R v Alqudsi; Alqudsi v Commonwealth of Australia

Hamdi Alqudsi (the plaintiff) has been committed for trial in New South Wales for offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (the Act). The Crown case against the plaintiff is that between 25 June 2013 and 14 October 2013 he provided assistance to seven men who travelled to Syria to engage in armed hostilities against the government of Syria. It is alleged that he helped the men by providing them both with instructions (which included measures to be taken to avoid detection by security officials) and support to travel from Australia to Syria via Turkey. It is also alleged that the plaintiff acted as a conduit for information between the seven men and his contact in Syria, Mohommad Ali Baryalei.

The plaintiff challenges the constitutional validity of s 7(1)(e), which makes it a criminal offence, punishable by the law of Australia, for a person to provide certain forms of assistance with the intention of supporting or promoting incursions into foreign States to engage, or with intent to engage, in hostile activity there. The powers relied on to support the legislation are those conferred by s 51(xxix) and s 51(vi) of the Constitution, that is, the powers to make laws for the peace, welfare and good government of the Commonwealth with respect to external affairs and defence respectively. To the extent to which it was required, the Commonwealth also relied on s 51(xxxix) (the incidental power) and the implied incidental power.

The plaintiff submitted that the Court cannot be satisfied that s 7(1)(e) of the Act, in its relevant operation with s 6(1)(a) and s 6(3)(aa), has more than a remote, fortuitous or insubstantial connection with either the external affairs or the defence of the Commonwealth and thus it is beyond the legislative power of the Commonwealth.

The plaintiff was committed for trial by the Local Court on 21 November 2014. On 27 January 2015 Bathurst CJ granted an exemption under s 128 of the Criminal Procedure Act 1986 (NSW) to enable the indictment to be presented in this Court. On 8 May 2015 the plaintiff was arraigned before Johnson J, on seven charges (the criminal proceedings). A not guilty plea was entered in respect of each charge. The first charge on the indictment was that the plaintiff:

The remaining charges are in similar terms save for the name of the person for whom services were allegedly provided. In the second charge such person was said to be Caner Temel (also known as Abu Moussa); in the third, Mehmet Biber (also known as Abu Abdul Malik); in the fourth, Muhammad Abdul-Karim Musleh (also known as Abu Hassan); in the fifth, Mahmoud Abed Aboshi (also known as Abu Alem); in the sixth, Amin Mohamed (also known as Abu Bilal); and in the seventh, Nassim Elbahsa.

At the time of the alleged offending, the plaintiff, who was born in Jordan, was an Australian citizen, having attained citizenship on 11 November 1987. Each of the seven persons for whom he is alleged to have performed services was an Australian citizen and was ordinarily resident in Australia.

On 8 May 2015 the trial of the plaintiff in the criminal proceedings was fixed for hearing to commence on 21 September 2015 with an estimate of six weeks.

On 18 June 2015 the plaintiff filed a writ of summons in the High Court against the Commonwealth seeking a declaration that s 7(1)(e) of the Act was invalid (the declaratory proceedings). By notice of motion filed in this Court, he sought a vacation of the hearing date and a stay of the criminal proceedings pending the outcome of the declaratory proceedings. Subsequently, the plaintiff sought that the criminal proceedings be removed into the High Court. The Commonwealth filed a summons in the High Court for an order that the declaratory proceedings be remitted to this Court. On 20 July 2015 the High Court refused the plaintiff’s application that the criminal proceedings be removed into the High Court and ordered that the declaratory proceedings be remitted to this Court.

On 27 July 2015 the plaintiff filed a notice of motion in this Court for orders that the indictment dated 7 May 2015 be quashed, that these proceedings be permanently stayed and that the declaratory proceedings be heard together with the motion to quash the indictment in the criminal proceedings. This Court made orders on 30 July 2015 that the plaintiff’s motion to quash the indictment be heard together with his claim for declaratory relief.

The issues in both proceedings were defined by an amended points of claim filed on behalf of the plaintiff on 7 August 2015 and responses filed on behalf of the Commonwealth on 11 August 2015 and on behalf of the Crown (represented by the Commonwealth Director of Public Prosecutions) on 12 August 2015. Written submissions were filed pursuant to directions. The Crown in the criminal proceedings adopted the submissions made by the Commonwealth in the declaratory proceedings.

In the course of the hearing, the plaintiff was granted leave to claim the following alternative declaratory relief in the declaratory proceedings:

The Crown Case Statement in the criminal proceedings alleges in part that:

The Crown also alleges:

The offence is said to have been committed by the performance of a service (s 7(1)(e)), intending another person to enter a foreign State (s 6(1)(a)) with intent to engage in armed hostilities in that State (s 6(3)(aa)). Thus, the charges against the plaintiff rely on the operation of s 7(1)(e) with ss 6(1)(a) and 6(3)(aa).

The Crown case is largely based on telephone intercepts and messages between the plaintiff and the seven men named in the indictment. For present purposes it is not necessary to set out in any greater detail the nature of the Crown case or the evidence to be relied upon in support of it.

At the time of the alleged offences, the relevant provisions were contained within the Act. The Act has since been repealed and the relevant provisions incorporated (with some alteration) within Division 119 of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code).

The Act had its genesis in a bill which was the subject of a Second Reading Speech on 17 March 1977. Mr Ellicott, the then Attorney-General, identified the objective of prohibiting persons preparing for, or engaging in, foreign incursions. He identified inadequacy in existing law and said:

The original bill lapsed with that Parliament. Another bill was brought forward subsequently, which contained amendments as a result of recommendations made by the Committee on Constitutional and Legal Affairs. The new bill included a definition of “government” in cl 3, which was defined as meaning the government recognised by Australia as the lawful government. It also contained what became s 6(4) and s 9(2) (see below).

The Act was originally passed in 1978 and given royal assent on 14 April 1978.

At the time of the alleged offending, s 7 of the Act, so far as is material, provided:

Section 6 of the Act relevantly provided:

The Crimes Legislation Amendment Act 1987 (Cth) (the 1987 Amending Act) effected various amendments, including the addition of s 6(3)(aa). It was given royal assent on 16 December 1987. In the Second Reading Speech Senator Tate explained the purpose of the amendments in the following terms:

I understand the reference to “mercenary acts as such” in the Second Reading Speech to the 1987 Amending Act to be a reference to s 6(3)(aa), which proscribes “engaging in hostilities in the foreign State”. As the plain meaning of the section is broader than the term used in the Second Reading Speech, I do not understand Senator Tate as intending to confine the mischief which the amendment was designed to remedy to the acts of mercenaries as defined by the Geneva Convention (see below).

The amendment to s 7 (which became s 7(1A)) referred to in the last paragraph of the passage extracted above was said, according to the Explanatory Memorandum to the Bill which became the 1987 Amending Act, to have the effect that:

The 1987 Amending Act also removed the reference to “foreign country” and substituted “foreign State” and redefined “government” to mean the authority exercising effective control, rather than, as previously, the government that Australia had recognised as the lawful government.

Section 5 of the Act excludes from its operation any act done by a person in the course of that person’s duty to the Commonwealth in relation to the defence of Australia.

