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High Court of Australia Transcripts |
Last Updated: 28 July 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S119 of 2015
B e t w e e n -
HAMDI ALQUDSI
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
Office of the Registry
Sydney No S132 of 2015
B e t w e e n -
HAMDI ALQUDSI
Applicant
and
THE QUEEN
Respondent
FRENCH CJ
TRANSCRIPT OF PROCEEDINGS
AT PERTH BY VIDEO LINK TO SYDNEY
ON MONDAY, 20 JULY 2015, AT 9.59 AM
Copyright in the High Court of Australia
____________________
MR S.B. LLOYD, SC: Your Honour, I appear with MR D.P. HUME, for the applicant in the application for removal, and the plaintiff in the original jurisdiction matter. (instructed by Zali Burrows Lawyers)
MR C.L. LENEHAN: May it please the Court, I appear for the defendant in matter S119 and for the respondent in matter S132. (instructed by Australian Government Solicitor and Director of Public Prosecutions (Cth))
HIS HONOUR: Yes, Mr Lloyd.
MR LLOYD: Your Honour, I propose to say, first of all, something about the nature of the provision, then something as to the constitutional issues, and then address some of the more procedural matters raised by the defendant in favour of remittal and against removal. In terms of the provision, it is perhaps convenient to start at section 6(1)(a). This is not the offence for which my client has been charged, but it addresses that:
A person shall not:
(a) enter a foreign State –
so that clearly has a foreign or an external physical element, and then –
with intent to engage in a hostile activity –
and then that concept of engaging in a hostile activity is detailed in subsection (3). Subsection (3) contains a number of original subsections which are all directed in terms of being “against” a foreign State, overthrowing the State, et cetera, but includes the relevant new paragraph (aa) which is a neutral:
engaging in armed hostilities in the foreign State –
neutral in the sense that whether one goes to support or oppose the foreign State it can be engaged. That is subject to an exception in (4) that it does not apply if one goes to fight in:
the armed forces of the government of a foreign State –
but subject to a discretionary power of the Minister, going to fight either in a mercenary group or militia group in support of the State is prohibited and so is going to take – be engaged in armed hostilities which is neither for nor against the State, as I say, subject to the Minister’s exercising a power which, at least in theory, could also be exercised to support somebody taking action against a State. So that is the principal offence of which my client has not been charged. Section 7(1)(e) then has to be understood in relation to that. It makes it an offence - - -
HIS HONOUR: Well, that is an accessorial offence, in effect, is it not?
MR LLOYD: It is, but we will come to that. We object to it in a sense that it goes beyond any previous known accessorial offence and it is not a derivative action in the sense that it is not necessary that the giving of money or goods or the performing of services has in fact resulted in an offence under section 6. All that is required is conduct; the conduct can be done entirely within Australia. So the conduct of giving money or performing services - - -
HIS HONOUR: Well, it covers what you might call a prophylactic operation of the section.
MR LLOYD: It covers that but it does it in a way by identifying activity which, of its nature, need not contribute to the offence at all. So the giving of money may or may not – or the performing of services may or not support or promote it. It is not important. It does not necessarily show that it supports or promotes the commission. It is enough that you do the action and that you have an intention. So, to give an example, if the performing of a service extends to, for example, the recommending of a hotel to stay at in Turkey for somebody who wants to go to Syria, for example. If a person in that position has two uncles and one uncle says “Stay at this hotel, I liked it” and that uncle liked it because he had gone there as a child and thought it was a good hotel, no offence whatsoever.
If the other uncle says “Stay at this hotel, I liked it” and the reason he liked it was because it is a good place to go if you want to go into Syria and that would help – and he said it with the intention of promoting the commission of an offence, that is an offence. So the point I am making here is that there is nothing about the giving of the money or the performing of the services that necessarily has to lead to the commission of the offence. It is really only the intention that - - -
HIS HONOUR: The “purpose” I think is the word that is used, is it not?
MR LLOYD: The Act uses the words “with the intention of supporting or promoting”.
HIS HONOUR: I am sorry, I was looking at:
give money - - -
MR LLOYD: Section 7(1)(e)?
HIS HONOUR:
give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6 –
MR LLOYD: Your Honour I think has the older version of the Act and it has been changed. Perhaps because your Honour has that I will draw out a couple of points. In the older version of the Act which your Honour has to hand – which is not the version that my client has been prosecuted under - your Honour will see under 6(1)(a), it is to:
enter a foreign country with intent to engage in a hostile activity - - -
HIS HONOUR: Just bear with me for a moment, Mr Lloyd. I am sorry, the version I was looking at was a version which I was sent by the Sydney Registry which I understand had been provided by you, but never mind.
MR LLOYD: Your Honour, that is because I did want to take you to that version but that is not the version that he has been prosecuted under.
HIS HONOUR: Yes, all right.
MR LLOYD: The reason why I wanted to take your Honour to that version is because under 6(1)(a) of the old version, the original version, the legislation used to be directed only against somebody engaged in “hostile activity against the government” and it used to be for that purpose. But it was then amended in 1987 and paragraph 3(aa) was inserted which was the paragraph I referred your Honour to which has the neutral “engaging” in hostile activities.
HIS HONOUR: Yes.
MR LLOYD: The reference to “against the government” has been removed entirely and it just talks about in 6(1)(a) now it refers to engaging “in a hostile activity”, not against the government but just in the foreign State.
HIS HONOUR: Yes, I have that.
MR LLOYD: So there has been a broadening. The purpose of showing it to you – because it is relevant to one of our constitutional points – is that it used to be a provision which was directed to protect arguably the integrity of foreign States, but it has now been broadened beyond that – beyond that purpose. One of the other changes is that the notion of “intention” rather than purpose has been put into 7(1)(e). So it is against that background of how we say the provision works where there is no necessary actus reus that has occurred outside of Australia that one comes to - - -
HIS HONOUR: Well, what does all this go to? Does this all go to the proposition that you have an arguable case?
