Thomas v Mowbray

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

JOSEPH TERRENCE THOMAS  PLAINTIFF

AND

GRAHAM MOWBRAY, FEDERAL MAGISTRATE & ORS              DEFENDANTS

Thomas v Mowbray [2007] HCA 33
2 August 2007
M119/2006

ORDER

The questions stated in the further amended special case filed on 15 February 2007 be answered as follows:

(1)

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

A.Subdivision B of Division 104 is valid; otherwise inappropriate to answer.

(2)

Q.Is Division 104 of the Criminal Code invalid because in so far as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?

A.Subdivision B of Division 104 is valid; otherwise inappropriate to answer.

(3)

Q.Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?

A.Subdivision B of Division 104 is valid; otherwise inappropriate to answer.

(4)

Q.Who should pay the costs of the special case?

A.The plaintiff should pay the costs of the Commonwealth of the special case.

Representation

R Merkel QC and S G E McLeish and K L Walker for the plaintiff (instructed by Robert Stary & Associates)

Submitting appearance for the first defendant

T M Howe for the second defendant (instructed by Australian Government Solicitor)

D M J Bennett QC, Solicitor-General of the Commonwealth and H C Burmester QC with T M Howe, S P Donaghue and G J D del Villar for the third defendant (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

C J Kourakis QC, Solicitor-General for the State of South Australia with B C Wells and S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Thomas v Mowbray

Constitutional law (Cth) – Div 104 of the Criminal Code (Cth) confers power on Ch III courts to make interim control orders imposing obligations, prohibitions and restrictions upon an individual for the purpose of protecting the public from a terrorist act – The plaintiff is subject to an interim control order made by the first defendant, Mowbray FM, at the application of the second defendant, an officer of the Australian Federal Police – Whether the interim control order was validly made against the plaintiff.

Constitutional law (Cth) – Legislative power – Defence – Whether Div 104 is a law with respect to defence – Whether the defence power is limited to defence against external threats – Whether the defence power is limited to defence of the Commonwealth and the several States as bodies politic – Whether the defence power extends to defence against non-state actors – Relevance of purposive power.

Constitutional law (Cth) – Legislative power – External affairs – Whether Div 104 is a law with respect to external affairs – Relevance of relations with foreign countries – Relevance of definition of "the public" in Div 104 including the public of a foreign country – Whether Div 104 concerns a "matter or thing" external to Australia – Whether Div 104 implements a treaty obligation.

Constitutional law (Cth) – Legislative power – Matters referred by the Parliament of a State – Whether Div 104 is a law supported by the Terrorism (Commonwealth Powers) Act 2003 (Vic) – Presumption against alteration of common law rights.

Constitutional law (Cth) – Judicial power – Meaning of judicial power – Justiciable controversy –­ Whether Div 104 confers jurisdiction upon a Ch III court to make an interim control order – Whether power conferred by Div 104 gives rise to a justiciable controversy – Whether Div 104 concerns non-justiciable matters – Relevance of political matters – Meaning of "non-justiciable".

Constitutional law (Cth) – Judicial power – Meaning of judicial power – Whether interim control order proceedings involve the exercise of judicial power – Whether reposing the power to make an interim control order in a Ch III court imparts a judicial character to that power – Relevance of historical analogues to power conferred by Div 104.

Constitutional law (Cth) – Judicial power – Meaning of judicial power – Discretion – Whether the criteria in Div 104 impermissibly concern non-judicial matters – Whether the criteria in Div 104 repose a discretion in the court making an interim control order – Relevance of "legal criteria" – Relevance of "policy" – Meaning of "may" – Meaning of "reasonably necessary".

Constitutional law (Cth) – Judicial power – Meaning of judicial power – Future conduct – Whether Div 104 impermissibly confers power upon a Ch III court to make orders by reference to future risks or conduct rather than by reference to past conduct or existing rights and obligations.

Constitutional law (Cth) – Judicial power – Exercise of judicial power – Whether Div 104 compels the exercise of judicial power in a manner contrary to Ch III – Relevance of ex parte hearing – Relevance of standard of proof – Relevance of withholding evidence – Relevance of restrictions upon personal liberty – Relevance of historical analogues to power conferred by Div 104.

Evidence – Constitutional facts ­– Manner in which constitutional facts are to be established – Scope of judicial notice in constitutional cases.

Words and phrases – "constitutional fact", "control order", "defence", "external affairs", "judicial notice", "judicial power", "jurisdiction", "legal criteria", "matter", "naval and military defence", "non-justiciable", "policy", "procedural fairness", "reasonably appropriate and adapted", "reasonably necessary", "terrorism", "terrorist act".

Constitution, ss 51(vi), 51(xxix), 51(xxxii), 51(xxxvii), 68, 69, 71, 75, 76(ii), 76(iii), 77(i).
Acts Interpretation Act 1901 (Cth), s 15C.
Criminal Code (Cth), Div 104, s 100.8.
Terrorism (Commonwealth Powers) Act 2003 (Vic).
High Court Rules 2004, r 27.08.5.

1. GLEESON CJ.   The first defendant, a Federal Magistrate, on 27 August 2006 made an interim control order, under the Criminal Code (Cth) ("the Criminal Code"), against the plaintiff. The grounds on which the order was made were summarised in Sched 2 of the order as follows:

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

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

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

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

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

2. The interim control order was made under Pt 5.3, Div 104, subdiv B, s 104.4 of the Criminal Code. The order required the plaintiff to remain at his residence in Williamstown, Victoria, between midnight and 5 am each day unless he notified the Australian Federal Police of a change of address. It also required him to report to the police three times each week. It required him to submit to having his fingerprints taken. He was prohibited from leaving Australia without the permission of the police. He was prohibited from acquiring or manufacturing explosives, from communicating with certain named individuals, and from using certain communications technology. The order was made ex parte. In the ordinary course, a hearing in the Federal Magistrates Court would have taken place within a short time in order to decide whether to confirm or revoke or vary the order (s 104.5(1A), s 104.12, s 104.12A, s 104.14). In the events that have occurred, including the present challenge to the validity of the legislation, no such hearing has yet occurred. There are pending criminal proceedings against the plaintiff in the Supreme Court of Victoria, which may be part of the explanation for the delay in holding a hearing. It is not suggested by the parties that such delay has any bearing on the outcome of the proceedings in this Court. It is simply to be noted that the interim order has subsisted for a much longer time than is contemplated by the legislation.

3. The plaintiff commenced proceedings in this Court to quash the interim control order on the ground that Div 104 of the Criminal Code is wholly invalid. The grounds of asserted invalidity are reflected in the questions asked in a special case, which are as follows:

   1.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?

