I. INTRODUCTION

During the joint press conference for the increase in the Terrorism Public Alert level, the former Prime Minister Tony Abbott stated –

"People coming back from the Middle East, militarised and brutalised, accustomed to kill without compunction, do pose a significant threat to our community should they not be under the closest possible supervision?"[1]

Seemingly posed as a rhetorical question, I am confident that – if still alive today, Isaacs would find solace in this statement, as it appears the former Prime Minister does indeed envisage limitless Commonwealth power to address the threat of terrorism.

I think it is a natural response upon reading the judgment of Isaacs in Farey v Burvett,[2] to distance oneself from his position – hoping that the Commonwealth is not afforded a ‘near-dictatorial’[3] scope to legislate for the exploitable purpose of ‘self-preservation’, sadly, however, this is not the case.

In this essay I confine myself to proving the connection between the position of Isaacs in Farey, and the broad legislative scope of the Commonwealth to address the threat of terrorism – in pursuance of the defence power in s51(vi) of the Constitution.

To prove this connection, I will argue that although Isaacs’ judgment is indeed suggestive of a limitless defence power, we must understand and rationalise his position – to reveal how it resonates in anti-terrorism legislation. I will then expose how the judiciary expands the Commonwealth’s defence power, drawing similarities with Isaacs’ judgment. This will build a bridge between Farey and current anti-terrorism legislation. However, this bridge will not take us to a desirable destination, as this essay will highlight the abhorrent expansion of Commonwealth power in the Foreign Fighters Act 2014[4] and the Allegiance to Australia Act 2015.[5] Leading one to hope that Michael Keenan MP was exaggerating in his second-reading speech for the Foreign Fighters Act when he stated – ‘We think very carefully about expanding the power of the state. We think very carefully about it indeed’.[6]

II. RATIONALISING THE JUDGMENT OF ISAACS

To rationalise the position of Isaacs, we must first understand – his motives, his opinion on the role of the High Court in society and the social outcomes he intended his judgment to have. This will more clearly expose how his judgment pervades contemporary attitudes towards the scope of the defence power.

Isaacs’ Motives

In interpreting the defence power, Isaacs gave the most expansive reading of the War Precautions Act, while Griffiths and the remaining majority construed the powers broadly, but to a lesser extent.[7] However, Isaacs’ seemingly limitless characterisation of the defence power was driven by patriotism and his support for central law-making authority.[8] Isaacs’ patriotism is further apparent in his support for the White Australia Policy, as he sought to free the country from the ‘degrading influence of inferior races’.[9] Moreover, Isaacs’ proclivity for expansive national powers dilutes his position in Farey, as he also construed s109 to provide the Commonwealth a large ambit of power. This was apparent in Cowburn,[10] where he deployed a solitary defence for a wide ‘covering the field’ test, for the Commonwealth to displace State legislation.[11]

                                                  Reading Down Isaacs’ Position

Building on these motives, Isaacs attached importance to the social outcomes of a decision, as he sought to play a part in the ‘development of the nation’.[12] From his view of the Court as an active instrument in a progressive society,[13] it is inferred that Isaacs intended his judgment to adapt society to the exigencies of wartime legislation. This goal possibly exaggerated his opinion of the power’s scope. Understanding these factors colours his words in a more subtle shade, downplaying the almost dictatorial scope he appears to give the Commonwealth in Farey. This will help reveal his influence on more moderate judgments, and later, on anti-terrorism legislation.

III. JUDICIAL INTERPRETATIONS OF THE DEFENCE POWER

The Court’s expansive application of the power demonstrates how the Commonwealth is afforded a seemingly limitless scope to legislate during wartime.

Blackshield and Williams summarise the High Court’s interpretation of the defence power as one which ‘waxes and wanes’.[14] This is consistent with Dixon’s description of the power as – increasing to meet the demands of war, which then subsides in peacetime.[15] However, this terse summary overlooks how the judiciary have influenced the power’s scope. It may ‘wax and wane’ to meet the exigencies of war, however, judicial interpretations have played a significant role in expanding its application.

The Court’s expansive application will be proved by analysing – similarities between Isaacs and subsequent judicial interpretations, the Court’s flexible approach to ‘purpose’, and Constitutional fact ascertainment in the context of terrorism threat assessments.    