MR LLOYD: Well, yes. I mean, I wanted to draw your Honour’s attention to the provision so I could then identify the points. In terms of the arguable case, we say - - -
HIS HONOUR: I have read your written submissions on this so I am familiar with the point that you are making, but one can accept for the sake of argument, if you like, that there is an arguable case. You also call it a novel point. Is that because there are dicta of this Court against it?
MR LLOYD: Well, because it has not been determined, I suppose. There is dicta against it.
HIS HONOUR: You face in particular what Justices Gummow and Crennan said in Thomas v Mowbray, do you not?
MR LLOYD: That is so, and also what Justice McHugh said in Polyukhovich.
HIS HONOUR: Yes.
MR LLOYD: That is the nub of the material against us. We say the existing authoritative statement from the Industrial Relations Act Case talks about matters, facts, places and persons physically outside Australia. That is not a necessary requirement for this provision. There need be no matter, fact, thing physically outside Australia. There is at most – at least all that is necessary is that someone have an intention pertaining to somebody else who may act upon that intention and go outside Australia.
So we say that to the extent that the Commonwealth’s case is premised upon the notion that the power is supported under the Industrial Relations Act Case premise, we say it is not. We accept that there is dicta in Polyukhovich and Thomas v Mowbray that we need to address and we would say that remains arguable that a provision of this kind is outside the external affairs power on that limb.
In relation to the notion of incidental powers and whether or not the incidental power can be relied upon, of course the offence under section 6(1)(a) is an offence which would accrue the normal accessorial criminal liability. So to the extent that my client incited or aided and abetted or any of those other accessorial offences, he could be charged with those things but - - -
HIS HONOUR: Does it make any difference whether it is incidental as within the penumbra of the power or incidental by reference to the incidental power under the Constitution?
MR LLOYD: Not for the purposes of our argument. We would say in both instances this is too far out to have a provision where the offence is created potentially simply by the intention of the person in terms of – that is the only aspect which has externality is the intention. We say that that is too far removed.
HIS HONOUR: Well, let us accept that you have an arguable case. I do not want to spend too long on the substance of your point. As I said, I have read your written submissions. The question is, I suppose, what consequence that has for removal and/or remitter in the matters before me. I suppose one question I wanted to ask was to what extent does the issue that you have raised involve questions of constitutional fact? I think you have made some reference to that in your submissions.
MR LLOYD: Some of the issues that we raise in relation to the external affairs power we would say are really in the nature of pure matters of law. It would be, we think, of assistance to the Court to have the removed matter, because then the Court has two things before it. It can just address the matter on the declaration proceeding purely at the broadest level that would have the effect of 7(1)(e), being held to be invalid. But, in addition, it would be able to address the matter on the basis that, even if it is not wholly invalid, it is invalid to the extent that it applies to my client on the removal. So that is one reason why there is a benefit for both matters to be before the Court.
HIS HONOUR: Anyway, you are not suggesting, are you, from what you have just said, that there are issues of constitutional fact which would have to be determined in relation to the application of the external affairs power?
MR LLOYD: We do not anticipate that there would be anything difficult to agree in a special case in relation to that. The Commonwealth has foreshadowed – I mean, they have not advanced it really yet, but they have at least foreshadowed the possibility of relying upon the defence power. If they wanted to do that, there may be other facts that would need to be dealt with in a special case, but those sort of defence constitutional facts have been dealt with in this Court on many occasions and we do not anticipate there would be a problem in this occasion and this Court - - -
HIS HONOUR: The reason I am asking that question is not so much because of the nature of the case if it were to be heard in this Court, but the nature of the case or the issue as it would be determined in the Supreme Court. In the Supreme Court proceedings it arises in a particular factual context, I suppose, as to the prosecution against - - -
MR LLOYD: That is so. If we were unsuccessful today, what I anticipate would happen is that – well, obviously one effect of being unsuccessful is your Honour would remit the original jurisdiction matter to the Supreme Court and my client would, as has been foreshadowed, do a notice of motion to set aside or to quash the indictment.
HIS HONOUR: You only foreshadowed that in these proceedings? You are saying that he would propose to do that in the Supreme Court proceedings?
MR LLOYD: Yes.
HIS HONOUR: That is if the proceedings were removed. The position as I understood it was that your client had foreshadowed a motion to quash if the proceedings were removed into this Court. He actually had said nothing about what would happen if the proceedings remained in the Supreme Court, a point which I think has been mentioned in the Commonwealth’s submissions. But you are indicating, not surprisingly, that that is the route you would take if the proceedings remain there.
MR LLOYD: Yes, they are my instructions, and my understanding is that my client has sought some particulars in relation to the indictment - - -
HIS HONOUR: Yes.
MR LLOYD: - - - and that there is still time left within the Supreme Court’s existing timeline to file a notice of motion of that effect and so, if we are unsuccessful today, that is what we would do, is what I am instructed.
HIS HONOUR: As a matter of formality, there is no constitutional question presently arising in the Supreme Court proceedings that would – that position would crystallise upon the filing of such a motion. I think the Commonwealth, again, makes some point of that but you say that is a matter of form rather than substance.
MR LLOYD: We do. The constitutional question is in the matter but it would be crystallised when the motion is filed.
HIS HONOUR: Yes.
MR LLOYD: Now, one reason why we say the matter should stay in this Court is because it is likely that the Supreme Court, and for that matter the Court of Criminal Appeal, would follow the dicta in Polyukhovich and Thomas v Mowbray, so my client is likely to only be able to obtain relief in what we say is an arguable point in this Court. I was going to say what would happen if it goes back. We would say if it goes back we would do a notice of motion to quash the indictment and we would anticipate that that notice of motion and the remitted declaration matter would be dealt with before the trial.
My client, if unsuccessful at that point, would then be able to seek leave under section 5(f) to appeal to the Court of Criminal Appeal but would have a right to appeal in relation to the declaration matter, and so we say that there is a real risk to the trial in any event. I say that to the extent that it is put against us that one of the matters for the Court to consider is that there is a risk to the trial if removal is granted, but we say there is a risk to the trial in any event. If we pursue the 5(f) and appeal path, the trial would be at risk there as well.