   2.Is Division 104 of the Criminal Code invalid because in so far as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?

   3.Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?

   4.Who should pay the costs of the special case? 

4. As to question 3, the legislation itself (s 100.3(1)) invokes the powers directly conferred on the Parliament by s 51 of the Constitution, which include the defence power (s 51(vi)) and the external affairs power (s 51(xxix)), and, in addition, the powers that the Commonwealth Parliament has when matters have been referred to it by the Parliaments of States under s 51(xxxvii). The Parliaments of the States, in order to support a national scheme of anti-terrorist legislation, have referred matters to the Parliament of the Commonwealth, and a number of States have intervened in these proceedings to contend that those references sustain the challenged legislation. The plaintiff argues that they do not. The Commonwealth argues, among other things, that it is unnecessary to rely on them.

5. All the powers referred to in s 51 are conferred subject to the Constitution and, therefore, subject to Ch III of the Constitution. This is the basis of questions 1 and 2, which appear to me to raise the principal issues in the case.

6. I agree with Gummow and Crennan JJ that, subject to questions 1 and 2, the legislation is supported by the defence power and the external affairs power. It is therefore unnecessary to deal with the arguments concerning the references of matters by the States. The extent, if any, to which other anti-terrorist provisions of the Criminal Code depend upon the references by the States does not arise for consideration. I also agree with the reasons given by Gummow and Crennan JJ for their conclusion as to question 3, and would add only some brief points on that topic.

7. The power to make laws with respect to 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, is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public.  Professor Greenwood wrote[1]:

   "Since the events of 11 September showed – if, indeed, the matter were ever in any doubt – that a terrorist organization operating outside the control of any state is capable of causing death and destruction on a scale comparable with that of regular military action by a state, it would be a strange formalism which regarded the right to take military action against those who caused or threatened such consequences as dependent upon whether their acts could somehow be imputed to a state.  ...  [T]he famous Caroline dispute, which is still regarded as the classical definition of the right of self-defence in international law, shows that an armed attack need not emanate from a state."

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

8. The object of Div 104 is to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act (s 104.1).  The definition of terrorist act (s 100.1) requires three elements for an action or threat of action to be a terrorist act.  First, the action must fall within a certain description, and must not be of a kind excluded by another description.  The inclusory aspect of the definition is that the action must (to put it briefly) cause death, serious physical harm, or serious damage to property, endanger life, create a serious risk to public health or safety, or seriously interfere with or disrupt certain vital systems.  The exclusory aspect of the definition excludes advocacy, protest, dissent or industrial action that is (to put it briefly) not intended to cause death or serious injury, or endanger life or public safety.  The second necessary element is that the action is done, or the threat of action is made, with the intention of advancing a political, religious or ideological cause.  The third necessary element is that the action is done, or the threat of action is made, with the intention of coercing, or influencing by intimidation (to put it briefly), a government, or of intimidating the public or a section of the public. 

9. A control order has the purpose of protecting the public from a terrorist act.  An interim control order, of the kind with which this case is concerned, may be requested only with the Attorney-General's written consent, and the person requesting the consent must either consider on reasonable grounds that the order sought would substantially assist in preventing a terrorist act or suspect on reasonable grounds that the person in relation to whom the order is sought has provided training to, or received training from, a listed terrorist organisation.  The court's power to make an interim control order is conditioned on two matters (s 104.4).  First, the court must be satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act, or that the person has provided training to, or received training from, a listed terrorist organisation.  Secondly, the court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.  Those words are important in the arguments relating to questions 1 and 2, and it will be necessary to come back to them.  On the question of power, however, they repeat the legislative object:  protecting the public from an apprehended terrorist act.  That is not only the purpose of the legislation generally, it is the purpose to which the control order must be directed, and with which it must conform.  This is in the specific context of prevention of a terrorist act, or dealing with a person who has trained with a terrorist organisation.  The level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances.  Assuming, for the moment, that the legislative criterion for the sufficiency of the connection between the control order and the protection of the public from a terrorist act is not otherwise invalid (a point to which I shall return), the existence of that criterion means that the legislation is supported by the defence power supplemented, where necessary, by the external affairs power.

10. I turn now to questions 1 and 2.  Since the arguments on these questions concern what may be described as separation of powers issues, it is convenient to begin with a passage from the joint judgment in the Boilermakers' Case[2]:

    "There are not a few subjects which may be dealt with administratively or submitted to the judicial power without offending against any constitutional precept arising from Chap III.  It may be too that the manner in which they have been traditionally treated or in which the legislature deals with them in the particular case will be decisive ...

    The point might be elaborated and many illustrations, particularly from the bankruptcy jurisdiction, might be given.  But enough has been said to show how absurd it is to speak as if the division of powers meant that the three organs of government were invested with separate powers which in all respects were mutually exclusive."

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

11. Their Honours went on to cite, as containing a statement of the "true position", a work by Professor Willoughby[3], who wrote:

    "Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested."

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

12. A familiar example of a governmental power that is sometimes exercised legislatively, sometimes administratively, and sometimes judicially is control of land use.  In New South Wales, for example, such controls are sometimes dealt with directly by an Act of Parliament or delegated legislation, sometimes administratively by a Minister or by local government authorities, and sometimes by the Land and Environment Court.  We are now accustomed to dissolution of marriage by court order, but there was a time when marriages were dissolved by statute.  Compensating victims of accident or crime could be done administratively or judicially.  In New Zealand, claims by accident victims, of a kind that for many years have formed a large part of the work of Australian courts, are dealt with by a no-fault compensation scheme outside the court system.  Many penalties are imposed administratively, although there is usually a capacity for judicial review or litigious contest.  Deciding whether a governmental power or function is best exercised administratively or judicially is a regular legislative exercise.  If, as in the present case, Parliament decides to confer a power on the judicial branch of government, this reflects a parliamentary intention that the power should be exercised judicially, and with the independence and impartiality which should characterise the judicial branch of government.

13. No one has argued that it is beyond the legislative capacity of any Australian Parliament, State or federal, to provide for the making of control orders where they are found to be necessary for the purpose of protecting the public from terrorist acts.  For the reasons already given, subject to questions 1 and 2, it is within the power of the federal Parliament to do so.  If it were only within the power of the State Parliaments, while no Ch III issue would arise, at least directly[4], it would still be possible to ask whether the power is peculiarly or distinctively either legislative, or executive, or judicial.  The essential nature of the power does not vary according to whether it is exercised by a State or federal Parliament, although the consequences may be different, and the manner in which powers have been traditionally treated by State, as well as federal, authorities may be significant.

    [4]cf Fardon v Attorney-General (Qld) (2004) 223 CLR 575.

