑[553]. ↑

296. 2007 SCC 9. ↑

297. Charkaoui 2007 SCC 9 at [64]. ↑

298. Pursuant to the Code, s 104.2(3). ↑

299. Reasons of Heydon J at [614], [629]-[639], [642]. ↑

300. Stenhouse (1944) 69 CLR 457 at 471. ↑

301. Stenhouse (1944) 69 CLR 457 at 469 per Dixon J. See also Breen (1961) 106 CLR 406 at 411‑412; Queensland v The Commonwealth (1989) 167 CLR 232 at 239; Levy (1997) 189 CLR 579 at 598‑599; Kenny (1990) 1 Public Law Review 134 at 154. ↑

302. cf reasons of Hayne J at [399]-[403], [508]-[510]. ↑

303. cf Ruhani v Director of Police (2005) 222 CLR 489 at 557-558 [222]‑[225]. ↑

304. See Kenny (1990) 1 Public Law Review 134 at 162-165; Zines at 225-229. ↑

305. Since Marbury v Madison 5 US 137 at 177 (1803) per Marshall CJ. ↑

306. See Kenny (1990) 1 Public Law Review 134 at 163. See also at 137-149 for an analysis of the approach taken in the United States Supreme Court. ↑

307. cf reasons of Heydon J at [620], [629]-[639]. ↑

308. cf Re Aird (2004) 220 CLR 308 at 327‑328 [61] per Gummow J. ↑

309. cf Dennis v United States 341 US 494 at 587‑588 (1951) per Douglas J (diss). ↑

310. In this respect, see Windeyer Opinion, Hope Review at 291‑292 [31]-[32] and also Hope Review at 310‑313. It is significant that the causes of politically motivated violence and vandalism in Australia identified for the period 1963-1977 included "anti war/conscription", "anti apartheid", "anti uranium/environment" and "aboriginal rights", all legitimate subjects of lawful protest and demonstration. I agree with the difficulty, noted by Hayne J, arising in distinguishing acts of violence that are performed to advance particular motivations: see reasons of Hayne J at [442]. ↑

311. The Code, s 100.1. See also Rose and Nestorovska (2007) 31 Criminal Law Journal 20 at 25‑27. ↑

312. The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1; Richardson (1988) 164 CLR 261; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416. ↑

313. The Charter was signed on 26 June 1945. It entered into force generally on 24 October 1945 and for Australia on 1 November 1945: [1945] ATS 1. See also Charter of the United Nations Act 1945 (Cth), s 5. ↑

314. Charter, Art 24(1). ↑

315. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ 16 at 53‑54 [116]; Prosecutor v Tadic (Jurisdiction) (1995) 105 ILR 419 at 467 [31]. ↑

316. Charter, Art 24(1); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, Judgment, [1984] ICJ 392 at 431‑432 [89], 434-435 [95]. ↑

317. See particularly the Charter, Arts 39-43; Tadic (1995) 105 ILR 419 at 465-468 [28]-[32]. ↑

318. Article 103 states: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." See also Vienna Convention on the Law of Treaties, Art 30(1), which entered into force for Australia and generally on 27 January 1980: [1974] ATS 2; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Provisional Measures, Order of 14 April 1992, [1992] ICJ 3 at 126 [42]; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Preliminary Objections, Judgment, [1998] ICJ 115 at 140; Nicaragua [1984] ICJ 392 at 440 [107]. ↑

319. In McCulloch v Maryland 17 US 316 at 415 (1819), Marshall CJ discussed the meaning of "necessary" in a constitutional context, indicating that one such synonym was "conducive". See generally at 413-416. ↑

320. The paragraph continues "including by provision of early warning to other States by exchange of information". As submitted by the plaintiff, only six of the thirteen treaties identified by the Commonwealth as relating to terrorism make any reference to an obligation to "prevent" terrorism. None of these treaties extend the suggested obligation any further than Resolution 1373. ↑

321. Saul at 48 (citations omitted). ↑

322. See also Young (2006) 29 Boston College International and Comparative Law Review 23 at 43-44. ↑

323. See Resolution 1566, par 3; Saul at 247; Young (2006) 29 Boston College International and Comparative Law Review 23 at 45-46. ↑

324. See Saul at 247-248. ↑

325. Resolution 1373, par 6. See also Saul at 236‑238. ↑

326. Resolution 1373, par 6. ↑

327. Saul at 264 (citation omitted, original emphasis). ↑

328. Saul at 267‑268. ↑

329. See Saul at 268 fn 626. ↑

330. Saul at 264. ↑

331. Charter, Art 24(2). ↑

332. Charter, Art 1(1). ↑

333. Charter, Art 1(3). ↑

334. See above at [272]. ↑

335. Bradley v The Commonwealth (1973) 128 CLR 557 at 582-583; Charter of the United Nations Act 1945 (Cth), s 5. ↑

336. McCulloch 17 US 316 at 407 (1819) per Marshall CJ (original emphasis). ↑

337. Industrial Relations Act Case (1996) 187 CLR 416 at 486. ↑

338. See eg Industrial Relations Act Case (1996) 187 CLR 416 at 486. ↑

339. See The Tasmanian Dam Case (1983) 158 CLR 1 at 261, citing Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed (1976) at 299. See also Zines at 288-289. ↑

340. Zines at 291. See also Industrial Relations Act Case (1996) 187 CLR 416 at 486. ↑

341. Industrial Relations Act Case (1996) 187 CLR 416 at 486‑487; Zines at 291. ↑

342. Zines at 291, cited in Industrial Relations Act Case (1996) 187 CLR 416 at 486. ↑

343. Zines at 291. ↑

344. See Zines at 292. ↑

345. (1936) 55 CLR 608 at 674-675. See also Australian Law Reform Commission, Review of Sedition Laws, Discussion Paper No 71, (2006) at 84‑85 [5.8]-[5.11]. ↑

346. Note the reports of the Permanent Australian Mission to the United Nations, annexed to: S/2001/1247; S/2002/776; S/2003/513; S/2003/1204; S/2005/90; S/2005/671. The last of these reports was submitted in October 2005, before the enactment of Div 104. ↑

347. cf Richardson (1988) 164 CLR 261 at 326; Industrial Relations Act Case (1996) 187 CLR 416 at 487. ↑

348. Resolution 1373, pars 1(b), 2(e). ↑

349. See General Assembly Resolution A/Res/60/43 (6 January 2006), par 10: "Urges all States that have not yet done so to consider, as a matter of priority, and in accordance with Security Council resolutions 1373 (2001), and 1566 (2004) of 8 October 2004, becoming parties to the relevant conventions and protocols ... and calls upon all States to enact, as appropriate, the domestic legislation necessary to implement the provisions of those conventions and protocols, to ensure that the jurisdiction of their courts enables them to bring to trial the perpetrators of terrorist acts, and to cooperate with and provide support and assistance to other States and relevant international and regional organizations to that end". ↑

350. [2006] 3 WLR 954 (CA). See at 974-982 [55]-[87]. ↑

351. See [2006] 3 WLR 954 at 980‑981 [80], 982 [86]-[87]. ↑

352. See further below at [379]‑[382]. ↑

353. cf XYZ v Commonwealth (2006) 80 ALJR 1036 at 1062 [117], 1076-1082 [180]-[206]; 227 ALR 495 at 527, 546-554. ↑

