SPEAKER 0

Good morning, everyone. I'm told the normal microphone is not working, so I have to
hold this celebrity microphone. Ah, it's so lovely to see you all still coming to
lectures. I should not sound so surprised because you're all still coming to
lectures. Next week I'm gonna give you a pub quiz in the break, maybe with Easter
themed prizes, so get ready for that. Alright. Defence power this week. Gonna
introduce this power? We're going to talk about how you work out how big the power
is at any given time. We're going to talk about the idea of a defence purpose and
the idea of a law being necessary for the purpose of defence. And we're gonna
finish with a problem question introduction. OK, let's revisit our best friend, the
table which has got everything you need to know about the course in it. We are
looking at the validity of Commonwealth laws still and we know that for any law to
be valid, there needs to be a source of power for Parliament to make that law for
the Commonwealth. Its sources of power are heads of power that are listed in
primarily in section 51. This is the third and final head of power that you're
going to study in the course the defence power. Remember back in week one, I talked
about how this course is like we're we're building a wall. And in week one, we put
down some bricks that are about how you interpret the Constitution and what it
means for a law to be valid. And we introduce characterization. And then we taught
you the corporations power, which is gonna be honest, a fairly straightforward head
of power. Subject matter, clear leading authority, clear ratio. And then last week,
you learned about the external affairs power which has got those different aspects.
So it's a bit more complex this year. Sorry. This week it feels like a year, but
it's just seven days. Uh, we are teaching you the defence power, which is, I think,
a a different type of complexity. The authorities are a little bit messy. There's
not as many of them, and the concepts are, I think a bit more challenging to get
your head around and a bit more challenging to apply. So we're just continuing to
step up the complexity add to your skills and your fitness every week. Start as
always with the text section 51 6. The parliament are subject to this constitution.
Have power to make laws for the peace order and good government of the Commonwealth
with respect to the naval and military defence of the Commonwealth and the several
states and the control of the forces to execute and maintain the laws of the
Commonwealth. So that's all the text says. Just let's have a a primer here show of
hands. Do you think this is a law just based on constitutional interpretation and
having read that section? Is this a law with respect to defence a law conscripting
people into the army? Who thinks yes, hands up Quite a few people think Yes. What
about a law creating an organisation to build Navy submarines? Who thinks yes, OK
and lots? Who thinks no? OK, so a lot of unsure. What about a law imposing a curfew
on people suspected of involvement with terrorist organisations who thinks, yes, a
few people who thinks no few people who thinks maybe a lot of support for maybe,
what about a law regulating the sale of apples and pears? Who thinks yes, few
people do Who thinks? No, who's baffled? Oh, surprisingly, no low numbers have
baffled. What about a law saying that the Adelaide University Law Student Society
is a threat to national security and then making membership of the LSS a criminal
offence? Who thinks that's a law with respect to defence? OK, lots of people who
thinks no lots of people will say OK by the end of the lecture, I hope you'll have
fairly clear answers to each of those, so we will revisit now, I said. This is a a
more complex head of power to learn about because there's two very special things
about this power. The first one is that this one's a purposive power. So the
corporations power remember, is a subject matter power with a test of sufficient
connection for characterization. The defence power is a purposive power, so this is
a little bit like the treaty implementation aspect of the external affairs power.
Remember? So the external affairs power has a purposive aspect and subject matter
aspects. The defence power is a purposive power, so that means instead of asking
whether a law is has a sufficient connection to defence when we're doing
characterization for the defence power, we ask Is the law for the purpose of
defence? And that involves questions like Is the law reasonably necessary for a
defence purpose? Is the law reasonably appropriate and adapted to a defence
purpose? The different test of characterization and we'll work through that in the
lecture. So the other magical thing about the defence power There we go, there's
that is that this power waxes and wanes. Like the moon means it is sometimes a
very, very broad power to make all sorts of laws and it is sometimes a much
narrower power. It's not the same all the time. It depends on Australia's defence
position as we'll see if Australia is at war, the power becomes much broader. If
Australia is in a time of total peace under no threat, the power is much narrower.
So it's got some really interesting properties, this power and you've probably got
questions in your mind like how do you work that out? And what about if we're not
in a time of peace or war but somewhere in between? Are we ever really not under
threat? We're gonna work through that. Yeah, So That is the very next question
we're going to look at. If this is a power that waxes and wanes according to
Australia's defence situation, how do you work that out? How do you work out how
big the power is at any one time? Well, there's a prior question to how and that is
who who works out if we are at a time of peace or war or at a time of increased
threat, something in between. So there's an argument to say that it should be the
executive branch of government that makes that decision. Can you see why that might
be sensible?

SPEAKER 1
I understand. I would have been that great because they have the

SPEAKER 0
most information. Yes, Todd. Yes. Excellent. Who has the most information about the
defence situation? The executive. Why don't they just tell everyone that
information? Yeah, because ultimately the executive doesn't have to be objective

SPEAKER 1
and honest about it. They could genuinely believe that might be bigger. So all the
mere existence of the Communist Party is an existant threat. Therefore, this land,
this law to be shot falls over defence.

SPEAKER 0
So we've got one answer which is the executive might not be objective and, uh makes
it possible if that

SPEAKER 1
information was previously not known for the originator of that information to be,
yes, there's security issues you might not

SPEAKER 0
want. The source of your information revealed you might not want national security
information out in the public domain. So the executive there's a good argument to
say the executive is in the best position to work out how big the defence power is.
But we've got that issue that they might not be objective and, well, let's go on to
the next issue. What about the Parliament? Yes, it could be easily misled.

SPEAKER 1
One of the things is going into Iraq in, 03.

SPEAKER 0
So the comment is that the Parliament can be misled because the Parliament, unlike
the executive, doesn't have all the information. So it's working a little bit
blind. Yes, up the back. So parliament has an incentive to get Re-elected. So
might, um, that might affect their decisions rather than an objective. And yes,
right at the back, it might be, yes, it might be become a political issue where the
opposition saying something is a defence issue. The government says it's not. Where
does the truth lie. There's another, I think, more fundamental problem with
parliament deciding what the defence situation is because, yes, parliament is the
ones that write the law. So remember what we're asking here is how big is the
defence power and therefore, how much power does parliament have now? As public
lawyers, you should be thinking it's a problem if the person who gets to decide how
much power they have is the person with that power. So why don't we just give it to
the courts? Any problems there?