14. It will be necessary to deal with an argument that the particular legislative conditions established by the Criminal Code for making a control order are such that control orders cannot be made by a Ch III court in the exercise of the judicial power of the Commonwealth. There is, however, an anterior question to be resolved, which is whether the essential nature of control orders is such that the power to make them cannot be conferred by the legislature upon the judicial branch of government for the reason that such orders are distinctively legislative or executive.

15. The plaintiff's written submissions contend that Div 104 confers non-judicial power on a federal court in that it confers upon the court the power to determine what legal rights and obligations should be created, rather than the power to resolve a dispute about existing rights and obligations by determining what those rights and obligations are, and the power to deprive a person of liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what that person has done.  It is said that, by reason of those characteristics of a control order, the governmental power that is exercised when such an order is made is peculiarly or distinctively legislative or executive, and therefore not a power that may be conferred upon the judiciary.  The power to restrict or interfere with a person's liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances.  It is not intrinsically a power that may be exercised only legislatively, or only administratively.  If it were otherwise, the federal Parliament would lack the capacity to confide an exercise of such power to the judicial branch of government.  In Fardon v Attorney-General (Qld)[5] the Court was concerned with State legislation which conferred on the Supreme Court of Queensland a power to detain in custody certain prisoners who had served their sentences.  The power of detention was "to ensure adequate protection of the community"[6] and a court was required to decide whether there was "an unacceptable risk that the prisoner will commit a serious sexual offence"[7].  McHugh J said[8]:

    "[W]hen determining an application under the Act, the Supreme Court is exercising judicial power. ... It is true that in form the Act does not require the Court to determine 'an actual or potential controversy as to existing rights or obligations'. But that does not mean that the Court is not exercising judicial power. The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. The powers exercised and orders made by the Court under this Act are of the same jurisprudential character as in those cases. The Court must first determine whether there is 'an unacceptable risk that the prisoner will commit a serious sexual offence'. That is a standard sufficiently precise to engage the exercise of State judicial power. Indeed, it would seem sufficiently precise to constitute a 'matter' that could be conferred on or invested in a court exercising federal jurisdiction."

    [5](2004) 223 CLR 575.

    [6]Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 3.

    [7]Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 13(2).

    [8](2004) 223 CLR 575 at 596-597 [34].

16. Those observations apply to the legislation in question in this case.  Two familiar examples of the judicial exercise of power to create new rights and obligations which may restrict a person's liberty are bail, and apprehended violence orders.  The restraints imposed on the plaintiff by the order made against him are similar to conditions commonly found in a bail order.  Of course, there are differences between bail and a control order, but the example of bail shows that imposition of restrictions of the kind imposed on the plaintiff is not foreign to judicial power.  Apprehended violence orders have many of the characteristics of control orders, including the fact they may restrain conduct that is not in itself unlawful.  For example, an apprehended violence order may forbid a person to approach another person, or to attend a certain place.  As a matter of history, apprehended violence orders have their origin in the ancient power of justices and judges to bind persons over to keep the peace.  Blackstone, in his Commentaries, wrote of what he called "preventive justice".  He said[9]:

    "This preventive justice consists in obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behaviour.  This requisition of sureties has been several times mentioned before, as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanours:  but there also it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment."

    [9]Blackstone, Commentaries on the Laws of England, (1769), Bk IV at 248.

17. These analogies are not exact, but the argument for the plaintiff is that the power involved in making anti-terrorist control orders is exclusively non-judicial and, in its nature, antithetical to the judicial function.  Put another way, the argument is that, even assuming it is within the power of the federal Parliament to legislate for such restraints upon the liberty of individuals, the power to make control orders cannot be given to judges.  The corollary appears to be that it can only be exercised by the executive branch of government.  The advantages, in terms of protecting human rights, of such a conclusion are not self-evident.  In Fardon[10], I indicated that the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided.  An argument, as a matter of policy, that legislation for anti-terrorist control orders ought to be subject to some qualification in aid of the human rights of people potentially subject to such orders is one thing.  An argument that the making of such orders should be regarded as totally excluded from the judicial function is another.  At all events, to return to the passage from the Boilermakers' Case cited earlier, powers relevantly similar to those given by Div 104 traditionally have been, and are, exercised by the judiciary.  They are not exclusively or distinctively administrative.  To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights.

    [10](2004) 223 CLR 575 at 586 [2].

18. Alternatively, it was argued that the restriction on liberty involved in the power to make a control order is penal or punitive in character, and the governmental power involved exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.  In a sense this is the reverse of the earlier argument, but with an added qualification:  according to this argument, only courts may impose restraints on liberty of the kind here involved, but they may do so only as an incident to deciding or punishing criminal guilt.  In Chu Kheng Lim v Minister for Immigration[11], it was said that it would be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody.  The reason given was that the involuntary detention of a citizen in custody by the state is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.  Exceptions were acknowledged.  Examples of executive detention pursuant to statutory authority include quarantine, and detention under mental health legislation[12].  It may be accepted that control orders may involve substantial deprivation of liberty, but we are not here concerned with detention in custody; and we are not concerned with executive detention.  We are concerned with preventive restraints on liberty by judicial order.  Fardon was an example of preventive detention in custody pursuant to judicial order.  Apprehended violence orders made by judicial officers also involve restrictions on liberty falling short of detention in custody.  It is not correct to say, as an absolute proposition, that, under our system of government, restraints on liberty, whether or not involving detention in custody, exist only as an incident of adjudging and punishing criminal guilt.  It is true that the circumstances under which restraints on liberty may be imposed by judicial order other than as an incident of adjudging and punishing criminal guilt are carefully confined, both by the Parliament and by the courts, but we are here dealing with a different argument.  The proposition on which the plaintiff's argument depends is too broad.

    [11]cf (1992) 176 CLR 1 at 28.

    [12]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.

19. A narrower argument for the plaintiff turns upon the Criminal Code's criteria for the making of a control order. This argument looks at the legal incidents of the power as expressed in the Criminal Code, and asserts that such power is antithetical to the judicial function and cannot be conferred on the federal judiciary consistently with Ch III. In particular, the argument points to the stipulation that a control order may be made only if the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. The court is required to make findings that may relate to whether one or more persons are contemplating a terrorist act, whether or not a person has skills, information or other resources that could be employed by the persons who are contemplating a terrorist act to achieve their purpose, and whether the subject of the proposed order has received terrorist training. The court must make inferences and predictions as to whether the skills, information or other resources of the subject of the proposed order are capable of facilitating the commission of the contemplated terrorist act, whether the persons planning a terrorist act are likely to be able to make use of those skills or other resources, and whether the making of a control order would substantially assist in preventing the terrorist act. The requirement that a court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality[13].  Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.