Just going through our submissions, that is dealt with in paragraphs 22 and 23. Paragraph 24 to 26 deals with the point we have already discussed about whether or not there are any constitutional facts. We do not anticipate there would be many, if any, in relation to the external affairs point. There may be some if the Commonwealth relies upon the defence point, but we say the special case of the procedure that this Court has and that, so far as we are aware, the Supreme Court of New South Wales does not have, is well suited to dealing with such matters.
The fourth point we make in relation to fragmentation is that although obviously it is a matter that will be weighed against my client, there are many instances of the Court taking on a constitutional or construction issue prior to a trial and Monis and Keating are both recent examples of that which we mention in paragraph 27 of our submissions. The approach that we take is not dissimilar to the approach taken in XYZ and we note that in XYZ, which kind of feeds into the next point, the original jurisdiction declaration matter in XYZ seemed to have been taken – I think it was a year and a half after the charges were laid in that matter, and so the delay is not an insufferable difficulty.
Now, we also say – and this I know is controverted, but we say that as we understand the case against my client it is mostly relied upon recordings, so it is not an instance where a delay will significantly prejudice their case. In paragraph 32, the point is made that in effect there is a risk that there would be a delay anyway, at least once the 5(f) point is reached, because this Court has already got reserved before it those two questions there which involve intra-territorial conduct under external affairs power – the M68 and M80 Cases – so the Court of Criminal Appeal may say it would rather await the determination by the High Court in those cases. So, in terms of delay, we say that that is not a factor that is a weighty consideration in the circumstances - - -
HIS HONOUR: Well, that is a matter which might inform whether you would get leave to appeal against the refusal of the motion to quash, is it not? You say you have an appeal as a right if the declaratory proceeding were remitted.
MR LLOYD: If it was remitted and dismissed, then we say we would have an appeal as a right.
HIS HONOUR: Yes, so there would not be any question in the ordinary course, unless there is a removal application, I suppose, at that point.
MR LLOYD: That is so. The next point is the Commonwealth says in its submissions that the constitutional issues may not be reached, and they say in this Court or any court. Well, obviously they could be not reached in this Court if your Honour and other balance of the Court never thinks the point is interesting it can be not reached other than in a special leave application, but apart from that we do not understand how the Commonwealth could say that the constitutional point would not be reached.
In the normal course, one would expect if they were successful that the remitter will result in – well, the remittal will result in the Supreme Court having to address at least one constitutional issue, so it will at least be addressed. Now, we apprehend it probably will only be one constitutional issue because the Court would probably apply the approach indicated by this Court in ICM which is to not decide other constitutional issues, or unnecessarily decide constitutional issues. So we raise that because one of the reasons that favours remitter and non-removal is that this Court can expect the assistance of the reasoning of the courts below when it does get back to this Court, but we say in the circumstances of this case where there is already obiter on the point, the Court is unlikely to get more assistance than the Court has felt that they should follow that obiter.
Then the last point is sort of a vague or perhaps not vague suggestion of abuse. It is my client’s attempt to have both issues in the same court, so we removed the other proceeding so that – or we seek to remove the other proceeding so it can be in the same court as the declaration proceeding. To that extent, we say there is no abuse, and if the matter is remitted there would also be no abuse.
HIS HONOUR: How was the abuse argument put against you? I am not absolutely clear on that. Is this simply because of the delay aspect of it?
MR LLOYD: I think there is a suggestion that – I think the way they put it is that we have not done the notice to quash in the Supreme Court because then we would have the same issues in two different courts being agitated by the same person in respect of the same kind of defendants.
HIS HONOUR: I see.
MR LLOYD: So we have not technically, I think even on their view, got to an abuse yet, but there is a suggestion that what we are doing is somehow inappropriate. We say what we are doing is quite appropriate and that we are seeking ideally to have this Court resolve these constitutional issues, but failing that, then it will be the Supreme Court and work our way back to this Court.
HIS HONOUR: Now, I know both parties seem to be proceeding on the assumption that the outcome of the two matters today is they are, as it were, in lock step, that if you lose on removal they win on remitter and so forth. Is that the only outcome? I suppose one theoretical possibility is that your removal application will be refused so you would have to proceed to deal with your constitutional point in the proceedings in the Supreme Court of New South Wales while the declaratory proceedings would be perhaps retained in this Court but stayed for the time being.
MR LLOYD: I accept that that would be one possibility. We certainly do not think it would be a possibility that the Court would allow both applications, in the sense of remit the declaration and remove the other one.
HIS HONOUR: Yes.
MR LLOYD: Another possibility would be your Honour could reject both on the premise that it proceeds in the High Court simply as the purest form of the declaration and then my client might seek a stay of the criminal proceeding pending the resolution of that which is another way, but we would see - - -
HIS HONOUR: Well, that does not help anyone very much.
MR LLOYD: We certainly would see benefit of the removal in those cases because then the Court has two vehicles which depending upon the outcome and whether reading down arguments opposed against us and how those reading down arguments fall out, it would be better to have no remitter and the removal then the Court has the most flexibility.
HIS HONOUR: Yes.
MR LLOYD: May it please the Court, they are our submissions.
HIS HONOUR: Thank you. Yes, Mr Lenehan.
MR LENEHAN: Your Honour, just to attend to the formal aspects, we have three affidavits to read and I think Mr Lloyd has one.
HIS HONOUR: Sorry?
MR LENEHAN: We have three affidavits that we have indicated that we propose to read and I think Mr Lloyd also has one affidavit of his instructor.
HIS HONOUR: I think we can take all of those as read.
MR LENEHAN: Thank you, your Honour. The respondents submit that the matter should be remitted and the removal application should be refused because to do otherwise would disturb or interrupt the criminal hearing, and your Honour has seen that we rely in that regard in particular on what is said by Justice Kirby in Pan about the need for great restraint in these circumstances. Our short point is that Mr Alqudsi points to nothing sufficient, in my submission, that would justify that disturbance or interruption.