SPEAKER 1
An ultimately bad decision of cold up thinking that way is that to a certain
degree, you can have seek efforts. The executive might have access to secret
information, but if you force them to submit it to the court to say, Hey, the power
should be expanded due Tore the big it can in itself jeopard the situation. But
ultimately, when you it is the court's job to provide the and powers under the
Constitution, OK.

SPEAKER 0
Oh, so the the argument there is courts have to make decisions based on evidence
and for the reasons we've just said in relation to the executive, they might not
have all the information the executive has, It might be secret. Yes, I guess the
issue is that decisions are retrospective.

SPEAKER 1
Mm.

SPEAKER 0
Well, that's a good point that court decisions are retroactive, not proactive. And
if you've got a defence situation unfolding, uh, you need to be able to act. And
you might not be able to wait for six months to a year to get the high court's call
on that. OK, I love it. I'm gonna leave that there. We've problem. The situation I
think we've seen there's no obvious answer. And now we're gonna go back to 1951
Remember? Remember it well, communism is sweeping the world. This is seen as an
existential threat to Western civilization. We have all sorts of governments
falling to communism. We have. Oh, propaganda. That's maybe a bit judgmental. We
have lots of stuff in the popular media and the news saying communism is coming to
get our way of life. And who's this fellow? Joseph McCarthy? Yes. What? What was he
up to? He was accusing everyone of being communists in the US. Um, the Committee
for Un-American activities. Is that right? So, um, sometimes these days referred to
as a witch hunt in the US. If you were accused of being a Communism, that could be
career over for you, just based on the accusation. So this is the hot political
issue. I'm just gonna open that door because the room screams when it's close. Oh,
OK, Um, because it's haunted and the ghost needs to be able to get in and out. OK,
closer to home. Whoopsie. We'll get to that fellow. Several Asian countries have,
um, now have Communist governments, and the mood in Australia is saying we're next.
Australia is gonna fall to Communists. The Australian Communist Party is quite
strong, quite active in Australia, and it's a genuine political concern. Who is
this fellow? Robert Menzies. He has a solution. He's going to stamp out the
communist threat now, once and for all. So we're gonna make a piece of legislation,
and what it's going to do is to ban the Communist Party. It's going to make
membership of the Communist Party illegal. It's going to forfeit all the Communist
Party's assets to the Commonwealth. It's going to make it a criminal offence
punishable by five years in prison to be a member of the Communist party and
further it's going to give the governor general power to declare other
organisations illegal if they are communist adjacent. This is strong stuff, right
making membership of a political party illegal, taking out a whole political party
Now The government knew that this was strong stuff and they knew well. They wanted
to rely on the defence power because there's no other power that says you can ban
political organisations. But they also knew that the scope of the defence power
depends on Australia's defence situation. The more threat Australia is under, the
bigger the power. So what they decide to do is to write this into the legislation.
The Communist Party Dissolution Act had something called recitals. Have you ever
seen recitals before? They're actually not that common. What they are is some text
at the start of legislation, usually starting with the words and whereas that talks
about why this legislation's being brought in in your readings, you have quite a
few of them. They cos they went on and on in this legislation. So just to pick out
a sample, it was this sort of thing. The legislation said stuff like and whereas it
is necessary for the security and defence of Australia that the Communist Party
should be dissolved and its property forfeited to the Commonwealth. We talked about
communism being the biggest threat to the Australian system of government. He
talked about how communism had affected other countries. Can you see what they're
doing here? They've got their eye on the scope of the defence power. So if you
think of that pyramid that we were looking at before, they're trying to say we know
that this legislation is doing something drastic. But that's necessary because we
are at the lower end of the pyramid. We are at the base where it's really wide.
We're not quite World War Two, but we're pretty close and that is in the
legislation. What do you think the high court says about this thumbs up or thumbs
down? Thumbs down? Yes. So this is a case that's very dear to the hearts of most
constitutional lawyers, I think because this is where in an extremely political F,
politically fraught situation. That's why I wanted to show you some of those images
to give you a sense of how critical this was. In a political sense, the court steps
in and says, You can't do this because you can't Parliament give yourself power.
The Constitution gives you power. And who says what the Constitution means? The
court does so to answer the question. Who decides? This is where the high court
says it's us. And there's a couple of just classic quotes that any constitutional
lawyer can pull out of their back pocket just in daily conversation. Um, so justice
McTiernan says the Constitution doesn't allow Parliament to recite itself into
power. Referring to those recitals, he's saying, You don't have power just because
you say you've got power and that's a fundamental principle of constitutional law,
Right? Government power is limited, limited by the law, the law of the Constitution
and Justice Flier says a stream cannot rise higher than its source, saying the
stream of Commonwealth power can't get bigger, then the source of that power, which
is the constitution. So this case answers that question. Do you have any questions
about the Communist Party case,

SPEAKER 1
a law that the DP, or an organisation, to be a threat to peace, order and good
government of the commonwealth make a submission to the to the high court but to be
disbanded.

