Ul-Haque v The Queen & Anor [2007] HCATrans 61 (9 February 2007)

Last Updated: 21 March 2007

[2007] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S315 of 2006

B e t w e e n -

IZHAR UL-HAQUE

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 9.44 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR P.D. LANGE, for the applicant. (instructed by Murphy’s)

MR P.S. HASTINGS, QC: If it please the Court, I appear with my learned friend, MR G.L. BELLEW, SC, for the first respondent. (instructed by Commonwealth Director of Public Prosecutions)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, I appear with my learned friends, MS R.J. ORR and MR G.T.D. del VILLAR, for the second respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal with a number of matters which I expect will arise. May I identify the nature of the issue that is sought to be advanced in the issue relating to section 51(xxix). Your Honours, the essence of that appears at page 121 of the application book from paragraphs 12 and 13. It is put there shortly but the issue arises - if I might take your Honours more specifically to the provisions of the enactment that your Honours will see in the joint bundle, your Honours will see that the issue arises because section 100.2(1) of the Criminal Code (Cth). That should be at page 5. That provides:

(1) This Part –

of which the relevant provision forms part –

applies to a terrorist act constituted by an action, or threat of action, in relation to which the Parliament has power to legislate.

Then if I could perhaps mention in passing that your Honours will see a number of instances referred to by reference to various constitutional powers in the next subsection specifically, and the provision of importance is subsection (1). The restriction to the extent to which it may be that that plays on the legislative framework can be seen from the elements of the offence in section 102.5(1) on page 14, and your Honours will see that it says:

(1) A person commits an offence if -

if the person - your Honours will see the remaining provisions set out there and it turns on the definition of “terrorist organisation”, the definition of which is found in section 102.1 at page 11, and your Honours will see that it means:

(a) an organisation that is directly or indirectly engaged in, preparing, planning . . . the doing of a terrorist act –

now, your Honours, that takes one – it sometimes takes a moment to get there – but it takes one ultimately to the definition of “terrorist act” which can be seen in section 100.1(1) page 3. Now, your Honours, that refers to:

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

(a) the action falls within subsection (2) –

and then your Honours will see the remaining requirements of paragraphs (b) and (c), and the types of action that are referred to are then referred to in subparagraph (2).

Now, your Honours, the terms of section 100.2, if I may go back there, and in particular paragraph (n) make it apparent that the Parliament’s intention is that the terrorist act if carried out may take place outside Australia. The body, which is alleged to be the terrorist organisation in the present case, is alleged to be such because of activities in which it may engage in Pakistan or India, and your Honours will see the particulars set out at page 70 in paragraph 32.

GUMMOW J: Was your client an Australian citizen at the relevant time?

MR JACKSON: Yes, your Honour, and the question that your Honour asks me is one to which I will come a little more fully in just a moment if I may because it is a matter, if I may say so with respect, rather skews the issue that arises in the present case.

Now, your Honours will see the particulars of the charge set out and the “action” is there referred to at about line 48. Now, this part of the charge is, with respect, entirely unconnected with nationality or citizenship of the person charged or any aspect linking the case to Australia. What it does is to raise directly a question which I know the Court has referred to in XYZ – it raises directly the question whether Parliament may proscribe or regulate, or prescribe perhaps, conduct by persons in other countries where that conduct has no identifiable connection with Australia. I say that, your Honours, because the way in which terrorism or “terrorist act” as described is defined by section 100 - - -

GUMMOW J: If you are right, it could be read down quite easily by the discrimen of Australian nationality.

MR JACKSON: Your Honour, I am about to come to that if I may, to say this, that there are two features which militate against that. The first is that if your Honours go to section 100, and the terms of section 100.2, first you will see in subsection (1) no limitation upon the ambit of the section. The second thing is that if one goes to subsection (2) of that section, and in particular to subsection (n) and also (o) perhaps, it makes it apparent that Parliament is not intending the provision to be read down in that way. The second thing - - -

GUMMOW J: Yes, but wait a minute, Mr Jackson, the critical provision is section 101.1(1), is it not:

A person commits an offence –

that is the starting point, and who is “A person”?