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

20. Much attention was given in argument to the expression "reasonably necessary".  That expression is commonly used both by judges and in legislation.  It is useful to consider examples, because they show the kinds of judgmental evaluation which are commonly undertaken in the judicial process.

21. A well-known example of judicial use of "reasonably necessary" is in the common law doctrine of restraint of trade.  In McEllistrim v Ballymacelligott Co-operative Agricultural and Dairy Society[14], Lord Birkenhead LC said:

    "A contract which is in restraint of trade cannot be enforced unless (a) it is reasonable as between the parties; (b) it is consistent with the interests of the public.

    ...

    My Lords, so much guidance has been given by this House in recent decisions to those whose duty it is to understand the criteria by which one tests the meaning of 'reasonableness between the parties', that little need be added upon this point.  The real test is, as your Lordships have so often pointed out, does the restriction exceed what is reasonably necessary for the protection of the covenantee?  To make the matter particular your Lordships have to reach a conclusion as to whether [the restriction] impose[s] upon the appellant a greater degree of restraint than the reasonable protection of the respondents requires."

    [14][1919] AC 548 at 562-563.

22. That passage has been adopted and applied by this Court in many cases, including Heron v Port Huon Fruitgrowers' Co-operative Association Ltd[15], and Buckley v Tutty[16].  It must be one of the most familiar passages in judicial statements of common law principle.  It uses "reasonably necessary", and explains what that means.  Translating it to the present context, the court has to consider whether the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires.  So familiar was the principle stated by the Lord Chancellor that when the United Kingdom Parliament, and later the Australian Parliament, legislated with respect to restrictive trade practices, they applied the concept of reasonable necessity of restrictions[17].  The Trade Practices Act 1974 (Cth) uses the concept of reasonable necessity in ss 44ZF, 51AB, 51AC, 65C, 65D, Pt X Div 6 s 10.29, Div 7 s 10.41, Div 9 s 10.52, and s 152DB. For example, in s 51AB, the court may consider what conditions are reasonably necessary for the protection of the legitimate interests of a particular corporation. In s 65C, the question is whether requirements are reasonably necessary to prevent or reduce risk of injury to any person.

    [15](1922) 30 CLR 315 at 323-324.

    [16](1971) 125 CLR 353 at 376.

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

23. The defence of lawful justification for inducing a breach of contract was summarised by Jordan CJ in Independent Oil Industries Ltd v The Shell Co of Australia Ltd[18].  He said that "an act which would in itself be wrongful as infringing some legal right of another person may be justified if shown to be no more than reasonably necessary for the protection of some actually existing superior legal right in the doer of the act".  This Court recently considered and applied that statement in Zhu v Treasurer of New South Wales[19].  In particular, it discussed what it referred to as "the 'reasonably necessary' test".  In doing so, it referred to an English decision[20] concerning s 21(1) of the Restrictive Trade Practices Act 1956 (UK) which was about whether restrictions were reasonably necessary to protect the public against injury.  There, Devlin J referred to an earlier decision of Buckley J[21], who interpreted "reasonably necessary or proper" in the Settled Land Act 1890 (UK) to include conduct which although not absolutely necessary was consistent with what a reasonable and prudent person would do.

    [18](1937) 37 SR (NSW) 394 at 415.

    [19](2004) 218 CLR 530 at 587-590 [161]-[171].

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

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

24. In Australian constitutional law, reasonable necessity has been adopted as a legal criterion of validity of legislation.  In North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW[22], Mason J said that regulation of interstate trade to protect the public from health risks would not contravene s 92 of the Constitution so long as the detriment to interstate trade was reasonably necessary to protect public health and safety. In Australian Capital Television Pty Ltd v The Commonwealth[23], Mason CJ said of restrictions on certain forms of communication that the court had to determine whether the restrictions were reasonably necessary to serve the public interest which the restrictions sought to serve.  In Levy v Victoria[24], Toohey and Gummow JJ expressed their conclusion by saying that there was no greater curtailment of the constitutional freedom of communication than was reasonably necessary to serve the public interest in the safety of citizens, and that the curtailment was reasonably capable of being seen as appropriate and adapted to that end.

    [22](1975) 134 CLR 559 at 615.

    [23](1992) 177 CLR 106 at 143.

    [24](1997) 189 CLR 579 at 614-615.

25. In the law of real property, the concept of reasonable necessity is familiar.  The grant of an easement carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment[25].  The Conveyancing Act 1919 (NSW) in s 88K provides that the court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. The expression was construed in 117 York Street Pty Ltd v Proprietors of Strata Plan No16123[26].

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

    [26](1998) 43 NSWLR 504.

26. In stating the powers of the legislature, courts have spoken in terms of reasonable necessity.  In Egan v Willis[27], Gaudron, Gummow and Hayne JJ referred to the established principle that the Legislative Council of New South Wales has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions.  The Privy Council, in Barton v Taylor[28], in 1886 said:  "Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority."

    [27](1998) 195 CLR 424 at 453-454 [48].

    [28](1886) 11 App Cas 197 at 203.

27. It is not difficult to see where Parliament found the language of s 104.4(1)(d) of the Criminal Code. The language is taken from a long line of decisions of this Court, and of English courts, and from local and foreign statutes[29].  Against this background of judicial and legislative usage it cannot plausibly be suggested that the standard of reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public is inherently too vague for use in judicial decision-making.

    [29]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.

28. Is there, nevertheless, something about the threat of terrorism, or the matters of inference and prediction involved in considering terrorist threats and control orders, that renders this subject non-justiciable, or in some other way inherently unsuited to be a subject of judicial decision?  What has been said above as to the variety of contexts in which courts have addressed issues of reasonable necessity, and of proportionality, seems to suggest otherwise.  Furthermore, predictions as to danger to the public, which are commonly made against a background of the work of police, prison officers, public health authorities, welfare authorities, and providers of health care, are regularly part of the business of courts.  In Veen v The Queen [No 2][30] this Court spoke of the role of protecting the public involved in sentencing.  The topic was considered in a different context in Fardon[31], where it was pointed out that the standard of an unacceptable risk of harm, used in the Queensland legislation there in question, had been used by this Court in M v M[32], a case about parental access to children.  Reference was earlier made to apprehended violence orders, and to the restraints on liberty which they may involve.  I am unable to accept that there is a qualitative difference between deciding whether an angry person poses an unacceptable risk to his or her family, or to the community or some section of the community, or whether a sexually dysfunctional man poses an unacceptable risk to women, and deciding whether someone who has been trained by terrorists poses an unacceptable risk to the public.  The possibility that the person will do what he or she has been trained to do, or will be used as a "resource" by others who have been so trained, is capable of judicial evaluation.  I do not accept that these issues are insusceptible of strictly judicial decision-making.