SPEAKER 0
OK, The question is, could you have written the law differently to say if the say,
if the Attorney General believes an organisation is a threat to national security,
they can make a submission to the court that it be disbanded. I mean, then you get
into chapter three issues of the court exercising non judicial power. I think what
you can do is what was done in the capital issues case. So have a look at that in
your readings. Marcus Clark, you can have a law that says if an organisation
exhibits these specific characteristics that make it a threat to national security,
you can do stuff to it. Do, uh, Marcus Clark or the capital Issues case? Yes. Have
a look at that case. Yeah, the the law was upheld in that case because there was
criteria for determining that organisations were a threat to national security.
There wasn't just a recital that said the Communist Party Act is a threat. Do you
know what happened? Did did Menzies just go home and say, Oh, ok, can't win them
all. I guess I'll move on. He said the boys to Vietnam. Yes, Yes. And also he, uh,
put up a referendum to ban the Communist Party. So I said, OK, Constitution says we
can't do it this way. Let's change the Constitution. What happened to that
referendum? It failed narrowly and surprisingly so. The yes was winning up until a
couple of weeks out, and then it failed narrowly. OK, let's move on. That was fun.
So we know now who's gonna do it? Who's gonna work out how big the defence power
is? It's the court. But how? How do you do it? We've already worked out why this is
difficult. You don't have all the facts. The executive has most of the facts. Are
you going to just use the normal rules of evidence to work out how big the threat
to Australia is right now? No. This is a situation where the court establishes
something called constitutional facts. These are special facts. It's the term we
use for facts that determine constitutional validity, not regular facts,
constitutional facts. So here constitutional facts will be the nature and degree of
hostilities, nature and degree of threats to Australia. OK, how do we work out
those constitutional facts? We do this through a process called judicial notice.
Who? Here? Uh, probably. I'm gonna say this might be zero. How many people have
studied evidence? Oh, wow. Good stuff. One person. When you study evidence, you
will find you will learn that when the courts make findings of fact, they do so
based on evidence evidence such as somebody standing in the witness box getting
sworn in and saying things to the court evidence like documents that have been
tendered to the court and authenticated or weapons that the police have taken from
a scene. Evidence. That's not how you find constitutional facts. They're different.
Instead, the court takes notice of, and I'm gonna just quote a couple of Justice
Dixon lines at you. The court takes notice of matters of general public knowledge.
It's from a case called Stenhouse and Coleman. Yes, the court takes notice of
matters of general public knowledge or in the Communist Party case. Justice Dixon
said it, like this court takes notice of open and notorious international events of
a public nature open and notorious international events of our public nature. So
the court will take judicial notice of things that everybody knows is Australia at
war has Germany invaded Poland? Are Australian troops overseas? Has a enemy craft
been found in Sydney Harbour? Have bombs been dropped on Darwin? All of these sorts
of things are matters of open and notorious public knowledge. So this is an attempt
at getting around the problem of the executive having all this information that's
confidential and national security and can't possibly be released publicly. The
court will work out how big the threat is by looking around at open and notorious
events. I think this was easier in 1942 than it is today, isn't it? Because war was
more straightforward. Then you're at war or you're not. We're gonna get into
terrorism in a minute. But another part of it is that in the World War two cases,
the court is quite deferential to the executive here. So the court says we are
taking judicial notice of open and notorious public events of a public nature. But
in doing so, if the executive is telling us something about the defence situation,
we're gonna give that a lot of weight because they know. So that's the principle
that comes out of the World War Two cases. I think the Communist Party case, which
is a little bit later, probably takes the edge off that, though, doesn't it? That's
the court saying we're not gonna defer to you completely. So now we've got an idea
about how you determine the scope of the defence power. How big has it expanded
past peace time? Do you have any questions at this stage? The constitutional fact
judicial. So the question is, when the courts say constitutional facts, they mean
facts that are identified through judicial notice. I think it's probably the other
way round. Constitutional facts are facts that are necessary to determine whether
something is constitutionally valid. The way you find those facts is through
judicial notice. Yes, that's correct, because, um, courts can take judicial notice
of all sorts of things. For example, courts can take judicial notice of the fact
that Christmas is on the 25th of December, and that might be relevant to, say, a
criminal case where someone says, Um oh, it happened on Christmas Day. The court
doesn't need evidence that Christmas Day is the 25th of December. Any other
questions about constitutional facts? Judicial notice? All right, so remembering
that this is a purpose of power. It's a power to make laws for the purpose of
defence. What does that mean? It's gonna be different, isn't it? Depending on the
defence threat to Australia and we know how to work that out. We've just been
working on that. So in World War Two you've got some readings on this. The power
became extremely broad. A power to control the economy, a power to control
employment, a power to control people's everyday lives. What they bought, what they
did. For example, in World War two laws about the sale and distribution of goods
were held to be laws with a defence purpose. Because the economy and the system of
transport were so disrupted that the government taking control of those things was
held to be for a defence Purpose. Laws about women's employment setting wages and
working conditions for women in the workplace were held to be laws for a defence
purpose. Why it was intended that they last for the duration of the hostilities.
OK, But why? Why is women's employment a defence? Because all the men were at war.
Very good. All the men have gone overseas. Women have to step into all all these
positions that were previously held by men regulating that employment becomes a
defence matter. What about laws? Uh, advertising Christmas. So Law is saying by
your I don't know, What do people have for Christmas? Buy your prawns for
Christmas. Buy some linen as a Christmas present. Why is that a defence purpose?

SPEAKER 1
I had one surgery, OK?

SPEAKER 0
No, it's actually not about war bonds. It's a law saying you cannot mention
Christmas in your advert resources resource allocation. Yes, it was thought
necessary to ban advertising mentioning Christmas because people should be
conserving their resources and not spending frivolously because we were running out
of stuff. So you can see how, with knowledge of those conditions that prevailed at
the time of World War Two, all sorts of things become defence purposes. What about
just after the war finishes well in that period, dealing with the effects of war
could be a defence purpose. The laws about housing return service people laws about
giving preferential employment to return service people. Those sorts of laws were
upheld in the post World War two period. You can see how at that time, say, late
forties early fifties, the powers become much smaller. We're not at war anymore,
but we're still dealing with the effects of war so the Commonwealth can make laws
about rental and employment using the defence power. Yeah, Veterans Affairs. Yeah.
Good point. That is the sort of thing we're talking about here. Also, I put I would
put in this sort of midrange laws protecting against imminent threats. So when
we're not at war, we don't have enemies invading our shores. We're not sending
thousands and thousands of troops overseas, But looking around the world, we know
there's an elevated defence threat. Now that one's more tricky, isn't it? It's
gonna be more tricky to work out the constitutional facts, but it probably comes
into play in some of those Cold War era cases that you'll see where it looks like
something might happen. And it's not business as usual. It's probably we're gonna
talk about terrorism in a second, probably falls within the same category and then
even at times of total peace, no threats on the horizon. Maintaining defence
preparedness will be a defence purpose. I want to talk about that one a little bit.
I've just I've put all this in a table, Um, in your slides. Just the same info. So
Justice Fuller in the Communist Party case ripper of a judgement real classic. He
says laws dealing with defence preparedness have defence as the direct and
immediate object, and those laws will be for a defence purpose even in times of
peace. So there's probably no need to consider constitutional facts to work out. If
these things are defence purposes, I'll give you some examples. These are just the
things that Justice Fuller lists in the Communist Party case. They're examples.
They're not ex exhaustive enlistment and training of troops. So if you've got a law
about how you're going to recruit people in the army, into the army, all the other
branches of the defence force, that's obviously a law with a defence purpose,
right? It's clear your head of everything you've learned at the start of the
lecture when I said, Would a law about enlistment of troops have a be a law with
respect to defence? You all went Yes, because obviously, regardless of whether
Australia is at war or under a heightened threat, it's just a a law for a defence
purpose. Um arming troops, providing ships and munitions making weapons making. Um
I guess that what he would have had in mind was probably like what you have down at
Fort Las like forts looking out to sea. But probably all sorts of defensive
infrastructure to prevent against attacks. So laws are for are for those sorts of
purposes. Those are laws for a defence purpose. What about maintaining discipline
in the defence force? Yes. Let's go. Um, there was a between the applications
military personnel.

