Tham, Joo-Cheong --- "Possible Constitutional Objections to the Powers to Ban 'Terrorist' Organisations" [2004] UNSWLawJl 31; (2004) 27(2) UNSW Law Journal 482

[*] LLB (Hons) (Melb), LLM (Melb); Associate Lecturer, School of Law and Legal Studies, La Trobe University. Special thanks to Roger Douglas, Jude McCulloch and George Williams for kindly reading an earlier draft of this article and providing feedback. I also greatly benefited from the anonymous referees’ comments, especially in revising the sections dealing with bills of attainder. All errors remain my own.

[1] For an account of such legislation, see Michael Head, ‘“Counter-Terrorism” Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights’ [2002] MelbULawRw 34; (2002) 26 Melbourne University Law Review 666; Greg Carne, ‘Terror and the Ambit Claim: Security Legislation Amendment (Terrorism) Act 2002 (Cth)’ (2003) 14 Public Law Review 13; Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (2003) ch 11; Nick O’Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights Law in Australia (2^nd ed, 2004) ch 11. For specific discussion of the ‘terrorist’ proscription regime under the Criminal Code, see Nathan Hancock, ‘Criminal Code Amendment (Terrorist Organisations) Bill 2003’ (Bills Digest No 174/2002–3, 2003).

[2] Security Legislation Amendment (Terrorism) Bill 2002 (Cth). See generally Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth); Suppression of Financing of Terrorism Bill 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombing) Bill 2002 (Cth); Border Security Legislation Amendment Bill 2002 (Cth) and Telecommunications Interception Legislation Amendment Bill 2002 (Cth) (2002); Nathan Hancock, ‘Security Legislation Amendment (Terrorism) Bill 2002 [No 2]’ (Bills Digest No 126/2001–2, 2002).

[3] Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth). See generally Parliamentary Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (2002); Senate Legal and Constitutional References Committee, Parliament of Australia, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 and related matters (2002).

[4] The Senate Legal and Constitutional Legislation Committee commented that ‘[t]he provisions of the [Security Legislation Amendment (Terrorism)] Bill dealing with the Attorney-General’s proposed proscription powers raised the most concern’: Senate Legal and Constitutional Legislation Committee, above n 2, 45.

[5] See generally Mark Tan, ‘Money Laundering and the Financing of Terrorism’ (2003) 14 Journal of Banking and Finance Law and Practice 81, 100–1; Jude McCulloch et al ‘Suppressing the Financing of Terrorism’ (2004) 16 Current Issues in Criminal Justice 7.

[6] George Williams quoted in Senate Legal and Constitutional Legislation Committee, above n 2, 47.

[7] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1. A crucial difference, however, between the proscription regimes and the Communist Party Dissolution Act 1950 (Cth) is that the former is subject to judicial review.

[8] There is a brief discussion in Head, above n 1, 687–8.

[9] Both regimes also raise the question of whether a head of power can support them. In both cases, this question can be easily answered in the affirmative, see below nn 22–24 and accompanying text, and Part III(A).

[10] For a discussion of this Act, see Joo-Cheong Tham, ‘Casualties of the Domestic “War on Terror”: A Review of Recent Counter-Terrorism Laws’ [2004] MelbULawRw 16; (2004) 28 Melbourne University Law Review 512; Joo-Cheong Tham, ‘How Not to Fight the “War on Terrorism”: the Criminal Code Amendment (Terrorist Organisations) Bill 2003’, Sydney Morning Herald: Web Diary (Sydney), 15 September 2003, <http://www.smh.com.au/articles/2003/09/15/1063478118687.html> at 15 November 2004.

[11] Criminal Code s 102.1(2).

[12] Criminal Code s 102.1(2A).

[13] Acts Interpretation Act 1901 (Cth) s 48.

[14] Criminal Code s 102.1A.

[15] Criminal Code s 102.2 (directing the activities of a terrorist organisation), s 102.3 (membership of a terrorist organisation), s 102.4 (recruiting for a terrorist organisation).

[16] Criminal Code s 102.5. As a result of the Anti-Terrorism Act 2004 (Cth), there are actually two separate training offences. Both are only committed when the accused is reckless as to whether an organisation is a ‘terrorist organisation’. The difference is that the offence in s 102.5(1) of the Criminal Code places the evidential burden of this element on the prosecution while the offence in s 102.5(2) provides an accused with a defence of disproving recklessness. This difference is of little significance to the constitutional issues and will not be discussed any further. For a discussion of these offences, see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti-Terrorism Bill 2004 (2004) 7–8.