MR JACKSON: Your Honour, may I say in relation to that that is where one sees the other provision of the Act which militates it being read down in the way which your Honour has mentioned. The other provision of the Act which has that effect, your Honours, is to be seen in section 16.1 which is page 2, and section 16.1 is the provision that makes it apparent, in our submission, that the Act applies to any person and it makes it apparent that that is so because of the terms of section 16.1(1) which make it clear that the Act is of general application and that the Attorney-General has a power to deal with cases where the person does not possess any relationship to Australia and, your Honours, the provisions of those sections - - -

HAYNE J: Is that not always so in any severance case? Severance does not arise unless it would unsevered apply.

MR JACKSON: Your Honour, the provisions of, say, section 15A of the Acts Interpretation Act are ones that as in In re Dingjan, the corporations case, themselves are bait in circumstances where the Act in question is one which indicates that that is not an appropriate method of severance and, your Honours, that is what happened in Dingjan, and in circumstances not relevantly – I am speaking about conceptually – dissimilar from the present because of the presence of provisions of that kind.

So if I could pause at that point, what we would say is at the heart of the case lies the description of “terrorist act”. “Terrorist act” is described in terms which do not relate in any way to the identity of the person as an Australian citizen or having any relationship to Australia, and expressed in the broadest terms. That being so, it does bring into question whether the Court should reconsider the reasoning underlying the decision of the majority in XYZ, and we would accept the proposition that three of your Honours together with the Chief Justice adopted reasoning - or the
reasoning underlying what your Honours said was reasoning which accepted the proposition that Parliament was empowered pursuant to section 51(xxix) to legislate for the conduct of persons who are foreigners in foreign countries. That did not quite arise in that case because of one of the provisions of the Act, - did not necessarily arise, if I could put it that way, although your Honours expressed it more broadly, but it is an issue which, in our submission, does arise directly here, and it arises directly, your Honours, even on the basis of the reliance one sees in the respondents’ submissions on issues that it was not necessary to decide below such as reliance on the Security Council’s resolution 1373 and the argument concerning matters of international concern, because at the heart of them all lies the application of the definition of “terrorist act” which incorporates the limitation provided for by the extent of Parliament’s power. To say that the other provisions avoid the question or render it otiose is not correct.

So, your Honours, in our submission, the case turns ultimately on a narrow but, we would submit, very important point, and could we say that there is no doubt or question whether the Court should entertain the matter at this stage of the proceedings, and we accept that it is desirable, of course - - -

GUMMOW J: You are seeking from us a grant of special leave, are you not, against the decision of the New South Wales Court of Criminal Appeal on the interlocutory question that went to them?

MR JACKSON: Yes, your Honour.

GUMMOW J: From an interlocutory ruling of Justice Bell?

MR JACKSON: We are, your Honour, and may I say in relation to that, it is not a case like some of the provisions – like Elliott in which there was no provision for appeal. This is a case where there was provision for an appeal under the Criminal Appeal Act to the Court of Criminal Appeal by leave, which was relevantly given, and we accept that it is desirable that matters be brought to an end, that a trial proceed, but one does have to bear in mind that the trial to which propositions of that kind refer is trial of an offence known to law.

Your Honours, could we just say one further thing. I am reminded the training itself is not the terrorist act. The “terrorist act” is defined as something else, and that is the point that is made in the paragraph of our written submissions to which I referred. Your Honours, in the particulars issue I do not wish to add to the written submissions.

GUMMOW J: Thank you, Mr Jackson. We do not need to call on you, Mr Hastings and Mr Solicitor.

There are insufficient prospects of success on an appeal to this Court from the decision of the New South Wales Court of Criminal Appeal to warrant further fragmentation of the trial process in this matter. Special leave is refused.

AT 9.58 AM THE MATTER WAS CONCLUDED