    [30](1988) 164 CLR 465.

    [31](2004) 223 CLR 575 at 593 [22], 606 [60], 657 [225].

    [32](1988) 166 CLR 69 at 78.

29. It was argued that the power conferred, or purportedly conferred, by Div 104 was not judicial because orders made by an issuing court were said not to be enforceable by that court.  In my view, the ordinary powers of Ch III courts to punish contempt are not excluded by Div 104.  The relevant principle is that stated in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW[33]:

    "When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so.  In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality."

    [33](1956) 94 CLR 554 at 560.

30. Finally, it was argued that, even if Div 104 confers judicial power, it purports to require that power to be exercised in a manner inconsistent with the essential character of a court or inconsistent with the nature of judicial power. This argument fails. We are here concerned with an interim control order which was made ex parte, pursuant to subdiv B, but, as has been pointed out, in the ordinary case a confirmation hearing would have been held before now. Applications for control orders are made in open court, subject to the power to close the court under the court's general statutory powers. The rules of evidence apply. The burden of proof is on the applicant. Prior to the confirmation hearing, the subject of a control order is given the documents that were provided to the Attorney-General for the purpose of seeking consent to the application for the interim order, together with any other details required to enable the person to respond (s 104.12A). The confirmation hearing involves evidence, cross-examination, and argument (s 104.14). The court has a discretion whether to revoke or vary or confirm the order (s 104.14). An appeal lies in accordance with the ordinary appellate process that governs the issuing court's decisions. The outcome of each case is to be determined on its individual merits. There is nothing to suggest that the issuing court is to act as a mere instrument of government policy. On the contrary, the evident purpose of conferring this function on a court is to submit control orders to the judicial process, with its essential commitment to impartiality and its focus on the justice of the individual case. In particular, the requirements of s 104.4, which include an obligation to take into account the impact of the order on the subject's personal circumstances, are plainly designed to avoid the kind of overkill that is sometimes involved in administrative decision-making. Giving attention to the particular circumstances of individual cases is a characteristic that sometimes distinguishes judicial from administrative action.

31. We are not concerned in this case with particular issues as to procedural fairness that could arise where, for example, particular information is not made available to the subject of a control order or his or her lawyers.  Issues of that kind, if they arise, will be decided in the light of the facts and circumstances of individual cases.  We are here concerned with a general challenge to the validity of Div 104.  That challenge should fail.

32. I would answer questions 1, 2 and 3 by holding that subdiv B of Div 104 is valid.  I would answer question 4:  "The plaintiff".

33. GUMMOW AND CRENNAN JJ. The plaintiff is subject to an interim control order made under Div 104 of the Criminal Code (Cth)[34] ("the Code") by the Federal Magistrates Court (Mowbray FM, the first defendant) on 27 August 2006.  The order was made upon the ex parte application of the second defendant, an officer of the Australian Federal Police ("the AFP").  In this Court, the Commonwealth is joined as the third defendant.  Evidence at the hearing of the ex parte application was presented on affidavit and by a sworn witness and submissions were made by counsel for the second defendant. 

    [34]The Criminal Code is contained in the Schedule of the Criminal Code Act 1995 (Cth). Division 104 is contained in Pt 5.3.

34. A hearing for the confirmation of the interim order has been adjourned by consent in the Federal Magistrates Court to await the outcome of the present proceeding in this Court.  However, the legislative scheme is that interim orders, having been made ex parte, should come as soon as practicable before the issuing court in an inter partes proceeding for confirmation, revocation or other disposition.

35. Part 5.3 of the Code is headed "Terrorism" and was introduced by the Criminal Code Amendment (Terrorism) Act 2003 (Cth) ("the 2003 Act"). It replaced Pt 5.3 in the form initially enacted by the Suppression of the Financing of Terrorism Act 2002 (Cth) ("the 2002 Act"). Division 104 is headed "Control orders" and was added to Pt 5.3 by the Anti-Terrorism Act (No 2) 2005 (Cth) ("the 2005 Act")[35].

    [35]Schedule 4, Pt 1, Item 24.

36. Before the Full Court is a Further Amended Special Case agreed by the parties pursuant to r 27.08 of the High Court Rules. The plaintiff seeks affirmative answers to questions asking whether Div 104[36] is invalid, whether for want of support by s 51 of the Constitution, or, even if so supported, for failure to observe the restraints imposed by Ch III upon the heads of legislative power in s 51.

    [36]More precisely, the 2005 Act, Sched 4, Pt 1, Item 24, which inserted Div 104 into the Code.

37. The Attorneys-General for New South Wales, South Australia and Western Australia intervened with submissions largely but not entirely consistent with those made by the Commonwealth.

38. Paragraphs 5 and 6 of the Special Case state:

    "The Plaintiff is and was at all material times an Australian citizen.

    In March 2001, the Plaintiff 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."

39. There is no challenge to the standing of the plaintiff.  The reasons given in Croome v Tasmania[37] and Re McBain; Ex parte Australian Catholic Bishops Conference[38] indicate that at least with respect to the interim control order provisions the plaintiff has standing in respect of a matter arising under the Constitution or involving its interpretation. As will appear, the interim control order made in respect of the plaintiff, whilst in force when this Special Case was placed before the Full Court, has a finite life. Nevertheless, the plaintiff's standing would not be lost were the control order to lapse. The restraints to which the plaintiff had been subjected during the life of the order would remain sufficient for him to retain standing to challenge the validity of the order.

    [37](1997) 191 CLR 119.

    [38](2002) 209 CLR 372.

40. A different situation is presented by the provisions for confirmation of interim orders.  These have yet to be applied to the plaintiff but the plaintiff seeks to establish that Div 104 as a whole is invalid.  It will be necessary to consider whether relief in such broad terms would be appropriate.

41. There is not before this Court any dispute as to whether, assuming the validity of Div 104, the Federal Magistrate acted within jurisdiction in making the interim control order or whether that order can or should be confirmed.

42. Much attention in submissions, written and oral, was devoted to criticising or supporting the making of the interim order on the evidence then presented to the Federal Magistrate.  However, save to the extent that this material may be indicative of constitutional facts underpinning the validity of the legislation, it is of limited utility for present purposes.

    "Terrorist act"

43. The object of Div 104 is stated in s 104.1 (which constitutes subdiv A) as being:

    "to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act".