Sections 8 and 9 of the Act proscribe various kinds of recruitment to engage in armed hostilities in foreign States. Section 9(2) empowers (but does not require) the Minister to make declarations exempting specified armed forces from the prohibition in s 9(1). Section 9(2) provides:

By reason of s 6(4)(b), acts done in the course of and as part of a person’s service in a capacity in or with an armed force which is the subject of a s 9(2) declaration, are not proscribed by s 6(1). The conditions for making a declaration under s 9(2) are not tailored to offences under s 6(1), since all that is required is that the Minister declare that it is in the interest of Australia’s defence or international relations that recruitment (as opposed to engaging in armed hostilities) be permitted.

In 2004 the Act was amended to qualify the exception in s 6(4) of the Act and to make provision for “prescribed organisations”, which include “terrorist organisations”. These provisions were related to provisions in the Criminal Code which were considered in Thomas v Mowbray [2007] HCA 33; 233 CLR 307 which is addressed below, both in the context of constitutional fact evidence and in connection with the ambit of the external affairs power.

Section 3A of the Act makes applicable Ch 2 of the Criminal Code, which sets out the general principles of criminal responsibility. In respect of each offence the Crown must prove the existence of such physical elements as are relevant to establishing guilt and also a fault element.

Chapter 2 of the Criminal Code also proscribes various orthodox types of extended criminal responsibility such as attempt (s 11.1); complicity and common purpose (s 11.2); incitement (s 11.4); and conspiracy (s 11.5). Section 11.6(2) of the Criminal Code provides that a reference in a law of the Commonwealth to a particular offence includes a reference to an offence against s 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy). This section is subject to express or implied contrary intention. It was not suggested that there was any such contrary intention. Accordingly, I take it to be common ground that the reference in s 7(1)(e) to an offence against s 6 of the Act would include an attempt, incitement or conspiracy to commit an offence against s 6.

The Commonwealth’s primary submission was that it was not necessary for it to rely on evidence of constitutional fact since s 7(1)(e) could plainly be characterised as a law with respect to external affairs and therefore a valid exercise of the Commonwealth’s legislative power under s 51(xxix). Nonetheless it tendered a bundle of material said to amount to evidence of constitutional fact, which comprised: the Charter of the United Nations (UN Charter); various resolutions of the Security Council and the General Assembly; international texts; and current material containing the Australian Government’s Counter-Terrorism policy.

The nature of constitutional fact evidence was addressed by Gageler J in Maloney v The Queen [2013] HCA 28; 252 CLR 168 at 299 and Heydon J in Thomas v Mowbray at [614] – [618] and [620] – [639]. When considering such material, the court is not constrained by the rules of evidence; the evidence need not be “official”. As Gageler J said at [353] of Maloney v The Queen:

The plaintiff objected to such of the constitutional fact material as post-dated the enactment of the Act in 1978 and the amendments that introduced s 6(3)(aa) in 1987, on the basis of the well-established principle that the validity of an Act must be tested as at the date of royal assent: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 192 per Dixon J, at 268 per Fullagar J and 275 per Kitto J. The plaintiff also objected to such of the material relied on by the Commonwealth as constitutional fact evidence that post-dated the charges on the indictment.

The post-royal assent material included international law texts, Oppenheim’s International Law (Longman, 9th ed, 1992) (Oppenheim), and an entry entitled “Mercenaries” in Encyclopaedia of Public International Law (Elsevier, 1997). The international law texts deal with the law as it has developed over time up to the date of publication. Accordingly, their contents largely pertain to the period prior to royal assent and can therefore be taken into account.

The balance of the post-royal assent material included UN Security Council Resolution 2178 (24 September 2014) as well as current material relating to counter-terrorism. I do not consider that it ought influence the finding of constitutional facts since it is by no means clear that the later material relates back to the relevant period.

The Commonwealth relied on Art 2 of the UN Charter which prohibits the threat or use of force otherwise than in accordance with the purposes of the UN, which are expressed to include, in Art 1.1:

The Commonwealth expressly relied on Art 2.4, which provides:

The Commonwealth also relied generally on the so-called “non-intervention” principle by which States are prohibited from interfering in each other’s internal affairs, to which Art 2.4 is relevant (although it does not cover the field). The Commonwealth referred to Oppenheim at [122] to support the proposition that a State’s obligation not to intervene in another State’s internal affairs extended to neither encouraging nor tolerating such interference on the part of others within its territory. The authors of Oppenheim said at 394:

The footnote to the last sentence in the extracted passage includes a reference to the Act. The customary international law was articulated in the following passage from Oppenheim at 396 - 397:

The authors of Oppenheim also referred, at 397, to the General Assembly’s Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States (the Friendly Relations Declaration) in which the General Assembly (by General Assembly Resolution 2625 (1970)) “Solemnly proclaims the following principles”:

The evidence also included the text of several resolutions of the UN Security Council and General Assembly. It is not necessary to identify each resolution relied upon. Resolutions 161 (1961), 169 (1961), 226 (1966), 239 (1967) and 241 (1967) were made in response to the conflict in the Congo. The resolutions requested States not only to refrain from the supply of arms to those in that area, but also to prevent their nationals from doing the same, except where authorised by the UN.

Some of these resolutions referred exclusively to “mercenaries”, whereas others referred to foreign fighters more generally. For example, Security Council Resolution 161 relevantly:

Security Council Resolution 169 (24 November 1961) authorised the Secretary-General to act to remove from the Republic of the Congo “all foreign military and paramilitary personnel and political advisers not under the UN Command, and mercenaries”.

However, other resolutions, such as Resolution 239, referred only to mercenaries. Its terms included the following:

Resolution 239 was reaffirmed by Resolution 405 (1977) in response to unrest in Benin. Resolution 405 was similarly confined to mercenaries, as appears from the following extract:

There was an issue about the meaning of the term “mercenaries” and whether its customary international law meaning differed from the convention meaning. It was accepted that the term, as provided for by the Geneva Red Cross Convention (which entered into force on 7 December 1978, but which had been approved by Resolution 2625 (24 October 1970)), was defined to mean any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated by private gain, which is substantially in excess of the remuneration paid to regular forces; (d) is neither a national or a party to the conflict or a resident of territory controlled by such a party; (e) is not a member of the armed forces or a party to the conflict; and (f) has not been sent by a non-party State as a member of its armed forces.

The plaintiff contended that references in other material to “mercenaries” was confined to those falling within the definition referred to above, of which a salient feature was that the person be motivated by private gain. He observed that there was no suggestion that he, or any of the persons for whom he was alleged to have performed services, were motivated by private gain. He submitted that international concern about mercenaries could not be extended to include concern about foreign fighters generally, or persons described as “terrorists” since such persons did not fall within the definition of mercenaries.

The Commonwealth submitted that the international concern was not limited to persons who were, strictly speaking, mercenaries. It particularly relied on the wording of Resolutions 161 and 169 (set out above) because the categories of persons in respect of whom States were required to arrange immediate withdrawal was not limited to “mercenaries” and also included “foreign military and paramilitary personnel”. It contended that mercenaries (even if the convention definition applied) were merely members of the broader genus of “foreign fighters”. Moreover, the Commonwealth argued that there was no reason to differentiate mercenaries from other foreign armed persons who were neither authorised by the UN nor belonging to a State’s armed forces, since what was at stake was the non-intervention principle which did not involve any particular aversion to foreign fighters who were motivated by financial gain, as opposed to foreign fighters generally.

