BY JESSIE SMITH
The Parliamentary Joint Committee on Intelligence and Security (the Committee) is currently examining extremist movements and radicalism in Australia. This follows a public statement by the Australian Security and Intelligence Organisation (ASIO) that the far-right threat has increased. The Home Affairs Minister has referred several topics for review, including the ‘risk to the community of high risk terrorist offenders’. To date, the federal government has predominately relied upon the defence power at s 51(vi) of the Constitution to support Commonwealth national security laws. However, s 51(vi) may not provide sufficient legislative power to respond to all far-right activity.
The post-sentence management of dangerous offenders has generally been the domain of states. Civil preventive regimes apply to serious sex offenders and/or serious violent offenders in Victoria, New South Wales, Queensland, South Australia, Western Australia, and the Northern Territory who may require supervision in the community or ongoing detention. States enjoy plenary legislative power in this field.
In contrast, the responsibility for high-risk terrorist offenders is split between the various state and federal governments. The term ‘high-risk terrorist offender’ has not been defined by legislation. The phrase appears in the title of select instruments in connection with offenders who have served their sentence and are assessed by the relevant Minister as posing an unacceptable risk of future terrorist conduct.
Despite this shared responsibility, only SA and NSW have taken steps to deal with high-risk terrorist offenders. SA has broadened existing civil orders to encompass federal offenders convicted under the terrorism provisions at Part 5.3 of the Criminal Code Act 1995 (Cth) (the Code). NSW has introduced new preventive measures to target offenders who have demonstrated support for terrorist violence. However, unlike SA, the NSW measures do not extend to those convicted under the Code. As a result, the core terrorist offender cohort primarily remains the concern of federal government.
At the federal level, Control Orders, Continuing Detention Orders and proposed Extended Supervision Orders are designed to manage high-risk terrorist offenders.Yet while states enjoy plenary legislative power for preventive measures, the source of legislative power for federal instruments is more complex. Whether federal preventive measures remain constitutionally valid in the context of far-right terrorism is a question the Committee should consider. This post argues that states may need to refer additional legislative powers to the Commonwealth, where the defence power falls short. Although initial referrals were made by states in 2002 to support the insertion of terrorism provisions into the Code, it is unclear whether these referrals apply to major amendments made after this date. This includes amendments which introduced the preventive orders listed here.
Should state referral instruments be reviewed and updated the impact would be two-fold. First, it would ensure that federal civil measures are constitutionally valid in connection with all forms of serious ideological violence. This is important given that only SA provides alternative state-based civil orders for those convicted under Part 5.3 of the Code. Second, it would keep intact the current definition of ‘terrorist act’ (which encompasses a broad range of conduct) and prevent further fragmentation between state and federal jurisdictions. This in turn promotes rule of law values, including the accessibility, foreseeability, and coherence of the national security framework.
It is beyond the scope of this post to consider whether the Commonwealth or state governments are better placed – as a matter of policy – to respond to the terrorist threat. While states have always enjoyed legislative power in this field, the Commonwealth, including federal police and federal prosecutors, have had the primary responsibility for national security laws since 2002. This arrangement has been reinforced by the Council of Australian Governments’ Agreement on Counter-Terrorism Laws (the COAG agreement). To shift responsibility to the states at this point may create unnecessary complication, and could expose new concurrent powers to a finding of inconsistency under s 109 of the Constitution.
The constitutional basis for federal terrorism laws
The Constitution does not give federal Parliament express power to criminalise or regulate terrorist violence. Instead, support is drawn from a ‘patchwork’ of the enumerated legislative powers in s 51, including the defence power, the external affairs power (s 51(xxix)), and matters referred under the referral power (s 51(xxxvii)). The Victorian Government has acknowledged that this may create ‘unforeseen gaps’ in the context of national security.
In contrast, the states possess the power to legislate with respect to criminal conduct and related civil restraint. The referral power confers upon the Commonwealth Parliament the capacity to make laws with respect to matters referred by states when other heads of power fall short.
Terrorism offences were inserted in the Code in 2002. These offences were accompanied by state referral instruments (passed by the Parliaments of Victoria, NSW, Queensland, WA, and SA), which mirrored the text of the Code. The definition of ‘terrorist act’ in the Code is notoriously broad. It reads:
(1) In this Part terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
The definition of terrorist act encompasses a range of conduct, from attacks on Parliament to threats against private medical practitioners. Section 100.1(1) includes violence which is intended to advance a political, religious, or ideological cause and intended to either coerce government (s 100.1(1)(c)(i)) or intimidate the public or a section of the public (s 100.1(1)(c)(ii)). These two limbs at s 100.1(1)(c) are disjunctive. Consider an attack on an abortion provider by someone who is ideologically ‘pro-life’, designed to intimidate private doctors. In this scenario, the prosecution might put its case on the basis that the conduct intimidated a section of the public. A project to coerce or intimidate government need not be proved. Conduct particularised under s 100.1(1)(c)(ii) can therefore resemble ‘regular’ crime, as it does not directly threaten Australian government or democratic institutions.