SPEAKER 1
Uh, that was the basis of this case, but was a service person to be charged under
the civil law defence law. OK, the defence to presidents as it was a commonwealth
war over state. Uh, and the basis was in order to maintain a strong defence force
when he should be the responsibility of the military, That's pretty much it.

SPEAKER 0
So going through this case of Cohen, I do want to emphasise this case a little bit,
cos it's the most recent case we've had on the defence power. So there was a
lingering question about disciplining members of the armed forces for doing stuff
off duty Section 61 of the defence force discipline act. It did it in a circuitous
way. But it has the outcome that if a member of the defence forces does something
that would be an offence under general criminal law, like state or territory
criminal law, then that is made an offence under the Defence Force Discipline Act
and you get tried before a military tribunal, not before the ordinary Australian
courts. And there was had been this ongoing debate about well, what this
effectively says is if you're a member of the armed forces and you, I don't know,
remove native vegetation without a permit. You get tried before a military
tribunal. Even if you did that in your personal time. W out of uniform, Nothing to
do with your service. Is that a defence purpose? Trying someone before a military
tribunal for that sort of conduct? So Cohen, um he was out of uniform and off duty,
but he was a member of the defence forces I. He assaulted someone in a bar in
Queensland allegedly Oh no, it's not Cohen, is it? It's private R! Sorry, Sorry.
Cohen shouldn't have said that about you. This question comes before the high
court. The high court says well Maintaining discipline is necessary for the EFF
efficacy of the defence forces. Requiring members of the defence forces to comply
with the law of the land is a part of maintaining a disciplined force. So therefore
military discipline is a defence purpose regardless of whether you're punishing
conduct that's defence related service related or not. So that law has a defence
purpose. Any questions about that one? Yeah mm.

SPEAKER 1
And the form of the, uh and that's valid in the context that Ha ha ha ha ha.

SPEAKER 0
Great question. The question is OK. If the high court upholds, as supported by the
defence power, a law made during wartime, like saying you can't advertise to
Christmas, Does that law remain valid if it stays on the books after wartime? Great
question. We don't know the answer. You would have to be challenged well, otherwise
we wouldn't know if it was valid unless it's challenged. It's a terrific question.
I can tell you that I was going to write my honours thesis on that very question
about 500 years ago. Um, I spent about six weeks looking at it, and I gave up
because it was too hard. So I don't know the answer. Yeah. No, The question is, was
the income tax the so the, um, uniform Tax Act of 1942 supported by the defence
powers? No, that was just supported by the taxation power. We're gonna go there
next week. Anything could be mean to compare this.

SPEAKER 1
Like, for example, that and the army. Technically, that's what Great question.

SPEAKER 0
How do we define what has a defence purpose? Is there any way to narrow that down?
Yes. I think the answer is in the question we're gonna get to soon. Which is is the
law reasonably necessary or appropriate and adapted to a defence purpose? And
there's a very similar case to the one you've raised about making shoes. They're
very good. OK, how does this work when we are no longer talking about conventional
warfare? We've already seen how even when we get into cold War territory, it sparks
a whole lot of different approaches, and it really brings the government in into
conflict with the courts. But what about terrorism? So this guy here has anyone
heard of Jack Thomas? 02 people congrat three people. Congratulations. Otherwise
known as Jihad Jack. Wow. I've been teaching this for like, 10 years, and that's
the first time I've got a giggle for the word jihad. This is so interesting
because, um, people's attitudes towards terrorism just changed so much. They've
changed so much over the years. So he is an Australian. He went overseas. He
trained with Al Qaeda. Ah, he was photographed shaking Osama bin Laden's hand. Um,
he was charged and convicted of receiving funds from a terrorist organisation. Um,
but ultimately that conviction was overturned on appeal. So what we have is someone
who's clearly been associating with terrorists but has never been convicted of a
terrorist offence. The Commonwealth made this law that enabled a court to place a
control order on someone who was suspected of involvement in terrorist activities.
The control order could include a whole range of restrictions. So it's not a
detention order. Jack's not going to jail, but it could put all sorts of
restrictions on your liberty. So, for example, he was required. He was under a
curfew between midnight and 5 a.m. Honestly, that wouldn't affect me very much. I
think I'd he's fine. Uh, he had to report to a police station three times a week.
Uh, his use of the Internet was restricted. So now things are getting real. And he
was not allowed to communicate with certain people, including Osama bin Laden. So
that's the sort of restrictions we're talking about. The control order could only
be made if the magistrate was satisfied that the order would substantially assist
in preventing a terrorist attack. When you look at this case in the book, just make
sure you spend a bit of time pulling out the def definition of terrorism in the
act. So who who thinks they know what terrorism is. 234 people. I'm not gonna ask
you because I'm I'm just gonna tell you, I guess my point is that it's a term that
can mean many things and has a sort of popular understanding that I suspect
probably evaporates once you ask people, what does it actually mean? But in this
act, terrorism is defined while terrorist attack is defined. So so a wide range of
actual or threatened actions that result in death, serious property damage,
disruption to systems or or injury two persons. So that's part of it. Actions that
cause bad consequences very bad consequences undertaken with the intention of
advancing a political, religious or ideological cause, some sort of political,
religious or ideological motivation and intended to coerce or intimidate the
Australian government. Well, I think an Australian government, yes, an Australian
government or a foreign government or the Australian people or a segment of the
Australian people. So this is a law that has a purpose of protecting against
terrorist attacks. Notice that a terrorist attack can be committed against a
portion of the Australian people, so it could theoretically be an attack against a
couple of individuals. And it's an attack by a non state actor, an individual. So
our question becomes is an act of violence by one Australian person against another
Australian person. A defence matter Does a law trying to prevent that have a
defence purpose on that cliffhanger? Let's have a quick break. We'll start again
at, uh, five past damn it OK, Justices Gummow and Crennan said. Well, it's
pointlessly formalistic to make a distinction between the Australian government and
the Australian people. What's the point of the government, if not to represent and
protect the people? So they thought absolutely a law protecting the Australian
people from attacks from internal threats could be a law with respect to defence
justice. Callanan has a really interesting judgement in this case, too, where he
uses constitutional facts to talk about. He really thinks about the, um the scale
and nature of the terrorist threat at this time, he says. We're living in a time
where technology has given has made it very, very easy for individuals and
organisations to carry out massively destructive attacks. We've got more
concentrated populations than ever before, which again, as illustrated by the
September 11th attacks, shows that you can do something incredibly destructive.
We've got communications technology that allows you to build networks and
coordinate attacks. See how that's using constitutional facts. To say the threat of
terrorism is like none we've seen before. Majority of the high court hold that this
law is supported by the defence power Justice Kirby says No, he says a defence
threat is one aimed at the body politic, a threat by a person against another
person. That's just criminal law. So we get a majority of the high court saying
protecting against a terrorist attack as that is defined in that case and That's
key. It's not just terrorism in general. It's terrorism as defined in that case in
the law. In that case, that's a law with a defence purpose. Questions about that?
Yeah, What's the legality of that?