On 24 September 2014, after the period specified in respect of the charges on the indictment, the UN Security Council passed Resolution 2178 which:

Although Resolutions such as 2178 use the language of “terrorism” and “terrorists”, it appears that these terms are regarded as being within the same genus as “international mercenaries” or “foreign fighters” used in earlier resolutions, even if the term “international mercenaries” continues to be confined to its convention definition.

The terms of Resolution 2178 hark back to, and restate, Resolution 1373. Accordingly, I would read the resolutions as indicating a continuing concern from 2001, being the date of the earlier resolution, extending up to and beyond the date of the charges in the indictment. However, as Resolution 1373 post-dates the relevant royal assents, it cannot be used directly to support the constitutionality of s 7(1)(e).

As no constitutional prohibition was said to apply, the question is whether s 7(1)(e) of the Act can be characterised as a law with respect to external affairs or defence or otherwise authorised by the incidental power. As the Commonwealth principally relied on the external affairs power, I shall address it first.

Whether s 7(1)(e) can be characterised as a law with respect to external affairs requires a consideration of the practical effect and legal operation of the law (by reference to the rights, powers, liabilities, duties and privileges it creates) and a determination whether it reveals a sufficient connection with the subject matter of the head of power. If there is such a connection, the “justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice”: Grain Pool of WA v The Commonwealth [2000] HCA 14; 202 CLR 479 at [16]; Plaintiff S156/2013 v Minister for Immigration [2014] HCA 22; 88 ALJR 690 (Plaintiff S156) at [22] – [25].

The High Court, in determining the constitutionality of laws said to be authorised by the external affairs power, has addressed the extent of the power by reference to a number of aspects, the importance of any one of which depends on the character of the law sought to be impugned. These aspects necessarily overlap. The external affairs power has been taken to authorise laws:

These aspects do not have constitutional effect: they have been articulated to explain why certain laws fall within the external affairs power conferred on the Commonwealth Parliament by s 51(xxix). Nonetheless it was not suggested that any novel aspect of the power was required to be addressed in the present case.

The Commonwealth relied on each of the aspects of the external affairs power set out above, with the exception of the treaty aspect, to support the constitutionality of s 7(1)(e). The plaintiff contended that the law, properly understood, fell within none of these aspects. The plaintiff further submitted that neither international concern, nor implementation of resolutions (except to the extent to which they are reasonably appropriate to implement a treaty) are aspects of the external affairs power.

There was a further issue between the parties: the extent to which the principle of proportionality applied to each of the aspects of the external affairs power, with the exception of the treaty aspect in respect of which it was accepted that there was such a requirement. The plaintiff contended that questions of proportionality bear on the international concern, external relations and international recommendations aspect of the external affairs power. The plaintiff relied on a passage in Victoria v The Commonwealth (1996) 187 CLR 416 (Industrial Relations Act Case) at 487 (considered below). The plaintiff submitted that, because there was a requirement for proportionality in these aspects of the external affairs powers, the authorities regarding the requirement of proportionality in connection with the incidental power (such as Davis v The Commonwealth (1988) 166 CLR 79 at 99-100 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1) were applicable.

The Commonwealth contended that there was no justification in the authorities for importing notions of proportionality into any but the treaty aspect of the external affairs power and that to do so would be inconsistent with the principles of characterisation articulated in Grain Pool of WA v The Commonwealth and reiterated in Plaintiff S156. Moreover, it did not accept that notions of proportionality were apposite to the incidental power and contended that Davis v The Commonwealth and Nationwide News Pty Ltd v Wills had been overtaken by Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101 and Leask v The Commonwealth (1996) 187 CLR 579.

Although the parties’ submissions dealt with each aspect in turn, I propose to address the relevant decisions of the High Court in chronological order in order to place the dicta in context before considering whether s 7(1)(e) of the Act falls within one or more aspects of the external affairs power.

The King v Burgess; ex parte Henry (1936) 55 CLR 608 is an example of a law found to be valid within the treaty aspect of the external affairs power, although the external relations aspect was also considered to apply. Section 4 of the Air Navigation Act 1920 (Cth) was, by majority (Latham CJ, Evatt and McTiernan JJ), relevantly found to be valid because it conferred on the Governor-General the power to make regulations for the purposes of carrying out and giving effect to the convention for the regulation of aerial navigation signed in Paris on 13 October 1919. The regulations applied to all aircraft flying within Australian airspace, even those which were involved only in air travel that took place wholly within a single State of Australia. However, the particular regulations were found to be invalid since they did not conform to the strict terms of the treaty.

In The King v Burgess; ex parte Henry, Latham CJ, at 643, expressly adopted external relations as an aspect of the external affairs power when his Honour observed that “[t]he regulation of relations between Australia and other countries . . . is the substantial subject matter of external affairs”.

Justices Evatt and McTiernan (in a passage relied on by the Commonwealth for the proposition that the external affairs power also supports a law that implements recommendations of international agencies) said at 687:

Justice Starke referred to the concept of proportionality in the context of the treaty aspect of the power and said at 659-660:

It was not regarded as an impediment to a law being characterised as one with respect to external affairs that it governed the conduct of Australians within the Commonwealth. Justice Dixon said at 668:

In a passage on which the Commonwealth placed particular reliance, Dixon J addressed the extent of the power to control conduct within Australia at 669:

The King v Sharkey (1949) 79 CLR 121 (Sharkey) is an example of a law that was found to be valid within the external relations aspect of the external affairs power. Sharkey was charged on indictment with an offence under section 24D of the Crimes Act 1914 (Cth) for uttering the following seditious words, which were published in the Daily Telegraph:

The definition of “seditious intention” in s 24A included, in (c), “to excite disaffection against the Government or Constitution of any of the King’s Dominions”. Chief Justice Latham (with whom Webb J agreed), who found s24A(c) to be valid, said, at 137:

I reject the plaintiff’s submission that these words ought be taken to indicate that Latham CJ (and Webb J) found the law valid only by reference to the external affairs power in conjunction with the incidental power (s 51(xxxix)) or that the words “may reasonably be thought” in the passage above were intended to import the requirement of reasonable proportionality into the core of the external affairs power. I consider that a fair reading of the reasons leads to the conclusion that the incidental power was only relevant to the definition of seditious intent in other contexts. Their Honours found that the definitions of the mental element of the offence of sedition in s 24A(1)(c) (intent to excite disaffection against the Government or Constitution of any of the King’s Dominions) and s 24A(1)(e) (to excite disaffection against the connexion of the King’s Dominions under the Crown) were authorised by the external affairs power.

Justice McTiernan said at 157 that the expression “external affairs” was wider than “foreign affairs” because it extended to international relations, which “could be affected if seditious offences against the Government or Constitution of another Dominion were committed here with impunity”.

