To what extent can the Commonwealth Parliament’s defence power be used to enact laws with respect to the unconventional forms of conflict represented by terrorism and terrorist attacks—carried out by non-state agents—on the Australian nation and its people during times of conventional ‘peace’?

In what was Australia’s first double dissolution election, opposition leader Andrew Fisher famously declared that “should the worst happen … Australians will stand beside the mother country [England] and defend her to our last man and our last shilling”[1]. Today, similarly urgent language has been used by Western democracies to characterise the threat posed by modern terrorism. George Bush famously declared: “Either you are with us, or you are with the terrorist”[2]. In Australia, Tony Abbott reciprocated with repetitive usage of the phrase “death cult”[3] to demonise terrorist groups during his prime ministership.

It is the purpose of this essay to show that modern terrorism has challenged conventional understandings of the defence power[4]. I first outline the decision in the leading case of Thomas v Mowbray[5] and analyse it against conventional understandings of the defence power. I then proceed to examine characteristics of modern terrorism and describe the differing approaches of “judicial notice”[6] taken by judges in assessing the threat of terrorism. I then move from the descriptive to the normative, questioning whether the way we talk about war matters – especially in applying analogies of war to contemporary social problems, like the “War on Terror” and outline some concerns caused by Western democracies’ permanent “war”[7] against terrorism.

Overall, I seek to show that the Commonwealth Constitution is an instrument framed in accordance with many historical and sociological conceptions. Evolving circumstances such as war can, and ought to, operate as engines for the production of normative principles. This was largely reflected by the plurality in Thomas which “modernised” the defence power in light of the changing, paramilitary nature of war caused by modern terrorism[8]. Although well-founded criticisms arose on how the Court reached its decision, I argue that the right balance was reached by the Court, by not arrogating to themselves too much powers, or frustrating Executive actions, on national security matters. This is because, as I conclude, the “self-correcting” nature of a sovereign parliament remains the strongest bulwark against rights-infringement. Indeed as Dicey observes:

“Where a Parliament truly represents the people, the divergence between the external and the internal limit to the exercise of sovereign power can hardly arise, or if it arises, must soon disappear.”[9]

PART I

Thomas v Mowbray

In Thomas[10], the constitutional validity of Div 104 of the Criminal Code (Cth) was challenged by the Plaintiff, Thomas who undertook weapons training at the camp of a listed terrorist organisation. The case was directed to an interim control order (ICO) issued by a Federal Magistrate, with the ICO seeking to restrict the freedoms of Thomas through means such as submitting him to curfews, fingerprinting and regular reporting to police officers. 

A majority of the Court upheld the challenged provisions as a valid exercise of the defence power[11]. The words “naval and military defence” were not words of limitation and there was consensus that the defence power need not be directed towards external threats[12]. A majority of the Court (Kirby J dissenting) also held that the power is not confined to the protection of bodies politic as distinct from the public whom it represents.

Implications on the defence power

Prior to the leading case of Thomas v Mowbray, the laws surrounding the defence power was largely regarded as settled. Implications of Thomas will be examined against the settled characteristics of the defence power.

Firstly, the defence power is a “purposive” power unlike many of the other s51 powers, whose subject matter pertains to a class of transaction or activity. The purpose of the defence power is “collected from the instrument in question, the facts and circumstances which called it forth”.[13] Courts ordinarily will not “go beyond matters of judicial notice” in determining this purpose[14].

Some commentators criticised the justifications (and lack of) given in Thomas, arguing that the decision was not in alignment with historic understanding of the defence power[15].  Professor Ben Saul argued a “considerable conceptual leap”[16] is required to accept all forms of terrorism would uniformly attract the application of the defence power. This dilemma is augmented by the often broad and slippery language[17]   used to find a “defence purpose” to give it flexible application. In Thomas little reference to the ambit of the defence power was made[18] and when limitations were expounded, it was done in general terms. For example, Callinan J held that such laws cannot be “demonstrably excessive”.[19] In observing this, George Williams argues the Thomas Court did not adequately address the defence-crime distinction[20] since terrorism encompasses a range of activities, only some of which will necessitate defence action rather than merely a law enforcement response. By not clearly spelling out the ambits of the power, the Court runs the risk of homogenising acts of terrorism[21] potentially leading to “mission creep”.[22]

Moreover, at least two judges upheld the impugned legislation as falling within the central conception of the defence power without the need to resort to further facts.[23] One might query what the judges view as a “central conception” of the defence power, as this was largely unsubstantiated by the plurality in Thomas and can potentially attract criticisms of unjustified judicial assertion on what a “central conception” of the defence power entails.[24] However, although not directly alluded to in Thomas, the majority’s decision appears to be consistent with High Court jurisprudence on the defence power[25] and seminal cases such as the Engineers’ Case[26] which instigated the development of Australia’s nascent nationhood through an astute avoidance of “judicial fiat”.[27] On balance it is submitted that the Thomas Court’s decision reached the right balance -  by not arrogating itself power that would have reduced the capacity for a defence power that is evolutionary – capable of lasting “generation to generation”[28] to achieve national security, given the rise of non-conventional means of warfare such as terrorism. It is also consistent with one of the key reasons for Federation in Australia: to ensure individual States would receive the protection of a central government, in times of war and invasion. As Alfred Deakin noted:

“If the colonies do not federate our comparatively trifling white population will be swept before it like a feather”[29].

This statement was later corroborated by a report released in 1889 by Major-General Sir Bevan Edwards[30] demonstrating the perennial concern for strong defence forces to protect the people of Australia. The impugned legislation in Thomas appears to serve this exact purpose reflecting societal expectations and understandings of “defence”. As Issacs J famously observed in Farey v Burvett[31], “the defence power… is the bulwark of the State [and] its limits are bounded only by the requirements of self-preservation”[32]. However, the contemporary relevance of this statement is questioned and one emerging limitation is that a control order issued by the judiciary cannot be characterised as “punitive”[33] – for example, recent High Court cases have noted that the duration of detention must be capable of objective determination by Courts[34].

The defence power is also “elastic” in nature – described famously by Professor HP Lee as the “mercury column of a thermometer”[35] – it “waxes and wanes”[36] depending on the circumstances faced by the nation. The potential erosion to the “war” and “peace” distinction, caused by terrorism will be examined in Part II.

To conclude, with regards to the defence power it seems that this power is no longer confined to dealing with external threats or the protection of bodies politic as distinct from the public. On first face, it seems to contradict one aspect of the rule of law formulated by Dicey – that “no man is punishable… except for a distinct breach of law established in the ordinary legal matter”[37].  The plurality has thus shown that the purposes of the defence power takes primacy and ChIII cannot be used as a foil for bad or extreme laws even if “the assumption of the rule of law[38]” may, on some counts, be removed[39].

PART II

I now proceed to address some policy issues regarding “terrorism” and whether its political nature makes its enquiry incapable of judicial application.

The political nature of terrorism

“Terrorism” comes from the Latin word terrere: to “cause tremble” and came into common parlance in the Reign of Terror. It was originally used in a positive sense by radical factions of French Revolutionist Robespierre.[40] However, once proponents of Robespierre turned away from him the word became associated with negative, criminal connotations.

Today, the “terrorist” label presupposes a judgment – of someone who is perpetually on the “other side” of peace[41] and this might involve an inherently political judgment[42]. As Kirby J notes, when executive assessments of terrorism threats are relied upon by the judiciary to dispense control orders, federal courts are effectively being asked to serve as arbiters of a conception of the ‘public interest’[43], rather than law[44]. Importantly, several judges also differed on what they took as judicial notice to evaluate the threat of terrorism. For example, while several judges relied heavily on notorious facts such as 9/11 and declassified reports provided by the Executive[45], Callinan J went further by examining the basic command structure of Al-Qaeda[46] and Heydon J held that judicial ascertainment of “constitutional facts” can go beyond Dixon J’s wartime “judicial notice” formulation.

Although it is not the burden of this essay to pose solutions, it is apt to mention that executive assessments of terrorism threats might be highly contested and judges may have reduced opportunities to question the correctness of such information[47]. Kirby J’s observations in Thomas aptly sum up the conundrum - that whilst facts given to the judiciary might establish “in a general way that threats of a terrorist act exist”[48], it is hard to rely on vague and general executive assessments of terrorism threats[49] rendering Courts ill-equipped to balance the polycentric factors that must be taken into account in matters of national security[50].

PART III

Does the way we talk about war matter?

In countries with important war histories, of which Australia is one, there is a tendency to invoke “war legacy arguments” by extracting analogies and norms from war in post-war societies.

This section submits that the way we talk about war matters, building upon the context regarding terrorism established in Part II. It highlights the importance of approaching conversations about political conflicts like terrorism in a nuanced manner, to avoid a militarised culture. As George Winterton observes:

“Once the Constitution is removed as the frame of reference for the lawful exercise of authority, the only substitute is the balance of political – and ultimately, military – power[51].”

The Australian Context

Given Australia’s counterterrorism legislations are largely based upon anticipation and prevention, it raises concerns about commensurability of measure and potentials of a militarised culture. Justice McHugh, writing extrajudicially, notes that current threats of terrorism are not unprecedented[52] and questions whether powers, such as broad powers to question and detain given to ASIO[53], and other preventative detention orders have created a militarised culture[54].

To gain the mandate for such measures, governments need to persuade citizens not only of the threat of terrorism but use moral arguments to convince them to give up some of their rights. This is especially true when governments often invite overly abstract debates on “national security” in a context where transparency and accountability are at a premium[55].

Moreover, war metaphors imply that comparisons between large-scale social problems and conventional warfare are possible, perhaps eroding the conventional “war” and “peace” distinction central to the defence power. This is especially powerful in war-weary electorates like Australia where a lynchpin decision like Thomas may be accepted without the level of engagement desired in a democratic society making counterterrorism measures “broad and malleable”.[56] It might also result in the erosion of rights that would be akin to conventional warfare, but without the certainty of purpose and goals that warfare entails.

ChIII concerns

One possible method to constrain rights-erosion is Kirby J’s usage of ChIII as a restriction of executive discretion, or bad laws enacted, under the defence power.[57]

However, one concern is whether it is appropriate or legitimate to distill “rights” guarantees from the separation doctrine. As Gleeson CJ and Hayne J observes, finding the impugned legislation in Thomas invalid, as an exercise of judicial power under ChIII, would do little to protect individual liberty if the result was to simply prompt Parliament to transfer the relevant decision-making function to the Executive[58]. It will also not necessarily lead to better rights-protection given a watertight definition of the functions of government, in relation to national security, appears unattainable. A flexible reading of ChIII merely shifts the indeterminacy from the legal to the political domain – an outcome consistent with core values such as Westministarian doctrines of responsible government[59].

Importantly, it is not clear whether ChIII could act as an implied limitation on the defence power. Any implied power must have a demonstrable basis in text. In the absence of a Bill of Rights, it is thus submitted that the use of ChIII as a foil for bad laws, when there is no clear foundation for such implied protections in the Constitution, would do much more harm for the “rule of law project” in the long term.

Conclusion

The goal of this essay has been modest. I have attempted to draw an analogy between terrorism and conventional war and in doing so, start a conversation on how we talk about war. As noted in Part I a broad reading of the defence power is in line with one of the mischiefs leading to Australian federation - that individual colonies did not have enough resources to defend themselves in the absence of a centralised defence force. This mischief appears today, caused by modern terrorism, bringing with it a need for strong measures to counter its rise[60]. As identified in Part II, “terrorism” is essentially political in nature and thus, a latitude of choice ought to be given to the Commonwealth to cure this social harm given the alternative – State criminal law enforcement – appears inadequate in tackling the problem.

Indeed, this essay has remained optimistic in the wisdom of parliament and the Executive. Should this faith be breached, the words of the plurality in the Engineers’ Case appear relevant:  

“If it is conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia… it is certainly within the power of the people themselves to resent and reverse what may be done[61]”.

However, Justice McHugh’s words appear wise:

“At times we must be prepared to pay a high price to ensure our national security. But national security at any price is too high a price to pay.[62]”

The blank cheque statement made by Andrew Fisher, flagged in the introduction, cannot apply today – we cannot afford to fight terrorism “to our last man and our last shilling” if doing so requires an excessive and disproportionate erosion of our rights.

Bibliography

A: Books

Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (MacMillan, 1959)

Andrew Lynch, Nicola McGarrity, and George Williams. Inside Australia's Anti-Terrorism Laws And Trials. (NewSouth Publishing, 2015)

Anthony Blackshield et al. Blackshield And Williams Australian Constitutional Law And Theory. (Federation Press, 6^th edition 2014)

Austin Sarat, Sovereignty, Emergency, Legality. (Cambridge University Press, 2010)

Brian Galligan, Politics Of The High Court. (St. Lucia: University of Queensland Press, 1987)

Bruce Hoffman. Inside Terrorism. (Columbia University Press, 2006)

Else-Mitchell, Essays On the Australian Constitution. Sydney, Australia (The Law Book Co. of Australasia, 2^nd edition 1961)

George Winterton et al. Winterton's Australian Federal Constitutional Law. (Thomas Reuters, 2013)

H.P Lee, Emergency Powers. (Law Book Co., 1984)

H.P Lee and Peter Gerangelos. Constitutional Advancement In A Frozen Continent. (Federation Press, 2009)

Leslie Zines, The High Court And The Constitution. (Butterworths, 1996)

Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence, 3^rd ed. Berkeley, Los Angeles and London. University of California Press, 2003

The Rule Of Law In An Emerging Society: (International Commission of Jurists, Australian Section, 1970)

Yonah Alexander, David Carlton, and Paul Wilkinson. Terrorism: Theory and Practice (Westview Press, 1979)

B: Journals

Ben Saul, “Terrorism as Crime or War: Militarising Crime and Disrupting the Constitutional Settlement?” (2008) Public Law Review, 19(1)

Edward Santow and George Williams, “Terrorism threat assessments: Problems of constitutional law and government accountability”. (2012) Public Law Review 23 PLR 33 at 40-41

Fiona Wheeler, “The Separation of Judicial Power and Progressive Interpretation”

Geoffrey Lindell, “The scope of the defence and other powers in light of Thomas v Mowbray” (2008) Constitutional Law and Policy Review

George Williams and Hernan Pintos-Lopez, “Enemies Foreign and Domestic: Thomas v Mowbray and the New Scope of the Defence Power" (2008) University of Tasmania Law Review 27(1)

Helen Irving, “The High Court Fails History in Thomas”. (2007) Law Society Journal, 45(8)

Hernan Pintos-Lopez and George Williams , “‘Enemies Foreign and Domestic’: Thomas v Mowbray and the New Scope of the Defence Power” (2008) 27 University of Tasmania Law Review 83

Joyce Chia, “Back to the Constitution: Plaintiff S4/2014 and the Politics of Immigration Detention” (2015) 38 UNSW Law Journal

Michael McHugh, “Terrorism legislation and the Constitution” (2006) 28 Aust Bar Rev 117

Nicola McGarrity and George Williams, ‘When Extraordinary Measures Become Normal: Pre-emption in Counter-Terrorism and Other Laws’

Peter Lentini, “Demonizing ISIL and Defending Muslims: Australian Muslim Citizenship and Tony Abbott's “Death Cult” Rhetoric. (2015) Islamic and Christian-Muslim Relations Journal

Rebecca Ananian-Welsh and George Williams, “The New Terrorists: the Normalisation and Spread of Anti-Terror Laws in Australia” (2015) Melbourne University Law Review 38(2)

Stephen Gageler, “Beyond the text: a vision of the structure and function of the Constitution” [2009] Journal of the NSW Bar Association 30

Susan Kenny, “The High Court of Australia and Modes of Constitutional Interpretation” [2007] Federal Judicial Scholarship 10

C: Cases

Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Farey v Burvett (1916) 21 CLR 433 

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219

Stenhouse v Coleman (1944) 69 CLR 457

Thomas v Mowbray (2007) 233 CLR 307.

D: Speeches

Andrew Fisher, Speech, Colac, 31 July 1914

George W. Bush, Speech, Washington D.C, 20 September 2011

[1] Andrew Fisher, Speech, Colac, 31 July 1914