[17] Criminal Code s 102.6.

[18] Criminal Code s 102.7.

[19] The Criminal Code Amendment (Terrorism) Act 2003 (Cth) took effect on 29 May 2003.

[20] Constitution ss 51 (vi) (defence power), 51 (xx) (corporations power).

[21] Senate Legal and Constitutional Legislation Committee, above n 2, 25, 47. See also Evidence to the Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Sydney, 8 April 2002, 58–6 1 (George Williams). For more detail see George Williams and Iain Gentle, Submission to the Senate Legal and Constitutional Legislation Committee’s Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 etc (2002) Gilbert + Tobin Centre of Public Law <http://www.gtcentre.unsw.edu.au/Terrorism%20Senate%20Submission.doc> at 15 November 2004.

[22] The States have referred matters to which the provisions of the Criminal Code dealing with ‘terrorism’ relate (ie pt 5.3 of the Criminal Code). They have also referred the matter of ‘terrorist acts, and actions to terrorist acts’ insofar as it enables the making of laws with respect to pt 5.3 and ch 2 of the Criminal Code: Terrorism (Commonwealth Powers) Act 2002 (NSW) s 4; Terrorism (Commonwealth Powers) Act 2002 (Qld) s 4; Terrorism (Commonwealth Powers) Act 2002 (SA) s 4; Terrorism (Commonwealth Powers) Act 2002 (Tas) s 4; Terrorism (Commonwealth Powers) Act 2003 (Vic) s 4; Terrorism (Commonwealth Powers) Act 2002 (WA) s 4. The ‘mirror’ federal Act is the Criminal Code Amendment (Terrorism) Act 2003 (Cth) (for a discussion of an earlier version of this Act, see Nathan Hancock, ‘Criminal Code Amendment (Terrorism) Bill 2002’ (Bills Digest No 89/2002–03, 2002) <http://www.aph.gov.au/library/pubs/> at 15 November 2004. These referrals were pursuant to the Commonwealth and States and Territories Agreement on Terrorism and Multi-Jurisdictional Crime (5 April 2002) para 3. For a discussion of these referrals, see O’Neill, Rice and Douglas, above n 1, 252–4.

It should be noted that these references do not give rise to ‘[e]xecutive assertions of self-defining and self-fulfilling powers’: Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124 (‘Al-Kateb’) [149] (Kirby J). Put differently, they do not breach ‘an elementary rule of constitutional law … that a stream cannot rise higher than its source’: Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 258 (Fullagar J). This is because the scope of the references is clearly delineated by the above statutory provisions and does not depend on the opinion of the executive

[23] Second Reading Speech, Criminal Code Amendment (Terrorism) Bill 2002 Commonwealth, House of Representatives, 12 December 2002 (Daryl Williams, Attorney-General); Second Reading Speech to the Criminal Code Amendment (Terrorism) Bill 2002 Commonwealth, House of Representatives, 13 May 2003 (Senator Ian Campbell, Parliamentary Secretary to the Treasurer).

[24] Opening sentence of s 51 of the Constitution.

[25] This freedom has been characterised as negative in the sense that it operates as restriction on legislative and executive power and is not a source of private rights, see McClure v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734, 740–1 for a recent affirmation of this characterisation. For a critical discussion of such a characterisation, see Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25(2) Melbourne University Law Review 374, 400–4.

[26] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[27] Ibid 567–8. This test has been applied in various decisions post-Lange, see, eg, Jones v Scully (2002) 120 FCR 243, [236] (Hely J).

[28] See also below nn 165–173 and accompanying text, on the separate application of the Lange test to executive acts made within the scope of the relevant legislative provisions.

[29] See, eg, Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73.

[30] [1997] HCA 31; (1997) 189 CLR 579.

[31] Wildlife (Game) (Hunting Season) Regulations 1994 (Vic).

[32] [2003] FCA 1433; (2003) 204 ALR 119.

[33] Public Service Regulations 1998 (Cth).

[34] [2000] QCA 465; [2001] 2 Qd R 565. For a discussion of this case, see John Chesterman, ‘Sellars v Coleman: The Limits of Free Speech’ (2001) 36 Australian Journal of Political Science 373.

[35] Ibid.

[36] Burdens of this kind have been challenged in a number of past cases, see, eg, Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302; Sellars v Coleman [2000] QCA 465; [2001] 2 Qd R 565; Coleman v Power [2001] QCA 539; [2002] 2 Qd R 620. For a discussion of the last decision, see Elisa Arcioni, ‘Before the High Court: Politics, Police and Proportionality – An Opportunity to Explore the Lange Test: Coleman v Power’ [2003] SydLawRw 17; (2003) 25 Sydney Law Review 379. See also Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 702–4.