Justices Rich and Williams concluded, without explanation, that the provisions were valid. The plaintiff submitted that the basis of a decision must be expressed before reliance could be placed on it and, accordingly, that Rich and Williams JJ ought not be regarded as agreeing with the approach taken by the other judges. However, in the context of the way the argument was put (in the summary at 133) – that the external affairs power extended “to sustaining a Government of another Dominion and its principal institutions” – their Honours’ finding that the law was valid is, in my view, to be understood as an acceptance of that submission, which accorded with the basis on which Latham CJ, Webb and McTiernan JJ found the law to be valid.

Justice Dixon, who found parts of s 24A invalid, considered that it was beyond the legislative power of the Commonwealth to protect an Australian State against “domestic violence” (in the sense of violence which manifested social unrest but which did not involve the defence of the realm). However, his Honour appears to have accepted (at 149) that s 24A(c) was valid under the external affairs power.

In Sharkey, a majority of the High Court held that a prohibition directed to mere words which, though uttered and published wholly within Australia, had the potential to excite disaffection within the Commonwealth against another nation State was authorised by the external affairs power. The Court did not need to consider whether the law was proportional or reasonably adapted to any particular object.

In The State of New South Wales v The Commonwealth of Australia (1975) 135 CLR 337 (the Seas and Submerged Lands Case), the Seas and Submerged Lands Act 1973 (Cth), which vested sovereignty in the Commonwealth with respect to the continental shelf, the territorial sea and the airspace over it, was found to be valid under s 51(xxix). Although the High Court (Barwick CJ, McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ) was unanimous that the legislation concerning the continental shelf was valid under the external affairs power, there was a range of reasons for the ultimate conclusion. All judges, apart from Gibbs and Stephen JJ, held that the provisions were valid on the ground that they gave effect to the Convention on the Territorial Sea and the Contiguous Zone. Justices Gibbs and Stephen, in dissent, did not consider the law to be valid in so far as it extended to the territorial sea and the airspace over it.

Three judges, Barwick CJ, Mason and Jacobs JJ, considered the law to be valid in any event on the ground that the external affairs power extended to any matter or thing external to or situated outside Australia, and to persons outside Australia and their activities (the geographical externality aspect). This view of the external affairs power was based, at least in part, on the notion of sovereignty and the need for there to be “no gap in the constitutional framework” (per Jacobs J at 498). While the Australian States can exercise their sovereign legislative power subject to the principle of territoriality, no such limitation was found to apply to the Australian Government. Thus, according to Jacobs J at 498:

Although Stephen J did not consider the law to be authorised by the external affairs power, his Honour accepted, at 450, that the external affairs power included “matters which are not consensual in nature, conduct on the part of a nation, or of its nationals, which affects other nations and its relations with them.” His Honour referred to passages from Sharkey to provide instances of such “non-consensual matters” that were included within Australia’s external affairs and therefore within the external affairs power.

In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 the Racial Discrimination Act 1975 (Cth) was held, by majority (Stephen, Mason, Murphy and Brennan JJ) to be valid. The reasons of the judges who comprised the majority differed slightly as to the basis for the law being characterised as one with respect to external affairs.

Justice Stephen (with reference to his judgment in the Seas and Submerged Lands Case referred to above) found the law to be valid on the basis that, because the subject matter was of international concern, it had the capacity to affect Australia’s relations with other States (the external relations aspect). His Honour considered that more was required than that the law enacted an obligation which Australia had assumed by treaty (the treaty aspect).

Justices Mason and Murphy found that the external affairs power was broad enough to authorise the implementation of any obligation Australia had assumed by treaty. Justice Mason exposed the fallacy of the proposition that there is any relevant dichotomy between external affairs and internal affairs. His Honour cited The King v Burgess; ex parte Henry as an example of a valid law that was both external (because it carried a treaty into effect) and internal (because it operated substantially within Australia), as well as Sharkey where the law found to be valid exhibited the same duality (internal operation but potential external effect).

Justice Brennan found, similarly, that if Australia undertook a treaty obligation with respect to an aspect of Australian internal legal order, the subject matter of the obligation became thereby (if not previously) an external affair. Accordingly, a law with respect to that subject matter was a law with respect to external affairs. His Honour also referred to Sharkey (at 257) as illustrating that a matter of internal concern can become an external affair and said:

Chief Justice Gibbs, in dissent, did not accept that the law was authorised by the external affairs power. However, his Honour cited Sharkey as demonstrating that the external affairs power was not limited to matters external to Australia and could be used to enact a law which regulated “conduct within Australia by Australians”. At 191 his Honour referred to The King v Burgess; ex parte Henry and Sharkey as examples of laws where “the law, although operating within Australia, was one with respect to a subject-matter which involved a relationship with other countries”. His Honour’s reasons do not provide any support for the proposition that Sharkey ought be read as requiring that the external affairs power be qualified by reference to notions of purpose or proportionality.

The Commonwealth v The State of Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case) provides another instance of a law found to be valid by reference to the treaty aspect of the external affairs power. In that case the legislation under challenge gave effect to the World Heritage Convention. In December 1982, at the request of the Australian Government, an area of national parks in south-western Tasmania was accepted by the World Heritage Committee for entry in the World Heritage List, which identified the Franklin River system in Tasmania as of particular international concern. Regulations made under the National Parks and Wildlife Conservation Act 1975 (Cth) prohibited construction of a dam in the specified area. The Commonwealth legislation was found to be valid under the external affairs power in so far as it enabled regulations to be made for giving effect to the Convention.

Justice Deane (in a passage relied on by the Commonwealth as supporting the proposition that the implementation of recommendations of international agencies falls within the external affairs power) expressly approved the dicta of Evatt and McTiernan JJ in The King v Burgess; ex parte Henry set out above and said at 258 – 259:

In Polyukhovich v The Commonwealth (1991) 172 CLR 501 a challenge was made to s 9 of the War Crimes Act 1945 (Cth) which provided that a person who, on or after 1 September 1939 and on or before 8 May 1945, committed a “war crime” was guilty of an indictable offence. An information was laid against Polyukhovich which alleged that between 1 September 1942 and 31 May 1943 he had committed war crimes in the Ukraine, which was then under German occupation. At the time of the commission of the alleged offences there was no Australian legislation in force that purported to make it a criminal offence for an Australian citizen or resident to do such acts in the Ukraine as the plaintiff was alleged to have done.

By majority (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, Brennan J dissenting), the High Court held s 9 to be valid under the external affairs power in so far as it operated upon conduct which took place outside Australia and made that conduct a criminal offence. Accordingly, the law was found to be valid as falling within the geographical externality aspect of the external affairs power.

Chief Justice Mason reiterated the view his Honour had expressed in the Seas and Submerged Lands Case and said, at 528, that the scope of the external affairs power was not confined to Australia’s relations with other States or the implementation of its treaty obligations; that it ought be construed with “all the generality that the words admit”; and ought be regarded as extending to matters and things as well as relationships outside Australia. His Honour specifically expressed agreement with the passage from the reasons of Jacobs J in the Seas and Submerged Lands Case set out above. Accordingly, Mason CJ did not consider it necessary to consider whether the law either gave effect to an obligation under international law; implemented a resolution of an international body; or facilitated the exercise of international jurisdiction under international law.