SPEAKER 1
My shirt of that particular statue?

SPEAKER 0
The question. Did the validity of the act rely on its being made by a magistrate,
Not the executive that actually created additional problems? Because there was a
Chapter three challenge, too? Do you remember? Did you study this case in PPL as it
was argued, that this case gave non judicial power to a court high court rejected
that challenge. Question up the back.

SPEAKER 1
I'm just trying to understand how it's It's the definition of a terrorist. He
hasn't done any actions. Cos according to a definition, it's a wide range of
actions. Mm, consultant like the question is, how is Jack a

SPEAKER 0
terrorist? If terrorism is defined as acts and he hasn't done anything, it's
because look back at what the law is doing. The law is saying you can make a
control order If satisfied that the order would substantially assist in preventing
a terrorist attack. What is a terrorist attack? OK, it's this long definition. So
if you're satisfied that restrictions need to be placed on this man because he has
all these terrorist associations, because you've got evidence about what he is
likely to do in the future and it looks like there's a substantial chance he's
gonna commit a terrorist attack. Then you can put restrictions on him. So the
purpose of the law is to prevent a terrorist attack. And if you can satisfy the
magistrate that this guy is likely to commit, one magistrate can put a control
order on.

SPEAKER 1
So is the K back together situation? Just like anyone who could have associations
with like a terrorist organisation was is the degree of evidence, Which was it
Sound like?

SPEAKER 0
Yeah, The question is, um, how much was the key factor that there was evidence of
the likelihood that he would commit a terrorist attack? Yes, it would depend on
each individual, um, the degree of likelihood that they're going to commit a
terrorist attack.

SPEAKER 1
Mm.

SPEAKER 0
Yeah, The question says the Lord, um doesn't say that the control order would pre
assist in that preventing that person committing a terror attack. It might be that
they're radicalising, others or coordinating communications. Yeah, just preventing
a terrorist attack. So that's Thomas and Mowbray. We've got defence purposes. We
know how to work them out. Now we get to the thing that I think has been sort of
niggling at us, and we've been talking around it. You've got a defence purpose. How
do you work out if this law actually furthers that defence purpose? So, as I said
earlier, 51 6 is a purposive power. So this means that the test of characterization
is whether the law is reasonably necessary or appropriate and adapted to a defence
purpose. Um, the language reasonably necessary is from Cohen and appropriate and
adapted is from, uh, a case called Paul Yovich about war crimes. You're gonna see a
lot of this language in this course. You've already seen a bit of it, haven't you?
You've seen appropriate and adapted before. This language is asking us to compare
means with ends. By that I mean, we are looking at the purpose of a law. It's end,
what's it for? And then we look at what it does. It means we say, Does this law
adopt means that are suitable for achieving its end We're gonna see this sort of
test in a whole range of contexts in the course it asks you to look at. OK, the
law's got this purpose. Does the law Isn't the law well suited to achieving that
purpose? Does it go too far? Does it miss the mark? It's about proportionality.
It's about suiting ends to means so to let's make this real. Thomas and Mowbray
remember, If the magistrate is satisfied that making a control order would
substantially assist in preventing a terrorist attack, they can make a control
order. Importantly, the law said, the restrictions you impose under the control
order so that might be things like a curfew or reporting or not contacting Osama
bin Laden. They must be reasonably necessary and reasonably appropriate and adapted
for the purpose of protecting the public from a terrorist act. So you can see that
this law has been drafted by people who know it's gonna be challenged in the high
court. I know somebody is gonna argue this law is not appropriate and adapted to a
defence purpose. Now, one of the reasons I think the defence power is quite
challenging to study is that the court doesn't really neatly step through it. They
tend to sort of combine a lot of the analysis of constitutional facts, scope of the
power, defence, purpose appropriate and adapted for your purposes. I'm going to
encourage you to break it down into a couple of steps. So to first ask, does this
law have a defence purpose? And we've already talked about this. The law had a
purpose of protecting against a terrorist attack and a majority of the high court
held that this was a defence purpose and some of the judges to get to that
conclusion. They used constitutional facts. So we are back into the earlier part of
this lecture where we talked about how do you work out the scope of the power at
any given time? Well, for some judges, they looked at the nature of the current
terror, a terror threat in Australia. They looked at the fact that there had been
terror attacks in other countries, including ones involving Australian citizens.
They looked at the the capacity of technology and communications and concentrated
populations to facilitate terror attacks of unprecedented scale. So does the law
have a defence purpose? Yes, tricky question, but we get that, Yeah, Preventing
terrorism is a defence purpose. Next question, given that is the law appropriate
and adapted to its purpose of preventing a terrorist attack? Now? This was the easy
question in Thomas and Mowbray because the law had been drafted with an eye to that
very question. Well, yes, the law is appropriate and adapted to the purpose of
preventing a terrorist attack. Why? Because the law says the magistrate can make a
control order if it's necessary. Well, if it's gonna substantially assist in
preventing a terrorist attack and what the magistrate does in the control order
must be appropriate and adapted to preventing that attack. So the constitutional
test is built into the legislation. The magistrate can't just do anything. They
can't lock Jack up. They can't stop him from ever leaving the house. They have to
assess on the evidence. What's the chance that he'll commit a terrorist act? Or
Assis assist with one? And they have to say what restrictions on his liberty would
reasonably prevent that So see how the law's carefully tailored to its end
questions about that. So the first step is more about saying What is the purpose of
the law And is that a defence purpose? The second step is about saying, What does
the Lord do and is that well suited to the purpose? Here's another example. This
one's in your readings and this is the question that came up before. So the
Commonwealth created a special factory to make uniforms for the defence forces. But
that factory also made a lot of other clothes. They made uniforms for other
Commonwealth public servants. I think they made some for state public servants as
well. And for the scouts, so is the law establishing this clothing factory. A law
with respect to defence. This is not exactly how the high court does it. But here's
how I would encourage you to breakdown the analysis. Does the law have a defence
purpose? What do you reckon?