[37] Criminal Code s 100.1.

[38] Criminal Code s 100.1.

[39] CEPU v Laing [1998] FCA 1410; (1998) 89 FCR 17 [34]. For an interesting discussion of the industrial/political dichotomy in relation to the implied freedom of political communication pre-Levy, see Rachel Doyle, ‘The Industrial/Political Dichotomy: The Impact of the Freedom of Communication Cases on Industrial Law’ (1995) 8 Australian Journal of Labour Law 91.

[40] Levy [1997] HCA 31; (1997) 189 CLR 579, 594–5, 622–3, 637; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [281] (Kirby J). For a discussion of this decision, see Francis Trindade, ‘Possums, Privacy and the Implied Freedom of Communication’ (2002) 10 Torts Law Journal 119.

[41] This was due to Lange failing to confirm that the implied freedom of political communication applied to solely State political matters and statements made by Brennan CJ and McHugh J in Levy. For a discussion of the latter, see Adrienne Stone, ‘Case Note: Lange, Levy and the Direction of the Freedom of Communication under the Australian Constitution’ [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117, 129.

[42] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, [69] (Gaudron, McHugh and Gummow JJ), [170]–[172] (Kirby J). For discussion of this point, see Geoffrey Lindell, ‘The Constitutional and Other Significance of Roberts v Bass: Stephens v West Australian Newspapers Ltd Reinstated?’ (2003) 14 Public Law Review 201.

[43] Brown v Members of the Classification Review Board of the Ofice of Film & Literature Classification [1998] FCA 319; (1998) 82 FCR 225, 246 (Heerey J), 258 (Sundberg J) (cf 237–8 per French J). See generally Adrienne Stone, ‘The Freedom of Political Communication since Lange’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 5–10; Stone, above n 25, 378–80.

[44] Stone, above n 25, 383. Stone has also advanced three other categories that could be embraced by the implied freedom of political communication, namely, potential subjects of government action; communication that influences attitudes towards public issues and communication that develops qualities desirable in a voter: ibid 383–7.

[45] ‘[T]he principles enunciated in Lange’s case have no application to the discussion of religious matters or religious organisations or … “church politics”’: Harkianakis v Skalkos [1999] NSWSC 505; (1999) 47 NSWLR 302, 306.

[46] ‘The conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based’: John Fairfax Publications Pty Ltd v A-G (NSW) [2000] NSWCA 198; (2000) 181 ALR 694, 709 (Spigelman CJ with whom Priestly JA agreed at 721).

[47] Brown v Members of the Classification Review Board of the Ofice of Film & Literature Classification [1998] FCA 319; (1998) 82 FCR 225, 246 (Heerey J). In a similar vein is the very brief conclusion of the Supreme Court of Queensland Court of Appeal that ‘grossly offensive imputations relating to the sexual orientation and preference of a Member of Parliament and her performance’ meant that there was no burden on the implied freedom of political communication: Australian Broadcasting Corporation v Hanson (Unreported, Supreme Court of Queensland, De Jersey CJ, McMurdo P and McPherson JA, 28 September 1998) 8.

[48] The extent of the burden will, however, be relevant to question whether the Criminal Code proscription power is reasonably appropriate and adapted to serve a legitimate end: see discussion below n 56.

[49] The ‘chilling effect’ refers to the phenomenon of laws and, more specifically, the penalties they impose discouraging or deterring certain behaviour merely by their existence. This phrase was used by Gaudron, McHugh and Gummow JJ in referring to the availability of damages for defamatory publications: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, [102].

[50] Criminal Code Regulations 2002 (Cth) (‘Criminal Code Regulations’) sch 1. It should be noted that there is a typographical error in sch 1 in that item 14 of the schedule has been inadvertently left out.

[51] Commonwealth, Parliamentary Debates, House of Representatives, 12 March 2002, 1040 (Daryl Williams, Attorney-General).

[52] Ibid, 1041. For decisions which that have also relied on parliamentary material in discerning the purpose/s of the laws, see Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; John Fairfax Publications Pty Ltd v A-G (NSW) [2000] NSWCA 198; (2000) 181 ALR 694, [123], [157]; Power v Coleman [2001] QCA 539; [2002] 2 Qd R 620, 631, 641–2. For a more sceptical view of such material, see Mulholland v Australian Electoral Commission [2003] FCAFC 91; (2003) 128 FCR 523, [28]–[29].