Justice Deane took a similarly broad view of the external affairs power, and on the same basis. His Honour said at 599:

Justice Deane referred to the need for the external affairs power to be construed broadly by reason of Australia’s status as a “fully independent sovereign State” (at 602). His Honour warned against the creation of a legislative lacuna (at 603), which would result from a narrow interpretation of the external affairs power.

Justice Dawson expressed agreement with the wide interpretation of the external affairs power as extending to all places, persons, matters or things geographically external to Australia (at 636 - 637). His Honour endorsed the approach to sovereignty taken by Mason CJ and Deane J and said at 638:

Justice Gaudron’s reasons were to like effect (see especially 695-696), as were those of McHugh J (at 712 – 717).

In addition I note what McHugh J said at 716 – 717, which is of particular relevance to the present case:

The plaintiff accepted that if I followed this dictum, I would dismiss the motion to quash the indictment as well as the summons.

Although Brennan J dissented and held that the external affairs power did not support the law, his Honour referred to the reasons of Stephen J in Koowarta v Bjelke-Petersen which explained why matters of international concern fell within the external affairs power. Nonetheless, his Honour considered that the expression “international concern” ought not be interpreted broadly and said, at 561, that there may be few occasions when the external affairs power is enlivened on the basis of an “international concern” without a corresponding obligation in international law.

In summary, Polyukhovich v The Commonwealth established a broad interpretation of the geographical externality aspect of the external affairs power, in that a majority of judges held that it ought be construed to authorise laws with respect to matters external to Australia.

In the Industrial Relations Act Case the High Court considered a challenge to the validity of a law which affected a domestic subject matter, industrial law. The Commonwealth argued that its legislative power derived from obligations it had undertaken by treaty. Although the concept of proportionality was raised, it was not regarded as being particularly helpful in the context of a decision whether a law ought be characterised as being one with respect to external affairs (487-488).

The majority also expressly agreed with what Dawson J said in Richardson v Forestry Commission (1988) 164 CLR 261 at 326. Justice Dawson there explained that the external affairs power is not a purposive power and that the implementation of treaties falls within the power because it is a subject matter covered by “external affairs”. His Honour continued:

The plaintiff in the present case placed particular reliance on the following passage from the reasons of the majority at 487 (which immediately followed the extract from Richardson v Forestry Commission) in support of his proposition that the proportionality principle applied to the external relations and international concern aspects, as well as to the treaty aspect of the external affairs power:

I note for completeness that in Attorney-General for the State of South Australia v Adelaide City Corporation [2013] HCA 3; 249 CLR 1 at [56], French CJ referred to this test as being “a high threshold test”.

The majority also considered that a law can be a valid exercise of the external affairs power, even if it only partially implements treaty obligations, and said at 489:

The majority, at 483, expressly approved the dicta of Evatt and McTiernan JJ in The King v Burgess; ex parte Henry at 687, which is set out above, in which their Honours considered that the carrying out of recommendations of international agencies “may well” fall within the external affairs power.

In XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 a challenge was made to provisions of the Crimes Act 1914 (Cth) which prohibited a person, while outside Australia, from engaging in sexual intercourse (s 50BA), or committing an act of indecency (s 50BC), with a person under the age of sixteen. Section 50AD applied only to persons who were, at the time of the offence, Australian citizens or residents. It is another example of a law that was found to be valid on the basis of the geographical externality aspect of the external affairs power, although it was also found to be a matter of international concern that might affect Australia’s relations with other States.

The High Court, by majority, held the provisions to be valid under the external affairs power. Chief Justice Gleeson, Gummow, Hayne and Crennan JJ expressly followed Polyukhovich v The Commonwealth and held that, as the external affairs power supported a law with respect to places, matters or things outside the geographical limits of Australia, the provisions were valid on that basis. At [18], Gleeson CJ described this aspect of the external affairs power as the one “that allows the Australian body politic to exercise the plenitude of power which flows from nationhood and independence.”

Justice Kirby (at [124]) considered that so many matters had become “of international concern” that it was not a useful concept because of its potential to destroy federal arrangements. His Honour based his decision that the law was within power on the narrower basis (established by the constitutional fact material) that the subject matter of the provisions was relevant to Australia’s external relations with other States through their collective participation in the international organisations concerned, as appears from his Honour’s conclusion at [138]:

Justice Kirby also treated an argument put by XYZ as concerning proportionality, although it was not put in those terms (see [140] – [147]). Although his Honour’s reasons could be read as supporting a requirement of proportionality with respect to the external relations aspect of the external affairs power, I do not regard this as the appropriate reading. It would, in any event, be at odds with the weight of authority which is, for the reasons addressed elsewhere, that there is no such requirement with respect to the external relations aspect of the external affairs power.

The minority view of Callinan and Heydon JJ was that what their Honours referred to as the “geographic externality view”, reflected in the judgments of Jacobs and Mason JJ in the Seas and Submerged Lands Case, which were followed and accepted by the majority in Polyukhovich v The Commonwealth, ought be rejected. Justices Callinan and Heydon considered that Polyukhovich v The Commonwealth should be overruled to the extent to which the geographic externality view was a necessary step in its reasoning.

Their Honours also expressed substantial reservations about the utility of “external relations” and “international concern” in the determination of validity under the external affairs power. As to “external relations”, Callinan and Heydon JJ at [209] regarded it as questionable whether statements by the executive, that the sexual abuse of children by Australian men in Asia both brought Australia into disrepute and affected our external relations, could establish a “factual condition precedent to a constitutional power to legislate”. As to “international concern”, their Honours said at [218]:

Justice Heydon reiterated his reservations about these aspects of the external affairs power in Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1 at [469] – [474].

Vasiljkovic v The Commonwealth [2006] HCA 40; 227 CLR 614 concerned the validity of certain provisions of the Extradition Act 1988 (Cth). The relevance of the case for present purposes is that the law was found to be a law with respect to external affairs, notwithstanding the absence of a relevant extradition treaty, on the basis that extradition was found to be a matter that concerned Australia’s relations with other States. Chief Justice Gleeson said at [36]:

The ambit of the external affairs power was also considered by Gleeson CJ and Gummow and Crennan JJ in Thomas v Mowbray in the context of a challenge to the validity of s 104.4 of the Criminal Code which empowered judicial officers (including Federal magistrates) to impose control orders, including interim control orders, for the purpose of protecting the public from a terrorist act. The expression “terrorist act” was relevantly defined to include an action or threat of action with the intention of “advancing a political, religious or ideological cause” and an intention either of “coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country” or part thereof; or “intimidating the public or a section of the public” which includes a reference to the public of a country other than Australia. The court’s power to make an interim control order required that the court be satisfied, on the balance of probabilities, that:

Chief Justice Gleeson held that the existence of these two criteria meant that the law was supported by the defence power supplemented, where necessary, by the external affairs power. Justices Gummow and Crennan said at [151]:

The conclusion that the law was within the external affairs power was arrived at notwithstanding that the conduct that was affected by the control order was, largely, if not wholly, conduct within Australia. At [152], their Honours cited with approval Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at 50 where the Supreme Court of Canada described terrorism as a “worldwide phenomenon” in respect of which “preventative or precautionary state action may be justified”.