SPEAKER 1
So which is the beautiful that I think?
SPEAKER 0
Yep. Soldiers do need uniforms, don't they? Why can't they just bring their own
international law requires it. OK? Yes. I think a a moment's reflection will tell
you Yes, soldiers do need uniforms, so equipping them with uniforms is absolutely
It's one of those things that's gonna be a defence purpose. Even in times of peace,
isn't it? It's a defence preparedness thing. It's like Justice Fuller in the
Communist Party case, talking about enlistment and training of troops and equipment
of troops. It's that sort of thing. So do you have a defence purpose? Yes. Trickier
question. Is the law appropriate and adapted to that purpose? Because the law
doesn't just authorise the factory to make uniforms for the defence forces? It lets
them make uniforms for a whole bunch of other people. So show of hands who thinks
the law is appropriate and adapted to the defence purpose? Or who thinks it's not
who thinks it's just going way too far? I'm just doing a whole bunch of stuff
that's not not reasonably necessary for defence. So here's the way the high court
reasoned it. They looked at the the material before them, and they said, Hm, well,
making defence uniforms isn't really gonna keep a workforce employed full time, and
there's just not enough work for that. So I guess you could just hire people to
make uniforms as and when needed. But that's really inefficient because all the
best people will go where they've got permanent secure work. So you'll be getting
the dregs and you'll have to train them every time you wanna call them up. You'll
have to put everything sort of recommission all the equipment. You kind of need a a
full-time permanent workforce that's occupied all the time. That's doing work. So
they remember how to do it and learn how to do it and get good at it. You need to
give them work. So given that yeah, this law is reasonably necessary for defence,
it is reasonably necessary in order to clothe your defence forces that you have a
full time workforce who's fully occupied in making uniforms. And if that means that
sometimes they're not making uniforms for defence forces, they're making them for
the scouts. So be it.

SPEAKER 1
You wanted to make the stretch out of state a couple of public services keeping
themselves have a purpose. And if you want it even further to the they cover some.

SPEAKER 0
OK, we we're stretching it to just say this effect. The scouts are armed forces
pretty much good. It's an ambitious argument. I I admire I applaud your ambition.
Um, if you are interested. Well, no. I was gonna say if you're interested. It's in
the required readings. Um, see if you can reconcile that case with the shipping
board case. I think it's very difficult to do so. But that's the sort of reasoning
we're engaging with here. So it's a lot of words for what boils down to this. Let's
retest our knowledge, a law conscripting people into the army who thinks that's the
law with respect to defence now, lots of people, pretty much everyone. Yes, that's
Justice Fuller Obi in the Communist Party case. What about a law creating an
organisation to build Navy submarines? Is that a law with respect to defence? Yeah,
it is. It's again. It's the same thing. It's defence preparedness, a law imposing a
curfew on persons suspected of involvement with terrorist organisations who thinks
Yes. Yeah, most of you do. I think we probably need a bit more detail about that.
It's not gonna be supported per SE. Um but if that law was to prevent a terrorist
attack, I think that's the bit. We need a law regulating the sale of apples and
pears during war. Very good. So it depends. But during war, yeah, a law declaring
the a ULSS a threat to national security and making membership of a ULSS a criminal
offence. Would that be a law with respect to offence? No. What what case is it like
it is the Communist Party case. Unless the a ULSS was committing terrorism on which
I have. I couldn't possibly comment. OK, so look, as I said, there are challenges
in reading the cases because the concepts do sort of run together. As I think you
can see. There's no real neat division between them. So for this course, this is
how I recommend you break down the analysis, start by asking whether the law has a
defence purpose and identifying that purpose, for example, the purpose might be
preventing a terrorist attack. Or the purpose might be clothing members of the
armed forces or preventing the waste of limited resources during a time of total
war. That sort of thing when you are working out, if the law has a defence purpose,
I think, as part of your mental process, it's useful to ask, Is this one of those
laws that has a purpose that's gonna be a defence purpose even in times of peace,
so that defence preparedness stuff equipping and training, armed forces, building
fortifications, that sort of thing? Or do you have to look to the constitutional
facts, the defence situation to work out? If there's a heightened defence threat
that has made the power bigger than it would be in times of peace, so identify your
purpose. Look at whether it's defence that might be very simple or it might be very
tricky. Once you've got a defence purpose, just look carefully at what the law does
and say is the law. You can use either of these phrases because the different
judgments use Use them interchangeably. Is the law reasonably appropriate and
adapted to that purpose, or is the law reasonably necessary for that purpose? Any
questions about that get a chance to apply the test in a very short time? No, I
want to talk about this for the purposes of teaching the course In the Communist
Party case, Justice Fuller says the defence power has a primary aspect and a
secondary aspect, and in the past we have used that as a tool to teach this topic.
So we've really encouraged students in past years breakdown your analysis into
whether you're looking at primary aspect or secondary aspect. I think it it remains
quite a useful, um, analytical framework. You will see it all over past exams and
assignments. However, I'm not strongly encouraging you to use the primary and
secondary aspect framework. This year, we've got a new edition of the textbook that
emphasises it much less than the previous edition. And it is It's a conceptual
framework that while Justice Fuller used it, the very few cases we've had since
then on the defence power haven't really picked it up and run with it. I mean,
constitutional lawyers will know what you're talking about, but it's not gonna be
used in every defence power case. So for that reason, I'm not going to, um, require
you to use the primary and secondary aspect. If you understand it and you're fine
with that and you want to use it, you won't be penalised. Um, so this is sort of by
way of saying to you, you don't need to know primary and secondary aspect what? It
is just quickly. The primary aspect is the part of the defence power that exists
even in times of peace. So it's defence preparedness. The secondary aspect is the
expanded part of the power that is engaged when Australia's at war or under an
increased threat. And I think one of the reasons why this distinction is not so
useful now as it was back then is that Cold War and terrorism, just the evolving
geopolitical situation, mean there is no sharp distinction between peace and war
anymore, and we're kind of always in a slightly elevated area of threat. So I'm not
sure that this is as useful as it once was. Well, that's that's all about that
you're not required to know it. But if you do, and if it works for you as a
conceptual tool, you're welcome. This is a good question. The question is, could
conscription be required as either a primary or a secondary Cos. On the one hand,
it's about enlisting troops, which seems like primary aspect. But on the other
hand, in a time of relative peace requiring people to join the armed forces whether
they want to or not seems kind of full on, doesn't it?