[53] See, eg, statements quoted in Senate Legal and Constitutional Legislation Committee, above n 2, 46.

[54] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, [285] (Callinan J).

[55] Sellars v Coleman [2000] QCA 465; [2001] 2 Qd R 565, 579 (Jones J).

[56] For an excellent enumeration of relevant considerations in applying the proportionality test, see Arcioni, above n 36, 386–8.

[57] The scope and extent of such a burden was considered in Sellars v Coleman [2000] QCA 465; [2001] 2 Qd R 565, 569 (Pincus JA), 579 (Jones J).

[58] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ). See also 169 (Deane and Toohey JJ), 234–5 (McHugh J); Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 76– 7 (Deane and Toohey JJ); Levy [1997] HCA 31; (1997) 189 CLR 579, 614 (Toohey and Gummow JJ), 619 (Gaudron J), 645 (Kirby J); CEPU v Laing [1998] FCA 1410; (1998) 89 FCR 17, [35].

[59] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ). See also 235 (McHugh J); Levy [1997] HCA 31; (1997) 189 CLR 579, 647 (Kirby J).

[60] Levy [1997] HCA 31; (1997) 189 CLR 579, 619 (Gaudron J).

[61] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ). See also Levy [1997] HCA 31; (1997) 189 CLR 579, 619 (Gaudron J). This distinction is best incorporated into the proportionality test laid down in Lange as distinct from forming the basis of the two-tier approach to the implied freedom. For similar sentiments, see Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ [1997] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1, 17; George Williams, Human Rights under the Australian Constitution (1999) 192. See also Stone, above n 43, 12–16.

[62] See above nn 15–18 and accompanying text.

[63] Criminal Code s 102.1(2).

[64] Such an application can be made, for example, pursuant to s 75(v) of the Constitution, or under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[65] See generally Aidan Ricketts, ‘Freedom of Association or Guilt by Association: Australia’s New Anti-Terrorism Laws and the Retreat of Political Liberty’ [2002] SCULawRw 5; (2002) 6 Southern Cross University Law Review 133, 140–4.

[66] [1992] HCA 45; (1992) 177 CLR 106, 146.

[67] These figures have been calculated from the consolidated list found at <http://www.dfat.gov.au/icat/persons_entities> at 15 November 2004.

[68] Criminal Code Regulations 2002 (Cth) sch 1.

[69] See reasoning in Levy [1997] HCA 31; (1997) 189 CLR 579, 614–5 (Toohey and Gummow JJ), 627 (McHugh J), 647–8 (Kirby J).

[70] For an excellent examination of these provisions and their use (or lack of), see Roger Douglas, ‘Keeping the Revolution at Bay: The Unlawful Associations Provisions of the Commonwealth Crimes Act’ [2001] AdelLawRw 4; (2001) 22 Adelaide Law Review 259.

[71] Criminal Code Regulations sch 1.

[72] See Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 128 (Gaudron J). It should be noted that the Full Bench of the Federal Court has held that the fact that challenged provisions are found to be reasonably appropriate and adapted to a legitimate end for the purpose of the implied freedom of political communication will necessarily mean that the same conclusion issues for any implied freedom of political association: Mulholland v Australian Electoral Commission [2003] FCAFC 91; (2003) 128 FCR 523, [41]. Such reasoning is erroneous as these freedoms clearly involve different considerations.

[73] But see the brief discussion of Mulholland v Australian Electoral Commission [2004] HCA 39 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 1 September 2004) below Part V.

[74] These sections respectively require that Senators and members of the House of Representatives be ‘directly chosen by the people’.

[75] These two bases of implication were also recognised in Jeremy Kirk, ‘Constitutional Implications from Representative Democracy’ [1995] FedLawRw 2; (1995) 23 Federal Law Review 37, 47.

[76] Kruger [1997] HCA 27; (1997) 190 CLR 1, 142 (McHugh J). See also Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 229 (McHugh J).

[77] George Williams, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral

Reform’ [1996] MelbULawRw 6; (1996) 20 Melbourne University Law Review 848, 861. See also Williams, above n 61, 194.

[78] Kruger [1997] HCA 27; (1997) 190 CLR 1, 120 (Gaudron J).

[79] Ibid 115 (Gaudron J). See also ibid 91–2 (Toohey J). See also Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 212 (Gaudron J).

[80] Kruger [1997] HCA 27; (1997) 190 CLR 1, 126–7 (Gaudron J).