Justices Gummow and Crennan concluded that the law was authorised by the external affairs power and said at [153], after referring to the passage from the Industrial Relations Act Case which expressly adopted the geographical externality aspect of the power:

I do not accept the plaintiff’s contention (which, in my view, involved a degree of sophistry) that this statement in Thomas v Mowbray ought be regarded as referring to the incidental power rather than the external affairs power. In my view a fair reading of the reasons of Gummow and Crennan JJ indicates that their Honours were there addressing the ambit of the external affairs power without regard to the incidental power.

The plaintiff accepted that if the dicta of Gleeson CJ, Gummow and Crennan JJ were followed, the motion and summons would be dismissed.

The other members of the majority (Callinan and Heydon JJ) did not need to address the external affairs power as they considered the legislation to be valid under the defence power.

In Plaintiff S156, the High Court found provisions of the Migration Act 1958 (Cth) valid under the aliens power. Although Plaintiff S156 did not concern the external affairs power, I propose to address it because both parties relied on what was said about the relationship between core powers and the incidental powers and the relevance of proportionality.

The plaintiff in Plaintiff S156 argued that, for a law to be supported under the aliens power, it must satisfy a test of proportionality as an integral part of the test of connection (for the purposes of characterisation) and that the sections were not proportional because they went further than merely regulating the entry of aliens to, or their removal from, Australia.

The High Court rejected the proportionality argument in the context of a non-purposive power and said that, while proportionality might be relevant to express or implied limitations that restricted a head of power, it did not apply in the context of the aliens power. The Court referred to Leask v The Commonwealth at 593 – 595 in which Brennan CJ considered proportionality in the context of how the prohibition in s 92 of the Constitution restricted the power of an Australian State to enact a law which imposed a burden on interstate trade and commerce. I do not regard Plaintiff S156 as providing any support for the proposition that proportionality applies to any aspect of the external affairs power, beyond the treaty aspect.

The plaintiff argued that s 6(1)(a) of the Act was largely an offence of intention, since it could be committed merely by entry into a foreign State with the intention of engaging in armed hostilities there, irrespective of whether that intention was ever acted upon. Thus he submitted that the conduct proscribed by s 6(1)(a) was anterior or preparatory in character. The plaintiff also contended that, because of the effect of s 11.6(2) of the Criminal Code, an offence against s 6 included attempt, incitement or conspiracy to commit the principal offence.

The plaintiff nonetheless accepted that s 6(1)(a) of the Act was a law with respect to external affairs on the basis that the requisite externality was provided by the requirement that the Crown prove, as an element of the offence, entry into the foreign State. He also accepted that Parliament can use the external affairs power to enact prophylactic provisions (such as those found to be valid in Thomas v Mowbray) to prevent undesired conduct.

Notwithstanding the plaintiff’s acceptance of the validity of s 6(1)(a), he contended that s 7(1)(e) could not be characterised as a law with respect to external affairs, at least in so far as it purported to proscribe the performance of services in Australia with the intention of supporting or promoting the commission of an offence against s 6(1)(a) read with s 6(3)(aa).

As referred to above, whether s 7(1)(e) can be characterised as a law with respect to external affairs requires a consideration of the practical effect and legal operation of the law: Grain Pool of WA v The Commonwealth.

The plaintiff placed considerable emphasis, both on what the Crown is required to prove to establish an offence under s 7(1)(e) based on s 6(1)(a) read with s 6(3)(aa), and what is not required to be proved.

For present purposes, s 7(1)(e) criminalises the giving of money or the performance of services by Australian nationals or residents to other persons with the intention of supporting an incursion into a foreign State with the intention of engaging in hostile activities there. In order to prove the commission of an offence against s 7(1)(e), the Crown must establish:

There was an issue as to the intention that was required to be proved as the fault element of the offence. The plaintiff contended that there were two mental elements required: the intention to give money or perform services; and the intention to support or promote an offence against s 6. The Commonwealth contended that there is only one intention required to be proved: namely that of “supporting or promoting the commission of an offence against s 6”. The precise directions to be given to a jury in the trial of an accused charged with an offence against s 7(1)(e) are a matter for another day. Whether the intention is regarded as single, dual or multiple, proof of an offence under s 7(1)(e) requires proof of criteria which link the act of giving money or performing services with a foreign incursion for the purposes of engaging in hostile activities there.

In my view, the fault element required is the single, albeit compound, intention required by s 7(1)(e). I note that this accords with the view expressed by Lasry J (with reference to a charge under s 7(1)(a) of the Act) in R v Mohamed (Ruling No. 1) [2015] VSC 290R. Despite the length of the debate in oral and in writing, I understood the plaintiff’s ultimate submission to be that the characterisation of the law was neither determined, nor substantially affected, by the resolution of this question.

I accept the plaintiff’s submission that the following matters cannot provide the requisite “external” element to support the validity of s 7(1)(e) since the Crown need not establish any of these matters to prove that a putative offender has committed an offence under s 7(1)(e):

Proportionality, in the present context, gives rise to the question whether the law is reasonably appropriate and adapted to the particular end or purpose. As referred to above, whether proportionality is relevant to characterisation in the context of the external affairs power was a substantial issue between the parties. Accordingly, I propose to address it before turning to the submissions on the various aspects of the external affairs power.

Notwithstanding the plaintiff’s submissions to the contrary, I do not discern any support in the authorities to which reference has been made above that any aspect of the external affairs power, other than the treaty aspect, are to be qualified by the principle of proportionality. Although proportionality is regarded as relevant to a purposive power, such as defence, it is not relevant to powers with respect to subject matters such as external affairs and aliens. The following extract from the reasons of Dawson J in Leask v The Commonwealth at 602 - 603 summarises the law:

Unlike the environmental legislation considered in the Tasmanian Dams Case or the industrial legislation considered in the Industrial Relations Act Case, s 7(1)(e) is not concerned with a matter which has an “external” element solely because the Commonwealth has entered into a treaty in respect of it. Accordingly, “proportionality”, which has limited application in the context addressed in the passage cited above from the Industrial Relations Act Case, is of no relevance for present purposes, except to the extent to which the Commonwealth relied on implementation of recommendations of international agencies as an aspect of the external affairs power (the treaty aspect not being engaged in the present case). I do not accept the plaintiff’s reading of the reasons of the majority at 487 of the Industrial Relations Case.

It follows from this conclusion that several of the arguments made by the plaintiff must be rejected since they depended on the relevance of proportionality.

First, it is not necessary that I be persuaded that s 7(1)(e) is in fact appropriate and adapted to a particular purpose or object, since it is for Parliament and not the courts, to judge the means by which it proscribes the engagement in armed hostilities in foreign States, and the preparatory steps thereto. That Parliament has chosen a means of criminalising conduct which does not rest on orthodox notions of accessorial liability such as aiding and abetting, or conspiring in the commission of, the principal offence, is not to the point (and would not be determinative even if proportionality were relevant: see Tajjour v New South Wales [2014] HCA 35; 88 ALJR 860 at [81] per Hayne J).