SPEAKER 1
You probably could like the argument, even if it is just on like national service
stuff. I think, look, I think where we might, um, have

SPEAKER 0
an argument about conscription is in the second part of the test about whether the
law is appropriate and doubted. But th that is one of the reasons why I've always
felt that this primary and secondary aspect has some clunky elements to it. OK, do
you wanna try a problem? Question? Yes, Yes, I'm hearing enthusiasm in my mind, but
not in the room. Here we go. The Terrorism Motor Vehicles Act 2023 Commonwealth.
Oh, this is about terrorism. And if I was reading this in an exam or assignment
question, I'd be going. It's about terrorism. Could he speak about the defence
power? Maybe so the object of the act or that might be interesting, cos we know,
um, the defence power is a purposive power. So if we're being told what the purpose
of this act is again potentially relevant, it's to protect the Australian people
from the threat of death and injury caused by terrorist attacks using motor
vehicles. OK, that's Is that bringing anything to mind for you? Any cases or
analogies? Is this a defence purpose driver's licences? A person who drives a motor
vehicle in Australia is guilty of an offence. Oh no unless the person holds a
driver's licence granted granted under this section. So this is not your garden
variety driver's licence that many of us have. This is something different big fine
or imprisonment. The minister for defence may grant a driver's licence defence. OK,
this is, um, one of the things that we do when we're writing problem questions to
give you a big hint is, say, the minister for defence. In reality, you wouldn't see
that in an act. In reality, an act would just say the minister and then a separate
um process will allocate a particular minister to that act. But this is just the
person who wrote the the question, saying Please talk about defence power so that
minister can grant a driver's licence to a person who has been certified by ASIO as
a person not likely to commit a terrorist attack. So just get your head around
this. You wanna drive in Australia, you need this licence from the minister for
defence. You'll get it. If ASIO says you're not likely to commit a terrorist
attack, OK, that's what the legislation's doing always worth just getting your head
around the legislation. And here's a definition of terrorist act. Great, because we
know in our leading case, Thomas and Mowbray, there was a definition of terrorism
and we're working out. If this law is supported by the defence, power might wanna
see if it's trying to protect against the same kind of act as in Thomas. And here
we see a terrorist act, is intended to intimidate an Australian government or a
section of the Australian public and has a political, religious or ideological
motive and is likely to cause serious injury or death to one or more people. So if
you had your textbook with you, you'd be going back to the section on Thomas and
Mowbray and going, Is this the same? Is this different? Is it significantly
different? I'm gonna tell you this is not significantly different. It's pretty.
It's got the key elements of the Thomas legislation's, um, definition of terrorist
act, which is at causing serious harm. This is actually, um, more focused on
serious physical injury to persons than the Law and Thomas, which also extended to
damage to property and systems political, religious or ideological motivation
that's identical and intended to intimidate an Australian government or a section
of the Australian public That's narrower than Thomas. Therefore, I guess more
likely to be defence cos it didn't also Thomas. The legislation also included
foreign governments. OK, Lizzie, our client. She doesn't have one of these
licences. She's pulled over by the A FP or driving down North Terrace. And she's
been charged under Section two of the motor vehicle Terrorism Motor Vehicles Act.
Advise Lily, Lizzie, Lily, Who knows who she is. OK, I am gonna start by
identifying the issue and the piece of legislation that affects her. So I'm gonna
say Lizzie has been charged under section two of and this is where it's good to
have a clip on microphone. I've only got one hand left to tight with OK, this is a
good start because we're told something bad has happened to Lizzie and we've
identified specific session that does that. And because this is constitutional law,
we're gonna ask two questions. First is section two valid? She's in charge of the
Section one. So So Section one is the object section. So it's Section two,
subsection one. Yeah, you could say that is section two Valid. And assuming section
two is valid, does it apply to Lizzie? Is section two valid? Alright, let's start
getting some headings happening. I love a heading because it shows a relationship
between ideas is section two valid? Let's go. Lower level heading. We know validity
has two questions, right? Does anyone remember the two things you need to ask to
work out if a law is valid, any law limit in power, Parliament needs a source of
power and there needs to be no limit applicable. This is a commonwealth law, so the
source of power will be ahead of power. In this instance, we've already identified
that the defence power is the head of power most likely to support this law. So
what we can say is, um we can use a sentence like, um, Section two may be supported
by the Defence Power Section 51 6. Statement of issue. We haven't reached a
conclusion yet. We just stated the issue. Any questions so far? Hm. Good question.
Are you required to mention the terrorism Motor vehicles act again and again? Or
can you just mention section two? You can just mention Section two. Yes, if it's
clear from context. You're talking about section two of that act at the back.

SPEAKER 1
So are we just like, No, Make sure it does.

SPEAKER 0
OK, the question is, are we just stating this is supported by the defence power? Or
do we have to go through whether it has a defence purpose, etcetera? At this stage,
we are merely stating the issue for investigation. Section two, maybe supported by
the defence power. We are about to embark on that conversation. Any other questions
about structure? So to work that out, we know we have to do some characterization.
And we had some steps, didn't we? First step does the law. Let's say, does section
two. So this is characterization. Have a defence purpose? Well, looking at section
two looking at it's sitting in the act in general. How would you describe the
purpose of Section two? Yeah, that is to offence.

SPEAKER 1
Um, yeah.