Difficulties with ‘Purpose’

Unlike other powers in the Constitution, the defence power is held to be ‘purposive’, meaning it only permits legislation which serves the aim of protecting the nation.[16] In Farey, the Court used a range of vague expressions to characterise possible tests for ‘purpose’ including – having ‘any relation whatever’[17] and ‘capable of aiding directly’[18] – indicating a lack of rigour in understanding the power.[19]

This lack of rigour has seemingly prevailed, as the Court has been unable to develop a test to deduce the necessary degree of connection between statutory measures and the ‘purpose’ of aiding defence.[20] This has led to Justices describing the power with broad levels of generality, while mirroring the intuitive process in Farey of deciding whether a law can ‘reasonably’ or ‘in reality’ aid defence.[21] This is apparent when Dixon framed the power as – depending on what the war ‘call[s] for or warrant[s]’.[22] In the absence of finer shades of distinction between measures which support the war effort and those which have no bearing, this vague qualification grants the judiciary significant influence on the power’s application.

Have Judges Followed Isaacs?

Upon establishing its equivocal nature, I will now focus on when judges have followed Isaacs, albeit more understated, in broadly construing the power.

This tendency is evident in Williams’ judgment in the Industrial Lighting Case,[23] whereby he stated that the war creates emergencies of an ‘abnormal character’,[24] therefore, legislation should find recourse in the power if it can ‘conceivably be required’[25] to meet the temporary crisis. This vague conception of a temporarily expanding power expresses more subtle inclinations towards the judgment of Isaacs.

Such subtlety did not shroud Starke’s judgment in Reid v Sinderberry,[26] when he expressed that the defence power – ‘extends to any laws which tend to the conservation … of the Commonwealth so far as they can be directed to success in war’.[27] The requirement ‘directed to success in war’ is broad, and elicits the words of Isaacs – who proposed the similar requirement of ‘self-preservation’.

Flexible in Peacetime as in Wartime

Probing further into judicial interpretations, the Court’s flexible application of ‘purpose’, both in wartime and peacetime, has expanded the Commonwealth’s power. In the majority of cases judges are often satisfied with the possibility of legislation aiding defence.[28] This is reflected in the wartime case R v Commonwealth; Ex p Victoria,[29]  where Williams attempted to constrain the power through the assertion – ‘the war creates many problems that have nothing to do with defence’.[30] However, this implied the reciprocal that – if the legislation has something to do with defence, then it falls under the ambit of s51(vi). This is not only logically compelling, but persuasive – as Williams followed the trend from the peacetime Clothing Factory Case[31] in degrading the qualification of ‘purpose’ to become an imprecise relation.

Unlike in the Shipping Board Case,[32] in the Clothing Factory Case, the power applied – allowing the production of non-military uniforms since they were incidental to the production of military uniforms.[33] This implied that in relying on the power, peacetime measures do not need to strictly be necessary for defence.[34] This extended the power to cover activities that were ‘merely helpful or useful’[35] to defence. In his dissent, Starke argued that the Shipping Board Case was not being distinguished, but was being overruled – exposing the subtlety which can cloak the Court’s broad application of the power.   

Constitutional Fact Ascertainment - Serving to Expand the Power?

The Court’s inadequate procedures for ascertaining Constitutional facts allows the Commonwealth to accrete greater power. In Andrews v Howell,[36] Dixon held that the application of s51(vi) – ‘depends upon facts’,[37] such as ‘[t]he existence and character of hostilities’.[38] To elucidate the characteristics of wartime facts, in Stenhouse v Coleman,[39] Dixon asserted that – the evidence which seeks to connect the provisions with the success of the war effort arises from ‘inferential, not to say speculative’[40] grounds.

Admitting inferential and speculative evidence lets the Commonwealth exaggerate wartime conditions – allowing them to define the nature of the threat to then justify their legislative frenzy. The Court does not have a sufficient safeguard against this – due to its relatively crude approach to Constitutional fact ascertainment.[41] To address the issue the Court must prevent the Commonwealth from ‘answering pre-determined questions of Constitutional fact’,[42] thereby, reducing their discretion to define the wartime conditions.[43]

Terrorism Threat Assessments

Terrorism threat assessments demonstrate the consequences of allowing the Commonwealth to define the threat. These assessments defend the Commonwealth’s expansion of power by determining the severity of the threat.[44] However, assessments are more likely to be informed by social and political considerations then by evidence – questioning the basis for their prediction.[45] In justification of the terrorism alert level being raised to ‘high’, David Irvine painted a very blurred picture of the threat, stating –

‘It could manifest itself in a Bali-type attack or it could manifest itself in the various other sorts of attacks from loners through to small groups to large activities’.[46]

This reflects a lack of understanding of the prospective terrorist threat. Although, the sensitive nature of national security evidence may prevent assessments from being transparent,[47] the Court must employ stricter fact finding procedures. If they fail to, the Commonwealth will continue to apply the ‘precautionary principle’ – driving this pre-emptive approach to mitigate the terrorist threat without clear evidence.[48]  It is understandable that the Commonwealth is trying to avert grave harm, however, the perils of allowing them an unchecked licence to do so are severe.