Now, as to the disturbance or interruption, in my submission, it is obvious that the trial has already been set down without objection by Mr Alqudsi. A trial judge has in fact been allocated, that is Justice Adamson, and it is also my submission that the two sets of proceedings in this Court have already caused a disturbance to the processes of the trial court. There have now been three hearings arising from and devoted to Mr Alqudsi’s application for a stay and to vacate the trial date, but that court – and this is significant, in my submission, your Honour – has nevertheless sought to drive home a consistent message to Mr Alqudsi and it is this. If anything, continue your preparations for trial with greater urgency and do not assume that the trial will be vacated.
That point, in my submission, casts light upon what is said by my friends as to the inevitability of some sort of appeal if the issue is left with the Supreme Court. That is certainly not the view that the Supreme Court has taken, your Honour, and it is right to do so for the reasons that the respondents have given in paragraph 34, and that includes this. Mr Alqudsi might be perfectly content for the matter to go to trial, even if he loses the application to quash the indictment should one in fact be filed, and my friend has indicated that it will, and even if a hearing on his application for declaratory relief, if remitted, goes against him, and in particular he might be happy for that to happen if the reasoning in the declaratory proceedings and the quashing proceedings suggest that the offence should either be construed or read down in a manner that he considers suits his interests, that is, is advantageous to his case.
That illustrates the point that Mr Lloyd seeks to make that inevitably it ends up with this Court, subject of course to the requirements of special leave, is simply not so. Now, I hear what your Honour has said to my friend in terms of the nature of the constitutional issues. I would like to say just something short about those, your Honour, because it indicates the way in which those issues are likely to come out both below and if the matter ultimately gets to this Court in this Court.
It is true that Mr Alqudsi has identified three constitutional issues. The first two, as your Honour has seen from his submissions, relate to the external affairs power; the third to the defence power. It is sufficient for my purposes today to address the external affairs power, although, as Mr Lloyd has indicated, the Commonwealth may well rely on 51(vi) if it is necessary to resolve the constitutional issues that Mr Alqudsi raises.
In terms of the external affairs issues, this is – and this is important, we think – not a case that turns upon the meaning of the term “external affairs”, and your Honour will have seen from the respondent’s written submissions that we rely on two core propositions at paragraph 19 that do not seem to the respondent to be disputed. The first is obviously not disputed because Mr Lloyd embraces it – it comes from the IRA Case – and that is that 51(xxix) includes “places, persons, matters or things” outside the geographical limits of Australia.
It is not currently clear but we would not anticipate that Mr Alqudsi would quibble with the notion that the term in that formulation “matter or thing” includes that which Justice Gummow and Justice Crennan identified in Thomas v Mowbray at paragraph 153, that is:
apprehended intimidation or injury to the government or public of a foreign country.
It seems to us more likely that what Mr Alqudsi seeks to say as regards that is that there is insufficient connection with the law and that subject matter. Equally, the respondents do not understand Mr Alqudsi to dispute the second proposition in paragraph 19 of our written submissions, and that is the term “external affairs” includes the matter of Australia’s relations with other countries.
There seems to be some misunderstanding by Mr Alqudsi as to the Commonwealth’s reliance upon what was said by Justices Gummow and Crennan in Mowbray at paragraph 151 as regards that issue where they refer to the:
advancement of comity with foreign governments and the preservation of the integrity of foreign states –
But as is clear from what their Honours immediately went on to say, they were referring to this idea that 51(xxix) includes what I have referred to as the foreign relations aspect, and it is not open, in any event, to serious dispute that it does and that goes back as far as Ex parte Henry and also Sharkey to which we have referred.
Now, it is that that the Commonwealth relies upon and for that reason the second constitutional issue that Mr Alqudsi raises as regards 51(xxix) at paragraph 3 of his submissions, in my submission, does not arise. Rather, as the respondents see it, the questions regarding the external affairs power come down to a question of whether section 7(1)(e) has a sufficient connection to the subject matter of those aspects of the head of power rather than any more difficult question of 51(xxix), and at least as regards the second proposition that I have identified in our written submissions, that is international relations, that is not a very difficult question. We say that by reference to the case of Sharkey (1949) 79 - - -
HIS HONOUR: What is the ultimate proposition to which you are taking me? Is it that the case is unarguable or the case is arguable but weak?
MR LENEHAN: Your Honour, we would say that the case is weak. That the case would ultimately be decided on the basis of the second aspect of 51(xxix) and, more particularly, would be decided – for the reasons that we have given in the written submissions, would be decided most likely in the Commonwealth’s favour by reason of the fact that there is clearly a connection between the offence provision that Mr Lloyd has taken your Honour to and the subject matter of Australia’s external relations.
HIS HONOUR: It is obviously undesirable that if it is unnecessary to do so I express any view as to the strength of the case beyond determining whether or not the proposition is arguable.
MR LENEHAN: Yes, your Honour, that is true, and I am putting all of this really in aid of a submission that what would be decided if this matter were to stay with the Supreme Court would not be any more exotic question as to the ambit of 51(xxix). It would be a question of really characterisation.
HIS HONOUR: It is said by the plaintiff to be a “novel” question. I suppose it might be novel if it is seen as requiring a re-examination of some earlier decisions of this Court, or dicta in earlier decisions of this Court.
MR LENEHAN: That is so, your Honour, but we would say not so because Mr Lloyd’s proposition seems to be the actus reus takes place wholly in Australia and it is only connected with external affairs because there is an intention. That is Sharkey’s Case, your Honour. In Sharkey you have an offence directed to the uttering of seditious words, conduct that takes place wholly within Australia with a link to foreign relations because amongst the matters said to involve - - -
HIS HONOUR: I do not have any difficulty seeing the argument from your side.
MR LENEHAN: Yes.
HIS HONOUR: I can understand it.
MR LENEHAN: Thank you, your Honour,
HIS HONOUR: And there is an argument about sufficiency of connection on the other side and you accept, it seems to me, that it is arguable.
MR LENEHAN: Yes.
HIS HONOUR: That is perhaps as far as I need to go in terms of then looking at how the other factors feed in.
MR LENEHAN: Yes, and, your Honour, I will move on. But just to finish with this, your Honour, we say it is a straightforward - - -
HIS HONOUR: Just one question I would ask you perhaps. It is a question I put to Mr Lloyd. Do you see any issue of constitutional fact attached to either of the arguments, that is, the external affairs or the defence argument?
MR LENEHAN: Yes, your Honour, and we see them as to both and can I just explain that?
HIS HONOUR: Does that make it harder for the Supreme Court?
MR LENEHAN: No, in fact it would be easier in the Supreme Court, your Honour.
HIS HONOUR: But it would introduce another issue, would it not, other than – there would not be a pure legal issue, there would be some other factual issue that has to be determined going to constitutional fact?
MR LENEHAN: There would be undoubtedly factual issues, your Honour, they would be determined by reference to the usual range of authoritative documents. Those documents my clients are already in the process of collecting and it would then be for the parties in that proceeding to make what they can of those documents. The difficulty in contrast with the special case procedure, your Honour, is that which was identified by Justice Hayne and Justice Heydon in Mowbray, that is the need to agree on facts, and it may well be that we end up with a situation, as existed in Mowbray, where the parties agree that certain statements were made but do not agree as to the truth of those statements. That is a difficulty that does not arise in the Supreme Court.
HIS HONOUR: Yes, all right.
MR LENEHAN: So that is what I want to say about that, your Honour. In terms of the other issues, I can deal with them more quickly. It is clear that the constitutional issues can be readily accommodated in the Supreme Court. Mr Lloyd now says that his client would if the matter is remitted take the course that we suggested is the appropriate course, that is, to seek to quash the indictment, and we have sought to highlight in our written submissions what was said by Justice Kiefel in Henke - - -
HIS HONOUR: Yes.
MR LENEHAN: - - - where she says - your Honour has seen that point.
HIS HONOUR: I have.
MR LENEHAN: Mr Alqudsi’s difficulties, in my submission, your Honour, are not limited to the likelihood – and this is the point that Mr Lloyd makes - that a lower court might follow dicta in Mowbray or Polyukhovich and this gets back to the submissions that I was making before, your Honour, on the constitutional points. There are more fundamental issues that he needs to confront. They include Sharkey and they include more fundamental principles as to characterisation. Unless he proposes to tear up root and branch bedrock propositions about 51(xxix) and recast this Court’s approach to characterisation, he is very likely, the respondents say for the reasons in writing, to fail here too.
Now, we are criticised by Mr Lloyd for saying that the constitutional issue may never arise, or that it may at least not arise in this Court. The Al Haq proceeding, and we have referred to that in paragraph 30 of our submissions, illustrates the point that we seek to make. In that matter, after removal was refused, the matter in the Supreme Court was no billed following rejection of certain evidence by the trial judge, a jury was never empanelled, it was never necessary to reach the constitutional issue which is the point that we make.
Mr Lloyd, and in written submissions Mr Alqudsi, has referred a number of times to the fact that he has been granted an indulgence by the Supreme Court to file pre-trial applications by 23 July – it was originally earlier. He may file just such an application as was filed in Al Haq in that proceeding, and that illustrates how it may be that the constitutional issues simply do not arise. That, in my submission, is a further reason for leaving things to proceed in the normal fashion in the Supreme Court.
Now, just briefly other points, we deal with the inconvenience to Mr Alqudsi at paragraphs 35 to 36 of our written submissions and we say that that does not require any different approach to this Court’s exercise of either the remittal power or the application for removal. We do say at paragraphs 37 to 38 that it is important that this Court would have benefit of factual findings and the reasoning of the lower courts, and your Honour has heard what I say about the relative benefits of leaving the matter with the Supreme Court in terms of what we anticipate to be the constitutional facts which will arise as regards both 51(vi) and 51(xxix).
HIS HONOUR: How does your delay argument work in relation to a motion to quash an indictment? I suppose that cannot be brought on until he has been arraigned, can it?
MR LENEHAN: He has been arraigned, your Honour.
HIS HONOUR: Yes, I know, he was arraigned in May.
MR LENEHAN: I apologise, your Honour, I was missing the point. That is true, but in terms of what we say about delay, that certainly would not have stopped Mr Alqudsi doing the very thing that he has done and bringing declaratory proceedings in this Court. That is clear from Kuzborski, your Honour, where - - -
HIS HONOUR: I understand that, but he is not obliged to bring declaratory proceedings in this Court. I suppose he could have simply proceeded on the basis legitimately, could he not, that upon arraignment he would file a motion to quash? Now, I know he has not done that yet, but if that is a legitimate option, an alternative, a motion to quash coupled with an application for removal, the delay question loses a bit of its punch, does it not?
MR LENEHAN: Well, it may, your Honour, except for this reason. Not only did he – it is not true to say that on arraignment he immediately moved to quash.
HIS HONOUR: He did not.
MR LENEHAN: On arraignment at a directions hearing before Justice Johnson consented to the trial being set down for 21 September, and then waited I think a month and a half before bringing the declaratory relief proceedings, and then waited a further period before bringing the removal application and has still not in fact brought an application to quash the indictment.
HIS HONOUR: Yes. So really the delay that matters though is the delay still subsisting, if you like, between arraignment and filing a motion to quash.
MR LENEHAN: Yes, at least as far as that aspect of the proceeding goes, yes, your Honour.
HIS HONOUR: As I say, it would have been quite legitimate to proceed in that way without seeking declaratory relief in the original jurisdiction of this Court.
MR LENEHAN: That is true, your Honour. There is the further factor that he has for some time been flagging that there was a constitutional issue floating - - -
HIS HONOUR: I know that, yes.
MR LENEHAN: And everybody has proceeded in the Supreme Court on the basis that steps were being taken, Mr Alqudsi would have, if he chose, the opportunity to agitate that issue. He did not do so and he allowed the trial to be set down with - - -
HIS HONOUR: But what is the logic of its engagement with the sufficient cause question under section 40?
MR LENEHAN: Your Honour, I cannot take it too much further than your Honour has said, so I have to.....Your Honour, so the only other thing that we seek to highlight is, well, two points. The first, and I addressed your Honour about this last time and I do not need to do so again. The point that is made at paragraph 39 which your Honour discussed with my friend, that is, that there is a specific procedural difficulty with the idea that one is removing an application, or removing a matter in which currently no constitutional issue arises, and the point about abuse of process is really just directed to the fact that that seems to us to be the explanation for not having sought to quash the proceeding thus far in the Supreme Court.
HIS HONOUR: That is a formal answer, I suppose, in a way but there is also section 40(4)(b), there is an “exercise of federal jurisdiction”, there is a removal, the bar is slightly higher I think there:
the Court is satisfied that it is appropriate to make the order having regard to all the circumstances –
MR LENEHAN: Yes, your Honour, but certainly not a constitutional issue and that is all we seek to say as regards that point.
HIS HONOUR: Yes, I understand.
MR LENEHAN: Not seeking to say that there would be no power. Just while I am dealing with that, some submissions were addressed to what happened in XYZ and it is said that that answers our abuse of process point. It does not because in XYZ there was no application to quash the indictment proceeding in parallel with the declaratory relief sought in this Court. Also in terms of XYZ, which is seemingly held out as an example of where this Court has disturbed the processes of a criminal court, the respondents note that the Commonwealth did not object to the procedure adopted there, and it did not object because the trial date had already in contrast to the current matter been vacated.
One of the other matters that my friend mentioned was, I think, Keating and in Keating – and this leads me to the last point that we seek to make – I think there was something like 300-odd prosecutions dealing with the same provision, and that more clearly satisfied the requirements that this Court has indicated in cases like Bienstein, there being an urgent issue that is important to resolve.
HIS HONOUR: I notice this legislation was repealed with effect from 1 December last year.
MR LENEHAN: Yes.
HIS HONOUR: Does that have any bearing on anything?
MR LENEHAN: It may. It is being re-enacted in the Criminal Code in substantially similar form.
HIS HONOUR: So the same points could be taken effectively about the equivalent provisions in the Criminal Code.
MR LENEHAN: It may well arise. There is different terminology and I will not take your Honour specifically through that, but I cannot say that it would not. What we do say at paragraph 40 is that it is wrong to suggest that there are a number of pending prosecutions regarding the same provision. There are, in fact – and this is by reference to Ms Gallagher’s second affidavit, there are no other current prosecutions dealing with section 7(1)(e).
The other prosecutions relate to other paragraphs of section 7(1). They may well raise different issues, but even if they raise similar issues – and this is the submission that I made earlier in writing – we say those are fairly – if a constitutional issue ever can be straightforward those are relatively straightforward. They are issues of characterisation, not ambit. Your Honour will have seen that we also make a costs application in relation to the costs of the adjournment on the last occasion. I do not want to add to what I have said in writing in paragraph 42 of the written submissions but we do make that application. Those are my submissions, your Honour.
HIS HONOUR: I think in answer to that it is said that at least the removal application is a criminal matter.
MR LENEHAN: It is. Nevertheless, that was in terms of the remittal application, a similar costs order was made in Pan at paragraph [17] and we pick that up, I think, at paragraph 42 of our written submissions.
HIS HONOUR: Yes, all right. Thank you.
MR LENEHAN: Thank you, your Honour.
HIS HONOUR: Yes, Mr Lloyd.
MR LLOYD: In relation to the weight that has been placed upon the fact that a trial has been set down, my understanding of the timetable is that I think on the day he was arraigned a trial was set down on that day and at the same time a period was set down for pre-trial notices of motion and the application in this Court was filed at the end of that period for pre-trial notice of motion at the same time as an application to vacate the hearing date. So, to that extent, it is not as if my client has ignored the ongoing nature of the hearing. Action was taken then within time. Then, as my friend has indicated, the time for pre-trial motions has been further extended and so to that extent it is still within time for my client to file that notice of motion to quash.
In relation to the other prosecutions, I should have indicated that I was not proposing to read a paragraph of Ms Burrows’ affidavit which does say the wrong thing, but according to Ms Gallagher’s affidavit there is a charge under 7(1)(f) which we say raises identical constitutional points. In relation to the Commonwealth characterising the matter as a sort of straightforward constitutional issue of characterisation, there are two elements; the one I addressed earlier on is the places, persons, matters and things physically external to the Commonwealth point and we say that there is an unresolved issue as to whether that can include an intention pertaining to a place external, and so we say that is not simply a matter of applying some existing clear-cut approach.
Thomas v Mowbray talk about apprehended injury, but that raises itself – applying that, who does it have to be apprehended by? Is it apprehended by the foreign State? Is it apprehended by the Parliament? So we say that is not so clear-cut either. In relation to the second limb, now, the second limb depending upon what one sees it at, the narrowest aspect is that the external affairs power extends to laws which are designed to preserve the integrity of foreign States. If that is the full ambit of it, we say we would not fall within that for reasons that I have identified, that the amendment to the legislation means that it is not simply about actions that threaten foreign States but also prohibits actions that support foreign States, so that characterisation would not be open.
Insofar as Sharkey is relied upon for some broader proposition that it extends to comity or it extends to things done that preserve international relations, we would say that Sharkey would need to be understood in the light of more recent jurisprudence of this Court. I am not saying Sharkey is wrongly decided but that it would be understood like the Communist Party Case has been understood and that there would be an issue as to whether the external affairs power – if the touchstone is something as vague as it is done because it supports Australia’s international relations or external relations, there would be a question then as to whether or not the matter could reasonably be considered, adapted and appropriate to – abject within power.
If it is a treaty, that is how treaties are looked at. It is not anything pertaining to a treaty but there has to be a kind of a proportionality test, and so a similar issue would arise if that is what is relied upon here. In circumstances where the offence can be made out simply by actions with one intention where the exact same action with a different intention is not an offence, there would be very significant issues as to whether foreign States could ever say, well, if you gave the lad $10,000 to buy a car, you wanted him to buy a car and he used it to go overseas and attack us as opposed to $10,000 because you wanted him to come overseas and attack us, really, can a foreign State – is there a real threat to international relations from somebody just giving an amount of money where the intention is not known. So we say there are real questions of – well, going beyond mere characterisation but clear issues of characterisation.