Secondly, the plaintiff’s argument that, in so far as Parliament’s concern is recruitment, it has addressed that topic in ss 8 and 9 also falls away. Any lack of correspondence between the conditions for making a declaration under s 9(2) and those relating to the elements of an offence under s 6 becomes irrelevant when it is appreciated that proportionality does not apply.

Thirdly, the plaintiff’s contention that there is no “need” to give the Commonwealth power to regulate conduct within the territory of Australia because the Australian States have plenary power to do so, would only have relevance if the principle of proportionality applied. The reserved powers doctrine (according to which the ambit of the legislative power of Australian States was relevant to whether a Commonwealth law could be characterised as one with respect to one of the enumerated heads of Commonwealth power), which was rejected almost a century ago in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Engineers Case), made the extent of the power of the Australian States otherwise irrelevant to the question whether a law could be characterised as being one with respect to a head of Commonwealth power.

I turn now to consider the four aspects of the external affairs power on which the Commonwealth relies to support the characterisation of s 7(1)(e) as a law with respect to external affairs: external relations; geographical externality; international concern; and recommendations of international agencies.

The authorities referred to above establish that a law that regulates conduct that takes place wholly within Australia can become an external affair if it has the potential to affect Australia’s external relations: The King v Sharkey and Thomas v Mowbray. For the reasons given, neither the assessment of purpose nor the requirement of proportionality has any role in the task of characterising a law as being one with respect to external affairs on the basis of the external relations aspect. A matter that concerns Australia’s relations with other States is also within this aspect of the power even if it concerns a matter that could have been, but was not, the subject of a treaty (such as extradition, as in Vasiljkovic v The Commonwealth).

The authorities considered above provide no basis for limiting the external relations aspect of the external affairs power to those hostile activities which might have the effect of damaging Australia’s relationship with the foreign State in respect of which the incursion is contemplated. The selection of friends or foes among the nation States of the world (or the classification of one for one purpose and another for a different purpose) is not a matter for the courts. The power is one with respect to “external affairs” and not one with respect to “the advancement of Australia’s relations with particular foreign States”.

I reject the plaintiff’s submission that, before I could characterise s 7(1)(e) of the Act as being a law with respect to the external relations aspect of the external affairs power, I would need to be satisfied by evidence that the law would have an actual effect on external relations. This is not what Hughes and Vale Pty Ltd v The State of New South Wales [No. 2] (1955) 93 CLR 127 at 165 requires. The passage relied upon referred to the dicta of Williams J in Australian Communist Party v The Commonwealth at 222 in the context of the defence power, in respect of which different considerations apply because it is a purposive power which expands and contracts by reference to external circumstances in respect of which constitutional fact evidence is generally required. There is no support in the authorities for the proposition for which the plaintiff contended that constitutional validity under the external affairs power depends on “discernible advancement” of Australia’s relations with other States: see Zines, The High Court and the Constitution (5th ed 2008, The Federation Press) at 399. The difficulties likely to be associated with a court’s making such an assessment is a further (but not the principal) reason for not importing such a qualification into the external affairs power.

I regard the tolerance or acquiescence by a State of actions on its territory for the purpose of supporting foreign incursions, as being inimical to its relationship with other States generally, in the same way as tolerance or acquiescence of the publication of seditious words that tend to incite violence and disaffection against foreign States was found to be in Sharkey. The prohibition (and criminalisation) of such actions under the domestic law (or the failure to do so) has the potential to affect Australia’s external relations. By criminalising preparatory acts, s 7(1)(e) is, on its face, intended, and designed, to support the principle of the sovereignty and equality of States as well as the principle of non-intervention. These matters concern Australia’s role as a member of the “family of nations” and thus provide a sufficient connection to the external relations aspect of the external affairs power, without the need to have regard to the constitutional fact evidence.

The potential of a law such as s 7(1)(e) to affect Australia’s external relations is, however, further demonstrated by the constitutional fact evidence, the effect of which is considered below.

The constitutional fact evidence established that the duties of States, not to acquiesce in conduct by persons within their own territories that was designed to lead to armed hostilities in other States, was a subject of several UN resolutions prior to the date of royal assent of the Act. The resolutions imposed obligations on States not only with respect to specific conflicts but also, in the case of the Friendly Relations Declaration, generally. Although some of the resolutions referred exclusively to mercenaries, the Friendly Relations Declaration did not distinguish between mercenaries (the convention definition of which would neither include the plaintiff nor the persons for whom he is alleged to have performed services), on the one hand, and the broader genus of foreign fighters (motivated by religion, culture, ideology or some other reason), on the other. The terms of the declaration and its purpose are inconsistent with any such distinction.

Because the matters addressed in the Friendly Relations Declaration were expressed to derive from such fundamental tenets of customary international law as the equality of States and the principle of non-intervention, I regard the prohibition on a State tolerating “subversive, terrorist or armed activities” which “interfere in civil strife in another State” as being a matter not just of international concern (as to which see further below), but also one that affects one State’s (and relevantly, Australia’s) external relations with other States generally, irrespective of military, political or cultural alliances between particular States.

The material relied upon, including the Friendly Relations Declaration and Oppenheim’s commentary, establishes that States are under a duty, in order to comply with UN resolutions, to take steps to criminalise the activities of those within their territory who seek to assist foreign fighters to engage in hostile activities within the territories of foreign States. The Act, including s 7(1)(e), is intended to deter and prevent such activities.

The plaintiff sought to distinguish Sharkey on the ground that the definition of seditious intent in s 24A(c) of the Crimes Act pertained to conduct which might affect a foreign Government (and therefore Australia’s relationship with same). The plaintiff submitted that, while Sharkey might support the constitutionality of s 7(1)(e) in so far as it relied on s 6(1)(a) and s 6(3)(a), (c) and (d), it did not support an offence based on s 6(3)(aa). The plaintiff contended that, because an offence based on the definition of s 6(3)(aa) did not require any particular objective at all beyond engaging in hostile activities in the foreign State, it could not be concluded that the conduct would be significant to the interests of the foreign government or, indeed, have any effect whatsoever on external relations.

I accept that there is a distinction between s 6(3)(aa) on the one hand, and s 6(3)(a), (c) and (d) on the other, in that s6(3)(aa) criminalises conduct irrespective of whether it has any discernible effect on the government of the foreign State, whereas s 6(3)(a), (c) and (d) are expressed to criminalise conduct on the basis of such an effect. Section 6(3)(b) is in a different category (which may overlap with s 6(3)(aa)) in that it criminalises conduct which has the objective of causing by force or violence the public of the foreign State to be in fear of death or injury.

I am not, however, persuaded of the materiality of the distinction for present purposes. Although matters directly affecting the government of a foreign State can be seen to fall squarely within the external relations aspect of the external affairs power, it does not follow that matters which do not necessarily directly affect the government of a foreign State do not.