[81] Ibid 142 (McHugh J). See also Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 229 (McHugh J).

[82] Lange [1997] HCA 25; (1997) 189 CLR 520, 559. See also Williams, above n 61, 194.

[83] Kirk, above n 75, 47.

[84] Anderson has argued that utilitarian organisations should be distinguished for the purpose of the implied freedom of political communication: Gavin W Anderson, ‘Corporations, Democracy and the Implied Freedom of Political Communication: Towards a Pluralistic Analysis of Constitutional Law’ [1998] MelbULawRw 1; (1998) 22 Melbourne University Law Review 1, 22 citing Meir Dan-Cohen, ‘Freedoms of Collective Speech: A Theory of Protected Communication by Organizations, Communities and the State’ (1991) 79 California Law Review 1229. Which organisations come within the scope of the implied freedom of political association will, of course, depend upon ‘prudential-ethical’ considerations, that is, the ‘social or political considerations attending the case’: Justice Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ [2003] UNSWLawJl 10; (2003) 26 University of New South Wales Law Journal 210, 219. In particular, it will depend upon judicial conceptions of the ‘contemporary world of Australian politics’: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, [171] (Kirby J). For a discussion of this decision, see Helen Chisholm, ‘The Stuff of Which Political Debate is Made: Roberts v Bass’ [2003] FedLawRw 7; (2003) 31 Federal Law Review 225; Lindell, above n 42, 201– 5.

It should be noted that even though some organisations are not protected by the implied freedom of political association, their acts of political communication will be still be covered by the implied freedom of political association.

[85] Criminal Code s 100.1(3).

[86] It should be noted that some industrial activity can be considered ‘terrorist acts’. Picketing by nurses that block entry and egress to hospitals is a case on point. Such action will probably meet the intention and harm elements (the latter because such action creates a risk to a section of public). Moreover, while the definition of a ‘terrorist act’ excludes ‘industrial action’ (Criminal Code s 100.1), this is unlikely to afford any protection to picketing which has been found not to be ‘industrial action’ under the Workplace Relations Act 1996 (Cth): Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463, [43]–[76] (Wilcox and Cooper JJ), [119] (Burchett J). For commentary on this case, see John Howe, ‘Picketing and the Statutory Definition of “Industrial Action”’ (2000) 13 Australian Journal of Labour Law 84. The ruling in this case has subsequently been applied in Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444 and Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Worker’s Union [2000] FCA 1793; (2000) 106 FCR 148.

[87] See above Part II(A)(a)(ii).

[88] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254; aff’d A-G (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529.

[89] See generally Leslie Zines, ‘A Judicially Created Bill of Rights?’ [1994] SydLawRw 14; (1994) 16 Sydney Law Review 166, 166–75; George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994); Fiona Wheeler, ‘The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview’ (2001) 20 Australian Bar Review 283, 285–7; Tony Blackshield and George Williams, Australian Constitutional Law & Theory: Commentary & Materials (3^rd ed, 2002) ch 29.

[90] [1956] HCA 10; (1956) 94 CLR 254.

[91] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Afairs (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).

[92] Ibid.

[93] Another is the prohibition against punitive detention by the legislature or the executive: ibid 27–8, and discussed in Al-Kateb [2004] HCA 37; (2004) 208 ALR 124.

[94] [1991] HCA 32; (1991) 172 CLR 501, 539 (Mason CJ), 612 (Deane J), 648 (Dawson J), 686 (Toohey J), 706 (Gaudron J), 721 (McHugh J). Justice Brennan did not discuss this question. For a discussion of this case, see James Thomson, ‘Is it a Mess? The High Court and the War Crimes Case: External Affairs, Defence, Judicial Power and the Australian Constitution’ (1992) 22 Western Australian Law Review 197; Helen Roberts, ‘Retrospective Criminal Laws and the Separation of Judicial Power’ (1997) 8 Public Law Review 170; Greg Taylor, ‘Retrospective Criminal Punishment under the German and Australian Constitutions’ [2000] UNSWLawJl 31; (2000) 23(2) University of New South Wales Law Journal 196, 203–8. It should be noted that historically, a bill of attainder referred to an Act which imposed the death penalty on a specified person/s whereas an Act of this kind which imposed a lesser penalty was referred to as a Bill of Pains and Penalties. For ease of discussion, I shall follow the example of the High Court in Polyukhovich and use the term, ‘bill of attainder’ to refer to both types of Acts.

[95] (1992) 176 CLR 1, 34 (Brennan, Deane and Dawson JJ).