HIS HONOUR: Well, you say there are real questions. Again, does that put the matter any higher than that you have an arguable case, which I think is conceded by the other side, although the strength is obviously in debate?
MR LLOYD: Well, indeed, and I only put it because I think your Honour was prepared to approach the matter on the basis it was arguable and I stopped addressing that issue once your Honour said that and my friend has come back and said, well, it is really a clear-cut case.
HIS HONOUR: He says it is arguable but weak.
MR LLOYD: Arguable but weak, and we say that it is not weak. But I am not asking your Honour to decide that point - - -
HIS HONOUR: Plainly not.
MR LLOYD: - - - I am prepared for your Honour just to approach the issue on the basis that it is arguable. May it please the Court. I am sorry, I did want to say one further question. In relation to the issue of costs, as I apprehend it, the question for costs is sought in relation to the adjournment motion of last Wednesday which my client was wholly successful in and the two matters were set down together and to that extent we say that any costs should be costs in the cause of a remitted matter if my friend is successful, or costs in the cause in this Court if we are successful. May it please the Court.
HIS HONOUR: Yes, all right. Thank you. I will adjourn shortly to consider what course I should take and will be back – I will adjourn for about 15 minutes or so.
AT 10.54 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.16 AM:
HIS HONOUR: The plaintiff, Hamdi Alqudsi, has been charged on an indictment dated 7 May 2015 with seven counts of offences against section 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Each of the counts alleges that between 25 June and 14 October 2013 in Sydney he performed services for another person with the intention of supporting or promoting the commission of an offence against section 6 of the Act, being the entry by that person into a foreign State, namely Syria, with intent to engage in a hostile activity in Syria, in particular engaging in armed hostilities in Syria.
Each of the seven counts related to services allegedly performed for a different person. The Act was in force at the time of the alleged offences but was repealed with effect from 1 December 2014 by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. Section 7(1)(e) of the Act made it an offence to:
give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6 –
Section 6 provided, inter alia:
(1) A person shall not:
- (a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or
- (b) engage in a hostile activity in a foreign State.
The term “engage in a hostile activity in a foreign State” covers a number of categories of conduct and includes:
doing an act with the intention of achieving . . .
(a) the overthrow by force or violence of the government of the foreign State . . .
(aa) engaging in armed hostilities in the foreign State.
The term also extends to -
(b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury.
The plaintiff was originally arrested and charged with the offences on 3 December 2013. Between that time and November 2014 the charges were pending in the Local Court. In the course of an appearance for a mention in the Local Court on 14 October 2014 the plaintiff’s lawyer indicated to the Crown the prospect of a High Court challenge to the Act.
On 21 November 2014, the Local Court committed the plaintiff for trial in the District Court in Sydney and directed he appear in that court on 28 November 2014. The Commonwealth Director of Public Prosecutions applied to the Chief Justice of New South Wales under section 128 of the Criminal Procedure Act 1986 (NSW) for an order that the trial of the plaintiff proceed in the Supreme Court of New South Wales and not the District Court. The solicitor for the plaintiff advised on 21 January 2015 that there was no objection to the Crown application.
In the letter so advising, the plaintiff’s solicitor further indicated that the constitutional challenge relating to the validity of the Act was “under active contemplation” and foreshadowed that an application would be made to the High Court of Australia ‘that may need to be dealt with prior to any trial processes being undertaken”.
On 27 January 2015, the Chief Justice of New South Wales made an order under section 128 of the Criminal Procedure Act so that the prosecution could proceed in the Supreme Court. The Chief Justice in his letter advising of that order noted the potential constitutional challenge to the legislation.
The matter came before Justice Johnson as Criminal List Judge in the Arraignments List on 1 April 2015. There was discussion, among other things, about the possibility of a High Court challenge and the proceedings were adjourned until 8 May. The plaintiff appeared in the Arraignments List on 8 May and was arraigned on the seven counts and pleaded not guilty to each of them.
The Director of Public Prosecutions sought a trial date. Counsel for the plaintiff indicated that consideration was still being given to an application to the High Court. Justice Johnson decided that the appropriate course would be to fix a trial date, given that much time had passed, and there was no application which had been brought in the High Court. Counsel for the plaintiff told his Honour they would be content with him setting a trial date.
Following discussion about the number of witnesses and the likely length of the hearing the trial date was fixed for six weeks, commencing on 21 September 2015. His Honour directed that any notice of motion and affidavit with respect to pre-trial issues be filed and served by the plaintiff by 18 June 2015. The Crown filed and served a notice of prosecution case and other materials on 27 May pursuant to section 142 of the Criminal Procedure Act and the practice note in relation to criminal proceedings.
On 18 June, the plaintiff commenced the present proceedings in this Court seeking a declaration that section 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act is invalid. On the same day the plaintiff’s solicitor filed a motion in the Supreme Court seeking an order that the trial of the charges against the plaintiff be vacated and that the trial be stayed pending the outcome of the proceedings commenced in the High Court.
Justice Johnson, in dealing with the motion, noted that no explanation had been offered for the delay in instituting the proceedings in the High Court, which had been foreshadowed as long ago as 14 October 2014. His Honour said what must have been entirely clear and obvious to the accused and his legal representatives was that the Supreme Court of New South Wales would proceed to list the matter for trial and make associated orders. The making of repeated but unparticularised statements that a High Court challenge was under consideration would not itself cause the court to take a different approach.
In the event, his Honour did not dismiss the motion but indicated that the plaintiff would have to present further evidence as to what had and had not happened in the past and of steps taken to urgently prosecute the matter filed in the High Court. He made clear to the plaintiff that it should not be assumed that the Supreme Court would automatically vacate the trial date. Whatever course the court took would have to be based upon evidence accompanied by submissions. He adjourned the motion to 9 July and directed the plaintiff to file any further affidavit in support of it by 6 July. By a summons filed on 3 July in the declaratory proceedings instituted in this Court by the plaintiff the Commonwealth sought a direction that the matter be remitted to the Supreme Court of New South Wales. That application was made under section 44(1) of the Judiciary Act 1903 (Cth).