44. What is a "terrorist act"? Section 100.1 of the Code contains various definitions of terms used in Pt 5.3. These include a lengthy definition of "terrorist act". This was introduced by the 2003 Act. A "terrorist act" is defined as "an action or threat of action" which has specified characteristics. The action must be done or the threat made with an intention answering two criteria. First, there must be the intention of "advancing a political, religious or ideological cause". Secondly, there must be an intention which is expressed in the alternative. The first alternative is "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". The second is "intimidating the public or a section of the public". The reference to "the public" is stated to include a reference to the public of a country other than Australia (s 100.1(4)(b)). The action which is committed or threatened also must answer one or more of six criteria listed in sub‑s (2) of s 100.1[39].  Action falls outside the definition if it be "advocacy, protest, dissent or industrial action" and is not intended to cause serious harm that is physical harm to a person, or a person's death, or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public (sub‑s (3)).

    [39]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)).

45. It will be necessary later in these reasons to consider further the definition of "terrorist act".  It is sufficient to note here that it is the political, religious or ideological motivation and the intention to intimidate governments or the public (ie elements of the body politic) which distinguishes the acts in question from acts in pursuit of private ends, which come within established offences against the person or property, or those relating to firearms or explosives. 

46. It should be said immediately that the outcome of this Special Case does not turn upon the validity of the definition of "terrorist act", as supported, for example, by s 51(vi) of the Constitution. What is at stake is the validity of substantive provisions which incorporate the definition, in particular Div 104 of the Code and the interim control order provisions of subdiv B thereof (ss 104.2‑104.5).

    Interim control orders

47. Subdivision B (ss 104.2‑104.5) of Div 104 is headed "Making an interim control order".  Sections 104.2 and 104.3 make detailed provision for the consent by the Attorney-General to the making by a senior member of the AFP of a "request" in relation to a person for "an interim control order" to be made by "an issuing court"[40]. The last expression is defined in s 100.1 as meaning the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court. The information upon which the senior AFP member relies must be sworn or affirmed by that person (s 104.3).

    [40]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.

48. Section 104.4 and s 104.5 are critical provisions. They contemplate, although they do not specify in terms, an ex parte procedure. The issuing court "may make" an interim control order in the terms specified in s 104.5, but only if the criteria specified in s 104.4 are satisfied. Among other matters, the order must set out a summary of the grounds on which the order is made (par (h) of s 104.5(1)) and must state that the order does not begin to be in force until it is served personally on the person to whom it relates (par (d)).

49. The obligations, prohibitions and restrictions that may be imposed upon a person by the order are specified in s 104.5(3). They include an obligation to permit the taking of photographs of the person, and prohibitions or restrictions upon the person being at specified areas or places, leaving Australia, communicating or associating with specified individuals, accessing or using specified forms of telecommunication, including the internet, carrying out specified activities in respect of the person's work or occupation, and possessing or using specified articles or substances, and also requirements to wear a tracking device, and to report to specified persons at specified times and places.

50. Subdivision D (ss 104.12‑104.17) is headed "Confirming an interim control order". An interim control order must specify a day, being as soon as practicable but at least 72 hours after the making of the order, on which the person the subject of the order may attend the court; the court may confirm the order (with or without variation), revoke it or declare it void (ss 104.5, 104.14). A confirmed control order must be in force for a specified period ending no more than 12 months after the day on which the interim control order was made, but successive control orders may be made in respect of the same person (s 104.16). Section 104.32 is a "Sunset provision"[41].

    [41]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."

51. Subdivision G (s 104.27) creates a criminal offence of contravening a control order.  But the Commonwealth correctly accepts that this supplements rather than displaces the contempt power enjoyed by the issuing courts as Ch III courts[42].

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

    The jurisdiction of issuing courts

52. Before proceeding further, several points now should be made respecting the jurisdiction of the issuing courts.

53. First, the provisions respecting issuing courts must be read with pars (a) and (b) of s 15C of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"):

    "Where a provision of an Act, whether expressly or by implication, authorizes a civil or criminal proceeding to be instituted in a particular court in relation to a matter:

    (a)that provision shall be deemed to vest that court with jurisdiction in that matter;

    (b)except so far as the contrary intention appears, the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject".

54. When s 104.4 is read with s 15C of the Interpretation Act, it answers (subject to a submission by the plaintiff respecting repugnancy to Ch III which is considered below) the description of a law made by the Parliament "defining" the jurisdiction of any federal court other than the High Court with respect to matters arising under a law made by the Parliament, within the meaning of ss 76(ii) and 77(i) of the Constitution[43].

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

55. Secondly, the vesting of jurisdiction provided for in par (a) of s 15C brings with it all the incidents of the exercise of jurisdiction by the federal court in question[44]. Those incidents include the selection of the judicial officer to hear any particular proceeding solely in accordance with the internal arrangements of the court. The exercise of jurisdiction necessarily includes, as the Commonwealth accepts, the ordinary appellate structure of the issuing court as well as that of this Court provided by s 73(ii) of the Constitution. Paragraph (b) of s 15C has the effect of removing from the investment of jurisdiction any limits to which any other jurisdiction of the federal court otherwise may be subject. That expansion is subjected by par (b) itself to the appearance of a contrary intention. No such intention appears in Div 104 of the Code.

    [44]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.

56. Thirdly, interim control order proceedings "are taken to be interlocutory proceedings for all purposes", including s 75 of the Evidence Act 1995 (Cth) (s 104.28A). Section 75 provides that, in interlocutory proceedings, the hearsay rule does not apply if evidence of the source of the hearsay evidence is adduced by the party leading it. The classification of interim control order proceedings as interlocutory for all purposes has a further, and broader, significance. Applications made ex parte are a species of interlocutory proceeding which attract well‑settled principles. One concerns the need for promptitude in making such applications and the serious consequence of delay. Another concerns the rigorous requirement for a full and frank disclosure of material facts; the subject is authoritatively discussed by Lindgren J in Hayden v Teplitzky[45].  Further, an interlocutory order is liable to be discharged if the party by or for whom the order was obtained publicly misrepresents its effect[46].

    [45](1997) 74 FCR 7 at 11‑12.

    [46]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.

57. Fourthly, there was no disagreement in the submissions on one aspect of the construction of s 104.4. This is cast in a form earlier described by Fullagar J in Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd ("the Associated Dominions Assurance Case")[47], when considering the winding‑up and judicial management provisions of the Life Insurance Act 1945 (Cth) ("the Life Insurance Act"), as first requiring the satisfaction of stipulated criteria, with an "ultimate discretion" not controlled by any of those criteria. Section 104.4(1), in that regard, uses the phrase "[t]he issuing court may make an order ... but only if ...". No party or intervener submitted that s 104.4(1) conferred a jurisdiction the exercise of which was imperative if the stipulated criteria were satisfied[48]. Rather, where, as here, the order is interlocutory and made on an ex parte application, there are strong considerations that "may" is not used in an imperative sense and is used to accommodate the discretionary considerations which generally attend the making of orders on ex parte applications. Further, with respect to statutes assented to after the commencement of s 33(2A) of the Interpretation Act[49] a provision that a court "may" do a particular act or thing reposes a discretion in the court.

    [47](1953) 89 CLR 78 at 90.

    [48]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].

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

58. The fifth point is one to which it will be necessary to return, for it is central to the submissions of the Commonwealth respecting validity.  It is sufficient at this stage to observe that remarks by Gaudron J in Sue v Hill[50] are in point.  Statutory criteria for curial decision may be expressed in broad terms but still be susceptible of application in the exercise of the judicial power of the Commonwealth. 

    [50](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].

59. Further, as Kitto J explained in R v Spicer; Ex parte Australian Builders' Labourers' Federation ("the Builders' Labourers' Case")[51]:

    "The reason for concluding in some such cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities."

    The second and third points made above respecting the nature and incidents of the jurisdiction of the issuing courts indicate the necessity for a strict adherence by the issuing courts to the standards which characterise judicial activities.  Contrary to the submissions by the plaintiff, the legislation does not stipulate observance of any lesser standards.

    [51](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].

    Division 104 and Ch III of the Constitution

60. We put to one side, at this stage, the submission that Div 104 is invalid for lack of support by any head of legislative power of the Parliament, and turn directly to consider Ch III of the Constitution.

61. As with many of the disputes concerning Ch III that have reached this Court, the issues presented in this case at bottom turn upon a view of the role of Ch III in the plan laid out in the Constitution for the development of a free and confident society. It has been well said that Ch III gives practical effect to the assumption of the rule of law upon which the Constitution depends for its efficacy[52].  But what does the rule of law require?  Hence much of the debate in submissions presented in the present case.

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

62. The submissions by the plaintiff respecting the judicial power of the Commonwealth were directed particularly to subdiv B of Div 104 and to the provisions for the making of interim control orders.  If subdiv B falls, then the provisions respecting confirmation of interim orders in subdiv D would lack the necessary substratum and would fall also.  However, if subdiv B is valid it may not necessarily follow that subdiv D also is valid.  That consideration should inform the extent of declaratory relief consequent upon a decision that subdiv B is valid.

63. One of the grounds upon which the plaintiff submits that Div 104 of the Code is invalid is that it confers on federal courts, being the issuing courts, non‑judicial power contrary to Ch III of the Constitution. A second ground is that, in so far as Div 104 does confer judicial power, it authorises the exercise of that power in a manner contrary to Ch III. We turn to consider the first ground.

    Non‑judicial power

64. Section 104.4 should be set out. It states:

    "(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."

65. The submissions by the plaintiff respecting the repugnancy of subdiv B to Ch III require close attention to the terms of s 104.4(1), in particular to satisfaction on the balance of probabilities respecting the matters mentioned in pars (c) and (d) thereof. An interim control order must state that the issuing court is satisfied of the matters in pars (c) and (d) (s 104.5(1)(a)). Section 104.4(2) requires the issuing court to take into account the impact of the obligations, prohibitions and restrictions on the personal circumstances of the individual concerned. This was described in submissions as involving a "balancing exercise" by the issuing court. At the forefront of the plaintiff's case are arguments challenging the sufficiency of the matters mentioned in pars (c) and (d) of s 104.4(1) and the requirements of s 104.4(2) to provide adequate or permissible criteria for the exercise of the judicial power of the Commonwealth.

66. In White v Director of Military Prosecutions[53] reference was made by Gummow, Hayne and Crennan JJ to the importance which has been attached in the decisions respecting Ch III to the presence or absence of an understanding at the time of the adoption of the Constitution of the treatment of a particular class or type of function as apt for exercise by a court.  The Commonwealth supports its case for validity by reference to what it contends is the long history of what are at least analogous functions to the making of interim control orders and to their exercise by English and colonial courts.  Consideration of these particular submissions may be put to one side for the present.

    [53][2007] HCA 29 at [45]‑[47].

67. Reference also was made in White to the development of various theories or descriptions of judicial power which are expressed in general and ahistorical terms[54].  An example was given of the distinction drawn between arbitral and judicial power, with emphasis upon the power of enforcement attending the latter but not the former.

    [54][2007] HCA 29 at [49].

68. The particular issues respecting the alleged attempt to confer upon the issuing courts power other than the judicial power of the Commonwealth which were pressed by the plaintiff may be approached by taking as a starting point the following passage in the joint judgment of Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[55]:

    "Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, 'a great cleavage'[56].  The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation[57].  This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion[58].  The result is promulgated in public and implemented by binding orders.  The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government." (emphasis added)

    [55](1996) 189 CLR 1 at 11.

    [56]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."

    [57]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.

    [58]Fencott v Muller (1983) 152 CLR 570 at 608.

69. The plaintiff's submissions emphasise in particular the absence of at least two of the characteristics identified in that passage in Wilson.  These are the requirements of a "justiciable controversy" and of the provision by the legislation in question of "legal criteria" to be applied by the court.

70. The plaintiff submits that (a) critical criteria in s 104.4 are concerned with subjective and political questions best suited for determination by the executive and unsuited for determination by the judiciary and (b) the task required by s 104.4 of balancing the need to protect the public with the circumstances of the individual is not governed by objective standards or criteria. We turn to consider submission (b), then submission (a) and will then consider the remaining submissions respecting Ch III.

    Absence of legal criteria?

71. Is there in s 104.4 an absence of legal standards or criteria governing the exercise of the jurisdiction conferred upon the issuing courts, something, as remarked in Wilson, which is necessary for the functioning of the federal judicial branch? The issue thus raised was treated in argument as if the existence of such standards is an essential requirement of legislation for it to attract the exercise of the judicial power of the Commonwealth spoken of particularly in s 71 of the Constitution. The issue may be expressed somewhat differently, as being whether s 104.4 (read with s 15C of the Interpretation Act) is a law which is adequate to "define" what is "the jurisdiction" of the issuing courts, within the sense of s 77(i) of the Constitution, or whether it fails to do so because it is an attempt to delegate to the issuing courts the essentially legislative task of determining "the content of a law as a rule of conduct or a declaration as to power, right or duty"[59]. 

    [59]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].

72. In what follows, it will be assumed that no relevant distinction is presented between these two expressions of the issue. What is critical is the presence in s 104.4 of what may be said to be adequate legal standards or criteria. It should be said at once that the case law shows acceptance of broadly expressed standards.