[96] Zines, above n 89, 169. See also Winterton, above n 89, 190–1.

[97] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 536 (Mason CJ) (emphasis added).

[98] Ibid 539 (Mason CJ).

[99] Ibid 706 (Gaudron J).

[100] Ibid 536 (Mason CJ).

[101] Ibid 647 (Dawson J). See also ibid 721 (McHugh J). Note that Dawson J merely assumed and did not decide that the separation of judicial power prohibited a bill of attainder.

[102] Ibid, 706 (Gaudron J).

[103] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374 (Kitto J).

[104] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 536 (Mason CJ).

[105] Prior to the enactment of the Anti-Terrorism Act 2004 (Cth), this offence was restricted to proscribed ‘terrorist organisations’. For discussion, see Senate Legal and Constitutional Legislation Committee, above n 16, 7.

[106] Criminal Code s 102.3(2).

[107] Criminal Code s 102.1.

[108] Criminal Code s 102.1.

[109] Criminal Code s 102.1(2). Judicial review of the Attorney-General’s decision will be available pursuant to Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 75(v) of the Constitution. The availability of such review distinguishes the Criminal Code proscription power from the powers granted by the Communist Party Dissolution Act 1950 (Cth): Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.

[110] Polyukhovich [1991] HCA 32; (1991) 172 CLR 501, 647 (Dawson J) (emphasis added). See also 536–7 (Mason CJ), 721 (McHugh J).

[111] Criminal Code s 102.5.

[112] Criminal Code s 102.6. It should be noted that a funding offence is not committed if the funds are received solely for the purpose of proceedings relating to the ‘terrorist organisation’ offences or for the purpose of assisting the organisation to comply with an Australian law.

[113] To take a fanciful example, an offence targeting a lawn bowling club does affect its members, but only in a minor way, that is, in relation to lawn bowling activities engaged in as club members.

[114] See above nn 105–110 and accompanying text.

[115] See generally Leslie Zines, The High Court and the Constitution (4^th ed, 1997) 208–10.

[116] Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ); also quoted with apparent approval by Gummow J in Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124, [138].

[117] Chu Kheng Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). Their Honours were referring to the task of identifying judicial functions, but similar considerations would apply to the task of determining what constitutes criminal punishment.

[118] The term ‘training’ is not defined by the Criminal Code. Hence, the ordinary meaning of the term applies. One definition is found in the Macquarie Dictionary: ‘the development in oneself or another of certain skills, habits, and attitudes’: The Macquarie Dictionary (3^rd ed, 1999) 2243. Such a definition would clearly embrace educational courses. For discussion of the breadth of the meaning of training, see Senate Legal and Constitutional Legislation Committee, above n 16, 37–8.

[119] [2004] HCA 37; (2004) 208 ALR 124. The majority consisted of McHugh, Hayne, Callinan and Heydon JJ. In another decision handed down on the same day, the various High Court judges reiterated the reasons they gave in Al-Kateb: Minister for Immigration and Multicultural and Indigenous Afairs v Al-Khafaji [2004] HCA 38; (2004) 208 ALR 201.

[120] Ibid [137]–[140].

[121] Chu Kheng Lim (1992) 176 CLR 1, 27 (emphasis added).

[122] This position is clearest in Hayne J’s judgment where his Honour stated that ‘[o]nly if it is said that there is an immunity from detention does it become right to equate detention with punishment that can validly be exacted only in the exercise of judicial power’: Al-Kateb [2004] HCA 37; (2004) 208 ALR 124, [267] (with whom Heydon J agreed at [303]). See also [44]–[45] (McHugh J), [258] (Hayne J) (with whom Heydon J agreed at [303]), [287], [289], [291] (Callinan J).

[123] Ibid [45] (McHugh J), [267] (Hayne J) (with whom Heydon J agreed at [303]). See also [291] (Callinan J).

[124] See ibid [44] (McHugh J), [135]–[140] (Gummow J), [265] (Hayne J) (with whom Heydon J agreed at [303]), [287], [289], [291] (Callinan J). Chief Justice Gleeson and Kirby J did not expressly address this issue.

[125] Ibid [136].

[126] Ibid [44]–[45] (McHugh J), [287], [289], [291] (Callinan J).

[127] Ibid [265] (emphasis original). In that same paragraph, Hayne J quoted H L A Hart’s definition of the ‘central case of punishment’ which consisted of the following elements: it was pain or other unpleasant consequences imposed for an ofence against the law on the actual or supposed offender and was administered by persons other than the actual or supposed offender who were acting pursuant to authority conferred by the law. See also ibid [261] where Hayne J observed that the detention of the unlawful non-citizen was ‘not inflicted on that person as punishment for any actual or assumed wrongdoing’.

[128] See above nn 107–109 and accompanying text.

[129] Chu Kheng Lim (1992) 176 CLR 1, 27 (emphasis added).

[130] Ibid 29–32.

[131] Ibid 28–9.

[132] See above nn 98–99 and accompanying text.

[133] Criminal Code s 102.1(1), (7)–(8).

[134] Criminal Code Regulations sch 1A.

[135] See above nn 10–11 and accompanying text.

[136] Criminal Code s 102.1(2A).

[137] Criminal Code s 102.1A.

[138] Criminal Code s 102.1(11)–(11B).

[139] See above nn 105–110 and accompanying text.

[140] See above Part II(A)(3)(b). The susceptibility of these provisions to constitutional invalidity has been acknowledged by the government: see Commonwealth, Parliamentary Debates, House of Representatives, 29 May 2003, 15398 (Daryl Williams, Attorney-General).

[141] Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 (Cth).

[142] Some minor amendments were also made by the Charter of the United Nations Amendment Act 2002 (Cth). There were two reasons for such formalisation: transparency, and an increase in the penalties: Commonwealth, Parliamentary Debates, House of Representatives, 12 March 2002, 1045 (Daryl Williams, Attorney-General).

[143] The regime also allows the listing of individuals and assets. Given the focus of this article, I will not be discussing these aspects of the regime.

[144] Charter of the United Nations Act 1945 (Cth) s 15(1); Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth) reg 6(1).

[145] This paragraph is included as a note to reg 6 of Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth).

[146] Charter of United Nations Act 1945 (Cth) s 15(6).

[147] These figures have been calculated from the consolidated list found at <http://www.dfat.gov.au/icat/persons_entities> at 15 November 2004.

[148] Charter of United Nations Act 1945 (Cth) s 18(1).

[149] Charter of United Nations Act 1945 (Cth) s 18(1)–(2).

[150] Charter of United Nations Act 1945 (Cth) s 18(3).

[151] Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth) reg 6A.

[152] Consolidated List of Individuals and Entities Belonging to or Associated with the Taliban and al Qaeda Organisation as Established and Maintained by the 1267 Committee (available at <http://www.un.org/Docs/sc/committees/1267/1267ListEng.htm> at 15 November 2004).

[153] Such conduct is not illegal if authorised by the Foreign Minister: Charter of the United Nations Act 1945 (Cth) ss 20–1.

[154] Commonwealth, Parliamentary Debates, House of Representatives, 12 March 2002, 1044–5 (Daryl Williams, Attorney-General); Explanatory Memorandum, Suppression of the Financing of Terrorism Bill 2002 (Cth) 1.

[155] Explanatory Memorandum, ibid, 15. See also Australian Government, Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council Pursuant to Paragraph 6 of the Security Council Resolution 1373 (2001) of 28 September 2001 (2001) [8].

[156] There is a wealth of material discussing this head of power, see, eg, Donald Rothwell, ‘International Law and Legislative Power’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (1997) 104–31; George Winterton et al, Australian Federal Constitutional Law: Commentary and Materials (1999) 273–319; Blackshield and Williams, above n 89, ch 18.

[157] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; Victoria v Commonwealth (1996) 187 CLR 416. For a discussion of the latter case, see Michael Coper and George Williams (eds), The Cauldron of Constitutional Change (1997) chh 1–4; Deborah Cass, ‘Traversing the Divide: International Law and Australian Constitutional Law’ [1998] AdelLawRw 7; (1998) 20 Adelaide Law Review 73, 79–82; Kate Eastman, ‘The Relationship between International Law and Australian Law’ [1997] AUIntLawJl 6; (1997) Australian International Law Journal 86; George Williams and Amelia Simpson, ‘The Expanding Frontiers of Commonwealth Intervention in Industrial Relations’ (1997) 10 Australian Journal of Labour Law 222.

[158] Victoria v Commonwealth (1996) 187 CLR 416, 487.

[159] Ibid 487.

[160] Resolution on International Cooperation to Combat Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1373, UN SCOR, 4385^th mtg, [1](a), UN Doc S/Res/1372 (2001).

[161] See above n 145 and accompanying text.

[162] In Victoria v Commonwealth (1996) 187 CLR 416, 459, the majority of the High Court stated that ‘[d]eficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention’.

[163] See Australia, Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council Pursuant to Paragraph 6 of the Security Council Resolution 1373 (2001) of 28 September 2001 (2001).