Federal preventive measures
The definition of terrorism also underpins the federal Control Order and Continuing Detention Order regimes.
Control Orders were introduced into the Code in 2005 and impose obligations, prohibitions, and restrictions on a person in the community. This might include a fixed residence, curfew and electronic monitoring. Control orders have been imposed where there is insufficient evidence to charge, or at the conclusion of sentence (although their role post sentence will soon be replaced by proposed federal Extended Supervision Orders). In a joint submission on the Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 dated 20 October 2020, the Attorney-General’s Department and Department of Home Affairs noted that 16 control orders had been made since 2005. All orders appear to relate to persons who subscribe to international Islamic violent jihadism. Control Orders survived constitutional challenge in Thomas v Mowbray (2009) 233 CLR 307.
Continuing Detention Orders were introduced into the Code in 2016 and secure the ongoing detention of an offender in custody following the conclusion of their sentence for a terrorism offence. The regime was the subject of constitutional challenge in Minister for Home Affairs v Benbrika  HCA 4, but not concerning the source of power; this aspect appeared settled following Thomas v Mowbray. The application against Mr Benbrika was the first Continuing Detention Order, and also concerned international Islamic violent jihadism.
When Control Orders and Continuing Detention Orders were introduced into the Code, the state referral instruments were not updated to reflect these new measures. They remain as they were enacted in 2002. This raises a question as to ‘who’ supplies the legislative power for these regimes. The Commonwealth must point to a head of power, or the original state instruments must permit significant amendment of the Code without a fresh referral of power.
The Defence power
In Thomas v Mowbray the High Court of Australia considered the constitutional basis for the Control Order regime. The majority, in separate decisions, found that the Control Order regime at Division 104 of the Code was supported by the defence power, supplemented by the external affairs power. The referral power was not considered by all Judges, given the focus on the defence power (an issue returned to below). The defence power provides authority for legislation with respect to:
the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.
The majority found that the defence power was not limited to defence against aggression from a foreign nation, was not limited to external threats, was not confined to waging war in the conventional sense and was not limited to attacks against the body politic. However, this judgment was delivered in the context of Al Qaeda-inspired international Islamic terrorism and the conclusions were reached on the facts of the case. While the threat in Thomas v Mowbray was characterised as ‘internal’, it had an international dimension and was targeted at the polity. A careful reading of the separate judgments raises questions about the application of the defence power to violence that is purely internal, entirely non-international and directed against sections of the public. In other words, conduct that approximates ‘regular’ crime.
Justice Hayne determined that the defence power was engaged but had reservations about its applicability beyond the facts of the case. At  his Honour made a distinction between
the application of force by individuals whose motives for doing so are not to further any international political aim and the application of force in furtherance of international political objectives.
His Honour further noted that while ‘[t]he latter kind of case, in which there are international political objectives, may engage the defence power; the former would seem unlikely to do so’ (emphasis added). His Honour noted that the Islamic jihadist threat was not ‘wholly internal’, and that it was ‘neither necessary nor appropriate’ to examine wholly internal threats (at ).
The balance of the Court did not meet these concerns in a comprehensive way. Justices Gummow and Crennan furnished examples of ‘internal’ violence which might engage the defence power. This included domestic treason (action directed against the polity), and large-scale industrial action, when read with s 119 of the Constitution. Section 119 provides:
The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
Section 119 has been discussed in connection with military intervention in domestic unrest. It arises in the context of a federal arrangement which prohibits states from raising their own naval and military forces (s 114). However, Gummow and Crennan JJ did not consider s 119 in any detail.
Chief Justice Gleeson agreed with Gummow and Crennan JJ, and drew upon an article by Professor Greenwood on international law, self-defence and the ‘war against terrorism’ to demonstrate the changing character of conflict. Yet this text does not provide support for the defence power extending to violence that is non-international, internal and directed at a section of the public. Justice Heydon agreed with Gummow and Crennan JJ. Justice Callinan was satisfied that the defence power was engaged on the facts of the case.
Justice Kirby (in dissent) noted the ‘seriously over-inclusive operation’ of Division 104. His Honour pressed for an interpretation of the defence power which would restrict Commonwealth intervention to internal violence against the bodies politic. At  his Honour listed examples of conduct directed against sections of the public, such as violent attacks on abortion providers, attacks on controversial building developments or attacks upon ethnic groups. His Honour noted that violence of this kind could be the subject of law, but would be a matter for states. His Honour foreshadowed the type of internal violence with which we now contend, and which is unlikely to engage the defence power.