In separate proceedings, S132 of 2015 commenced in this Court by application on 7 July 2015, the plaintiff sought an order pursuant to section 40 of the Judiciary Act, removing the whole of the cause now pending in the Supreme Court of New South Wales, that is to say, the pending prosecution, into this Court.
On 9 July, Justice Johnson observed that further evidence filed by the plaintiff pursuant to his directions said nothing about why it had taken until 18 June to commence the declaratory proceedings in this Court. There was, and is, no evidence on the record about the delay. His Honour then further adjourned the motion to 17 July and on that day Justice Adamson, who will be the trial judge, adjourned it further until today, 20 July.
On 15 July, I heard a summons by the plaintiff seeking to have the remitter application adjourned and heard concurrently with the removal application. I made orders directing that both the remitter summons and the removal application be heard today. Section 40(1) of the Judiciary Act relevantly provides that:
Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in . . . a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit.
It is difficult to see how at present there is a formal question arising under the Constitution or involving its interpretation in the Supreme Court of New South Wales in the pending prosecution against the plaintiff. The making of statements from the Bar table in the Supreme Court about unarticulated challenges to federal legislation under which the prosecution is brought does not necessarily lead to the characterisation of the matter as one attracting the application of section 40(1). The position would have been different if a motion to quash the indictment on the basis of the invalidity of section 7(1)(e) had been filed in the Supreme Court. Such a motion is foreshadowed if the proceedings are removed into this Court. However, section 40(2) relevantly provides that:
Where:
. . .
(b) there is at any time pending in a court of a State a cause involving the exercise of federal jurisdiction by that Court;
the High Court may, upon application of a party . . . at any stage of the proceedings before final judgment, order that the cause or a part of the cause be removed into the High Court on such terms as the Court thinks fit.
The High Court is not to make such an order unless it is by consent of all parties or:
the Court is satisfied that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest.
That requirement may be seen as setting a test which is somewhat different from the sufficient cause requirement in the case in which a constitutional question arises, but if the present application were unable to be dealt with under section 40(1), in my opinion, the power under section 40(2) would cover the case.
Despite the real question about whether in a formal sense the proceedings in the Supreme Court at this stage arise under the Constitution or involve its interpretation within the meaning of section 40(1), I am prepared to assume an affirmative answer to that question for present purposes and to proceed on the basis that the requisite test is whether there is sufficient cause to make the removal order. The practical considerations relevant to that criterion overlap with those relevant to the question whether the cause pending in this Court should be remitted to the Supreme Court of New South Wales. Remitter is provided for by section 44 of the Judiciary Act and, relevantly, in subsection (1):
Any matter . . . that is at any time pending in the High Court . . . may, upon the application of a party or of the High Court’s own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter . . . shall be as directed by the court to which it is remitted.
The plaintiff’s constitutional points are set out under the heading “Basis of claimed invalidity” in the writ issued in S119 of 2015. Paragraph 4 states:
The impugned legislation falls outside the ambit of the heads of power set forth in section 51 of the Constitution. Without limiting the generality of the foregoing, the Plaintiff says the impugned legislation does not properly fall under section 51(vi) or (xxix) of the Constitution and is invalid.
Paragraph 5 -
Section 7(1)(e) of the Act falls outside the ambit of the defence power, because the purpose of the legislation is not the defence of Australia.
Paragraph 6 -
The various potential subject matters of section 7(1)(e) of the Act provide no basis for the characterization of that provision as relating to the external affairs of Australia. In so far as that provision may operate in circumstances which have a tenuous or remote connection with external affairs, they cannot properly be characterized as relating to the external affairs of Australia.
The plaintiff submits that his challenge to the validity of section 7(1)(e) raises important and novel questions of constitutional law which can only be resolved in this Court. That, of course, may be true of any challenge to validity, whether based on established criteria or a novel argument about the scope of Commonwealth legislative power. It is a proposition which would encompass any argument that this Court should not follow its own previous decisions. The characterisation of a point as novel covers the frivolous as well as the substantial.
In considering the nature of the constitutional challenge which the plaintiff foreshadows, as elaborated in the written and oral submissions on his behalf, I will accept for present purposes that he has an arguable case. The existence of an arguable case, however, is not sufficient cause for removal of proceedings into this Court. The Commonwealth makes the obvious point that to grant the removal application would be to disturb or interrupt the course of criminal proceedings in the Supreme Court. It would undoubtedly delay the commencement of those proceedings by some months.
There is ample authority for the proposition that this Court should be reluctant to disturb the progress of pending criminal proceedings. As Justice Kirby said in Pan Laboratories Pty Ltd v The Commonwealth (1999) 73 ALJR 464 at paragraph [11]:
This Court has said on many occasions, including recently, that great restraint must be exercised by the High Court and by other courts of appeal and review before issuing orders or taking steps which may disturb or fragment the course of a criminal trial.
His Honour also applied that principle, as the Commonwealth points out, in determining to remit proceedings in this Court to the District Court under section 44 of the Judiciary Act. Further, it is open to the plaintiff, as has been foreshadowed, to file a motion to quash the indictment in the Supreme Court of New South Wales. That court could also make directions for dealing with the declaratory proceedings if they are remitted to it from this Court. Whether it would be convenient to deal with them together with the quashing motion or to deal with the pre-trial motion first and make other directions in relation to the declaratory proceedings would be a matter for the Supreme Court.
There are many contingencies that might shape the progress of the debate about constitutional validity in the Supreme Court. They may include an application for leave to appeal to the Court of Criminal Appeal from a decision on a quashing motion and/or an appeal in relation to declaratory proceedings, each of which might arguably lead to an application for special leave to appeal to this Court, even before the trial itself proceeds. There are other contingencies under which the constitutional point might never be reached or might become irrelevant, for example, because of an acquittal after trial. In my opinion, insufficient cause has been shown to overcome the principle against fragmentation of pending criminal proceedings by the interlocutory interventions of this Court.
I therefore order, in S132, the order will be:
In S119, the orders will be:
Thank you. Those reasons will be published in due course. The Court will now adjourn.
AT 11.32 AM THE MATTER WAS CONCLUDED
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