[164] See above nn 28–34 and accompanying text.

[165] Separate application to executive acts was assumed but not discussed in Richard Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ [2000] FedLawRw 2; (2000) 28 Federal Law Review 41, 2–3. See also intriguing remarks in Blackshield and Williams, above n 89, 1196.

[166] [1998] FCA 319; (1998) 82 FCR 225.

[167] [1998] FCA 319; (1998) 82 FCR 225, 237–9 (French J), 246 (Heerey J) and 257–8 (Sundberg J). See remarks in Blackshield and Williams, above n 89, 1196.

[168] CEPU v Laing [1998] FCA 1410; (1998) 89 FCR 17.

[169] Ibid 36.

[170] See above nn 28–34 and accompanying text.

[171] (2001) 208 CLR 199.

[172] Ibid [200]–[201].

[173] Ibid [209].

[174] See above nn 144–145 and accompanying text.

[175] Resolution on International Cooperation to Combat Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1373, UN SCOR, 4385^th mtg, [1](a), UN Doc S/Res/1372 (2001). The same applies to subsequent resolutions that reaffirm this resolution. See, eg, Resolution on Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1526, UN SCOR, 4908^th mtg, UN Doc S/Res/1526 (2004); Resolution on Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1535, UN SCOR, 4936^th mtg, UN Doc S/Res/1535 (2004).

[176] The Macquarie Dictionary (3^rd ed, 1999) 2187.

[177] See above n 37 and accompanying text.

[178] See above n 49 and accompanying text.

[179] These figures have been calculated from the consolidated list found at <http://www.dfat.gov.au/icat/persons_entities> at 15 November 2004.

[180] Criminal Code sch 1.

[181] Commonwealth, Parliamentary Debates, House of Representatives, 12 March 2002, 1043 (Daryl Williams, Attorney-General).

[182] See above n 55 and accompanying text.

[183] Criminal Code s 103.1.

[184] See above nn 39–47 and accompanying text.

[185] See above nn 148–152 and accompanying text.

[186] Charter of the United Nations art 39.

[187] See above n 181 and accompanying text.

[188] See above nn 63–66 and accompanying text.

[189] See above nn 176–178 and accompanying text.

[190] See above nn 86–87 and accompanying text.

[191] See above nn 18 1–183 and accompanying text.

[192] See above n 178 and accompanying text.

[193] See above nn 149–153 and accompanying text.

[194] See above nn 187–188 and accompanying text.

[195] Charter of the United Nations Act 1945 (Cth) s 15(1); Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth) reg 6(1).

[196] This paragraph is included as a note to reg 6 of Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth).

[197] See above nn 113–114 and accompanying text.

[198] See above nn 115–132 and accompanying text.

[199] Charter of United Nations Act 1945 (Cth) s 22.

[200] [1951] HCA 5; (1951) 83 CLR 1, 258 (Fullagar J).

[201] Charter of United Nations Act 1945 (Cth) s 18(1).

[202] Charter of United Nations Act 1945 (Cth) s 18(1)–(2).

[203] Charter of United Nations Act 1945 (Cth) s 18(3).

[204] Philip Ruddock, Commonwealth Attorney-General, ‘A New Framework: Counter-Terrorism and the Rule of Law’ (Speech delivered at the Sydney Institute, Sydney, 20 April 2004) 8–9 <http://www.ag.gov.au/www/MinisterRuddockHome.nsf/Alldocs/RWPB046617DB08691D9CA256E7D000ED953?OpenDocument> at 15 November 2004.

[205] Ibid 2.

[206] Ibid 3.

[207] For discussion of this offence, see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti-terrorism Bill (No 2) 2004 (2004) 17–34.

[208] [2004] HCA 49 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 7 October 2004).

[209] [2004] HCA 46 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 1 October 2004).

[210] [2004] HCA 45 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 1 October 2004).

[211] [2004] HCA 39 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 1 September 2004).

[212] [2004] HCA 41 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 8 September 2004).

[213] [2004] HCA 39 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 1 September 2004) [92] (McHugh J), [196] (Gummow and Hayne JJ), [211] (Kirby J).

[214] Mulholland v Australian Electoral Commission [2004] HCA 41 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 8 September 2004) [42] (Gleeson CJ).

[215] Ibid [114] (McHugh J).

[216] Ibid [284] (Kirby J) (emphasis added).

[217] Ibid [148] (Gummow and Hayne JJ), [364] (Heydon J).

[218] Ibid [335] (Callinan J).