73. In its form when considered in the Builders' Labourers' Case, s140 of the Conciliation and Arbitration Act 1904 (Cth) included among criteria for the curial disallowance of the rules of registered organisations the terms "oppressive" and "tyrannical". This, as Dixon CJ put it, was one of the "considerations", no one of them apparently being "necessarily decisive", which supported the holding of invalidity[60].  When the section was recast in terms which survived challenge in R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section ("the Amalgamated Engineering Union Case")[61] there was a prohibition of rules which were "oppressive, unreasonable or unjust". However, Kitto J (with whom Dixon CJ agreed) said of the new s 140[62]:

    "It must be conceded that the words 'oppressive', 'unreasonable' and 'unjust', in relation to conditions, obligations or restrictions imposed by a rule upon applicants for membership or upon members, describe attributes which are not demonstrable with mathematical precision, and are to be recognized only by means of moral judgments according to generally acknowledged standards.  There is a degree of vagueness about them which, in the context of the former section, assisted the conclusion that the intention was to confer on the Court a general administrative discretion for the amelioration of rules.  But the notions which the words convey, more readily to be associated with administrative than with judicial decisions though they be, must be conceded, having regard to the nature of criteria with which courts are familiar in other fields, to be not so indefinite as to be insusceptible of strictly judicial application; and their employment in the present context is not sufficient to show, against the strong indications which there are to the contrary, that the Court is intended to exercise its power under the section otherwise than judicially." (emphasis added)

    Similar conclusions should be reached respecting the presence in s 104.4(1) of the phrases "would substantially assist in preventing a terrorist act" and "protecting the public from a terrorist act".

    [60]Builders' Labourers' Case (1957) 100 CLR 277 at 289‑290.

    [61](1960) 103 CLR 368.

    [62](1960) 103 CLR 368 at 383.

74. The entry by the Parliament into the field of business regulation (by legislation including the Life Insurance Act and the Trade Practices Act 1965 (Cth)) and the field of matrimonial causes (by the Matrimonial Causes Act 1959 (Cth) ("the Matrimonial Causes Act")) was attended by the creation of new heads of federal jurisdiction the exercise of which was governed by broadly expressed standards. Indeed, in the Associated Dominions Assurance Case[63], Fullagar J said of the absence from s 59 of the Life Insurance Act of criteria to guide the exercise of curial discretion to make a winding‑up order:

    "I cannot say that I have felt any serious difficulty as to the general principles which should guide the Court in exercising its discretion under s 59. With regard to the ultimate discretion, I think the general conception to be applied is that which is inherent in the words 'just and equitable' in the Companies Acts. Those words are wide and vague, but they have become very familiar, and they have been judicially considered on many occasions."

    In Mikasa (NSW) Pty Ltd v Festival Stores[64] the Court rejected an argument that the absence of specified criteria by which the court was to decide whether or not to enjoin engagement in retail price maintenance was fatal to validity of the relevant provision.

    [63](1953) 89 CLR 78 at 90; cf Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151.

    [64](1972) 127 CLR 617.

75. In Cominos v Cominos[65] the Court upheld the validity of provisions of the Matrimonial Causes Act which provided in wide terms for the making of maintenance orders (s 84), "just and equitable" property settlements (s 86), and ancillary orders "necessary to make to do justice" (s 87). When considering s 86 Mason J remarked[66]:

    "To authorize a court to make an order where it is just and equitable to do so creates a judicial discretion exercisable after a consideration of all the circumstances relevant to the making of the order and in accordance with principle.  The conferment of such an authority is not inconsistent with the exercise of judicial power."

    [65](1972) 127 CLR 588.

    [66](1972) 127 CLR 588 at 608 (footnote omitted).

76. There is apparent in these cases an appreciation that in the course of the 20th century State legislation had established regimes to regulate and modify property and contractual rights and obligations by reference to broadly expressed criteria and to provide for the exercise by State courts of jurisdiction to implement the legislation[67].  An early appreciation both of the frequency of State legislative intervention of this nature and of its importance for the future operation of federal jurisdiction is to be found in the reasons of Williams J in Peacock v Newtown Marrickville and General Co‑operative Building Society No 4 Ltd[68].  There his Honour gave seven examples from the statute law of New South Wales as it stood in 1943.  In Peacock the Court upheld the conferral of federal jurisdiction under the National Security (Contracts Adjustment) Regulations[69], made under the National Security Act 1939 (Cth). The grounds for curial variation or cancellation of a contract included satisfaction on the part of the court that by reason of circumstances attributable to the war, performance of the contract had become or was likely to become "inequitable or unduly onerous" to the party seeking relief.

    [67]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".

    [68](1943) 67 CLR 25 at 54‑56.

    [69]SR 1942 No 65.

77. Sir Owen Dixon was not a party to the decision in Peacock.  His subsequent reasons in the Builders' Labourers' Case[70] and his silence in Cooney v Ku‑ring‑gai Corporation[71] upon the rejection by Kitto, Taylor, Menzies and Windeyer JJ of limitations upon the use of the injunctive remedy in public law, restrictions which he had earlier favoured[72], evince a dissatisfaction with the course legislation was taking and some resistance to the adaptation of Ch III jurisprudence to accommodate it.

    [70](1957) 100 CLR 277.

    [71](1963) 114 CLR 582.

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

78. It should be added that criteria for judicial decision-making may involve the prevention or occurrence of future consequences by steps taken by the executive branch of government in the exercise of its powers.  Mandatory court orders may stipulate, for their full effectiveness, the exercise of such powers.  A well-known example is the form of specific performance decree set out in the report of Butts v O'Dwyer[73].  The defendants were obliged to seek the approval of the Minister administering the Crown Lands Consolidation Act 1913 (NSW) to the transfer of lease and, if that was forthcoming, to complete the transfer to the plaintiff.

    [73](1952) 87 CLR 267 at 289-290.

626. 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].

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

627. 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. 

628. 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. 

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

629. 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]. 

     [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.

630. 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.

     [766]Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 227.

631. 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.

     [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.

632. 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.

     [776]Breen v Sneddon (1961) 106 CLR 406 at 411.

633. 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.

     [777]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 622.

634. 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."

     [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.

635. 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].

     [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.

636. 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.      

     [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.

637. 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. 

     [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.

638. 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]. 

     [792]Kenny, "Constitutional Fact Ascertainment", (1990) 1 Public Law Review 134 at 159.

639. 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.

     [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].

640. 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.

641. 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)

642. 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). 

643. 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. 

644. There are other relevant categories of material.

645. 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.

     [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).

646. 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.

     [799]See Dixon J's tests in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 196, quoted above at [619].

647. 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." 

648. 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. 

     [800]See [645]-[646] above.

649. 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

650. 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

651. 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].

     [801]At [71]-[79] and [94]-[126].

     [802]At [595]-[600].

     [803]At [10]-[31].

     Orders

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