Finally, Kirby J considered s 119; the only Justice to do so. His Honour noted that the section imposed a special duty. And, as a consequence, it
assumes that, ordinarily, the reach of federal legislative power, including the defence power, excludes areas of civil government and matters usual to “police powers”…
His Honour’s conception of s 119 as a provision of federal limitation accorded with that of Dixon J in R v Sharkey (1949) 79 CLR 121, a case which considered the legislative power underpinning sedition offences. Justice Dixon referred to s 119 as providing a restraint on federal power concerning matters which were prima facie within the province of the states unless an express request for assistance was forthcoming, or violence completely disrupted the functions of federal government (at ). As a result, s 119 does not appear to supply the Commonwealth with a general fund of legislative power with respect to the criminal law or related civil restraint. To construe this power otherwise would entirely usurp the plenary legislative powers that states enjoy in this field.
The rise of the far-right
There are other examples of far-right threats that might be characterised as purely internal, entirely non-international and aimed at sections of the public. One illustration that has arisen in Canada is the ‘involuntary celibate’ or ‘incel’ movement, whose followers have murdered ‘Chads and Staceys’ – men and women perceived as sexually successful.
Movements of this kind do not seek governmental change but are propelled by grievances against sub-sections of the public. Other racist hate groups might fall within this category, as might groups arranged around single-issue fixations or conspiracy theories. While they come within the statutory definition of ‘terrorism’ in the Code, it is unclear whether laws used in this context can muster support from the defence power or external affairs power. While the online environment from which some far-right groups arise may be indicative of an ‘international’ dimension, this may not always be the case as groups splinter and become focused on local grievances.
What distinguishes terrorist acts which are internal, non-international, and directed against the public from ‘regular’ crime is the advancing cause limb at s 100.1(1)(b). The intention to advance a political, religious, or ideological cause elevates regular interpersonal violence to a terrorist act. And while this conduct might attract the terrorist label, evidence of ideology is surely not enough to engage the defence power.
This does not mean that the Commonwealth cannot deploy the terrorism laws against the far right. However, states must supply the legislative power to do so.
Has the power to impose Control Orders and Continuing Detention Orders been referred by states?
As noted above, it is open to the states to refer certain matters which are within their competence to the Commonwealth.
In Thomas v Mowbray the applicant conceded that the substantive criminal offences within Part 5.3 of the Code had been appropriately referred by the states in 2002. He also conceded that the state instruments permitted the Commonwealth to make ‘express amendments’ to the Code, allowing some scope for textual revision and modification. This is consistent with the terms of the COAG agreement. However, the applicant argued that the term ‘express amendment’ did not permit the Commonwealth to introduce an entirely new regime of civil restraint without a fresh grant of power.
While Hayne J determined that the reference was valid, Kirby J rejected its validity and Callinan J expressed reservation. The balance of the Court did not deal with the issue, focusing instead on the defence power. As a result, whether the current referral instrument supplies the power to issue Control Orders (and by extension, federal Continuing Detention orders and the proposed federal Extended Supervision Orders) remains uncertain.
Following Thomas v Mowbray Professor Andrew Lynch identified comments from the Commonwealth Attorney-General’s Department which expressed a view that the federal government cannot introduce new measures into Part 5.3 of the Code without states first amending their referral legislation (at 378, citing this speech by then Attorney-General Robert McLelland). This may indicate that government has since adopted a restrictive interpretation of the term ‘express amendment’.
Further, during his second reading speech on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (Cth), then Attorney-General Senator Brandis noted that the text had been approved by states at an intergovernmental meeting (in line with the COAG agreement). However, he also said:
The Commonwealth considers that the new framework has a sound constitutional foundation. Out of an abundance of caution however, I have asked my State counterparts to enact amendments to existing referrals of power relating to Part 5.3 of the Criminal Code to make explicit that State support extends to the post-sentence preventative detention regime.
This does not seem to have occurred.
It appears that the various state referral mechanisms have not been revised following Thomas v Mowbray, nor following the introduction of the Continuing Detention laws. This is not surprising, given the coverage provided by the defence power in that case. However, the defence power may now be found wanting in the context of new, internal far-right threats directed against sections of the public.
The state referral instruments should therefore be reviewed and updated to ensure they adequately cover federal Control Orders, Continuing Detention Orders and proposed Extended Supervision Orders where Commonwealth power falls short.
Jessie Smith is a PhD Candidate in Law at the University of Cambridge.
Suggested citation: Jessie Smith, ‘Preventive measures and the far-right threat; the limit of Commonwealth power’ on AUSPUBLAW (19 July 2021) <https://auspublaw.org/2021/07/preventive-measures-and-the-far-right-threat-the-limit-of-commonwealth-power/>