354. See, for example, M v Secretary of State for the Home Department [2004] 2 All ER 863; A v Secretary of State for the Home Department [2005] 2 AC 68; Secretary of State for the Home Department v JJ [2006] EWHC 1623 (Admin); [2006] 3 WLR 866 (CA); Khawaja (2006) 42 CR (6th) 348 at 387 [87]; Charkaoui 2007 SCC 9; Rasul v Bush 542 US 466 (2004); Hamdan v Rumsfeld 165 L Ed 2d 723 (2006); Mohamed v President of the Republic of South Africa 2001 (3) SA 893. ↑

355. cf XYZ v Commonwealth (2006) 80 ALJR 1036; 227 ALR 495. ↑

356. Douglas, "Cold War Justice? Judicial Responses to Communists and Communism, 1945-1955", (2007) 29 Sydney Law Review 43 at 55-57. ↑

357. (1956) 94 CLR 254 at 296 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. ↑

358. The following passage from the United States Supreme Court decision in Muskrat v United States 219 US 346 at 355 (1911) was cited with approval: "The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other." See at 292 where the joint reasons stated that "the judicature of the Commonwealth should stand in the same position". ↑

359. See Wheeler, "The Boilermakers Case", in Lee and Winterton 160 at 160‑161, 163, 166-169. ↑

360. Boilermakers (1956) 94 CLR 254 at 295. ↑

361. Boilermakers (1956) 94 CLR 254 at 295. ↑

362. Constitution, ss 1, 61, 71. See Boilermakers (1956) 94 CLR 254 at 275‑276. ↑

363. Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529 at 540-541; [1957] AC 288 at 315. ↑

364. See the separate dissenting reasons of Williams, Webb and Taylor JJ in Boilermakers (1956) 94 CLR 254 at 301-302, 306, 314-315, 317, 325-327, 329, 333, 337‑343. See also R v Joske; Ex parte Australian Building Construction Employees & Builders' Labourers' Federation (1974) 130 CLR 87 at 90 per Barwick CJ; Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 113 [52]. ↑

365. Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 81 ALJR 1155 at 1166‑1167 [59]‑[63]; 234 ALR 618 at 631-632. ↑

366. See Breckler (1999) 197 CLR 83 at 113-114 [53], 124‑126 [78]‑[81]. See also reasons of Hayne J at [464]. ↑

367. But see below at [339]‑[344]; cf reasons of Hayne J at [472]. ↑

368. See Breckler (1999) 197 CLR 83 at 124-125 [78]. ↑

369. (1909) 8 CLR 330 at 357. ↑

370. [2007] HCA 29 at [118]. ↑

371. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 267. ↑

372. Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442‑443, 464; cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141. ↑

373. Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 543; [1931] AC 275 at 296; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 198-199. ↑

374. Reasons of Hayne J at [465]-[466], citing R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J. ↑

375. Tasmanian Breweries (1970) 123 CLR 361 at 396. ↑

376. (1995) 183 CLR 245 at 267-268. See also Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-189. ↑

377. See R v Davison (1954) 90 CLR 353 at 368. ↑

378. Albarran (2007) 81 ALJR 1155 at 1173‑1174 [98]‑[99]; 234 ALR 618 at 641. ↑

379. Above, these reasons at [171]-[175]; reasons of Gummow and Crennan JJ at [62]. ↑

380. The Code, s 104.14(7); reasons of Hayne J at [479], [480]. ↑

381. The Code, s 104.4(1)(c)(i). ↑

382. The Code, s 104.4(1)(c)(ii). ↑

383. cf reasons of Gleeson CJ at [28]. ↑

384. See generally Rose and Nestorovska (2007) 31 Criminal Law Journal 20 at 32‑40, 44. ↑

385. See reasons of Hayne J at [485]-[486]. ↑

386. See above at [178]. ↑

387. Reasons of Hayne J at [484]. ↑

388. Note also the use of "necessarily" and its interpretation in income tax legislation. See reasons of Hayne J at [490] and the reasons of Gleeson CJ in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 199‑200 [39]. See also reasons of Gleeson CJ at [20]-[27]. ↑

389. cf reasons of Gleeson CJ at [20]‑[27]. ↑

390. cf Coleman v Power (2004) 220 CLR 1 at 90‑91 [234]‑[236]; Mulholland (2004) 220 CLR 181 at 266 [247]. ↑

391. cf Polyukhovich (1991) 172 CLR 501 at 592‑593. ↑

392. (1951) 83 CLR 1 at 272. See also reasons of Hayne J at [504]-[505]. ↑

393. Breckler (1999) 197 CLR 83 at 126 [83]. ↑

394. Breckler (1999) 197 CLR 83 at 126 [83]. ↑

395. (1970) 123 CLR 361. ↑

396. (1970) 123 CLR 361 at 400, see also at 377; Breckler (1999) 197 CLR 83 at 126 [83]; Cattanach v Melchior (2003) 215 CLR 1 at 34-35 [75]. ↑

397. Green, "Separation of Governmental Powers", (1920) 29 Yale Law Journal 369 ("Green") at 378 (citations omitted, original emphasis), referred to in Tasmanian Breweries (1970) 123 CLR 361 at 402. ↑

398. See R v Spicer; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312 at 317; cf reasons of Hayne J at [502]. ↑

399. See Green (1920) 29 Yale Law Journal 369 at 382 (emphasis added). ↑

400. See Wilkinson v Osborne (1915) 21 CLR 89 at 97; A v Hayden (1984) 156 CLR 532 at 571; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257 [25]; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 602 [17]; Cattanach v Melchior (2003) 215 CLR 1 at 33-35 [73]-[75], 85 [232]-[233]; D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 16 [31]-[32]. ↑

401. See reasons of Hayne J at [516], citing the reasons of Gaudron J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 231 [59]. ↑

402. (1991) 173 CLR 167. ↑

403. (1991) 173 CLR 167 at 189 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. See also Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666. ↑

404. See Huddart Parker (1909) 8 CLR 330 at 357; Tasmanian Breweries (1970) 123 CLR 361 at 396‑397. See also United Engineering Workers' Union v Devanayagam [1968] AC 356 at 384-385; Prentis v Atlantic Coast Line 211 US 210 at 226 (1908). ↑

405. See Tasmanian Breweries (1970) 123 CLR 361 at 374 per Kitto J; reasons of Hayne J at [465]. ↑

406. Zines at 197, citing Cominos v Cominos (1972) 127 CLR 588 at 600 per Gibbs J; Joske (1976) 135 CLR 194 at 216 per Mason and Murphy JJ; Boilermakers (1956) 94 CLR 254; Waterside Workers' Federation (1918) 25 CLR 434. ↑

407. (1991) 173 CLR 167 at 191 (emphasis added). See also Tasmanian Breweries (1970) 123 CLR 361 at 377; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360. ↑

408. (1945) 70 CLR 141 at 165 and following. ↑

409. See Peacock (1943) 67 CLR 25 at 35, 54. ↑

410. cf [2006] HCATrans 660 at 2983‑2997. ↑

411. Constitution, s 76(ii). ↑

412. See Constitution, s 77(i); cf reasons of Hayne J at [473]-[474]. ↑

413. See Barrett (1945) 70 CLR 141 at 164-169 and esp at 167‑169. Note also Jacka v Lewis (1944) 68 CLR 455. ↑

414. (1945) 70 CLR 141. ↑

415. Barrett (1945) 70 CLR 141 at 168. See also at 166. ↑

416. Dingjan (1995) 183 CLR 323 at 360, quoting Precision Data (1991) 173 CLR 167 at 191, which referred to the discussion by Dixon J in Barrett (1945) 70 CLR 141 at 165 and following. See also reasons of Hayne J at [473]-[474]. ↑

417. Dingjan (1995) 183 CLR 323 at 360, referring to Precision Data (1991) 173 CLR 167 at 191. See also Davison (1954) 90 CLR 353 at 369-370; Harris v Caladine (1991) 172 CLR 84 at 150. ↑

418. See below at [330]‑[338]. It is noted that the proceedings under s 58E of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) with which Barrett was concerned were inter partes. ↑

419. cf reasons of Hayne J at [503]-[512]. ↑

420. See, for example, Family Law Act 1975 (Cth), s 114 (which empowers federal courts to make orders or grant injunctions having regard to circumstances arising out of the marital relationship in proceedings between parties to a marriage: such orders or injunctions may be issued for the personal protection of a party to the marriage and may restrain a party to the marriage from entering or remaining in particular places or specified areas), s 90AE (which allows a court to make a variety of orders affecting the rights, liabilities and obligations of third parties in relation to the disposition of property of a party to the marriage); Corporations Act 2001 (Cth), s 1323 (which allows federal courts to make orders to protect the interests of a person where an investigation is being carried out into alleged contraventions of that Act). ↑

421. See, for example, Bail Act 1978 (NSW), s 6; Bail Act 1977 (Vic), s 4; Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 3; Restraining Orders Act 1997 (WA), ss 11A, 34, 35. See also McDonald, "Involuntary Detention and the Separation of Judicial Power", (2007) 35 Federal Law Review 25 ("McDonald") at 70-71. ↑

422. See, for example, Trade Practices Act 1974 (Cth), s 80, which empowers federal courts to make orders to restrain a breach of that Act. ↑

423. See, for example, Family Law Act 1975 (Cth), ss 68B, 114, which allow federal courts to make orders in relation to the welfare of children, as well as orders protecting a party to a marriage. Such orders may restrain a person from entering or remaining in specified areas or places. See also Rose and Nestorovska (2007) 31 Criminal Law Journal 20 at 44. ↑

424. See Family Law Act 1975 (Cth), ss 68B, 114; Bail Act 1978 (NSW), s 6; Magistrates' Court Act 1989 (Vic), s 126A; Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), ss 3, 13; Restraining Orders Act 1997 (WA), s 34. ↑

425. [1964] 2 QB 573 at 577. ↑

426. R v Wright; Ex parte Klar (1971) 1 SASR 103 at 112 per Bray CJ. See also McDonald (2007) 35 Federal Law Review 25 at 73. ↑

427. See Edwards v Raabe (2000) 117 A Crim R 191 at 197 [23]. ↑

428. See Wright (1971) 1 SASR 103 at 112. See also R v Ayu [1958] 1 WLR 1264 at 1265; [1958] 3 All ER 636 at 637-638; Hashman and Harrup v United Kingdom (1999) 30 EHRR 241 at 247 [17]. ↑

429. [1907] 2 KB 380 at 383-384, cited with approval in Sheldon [1964] 2 QB 573 at 578. ↑

430. See Williams, "Preventive Justice and the Rule of Law", (1953) 16 Modern Law Review 417 at 420-421 (citations omitted). ↑

431. United Kingdom, Home Office, Bind Overs: A Power for the 21st Century, Consultation Document, (2003) ("Home Office Paper"). ↑

432. Home Office Paper at 2 [2.5], 6 [7.6.7], 9 [9.8]. ↑

433. Home Office Paper at 5-6 [7.5.1]-[7.5.5]. ↑

434. (2004) 223 CLR 575 at 655-656 [219]. The constitutional separation of the judicial power within the States observes different legal rules. See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 67, 78, 92-94, 103-104, 109‑111, 132. ↑

435. Namely, s 38(3), which provides: "If there is no particular person seeking to be protected an application for a misconduct restraining order may be made by a police officer on behalf of the public generally." ↑

436. See Restraining Orders Act 1997 (WA), ss 34, 35. See also McDonald (2007) 35 Federal Law Review 25 at 70‑73. ↑

437. See, for example, Bail Act 1978 (NSW), s 32; Bail Act 1977 (Vic), s 4(2)(d), (3). ↑

438. See, for example, Bail Act 1978 (NSW), s 32(1)(c)(i); Bail Act 1977 (Vic), s 4(2)(d), (3)(a). ↑

439. See, for example, Bail Act 1978 (NSW), s 32(1)(c)(iv), (2); Bail Act 1977 (Vic), s 4(2)(d), (3). ↑

440. (2004) 223 CLR 575 at 640 [171] (citation omitted, original emphasis); cf reasons of Gleeson CJ at [16]-[18]. ↑

441. See Albarran (2007) 81 ALJR 1155; 234 ALR 618; Visnic v Australian Securities and Investments Commission (2007) 81 ALJR 1175; 234 ALR 413. ↑

442. (1995) 183 CLR 323 at 360. ↑

443. Waterside Workers' Federation (1918) 25 CLR 434 at 467; Boilermakers (1956) 94 CLR 254 at 270, 296, 314, 338. ↑

444. Precision Data (1991) 173 CLR 167 at 189. See also Davison (1954) 90 CLR 353 at 370; R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628; Re Ranger Uranium Mines (1987) 163 CLR 656 at 665-666; Harris v Caladine (1991) 172 CLR 84 at 93, 147-148. ↑

445. Relying on R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 6, 9-10; Hegarty (1981) 147 CLR 617 at 628, 631‑632. See also Re Ranger Uranium Mines (1987) 163 CLR 656 at 665; Harris v Caladine (1991) 172 CLR 84 at 122, 147-148; Precision Data (1991) 173 CLR 167 at 189; Brandy (1995) 183 CLR 245 at 261-262. ↑

446. [2007] HCATrans 076 at 11295. ↑

447. See Joske (1974) 130 CLR 87 at 95; Quinn (1977) 138 CLR 1 at 6, 9-12; Breckler (1999) 197 CLR 83 at 126-127 [83]-[84]. ↑

448. See reasons of Hayne J at [462]. ↑

449. (2002) 209 CLR 246 at 268-269 [62]. See also Visnic (2007) 81 ALJR 1155 at 1164 [45]; 234 ALR 413 at 423, citing Polyukhovich (1991) 172 CLR 501 at 607 per Deane J. ↑

450. Spicer (1957) 100 CLR 277 at 305. ↑

451. See Sue v Hill (1999) 199 CLR 462 at 516-517 [134]-[135], 518 [140] per Gaudron J (Gleeson CJ, Gummow and Hayne JJ agreeing at 484 [39]); Pasini (2002) 209 CLR 246 at 269 [63]. See also Davison (1954) 90 CLR 353 at 368-369. ↑

452. Albarran (2007) 81 ALJR 1155 at 1168 [70]; 234 ALR 618 at 634; Visnic (2007) 81 ALJR 1175 at 1183-1184 [45]; 234 ALR 413 at 423. ↑