IV. THE DEFENCE POWER IN THE AGE OF TERRORISM

I will now tie the Commonwealth’s anti-terrorism legislative framework back to the judgment of Isaacs, by exposing how the Foreign Fighters Act and the Allegiance to Australia Act are the result of unbridled Commonwealth power to address the threat of terrorism. Thomas v Mowbray will contextualise the application of the power, before examining the Commonwealth’s seemingly limitless power in the impugned legislation.

Thomas v Mowbray

In Thomas v Mowbray,[49] the Court expanded the scope of the defence power to cover aggression which is directed at the public from overseas terrorist organizations and from internal sources.[50] The case also de-emphasised the dichotomy between war and peace, as Gummow and Crennan viewed terrorism as falling clearly within the scope of s51(vi).[51] Although, adapting the defence power to the harsh realities of twenty-first century terrorism, the decision expanded the Commonwealth’s power to pass new terrorism offences and restrict our civil liberties – providing the grounds on which the current anti-terrorism legislation is predicated.[52]

Legislative Framework

To address the threat posed by the recent emergence of Islamic State in Syria and Iraq, the Foreign Fighters Act and the Allegiance to Australia Act form a significant tranche of the Commonwealth’s suite of anti-terrorism legislation. The offences in these statutes both abridge civil liberties and apply disproportionate penalties, however, they can be worryingly justified through Isaacs’ qualification of ‘self-preservation’.

The Foreign Fighters Act

The Act grants broad powers to address the threat from foreign fighters, with the most repugnant offences being the cessation of welfare payments[53] and restriction of movement.[54]

The cessation of welfare payments for those involved in foreign fighting is unjustifiable, as the Executive encroaches on the role of the Court in accreting themselves power to ‘punish’. The offence results in the Commonwealth circumventing due process and judicial procedure, which Lucia Zedner asserts is the ‘most damaging’[55] aspect of pre-emptive approaches to terrorism.[56] Furthermore, there is no concrete evidence to establish that welfare payments are being used to fund terrorism.[57] However, it is clear that the offence would threaten the social security of those accused who depend on welfare, and will unjustly penalise and marginalise the families of foreign fighters.

The Act also makes it an offence to enter or remain in a region which the Executive has categorised as a ‘declared area’. The offence creates a presumption of criminal liability – which must then be rebutted by the accused. This presumption will likely capture people not engaged in foreign fighting, but who are unable to produce the requisite documents to prove their valid reason for travel. The Law Council of Australia acknowledges that freedom of movement can be restricted in maintaining national security, however, it must be proportionate.[58] The maximum penalty of 10 years imprisonment is disproportionate for such a broadly construed offence. This is a clear example of the Commonwealth’s impulse towards ‘radical prevention’, [59] as the offence curtails people’s liberty before any harm, or link to terrorism, eventuates.[60]

The Allegiance Act

The Act seeks to ‘broaden the powers relating to the cessation of Australian citizenship’[61] to address the threat of terrorism. The most egregious provisions are s33AA and s35, which provide different triggers for the automatic cessation of Australian citizenship.

The cessation mechanism in s33AA is triggered if a person ‘acts inconsistently with their allegiance to Australia’,[62] whereas in s35 it is triggered if a person serves in an opposing armed force or fights for a declared terrorist organisation.[63]

Firstly, these provisions can be triggered by conduct which does not contravene a person’s allegiance to Australia, and does not elicit the repudiation of Australian values.[64] These triggers are so broadly construed that they can potentially apply to people providing medical assistance through charities.[65] Furthermore, the cessation does not require a criminal conviction, but rather becomes effective immediately upon satisfying the conditions – impeding the right to a fair trial. To reduce the curtailment of civil liberties, the cessation should not be automatic and the accused should be afforded the chance to challenge the decision – with the proceedings being subject to judicial review.[66]

The Act again challenges the separation of powers – by granting the Executive a broad licence to revoke citizenship outside the checks of the judicial system. The fact that no other country has a cessation mechanism which is triggered by such a broad range of conduct,[67] demonstrates again that the Commonwealth has gone too far.

V. CONCLUSION

In addressing the threat of terrorism, the Commonwealth appears all too ready to legislate and degrade civil liberties.[68] To reduce the curtailment of civil liberties, the Commonwealth must move away from its tendency towards a ‘pre-crime’ society in which terrorist threats are being anticipated and forestalled.[69] Without derogating the need for preventative measures, it is apparent that the licence of the Commonwealth to legislate to address the threat of terrorism has extended too far. The current anti-terrorism framework appears to be an ever-strengthening ‘bulwark’, however, unlike the limitless defence power which Isaacs envisaged – we must prevent the powerful aspirations of defence and security from silencing all countervailing concerns.[70]

VI. BIBLIOGRAPHY

A. Articles/ Books/ Reports

Aroney, Nicholas, Peter Gerangelos, James Stellios and Sarah Murray, ‘The Constitution of the Commonwealth of Australia’ (Cambridge University Press, 2005) 222

Blackshield, Tony and George Williams, Australian Constitutional Law & Theory (The Federation Press, 3^rd ed, 2002)

Galligan, Brian, Politics of the High Court: A Study of the Judicial Branch of Government in Australia (University of Queensland Press, 1987) 95

Griffiths, Emma, ‘Terrorism Threat: Australian Alert Level Raised to High’, ABC (online), 13 September 2014

Janus, Eric, ‘The Preventive State, Terrorists and Sexual Predators: Countering the Threat of a New Outsider Jurisprudence’ (2004) 40 Criminal Law Bulletin 576

Kirby, Michael, ‘Sir Isaac Isaacs- A Sesquicentenary Reflection’ (2005) 29(3) Melbourne University Law Review 880

Markwell, Don, ‘Griffith, Barton and the Early Governor-Generals: Aspects of Australia’s Constitutional Development’ (1999) 10 Public Law Review 280, 289

Paton, George, The Commonwealth of Australia; The Development of its Laws and Constitution (Stevens, 1952) 54

Pintos-Lopez, Hernan and George Williams, ‘‘Enemies Foreign and Domestic’; Thomas v Mowbray and the New Scope of the Defence Power’ (2008) 28 The University of Tasmania Law Review 83

Roos, Oscar, ‘Alarmed, But Not Alert in the ‘War on Terror’? The High Court, Thomas v Mowbray and the Defence Power’ (2008) 15 James Cook University Law Review 169, 180

Santow, Edward and George Williams, ‘Terrorism Threat Assessments: Problems of Constitutional Law and Government Accountability’ (2012) 23 Public Law Review 33

Sawer, Geoffrey, ‘Defence Power of the Commonwealth in Time of Peace’ (1953) 6 Res Judicatae 214, 217

Sawer, Geoffrey, ‘Defence Power of the Commonwealth in Time of War’ (1946) 20 The Australian Law Journal 295

Stephens, Tony, ‘The High Cost of Whitewash’ The Sydney Morning Herald (Sydney), 27 September 2003, 25

Widdows, Kelvin, ‘Sir John Lathan: Judicial Reasoning in Defence of the Commonwealth’ (2016) 41 Australian Bar Review 120, 147

Zedner, Lucia, ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process’ in Benjamin Gould and Liora Lazarus, Security and Human Rights (Hart Publishing, 2004) 257

B. Cases

Andrews v Howell (1941) 65 CLR 255

Attorney General for Victoria (Ex rel Victorian Chamber of Manufactures) v Commonwealth (1935) 52 CLR 533

Australian Communist Party v Commonwealth (1951) 83 CLR 1

Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1

Farey v Burvett (1916) 21 CLR 433

R v Commonwealth Court of Conciliation and Arbitration; Ex p Victoria (1944) 68 CLR 485

Reid v Sinderberry (1944) 68 CLR 504

Stenhouse v Coleman (1944) 69 CLR 457

The Commonwealth and the Central Wool Committee v The Colonial Combing, Spinning and Weaving Company Ltd (1922) 31 CLR 421

Thomas v Mowbray (2007) 233 CLR 307

Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 413

Wright v Cedzich (1930) 43 CLR 493

C. Legislation

Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth)

Australian Constitution

Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth)

D. Other

Abbot, Tony, ‘National Terrorism Public Alert level raised to High’ (Speech delivered at the Joint Press Conference, Melbourne, 14 September 2014

Australian Lawyers for Human Rights, Submission No 20 to Parliamentary Joint Committee on Intelligence and Security, Allegiance to Australia Bill, 16 July 2015

Commonwealth, Parliamentary Debates, Senate, 30 October 2014, 12600 (Michael Keenan)

Gilbert + Tobin Centre of Public Law, Submission to Parliamentary Joint Committee on Intelligence and Security, Allegiance to Australia Bill, 16 July 2015

Law Council of Australia, Submission No 12 to Parliamentary Joint Committee on Intelligence and Security, Foreign Fighters Bill, 3 October 2014

Law Council of Australia, Submission No 26 to Parliamentary Joint Committee on Intelligence and Security, Allegiance to Australia Bill, 25 July 2015

Saul, Ben, Submission No 2 to Parliamentary Joint Committee on Intelligence and Security, Foreign Fighters Bill, 1 October 2014

[1] Tony Abbot, ‘National Terrorism Public Alert level raised to High’ (Speech delivered at the Joint Press Conference, Melbourne, 14 September 2014. <https://www.attorneygeneral.gov.au/transcripts/Pages/2014/ThirdQuarter20....