SPEAKER 0
Great. This is one of those instances where you can say Well, Parliament's actually
told us what the purpose of this law is. So let's seems like this section is
broadly consistent with that purpose. Sorry purpose is to protect the Australian
people from the threat of death and physical injury caused by terrorist attacks
using motor vehicles. Is this a defence purpose? Hm? Do you think this is one of
these purposes that's within the defence preparedness category? Can we just say
yes? Definitely. It's not obvious. I think you'd have to refer to Thomas and
Mowbray a bit because that's a case that says, um where some of the judges, I think
probably S justices gummow and Crennan in particular would say we're preventing
against a terrorist attack. Yeah, that is maintaining defence preparedness cos
you're always under threat from terrorist attacks, so preventing those attacks is
defence. But then you've got other judges in that case, who do seem to say, Well,
no. But in 2007, with the world as it as it was then there's a strong argument that
terrorism is a defence matter. What? What do you think you would say about this in
2024?

SPEAKER 1
We discuss that. Yeah, a very simple culture in Australia.

SPEAKER 0
Yeah. Good.

SPEAKER 1
All brain work.

SPEAKER 0
Great. Do people agree with that?

SPEAKER 1
Good. Right. Uh, let's just say five years ago, one of the worst terrorist attacks
in the Southern Pan School was committed by an Australian in Christchurch, New
Zealand. Are they still in the fight? Well, we we in Australia and two, it pops up.
Is that good? I see this. Thanks.

SPEAKER 0
Get to the Yeah, this is great stuff. Look, I think I'll leave it about there, but
this is the sort of analysis you would need to do. And I think the points you've
come up with are brilliant. I think they're the right arguments to be making here.
On the one hand, you can say, Well, we are a lot further away from September 11
than we were in 2007. Um, T terrorism is much less of a it. It just feels like less
of a threat than it was back then. But then we get into saying, but there there
have been terrorist attacks, and, yeah, like the Christchurch attack, it looked
different. And the ideology looked different from September 11th. But those sorts
of things have still been happening involving in that case, an Australian. We get
into a an interesting question too. Of what is notorious and open public knowledge.
Don't we? Cos I'm gonna guess you all have different levels. of awareness and
detailed knowledge of terrorist attacks over the last 20 years. So we get to an
unresolved question about judicial notice. Does it work to just say you can take
judicial notice of stuff that everybody knows in a such a crowded media landscape?
Uh, yes, yes. So the question was, why are we even looking at constitutional facts?
Because it wasn't clear whether defence was the direct and immediate object of this
law. We've got probably a couple of judges in Thomas who say preventing terrorism
is we've got others who S who say not question at the back talks.

SPEAKER 1
Uh, what is the I So as you asking us, Hm? The new right here. Yeah, great
question.

SPEAKER 0
It's we're asking you to put put forward your interpretation of the defence threat,
and some of you will know more or less What are we looking for from you? I'm
looking for what? You know off the top of your head, cos that's really what
judicial notice should be in an exam. That's what I'd be looking for in an
assignment. That's what I'm looking for. Open and notorious matters of general
public knowledge. And I would bet that if we set a question like this, we would
have probably 100 different interpretations and levels of knowledge of the defence
situation. That's that's the nature of constitutional facts and that's kind of what
I'm trying to get across to you trying to get you to think about whether it's a
satisfactory method of fact finding. Let's go on to the next step. I think we have
to say at this step, what you would say is it's probably arguable whether there's a
defence purpose. I think there's a real argument to be had here, like a real
opportunity for quite in depth analysis. What I'd like you to do in your assessment
is acknowledge that uncertainty. So here's the arguments for both sides. I
recognise this is not clear cut because I I can deal with complex arguments. But I
think the more likely outcome is X. So let's take a vote. Who thinks this law does
have a defence purpose who thinks this law does not have a defence purpose? Ooh,
how confident are we not very good and this is part of what you're doing is
advising your client about their risk. So even if you are leaning towards saying? I
think it's probably not a defence purpose. You're not gonna tell Lizzie Lizzie.
Great news. The law is definitely invalid. You can just carry on with your life.
What you're gonna say is there is a solid argument that this law has no defence.
Purpose is therefore not supported by a head of power and is invalid. But I
recognise I could be wrong about that. I'm I'm like 6040 on that. If there is a
defence purpose, I'm I'm just gonna go on and complete the analysis, cos I think my
client needs this in order to make a a proper assessment of their position. So the
next step was is section two reasonably appropriate and adapted or reasonably
necessary for the purpose of preventing aus Australian people being harmed by
terrorist attacks using motor vehicles. So how does the law try to achieve that
goal?

SPEAKER 1
Yeah, So you security check.

SPEAKER 0
Just confirming you're not likely to commit a terrorist attack. Ok, any thoughts on
that? Is that well suited to preventing terrorist attacks? Yeah, and she is She
doesn't have one.

SPEAKER 1
So what is that? What's the risk that similar in our There's no real like reasoning
behind this is why.

SPEAKER 0
So the question is going on. So we're advising. The question is, why does this
matter? Given she doesn't have one. We've been asked to cha to advise our client.
And then we are saying, Is the law valid? And does the law apply to her? Remember,
our clients circumstances do not affect the validity of the law. We are talking
about whether the Commonwealth had the power to pass section two. Lizzie does not
affect the commonwealth's power. If we're gonna talk about her, we're gonna talk
about her under application. At the moment, we are talking about Section two and
whether it furthers a defence purpose. So just mindful of time, I'll give you a
little breeze through this. The sort of arguments you'd make here are, um, things
like you don't lose your licence if you later become a terrorist threat. So you get
this licence once you have it, seem to have it for life. You can't lose it. Even if
you become fully radicalised and publicly say you're gonna drive, gonna commit a
terror attack using your car. So it's spectacularly ineffective. So that's why It's
good that we identified. This is a a law that requires you to get a security check
before you drive, but never again. Um And also, I've had someone point out to me,
um, that if someone is contemplating a terrorist attack causing mass death and
injury, they're unlikely to be deterred by the need to have a licence. Um, so I, I
suspect that we conclude it's probably not reasonably appropriate and adapted it it
ha. It barely does anything to achieve its purpose. You might see other arguments,
if you can. That's great. Hm. Um so even if we think there was a defence purpose, I
think we can, with more confidence, conclude the law is not appropriate and adapted
to that purpose Section two.