453. (1957) 100 CLR 277 at 305. See also Hegarty (1981) 147 CLR 617 at 628. ↑

454. See also reasons of Hayne J at [513]. ↑

455. See Zines at 198: "It is suggested that the questions whether such a function is ancillary to a clearly judicial function or is analogous to an historical function are really aids in resolving this more fundamental issue." See also Joske (1976) 135 CLR 194 at 216. ↑

456. (1977) 138 CLR 1 at 11. ↑

457. Baker v The Queen (2004) 223 CLR 513 at 539 [66]. ↑

458. See Breckler (1999) 197 CLR 83 at 125-126 [81]. ↑

459. Zines at 198. See also Green (1920) 29 Yale Law Journal 369 at 379. ↑

460. (1970) 123 CLR 361 at 403. ↑

461. Reasons of Hayne J at [506]. ↑

462. (2004) 223 CLR 575. Fardon examined the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), namely ss 5, 8 and 13. ↑

463. See also Kable (1996) 189 CLR 51; Baker (2004) 223 CLR 513. ↑

464. The Code, s 104.5(3). ↑

465. Fardon (2004) 223 CLR 575 at 638 [166]. ↑

466. Fardon (2004) 223 CLR 575 at 612 [79] (emphasis added). ↑

467. (2004) 223 CLR 575 at 612 [79], citing my reasons in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 178-179 [56]; cf Kansas v Hendricks 521 US 346 at 361-363, 379-381 (1997). ↑

468. (2004) 223 CLR 575 at 641 [174]. ↑

469. (2004) 223 CLR 575 at 612 [80]. See also at 631 [145]. ↑

470. See Fardon (2004) 223 CLR 575 at 612-613 [81]; cf my reasons in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 66 [184]. ↑

471. Fardon (2004) 223 CLR 575 at 612-613 [81] (emphasis added), citing Al-Kateb (2004) 219 CLR 562 at 612-613 [137]‑[139]. ↑

472. Fardon (2004) 223 CLR 575 at 613 [84] (emphasis added). ↑

473. Note what was said by the Canadian Supreme Court in Suresh [2002] 1 SCR 3 at 53 [94]: "One searches in vain for an authoritative definition of 'terrorism'. ... The absence of an authoritative definition means that, at least at the margins, 'the term is open to politicized manipulation, conjecture, and polemical interpretation'". See also Nino, "International Terrorism: Definition", (2007) 71 Journal of Criminal Law 147 ("Nino"). ↑

474. See Fardon (2004) 223 CLR 575 at 623-624 [126], citing Chu Kheng Lim (1992) 176 CLR 1 at 56 per Gaudron J, 71 per McHugh J. See also Re Woolley (2004) 225 CLR 1 at 66 [184]; reasons of Hayne J at [443]. ↑

475. See reasons of Hayne J at [503]-[506]. ↑

476. cf reasons of Gleeson CJ at [28]. ↑

477. See reasons of Hayne J at [503]. ↑

478. See above at [257]‑[258]. ↑

479. (2004) 223 CLR 575 at 637 [164] (original emphasis). ↑

480. Precision Data (1991) 173 CLR 167 at 188. See also Ha v New South Wales (1997) 189 CLR 465 at 503-504. ↑

481. The granting of quia timet injunctions constitutes an example. ↑

482. Successive control orders in relation to the same person are not prohibited. See the Code, s 104.5(2). ↑

483. See Fardon (2004) 223 CLR 575 at 638 [166]. ↑

484. See Secretary of State for the Home Department v MB [2006] EWHC 1000 (Admin) at [103] per Sullivan J; cf reasons of Hayne J at [509]. ↑

485. (1992) 174 CLR 455 at 486-487, see also at 470, 502; Chu Kheng Lim (1992) 176 CLR 1 at 27; Dietrich v The Queen (1992) 177 CLR 292 at 326, 362; Winterton et al, Australian Federal Constitutional Law: Commentary and Materials, 2nd ed (2007) at 928; Mason, "A New Perspective on Separation of Powers", (1996) 82 Canberra Bulletin of Public Administration 1 at 7. ↑

486. See the Code, ss 104.4, 104.5(1)(e), 104.5(1A), 104.12, 104.12A. See further Rose and Nestorovska (2007) 31 Criminal Law Journal 20 at 44-46. ↑

487. X v Australian Prudential Regulation Authority (2007) 81 ALJR 611 at 629 [89]; 232 ALR 421 at 441. ↑

488. The Code, s 104.12(1). Note s 104.12A(2)(a)(ii). ↑

489. See the Code, ss 104.5(1)(h), 104.12A(3), 104.21. See also Rose and Nestorovska (2007) 31 Criminal Law Journal 20 at 46. ↑

490. See Charkaoui 2007 SCC 9 at [81]-[87]. See also M v Secretary of State for the Home Department [2004] 2 All ER 863 at 868 [13], 873 [34]. ↑

491. See also reasons of Hayne J at [515]‑[516]. ↑

492. cf reasons of Gleeson CJ at [17]. ↑

493. See Criminal Code (Can), s 83.3, inserted by Anti‑Terrorism Act, SC 2001 C-41. The definition of "terrorist activity" is contained in s 83.01(1) and bears strong similarity to the definition of "terrorist act" in Div 104 of the Code. Note however that the aspect of the definition of "terrorist activity" in the Canadian Code requiring the activity to be done "in whole or in part for a political, religious or ideological purpose, objective or cause" was declared invalid by Rutherford J in the Superior Court of Justice in Ontario. See Khawaja (2006) 42 CR (6th) 348 at 387 [87]; cf Nino (2007) 71 Journal of Criminal Law 147. ↑

494. See also reasons of Hayne J at [514]. ↑

495. The definition of "peace officer" is contained in s 2. ↑

496. See Criminal Code (Can), s 83.3(2). ↑

497. Criminal Code (Can), s 83.3(8); reasons of Hayne J at [514]. ↑

498. Criminal Code (Can), s 83.3(4)-(8). ↑

499. See Criminal Code (Can), s 83.3(8). ↑

500. The Canadian recognizance laws ceased to apply from 1 March 2007. They had been subject to a sunset clause. A motion to extend the laws for a further three years was defeated in the Canadian Parliament on 27 February 2007: see Criminal Code (Can), s 83.32. ↑

501. The PTA followed the decision of the House of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68 concerning the preventative detention provisions in the Anti‑terrorism, Crime and Security Act 2001 (UK) and the Human Rights Act 1998 (Designated Derogation) Order 2001. The House of Lords held that s 23 of the Anti-terrorism, Crime and Security Act was incompatible with the non-discrimination guarantee of the European Convention on Human Rights ("ECHR") as no objective justification existed for confining the preventative detention regime in that Act to foreign terrorist suspects. ↑

502. PTA, s 2(1). "[T]errorism-related activity" is defined in s 1(9) of the PTA. "[T]errorism" is defined in s 1 of the Terrorism Act 2000 (UK) in similar terms to the definition of "terrorist act" in the Code. ↑

503. PTA, s 4(1). These control orders impose "derogating obligations" inconsistent with the right to liberty under Art 5 of the ECHR, but are permissible in the United Kingdom because made under a "designated derogation" within the meaning of the Human Rights Act 1998 (UK), s 14. See PTA, s 4(3). ↑

504. PTA, s 3(1)(b), (4). ↑

505. PTA, s 3(1)(a). ↑

506. PTA, s 3(2)(a), (3)(b). See also s 3(10). ↑

507. PTA, s 3(11). ↑

508. PTA, s 1(3). See the examples given in the PTA, s 1(4)-(7). ↑

509. PTA, s 8(2). ↑

510. See Secretary of State for the Home Department v MB [2006] EWHC 1000 (Admin) at [103]‑[104] per Sullivan J; Secretary of State for the Home Department v JJ [2006] EWHC 1623 (Admin) at [73]; [2006] 3 WLR 866 at 874 [23], 875 [27] per Lord Phillips of Worth Matravers CJ; cf Secretary of State for the Home Department v MB [2006] 3 WLR 839 at 852‑853 [31], 865 [85]-[86]. Leave to appeal to the House of Lords was granted in both of these cases: [2007] 1 WLR 397. The appeals were heard together with an appeal from the decision in Secretary of State for the Home Department v AF [2007] EWHC 651 (Admin) (leave given on 17 May 2007) and the decisions are pending. See also Hardiman‑McCartney, "Controlling Control Orders: Article 5 ECHR and the Prevention of Terrorism Act 2005", (2007) 66 Cambridge Law Journal 6. ↑

511. See eg M v Secretary of State for the Home Department [2004] 2 All ER 863 at 868 [13], 873 [34]. ↑

512. 165 L Ed 2d 723 (2006). ↑

513. Hamdan v Rumsfeld 165 L Ed 2d 723 at 779 (2006) per Stevens J (joined by Souter, Ginsburg and Breyer JJ), citing Taft, "The Law of Armed Conflict After 9/11: Some Salient Features", (2003) 28 Yale Journal of International Law 319 at 322. ↑

514. See International Covenant on Civil and Political Rights ("the ICCPR"), Arts 9, 14(1). The ICCPR entered into force generally on 23 March 1976 in accordance with Art 49 and entered into force in Australia on 13 November 1980: [1980] ATS 23. Compare ECHR, Arts 5, 6; American Convention on Human Rights, Arts 7, 8; African (Banjul) Charter on Human and People's Rights, Arts 6, 7; Universal Declaration of Human Rights, Art 10; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at 89-92 [140]‑[152]. ↑

515. ICCPR, Art 17. ↑

516. ICCPR, Arts 19, 22. ↑

517. ICCPR, Art 12. ↑

518. ICCPR, Art 14. ↑

519. See Jumbunna (1908) 6 CLR 309 at 363; Zachariassen (1917) 24 CLR 166 at 181; Polites (1945) 70 CLR 60 at 69, 74, 75, 77-78, 79. See also Al-Kateb (2004) 219 CLR 562 at 617‑630 [152]‑[193]; above at [208]. ↑

520. Potter (1908) 7 CLR 277 at 304; Coco (1994) 179 CLR 427 at 437, 446; Daniels Corporation (2002) 213 CLR 543 at 553 [11]; Plaintiff S157/2002 (2003) 211 CLR 476 at 492 [30]; Al-Kateb (2004) 219 CLR 562 at 577 [19]-[20], 643 [241]. ↑

521. (2004) 219 CLR 562 at 577 [20]. ↑

522. See the Code, s 104.5(3). ↑

523. ICCPR, Art 14(1). See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 363‑364 [83]-[84], 373 [116]. ↑

524. See Mohamed v President of the Republic of South Africa 2001 (3) SA 893 at 921 [68]; Rasul v Bush 542 US 466 (2004); Hamdan v Rumsfeld 165 L Ed 2d 723 (2006); Beit Sourik Village Council v Government of Israel 43 ILM 1009 at 1128 [86] (2004) per Barak P (Mazza VP and Cheshin J concurring); cf Communist Party Case (1951) 83 CLR 1 at 141; Re Aird (2004) 220 CLR 308 at 345-346 [115]-[117]. ↑

525. See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-658; Austin v Commonwealth (2003) 215 CLR 185 at 291‑293 [252]‑[257]; Al‑Kateb (2004) 219 CLR 562 at 617‑630 [152]‑[193]. ↑

526. Especially by way of contrast with Dennis v United States 341 US 494 (1951). See at 587‑588 per Douglas J (diss). ↑

527. Reasons of Gummow and Crennan JJ at [61]. ↑

528. See [2007] HCATrans 076 at 8484-8487, 10080-10088, 10799-10884; reasons of Gummow and Crennan JJ at [139]-[140]. ↑

529. Reasons of Callinan J at [530]‑[533], [582]-[585], [589]. ↑

530. Including the Bank Nationalisation Case (1948) 76 CLR 1 at 185. ↑

531. The first defendant, the Federal Magistrate, filed a submitting appearance and has taken no active part in the litigation. ↑

532. r 27.08.1. ↑

533. (1951) 83 CLR 1 at 196. ↑

534. "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

...

(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth". ↑

535. Power with respect to "[m]atters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law". ↑

536. Power with respect to "[e]xternal affairs". ↑

537. Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 191. ↑

538. s 104.4(1)(d). ↑

539. Further Amended Special Case, par 6. ↑

540. Further Amended Special Case, par 11(a). ↑

541. Further Amended Special Case, pars 25, 26. ↑

542. (1951) 83 CLR 1. ↑

543. (1952) 87 CLR 177. ↑

544. Carl von Clausewitz, On War, (1832) (J J Graham translation as revised and edited by F N Maude, 1908; Rapoport (ed) 1968) at 119. ↑

545. The Oxford English Dictionary, 2nd ed (1989), vol 17 at 820. ↑

546. 2nd ed (1989), vol 17 at 821. ↑

547. 2nd ed (1989), vol 17 at 821, "terrorism". ↑

548. 2nd ed (1989), vol 17 at 821, "terrorist". ↑

549. The Oxford English Dictionary, 2nd ed (1989), vol 8 at 8. ↑

550. (1965) 114 CLR 1 at 7. ↑

551. Stenhouse v Coleman (1944) 69 CLR 457 at 471 per Dixon J. ↑

552. (1944) 69 CLR 457 at 471. ↑

553. (1944) 69 CLR 457 at 471. ↑

554. (1951) 83 CLR 1 at 9‑10. ↑

555. (1951) 83 CLR 1 at 191. ↑

556. (1951) 83 CLR 1 at 198 (emphasis added). ↑

557. (1951) 83 CLR 1 at 201. ↑

558. (1951) 83 CLR 1 at 201. ↑

559. (1951) 83 CLR 1 at 202. ↑

560. (1951) 83 CLR 1 at 202. ↑

561. (1951) 83 CLR 1 at 194‑195. ↑

562. (1915) 20 CLR 299; [1915] VLR 476. ↑

563. [1942] ALR 359. ↑

564. (1947) 75 CLR 94 at 102‑104. ↑

565. (1949) 79 CLR 43 at 83, 84. ↑

566. (1951) 83 CLR 1 at 196. ↑

567. (1951) 83 CLR 1 at 197. ↑

568. (1916) 21 CLR 433 at 440. ↑

569. (1951) 83 CLR 1 at 202 (emphasis added). ↑

570. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 195. ↑

571. s 104.4(1)(d). ↑

572. (1944) 69 CLR 457 at 471. ↑

573. Terrorism (Commonwealth Powers) Act 2003 (Vic), s 3 definition of "express amendment". ↑

574. (1956) 94 CLR 254. ↑

575. (1956) 94 CLR 254 at 273. ↑

576. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165 per Dixon J. ↑

577. Barrett (1945) 70 CLR 141 at 167 per Dixon J. ↑

578. R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 18 per Aickin J. ↑

579. (1957) 100 CLR 277 at 304‑305. ↑

580. R v Davison (1954) 90 CLR 353 at 381 per Kitto J. ↑

581. (1954) 90 CLR 353 at 381. ↑

582. (1954) 90 CLR 353 at 381‑382. ↑

583. Compare, for example, Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ; Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442 per Griffith CJ; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 281‑282 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267 per Deane, Dawson, Gaudron and McHugh JJ. ↑

584. R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J. ↑

585. (1909) 8 CLR 330 at 357. ↑

586. Tasmanian Breweries (1970) 123 CLR 361 at 374 per Kitto J. ↑

587. (1970) 123 CLR 361 at 374. ↑

588. (1970) 123 CLR 361 at 374‑375. ↑

589. Campbell, "The Choice between Judicial and Administrative Tribunals and the Separation of Powers", (1981) 12 Federal Law Review 24 at 30‑31. ↑

590. (1953) 87 CLR 144. ↑

591. (1953) 87 CLR 144 at 150. ↑

592. (1957) 100 CLR 312. ↑

593. (1957) 100 CLR 312 at 317 per Dixon CJ, Williams, Kitto and Taylor JJ. ↑

594. (1945) 70 CLR 141 at 166‑169. ↑

595. (1955) 91 CLR 529. ↑

596. (1976) 135 CLR 194. ↑

597. Conciliation and Arbitration Act 1904 (Cth), s 171C(2), as inserted in the principal Act by the Conciliation and Arbitration (Organizations) Act 1974 (Cth). ↑

598. (1976) 135 CLR 194 at 215‑216. ↑

599. (1972) 127 CLR 588. ↑

600. R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 18 per Aickin J. ↑

601. [2007] HCATrans 076 at 11295. ↑

602. (1976) 135 CLR 194 at 216. ↑

603. (1957) 100 CLR 312 at 317. ↑

604. For example, Cominos v Cominos (1972) 127 CLR 588 at 608. ↑

605. R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 291 per Dixon CJ. ↑

606. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. ↑

607. Tasmanian Breweries (1970) 123 CLR 361 at 374 per Kitto J. ↑

608. Wyong Shire Council v Shirt (1980) 146 CLR 40. ↑

609. Cominos v Cominos (1972) 127 CLR 588. ↑

610. Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 at 90 per Fullagar J. ↑

611. Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 54‑56 per Williams J. ↑

612. R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 at 383 per Kitto J. ↑

613. Fardon v Attorney-General (Qld) (2004) 223 CLR 575. ↑

614. R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 at 383 per Kitto J. ↑

615. Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597 [34] per McHugh J. ↑

616. s 104.14(7)(a). ↑

617. s 104.4(1)(c). ↑

618. s 104.4(1)(d). ↑

619. cf In re Naylor Benzon Mining Co Ltd [1950] Ch 567 at 575. ↑

620. Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation (1949) 78 CLR 47 at 56. ↑

621. (2004) 220 CLR 181 at 199‑200 [39]. ↑

622. 17 US 159 (1819). See The Commonwealth and the Postmaster‑General v The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457 at 469. ↑

623. Davison (1954) 90 CLR 353 at 381, 382 per Kitto J, citing Chambers's Encyclopaedia, new ed (1950), vol 11 at 153‑155. ↑

624. R v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 at 216. ↑

625. R v Spicer; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312 at 317. ↑

626. (1971) 127 CLR 106 at 134‑135 per Windeyer J. See also Leach v The Queen (2007) 81 ALJR 598; 232 ALR 325. ↑

627. (1951) 83 CLR 1 at 272. ↑

628. cf Ewing and Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain 1914‑1945, (2000) at 87. ↑

629. Wishart v Fraser (1941) 64 CLR 470 at 484. ↑

630. (1915) 20 CLR 299. ↑

631. [1942] ALR 359. ↑

632. (1947) 75 CLR 94. ↑

633. (1941) 64 CLR 470. ↑

634. Wishart v Fraser (1941) 64 CLR 470 at 484‑485. ↑

635. Marbury v Madison 5 US 87 at 111 (1803). ↑

636. [2005] 2 AC 68. ↑

637. [2005] 2 AC 68 at 137 [118] per Lord Hope of Craighead. ↑

638. [2005] 2 AC 68 at 137 [116] per Lord Hope of Craighead. ↑

639. cf Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 133. ↑

640. Kable (1996) 189 CLR 51 at 134. ↑

641. RSC 1985, c C-46. The application of the relevant provisions has not been extended beyond a sunset date in 2007 fixed by the legislation. ↑

642. Criminal Code (Can), s 83.3(1) and (2) (emphasis added). ↑

643. Criminal Code (Can), s 83.3(8). ↑

644. (2001) 208 CLR 199. ↑

645. (2001) 208 CLR 199 at 231 [59]. ↑

646. eg Bail Act 1977 (Vic), s 8; Supreme Court Act 1986 (Vic), s 37(1); see also Evidence Act 1995 (Cth), s 75. ↑

647. Section 75(v) of the Constitution provides:

"In all matters:

...

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction." ↑

648. Paragraph 2 of the Special Case is as follows:

"In this Special Case, unless otherwise expressly stated it is agreed by the parties that:

(a) any statements stated in paragraphs 3 to 47 to have been made were made or were likely to have been made as stated or alleged but there is no agreement between the parties as to the truth of the matters stated; and

(b) any documents referred to in paragraphs 3 to 47 were or were likely to have been published as stated or alleged but there is no agreement between the parties as to the truth of the matters contained in the documents." ↑

649. See the discussion by Latham CJ in the Communist Party Case of the possibility of different judicial perspectives on the Australian Communist Party and its connexion with branches of the Party elsewhere: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 147-148. ↑

650. Section 15AB:

"Use of extrinsic material in the interpretation of an Act

(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

…

(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

…

(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage." ↑

651. See Evidence Act 1995 (Cth), s 159, which provides:

"A document that purports:

(a) to be published by the Australian Statistician; and

(b) to contain statistics or abstracts compiled and analysed by the Australian Statistician under the Census and Statistics Act 1905;

is evidence that those statistics or abstracts were compiled and analysed by the Australian Statistician under that Act." ↑

652. (1978) 140 CLR 120. ↑

653. (1978) 140 CLR 120 at 189. For an example of the general information, see at 184. ↑

654. (1952) 85 CLR 488. ↑

655. (1952) 85 CLR 488 at 507 per Dixon, McTiernan and Fullagar JJ. ↑

656. (1980) 145 CLR 266. ↑

657. (1980) 145 CLR 266 at 293. ↑

658. (1980) 145 CLR 266 at 296-298. ↑

659. (2002) 208 CLR 460. ↑

660. (2002) 208 CLR 460 at 513-514 [168]-[169]. ↑

661. (2002) 208 CLR 460 at 478 [63], 481 [69]. ↑

662. (2004) 216 CLR 515. ↑

663. (1995) 182 CLR 609. ↑

664. (2004) 216 CLR 515 at 590 [217]. ↑

665. Australian Communist Party v The Commonwealth (1951) 83 CLR 1. ↑

666. (1951) 83 CLR 1 at 133-134. ↑

667. For example, the sealing off of Berlin in 1948 necessitating the Berlin airlift and the continuing occupation of Eastern Europe. ↑

668. Some examples include the horrors of the Gulags, the scale of the political murders during the reign of Stalin and the 1940 Katyn massacre of Polish military officers. The extent of Soviet penetration of western agencies, including, for example, by the "Cambridge Spy Ring" consisting of Kim Philby, Donald Duart Maclean, Guy Burgess and Anthony Blunt, did not become apparent until well after the Iron Curtain had fallen. ↑

669. (1951) 83 CLR 1 at 26-28 (arguendo). ↑

670. See South Australia v The Commonwealth ("the Uniform Tax Case No 1") (1942) 65 CLR 373 at 432 per Latham CJ, 453 per McTiernan J. ↑

671. (1951) 83 CLR 1 at 6-10. ↑

672. (1951) 83 CLR 1 at 244-245, cf at 265-266 per Fullagar J. ↑

673. (1951) 83 CLR 1 at 191. See also at 278 per Kitto J. ↑

674. (1951) 83 CLR 1 at 196-197. See also at 208 per McTiernan J. ↑

675. s 102.7(1) of the Code. ↑

676. R v Thomas (2006) 163 A Crim R 567; R v Thomas (No 2) [2006] VSCA 166. ↑

677. ASIO, Report to Parliament 2001-2002 at 15. ↑

678. ASIO, Report to Parliament 2002-2003 at 16. ↑

679. ASIO, Report to Parliament 2004-2005 at 15. ↑

680. (1940) 66 CLR 344 at 363. ↑

681. The proceedings here are final as to prerogative relief but the ICO remains open for confirmation or otherwise. ↑

682. (1940) 66 CLR 344 at 363-364. ↑

683. (1940) 66 CLR 344 at 364. ↑

684. cf Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196-197 per Dixon J. ↑

685. [2006] HCATrans 661 at 4925-4950; [2007] HCATrans 078 at 16130-16134. ↑

686. "Interview With Bin Ladin", Time Magazine, 11 January 1999. ↑

687. ASIO, Report to Parliament 2002-2003 at 13. ↑

688. Australia, Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia, (2004) at 71. ↑

689. s 51(vi). ↑

690. s 51(xxix). ↑

691. s 51(xxxvii). ↑

692. s 51(xxxix). ↑

693. Davis v The Commonwealth (1988) 166 CLR 79. ↑

694. s 100.1(1). ↑

695. Div 101. ↑

696. s 102.1. See also s 102.1A, which provides for review by a Parliamentary Joint Committee of security sections of the Commonwealth Executive. ↑

697. s 102.2. ↑

698. ss 102.4, 102.5. ↑

699. s 102.6. ↑

700. s 102.7. ↑

701. s 102.8. ↑

702. Div 103. ↑

703. Section 104.5(3) provides:

"The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following:

(a) a prohibition or restriction on the person being at specified areas or places;

(b) a prohibition or restriction on the person leaving Australia;

(c) a requirement that the person remain at specified premises between specified times each day, or on specified days;

(d) a requirement that the person wear a tracking device;

(e) a prohibition or restriction on the person communicating or associating with specified individuals;

(f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the Internet);

(g) a prohibition or restriction on the person possessing or using specified articles or substances;

(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);

(i) a requirement that the person report to specified persons at specified times and places;

(j) a requirement that the person allow himself or herself to be photographed;

(k) a requirement that the person allow impressions of his or her fingerprints to be taken;

(l) a requirement that the person participate in specified counselling or education." ↑

704. So too may a person the subject of an order: see ss 104.18-104.26. ↑

705. Div 105. ↑

706. s 104.18. ↑

707. ss 104.19, 104.23. ↑

708. See also s 104.24. ↑

709. s 104.4(1)(c). ↑

710. s 104.4(1)(d). ↑

711. s 104.28A(2). This includes for the purpose of s 75 of the Evidence Act 1995 (Cth). ↑

712. See relevantly Federal Court of Australia Act 1976 (Cth), s 14(2), s 24(1)(a), s 24(1)(d) and s 25(1). ↑

713. (1951) 83 CLR 1 at 202. ↑

714. (1951) 83 CLR 1 at 194-195. ↑

715. (1951) 83 CLR 1 at 262-263. ↑

716. (1951) 83 CLR 1 at 210. ↑

717. (1951) 83 CLR 1 at 223. ↑

718. (1951) 83 CLR 1 at 225. ↑

719. (1951) 83 CLR 1 at 253. ↑

720. Reasons of Gummow and Crennan JJ at [99]-[103]. ↑

721. (1951) 83 CLR 1 at 194-196 per Dixon J. ↑

722. Chisholm (ed), Who's Who In Australia, 13th ed (1947) at 505-506. No other judge of the Court until then, or subsequently had or has held such a broad and intimate knowledge and experience of public affairs, intelligence and geopolitics. ↑

723. (1951) 83 CLR 1 at 142, 155-156. ↑

724. Reasons of Gummow and Crennan JJ at [52]-[59]. ↑

725. (2004) 223 CLR 575. ↑

726. Golden Eagle International Trading Pty Ltd v Zhang (2007) 81 ALJR 919 at 921 [4] per Gummow, Callinan and Crennan JJ; 234 ALR 131 at 132-133. ↑

727. (2001) 202 CLR 439 at 454-455 [36]-[37] per Gleeson CJ, Gummow and Callinan JJ. ↑

728. The reference of power to the Commonwealth by the Victorian Parliament was made by s 4 of the Terrorism (Commonwealth Powers) Act 2003 (Vic). ↑

729. s 51(xxxvii) of the Commonwealth Constitution. ↑

730. See Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 27 January 1898 at 215-225. ↑

731. Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 27 January 1898 at 218. ↑

732. Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 27 January 1898 at 219. In a similar vein, Mr Glynn said at 225:

"But we are still in this dilemma: That the state might, by referring the matter to the state Parliament, deprive itself of the right of repeal, and thus take away the general power of legislation from the state Parliament. As I understand, a state Parliament cannot at present abrogate its own powers. It might pass a particular Act or it might repeal an Act, but here the Parliament of the state is giving away some power without the consent of the people of the state. We are giving power to the state Parliament to give away their sovereign powers without the consent of their people." ↑

733. At [6]-[9]. ↑

734. At [139]-[148]. ↑

735. (1951) 83 CLR 1. ↑

736. At [583]-[590]. ↑

737. At [534]-[553]. ↑

738. This is a modification of the division suggested by Selway, "The Use of History and Other Facts in the Reasoning of the High Court of Australia", (2001) 20 University of Tasmania Law Review 129 at 131-132. See also Davis, "An Approach to Problems of Evidence in the Administrative Process", (1942) 55 Harvard Law Review 364 at 402-403 and Davis, "Judicial Notice", (1955) 55 Columbia Law Review 945 at 952. ↑

739. Breen v Sneddon (1961) 106 CLR 406 at 411. ↑

740. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 222 per Williams J. ↑

741. Breen v Sneddon (1961) 106 CLR 406 at 411. See [632]. ↑

742. It should be noted that while various matters of fact have been agreed by the parties in the Further Amended Special Case, supported by a substantial quantity of documents, it is far from clear how much of that material was before the first defendant. ↑

743. At [523]. See also Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 511 [164]. The proposition was there enunciated with regard to facts in the fifth category. ↑

744. For example, Read v Bishop of Lincoln [1892] AC 644 at 653. ↑

745. In this respect Ward v State of Western Australia (1998) 159 ALR 483 at 498, per Lee J, is too wide. An instance of behaviour not to be followed is R v Bartleman (1984) 12 DLR (4th) 73 at 77; see Ogilvie (1986) 64 Canadian Bar Review 183 at 194-200. ↑

746. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196. ↑

747. (1951) 83 CLR 1 at 196. ↑

748. (1944) 69 CLR 457 at 469. See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 256 per Fullagar J. ↑

749. (1951) 83 CLR 1 at 225. ↑

750. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 144-145, 149, 151 per Latham CJ and 256 per Fullagar J; Wilcox Mofflin Ltd v State of New South Wales (1952) 85 CLR 488 at 507 per Dixon, McTiernan and Fullagar JJ; Hughes and Vale Pty Ltd v The State of New South Wales (No 1) (1954) 93 CLR 1 at 34 per Lord Morton of Henryton; [1955] AC 241 at 308; Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 293 per Barwick CJ, 302 per Gibbs and Wilson JJ. ↑

751. Gerhardy v Brown (1985) 159 CLR 70 at 142. The expression "validity and scope" encompasses the constitutional validity of a statutory law (category two), the scope (i.e. the construction) of a statutory law (category three) and the scope (i.e. the construction) of a constitutional statutory law (category four). ↑

752. McEldowney v Forde [1971] AC 632 at 661 per Lord Diplock; South Australia v Tanner (1989) 166 CLR 161 at 179 per Brennan J. Cf Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 261 per Fullagar J. ↑

753. South Australia v Tanner (1989) 166 CLR 161 at 179 per Brennan J. ↑

754. South Australia v Tanner (1989) 166 CLR 161 at 179. ↑

755. Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 at 81-82 [47]-[48] per Branson, Hely and Selway JJ. ↑

756. D'Emden v Pedder (1904) 1 CLR 91 at 117 per Griffith CJ. ↑

757. Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127 at 165 per Dixon CJ, McTiernan and Webb JJ. ↑

758. Sue v Hill (1999) 199 CLR 462 at 484 [38] per Gleeson CJ, Gummow and Hayne JJ. ↑

759. Breen v Sneddon (1961) 106 CLR 406 at 411 per Dixon CJ. ↑

760. In Levy v Victoria (1997) 189 CLR 579 at 598 Brennan CJ spoke about this only as "possibly" being the case. ↑

761. Gerhardy v Brown (1985) 159 CLR 70 at 88 per Gibbs CJ. See also Wilcox Mofflin Ltd v State of New South Wales (1952) 85 CLR 488 at 507 per Dixon, McTiernan and Fullagar JJ ("general knowledge and experience of Australian affairs"). And for Canada, see Attorney-General for Alberta v Attorney-General for Canada [1939] AC 117 at 130 per Lord Maugham LC ("the Court must take into account any public general knowledge of which the Court would take judicial notice"). ↑

762. As Callinan J pointed out in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 511-512 [165]. ↑

763. Wilcox Mofflin Ltd v State of New South Wales (1952) 85 CLR 488 at 507 per Dixon, McTiernan and Fullagar JJ. ↑

764. Sportsodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 at 81 [48] per Branson, Hely and Selway JJ. ↑

765. This proposition, and some of the authorities discussed in this judgment, were relied on by the Solicitor-General. The plaintiff did not respond to the Solicitor-General's submission on this point. ↑

766. Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 227. ↑

767. Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280 at 296. ↑

768. Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280 at 292, quoted with approval by Brennan J in Gerhardy v Brown (1985) 159 CLR 70 at 141-142. ↑

769. (1954) 91 CLR 136. ↑

770. (1947) 75 CLR 445 at 468, 469. ↑

771. (1947) 74 CLR 400. ↑

772. Griffin v Constantine (1954) 91 CLR 136 at 140 and 142 per Kitto J. ↑

773. Sloan v Pollard (1947) 75 CLR 445 at 450; see also at 469 per Dixon J. ↑

774. Jenkins v The Commonwealth (1947) 74 CLR 400 at 402 per Williams J. ↑

775. Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280 at 292. ↑

776. Breen v Sneddon (1961) 106 CLR 406 at 411. ↑

777. North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 622. ↑

778. (1985) 159 CLR 70 at 141-142. In Levy v Victoria (1997) 189 CLR 579 at 598 Brennan CJ spoke more tentatively: "[C]onstitutional facts could ... be ascertained by the stating of a case, by resort to information publicly available or, possibly, by the tendering of evidence." ↑

779. This is supported by his reference to the "legislative will" not being surrendered to the litigants. ↑

780. (1961) 106 CLR 406 at 411. ↑

781. At [632]. ↑

782. (1959) 102 CLR 280 at 292. ↑

783. Gerhardy v Brown (1985) 159 CLR 70 at 142. ↑

784. Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 479 [65] per McHugh J; Gerhardy v Brown (1985) 159 CLR 70 at 141-142. As just indicated, Gerhardy v Brown was itself a category three case. ↑

785. Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 479 [65] per McHugh J. ↑

786. Prentis v Atlantic Coast Line Co 211 US 210 at 227 (1908) per Holmes J; Chastleton Corp v Sinclair 264 US 543 at 548 (1924) per Holmes J. See also Lewis v Rucker (1761) 2 Burr 1167 at 1172 [97 ER 769 at 772] per Lord Mansfield CJ. ↑

787. North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 622. ↑

788. (2002) 208 CLR 460 at 511 [164]. ↑

789. (1985) 159 CLR 70 at 141-142. ↑

790. Strayer, The Canadian Constitution and the Courts, 3rd ed (1988) at 292, quoted in R v Bonin (1989) 47 CCC (3d) 230 at 248. ↑

791. Gerhardy v Brown (1985) 159 CLR 70 at 142. ↑

792. Kenny, "Constitutional Fact Ascertainment", (1990) 1 Public Law Review 134 at 159. ↑

793. It is relevant to bear in mind the cautious approach advocated by Callinan J in relation to category five facts: Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 510-513 [162]-[167]. ↑

794. (1985) 159 CLR 70 at 142. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, a case concerning facts within the fifth category, Callinan J at 512 [165] said of the general facts of history ascertainable from the accepted writings of serious historians that it "would only be if a very large measure of agreement could be obtained and, I would suggest, from the parties themselves, as to what are accepted writings and who are serious historians that the court would be entitled to resort to them". (emphasis in original) ↑

795. At [526]. ↑

796. At [645]-[646]. ↑

797. North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 622: see [633]. ↑

798. See s 94(1) of the Australian Security Intelligence Organisation Act 1979 (Cth). ↑

799. See Dixon J's tests in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196, quoted above at [619]. ↑

800. See [645]-[646] above. ↑

801. At [71]-[79] and [94]-[126]. ↑

802. At [595]-[600]. ↑

803. At [10]-[31]. ↑

(2004) 223 CLR 575