In my view, matters such as: whether the foreign State is friend or foe of the State whose citizens or residents are supporting such forays; and whether the hostilities in the foreign State directly involve the government of such State or are confined to hostilities between non-governmental groups, are immaterial to the vice which the imposition of such obligations is designed to address: foreign support of armed hostilities within a State outside the auspices of the UN or agreement between the governments of the respective States. This is a matter which I regard as engaging the external relations aspect of the external affairs power since it has the potential to affect Australia’s external relations. For this reason, there is no basis to distinguish the criminalisation of actions intended to be preparatory to entry into a foreign State for the purposes of engaging in hostile activities (s 7(1)(e), coupled with s 6(3)(aa)), from the criminalisation of words intended to incite disaffection with the governments of foreign States which was found to be within power in Sharkey.

Even if the test as formulated by the plaintiff – that the law “discernibly pursues the conduct of foreign relations” – were (contrary to my view of the authorities) the correct test, I am persuaded that s 7(1)(e) satisfies it for the reasons given above.

The High Court in Sharkey held that s 24A(c), coupled with s 24D, of the Crimes Act was a valid exercise of the external affairs power although it applied to acts that occurred wholly within Australia and criminalised acts which, if not deterred or prohibited, had the potential to affect Australia’s external relations. In my view, the decision in Sharkey requires the conclusion that s 7(1)(e) is a valid exercise of the external affairs power.

An element of the offence is that the person giving the money or performing the services must intend thereby to support entry into a foreign State which is, in turn, intended to involve hostile activities on the part of the recipient of the goods or services or an associate of the recipient. The “external affair”, or matter outside Australia, is the entry on the territory of the foreign State in respect of which activity with the proscribed intention is contemplated.

The plaintiff’s submissions on this aspect of the external affairs power were twofold.

First, the plaintiff contended that an offence against s 7(1)(e), particularly when coupled with s 6(3)(aa), is “largely an offence of intention”. He argued that since a person’s state of mind is “imperceptible, intangible and (in many cases) unknowable”, the validity of the law cannot depend on intention because that would involve an unacceptably uncertain criterion of power.

Secondly, the plaintiff contended that the only aspect of s 7(1)(e) of the Act that was “external” was the putative offender’s state of mind, which was insufficient to make it a law with respect to external affairs. He argued that the requirement for an external place, matter or thing outside the geographical limits of Australia was satisfied only by tangibles and could therefore not be satisfied by intention. He submitted that an offence against s 7(1)(e) had no greater externality than would an offence of jaywalking while daydreaming of overseas holidays.

The first submission disregards a fundamental principle of criminal law. Generally, a person’s state of mind needs to be proved beyond reasonable doubt before an accused can be found guilty of an offence. The maxim actus no facit reum nisi mens sit rea (the deed does not make a man guilty unless his mind be guilty) is well established and forms the basis for the presumption that mens rea (mental element) is an essential ingredient of every offence: Sweet v Parsley [1970] AC 132 at 149 per Reid LJ. In addressing the proof of intent, Wigmore, Evidence in Trials at Common Law, vol. 2 (1979) said at [242]:

A person’s state of mind is generally assessed by reference both to the person’s acts and statements, including admissions and communications with third parties. The present case is no exception in circumstances where the Crown case includes tape recordings and transcriptions of what passed between the plaintiff and others in intercepted communications.

As to the second submission, I can discern no basis in the authorities for limiting the geographical externality aspect of the external affairs power to tangibles. Indeed, I regard this submission as foreclosed by the dicta of Gummow and Crennan JJ in Thomas v Mowbray at [153] that the relevant external “matter or thing” was “apprehended intimidation or injury to the government or public of a foreign country”.

An offence against s 7(1)(e) is committed if the act of performing the services is done with the objective of supporting an offence against s 6. Thus, although the act might be done wholly within Australia, the associated mental element has an external purpose. The connection with the external purpose is, in my view, neither “remote”, nor “fortuitous”, nor “insubstantial”. By contrast, any connection, in the postulated example, between the act of jaywalking and the exotic reveries of the putative offender at the time could only be regarded as fortuitous.

Nor is it an answer to say that, where the external component on which the law depends for its validity is intention, and the person with the relevant intention is located in Australia, the law cannot be a law with respect to external affairs. Such a proposition is inconsistent with The King v Sharkey. As long as the mental element of the offence, as here, requires a connection with an external matter (providing services with the intention of supporting entry into a foreign State with the intention of engaging in hostile activity there), it does not matter that the putative offender is, at all material times, in Australia or that the services were performed wholly in Australia. Nor does what the plaintiff described as the lack of “real world effect” deprive the prophylactic measures incorporated in s 7(1)(e) of their character as a law with respect to external affairs.

In my view, s 7(1)(e) of the Act is a law with respect to external affairs, in the sense in which that term has been authoritatively understood: namely, to extend to a matter outside Australia. Neither this analysis nor this conclusion requires regard to be had to the constitutional fact evidence.

I reject the plaintiff’s contention that matters of international concern are not (or no longer) an aspect of the external affairs power. The dicta set out above (including the statements of Stephen J in Koowarta v Bjelke-Petersen at 217, which were approved by Brennan J in Polyukhovich v The Commonwealth at 561) support the continued relevance of matters of international concern to validity under the external affairs power. The reservations expressed by three members of the court in XYZ v The Commonwealth (Kirby, Callinan and Heydon JJ) about “international concern” as a basis for validity of a law under the external affairs power neither indicate a concluded view, nor amount to a decision to overrule earlier dicta.

For the reasons given above, the constitutional fact evidence (including the Friendly Relations Declaration) established that the use of foreign fighters (including, but not limited to, mercenaries) in internal State conflicts was of international concern before the date of royal assent of the Act, as originally passed, and continued to be of international concern up to (and after) the date of royal assent of the 1987 Amending Act. The evidence also established that States were expected, if not required, to take prophylactic measures to prevent and deter conduct within their own territories which was intended to support such incursions into the territories of other States. In these circumstances, I regard s 7(1)(e) as valid because it falls within the international concern aspect of the external affairs power.

It will be seen from the reasons set out above, that there may, in cases such as the present, be considerable overlap between the various aspects of the external affairs power. It was common ground that the treaty aspect was not engaged in the present case. However, the Commonwealth submitted that the recommendations of international agencies such as the UN, in pursuit of international objectives, enlivened the external affairs power. I regard the express approval by the majority in the Industrial Relations Act Case at 483 of the dicta of Evatt and McTiernan JJ in The King v Burgess; ex parte Henry as establishing the proposition for which the Commonwealth contended. Thus, it is not, in my view, to the point that, unlike treaties, the “recommendations” do not necessarily impose legal duties on States to take certain steps and enact laws with a particular effect.

The external affairs power authorised the Commonwealth to carry into effect legislation which can be regarded as having as its purpose the implementation of the recommendations in the Friendly Relations Declaration. It is not necessary to consider the limits of this aspect of the external affairs power in circumstances such as the present case where the recommendations pertained to a subject of international concern, and (to borrow the words of Evatt and McTiernan JJ) “of concern to Australia as a member of the family of nations”.

My view that s 7(1)(e) is a valid law with respect to external affairs makes it unnecessary to consider either the defence power or the incidental power (and whether, as contended by the plaintiff, the latter incorporates a requirement of proportionality).

The plaintiff accepted that costs ought follow the event in the declaratory proceedings. No order for costs may be made in the criminal proceedings.

I make the following orders: