Citation: R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222
Court: Supreme Court of New South Wales
Date: 27 August 2015
Judge: Adamson J
Background
The accused, an Australian citizen born in Jordan, was committed for trial on seven charges under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The Crown alleged that between June and October 2013 he assisted seven Australian citizens to travel from Australia to Syria via Turkey to engage in armed hostilities against the Syrian government. The alleged assistance included instructions on avoiding detection by security officials, logistical support, and acting as a communications conduit between the seven men and a contact in Syria.
The accused challenged the constitutional validity of s 7(1)(e), which makes it a criminal offence for a person to provide certain assistance intending to support or promote armed incursions into foreign states. The constitutional challenge proceeded in parallel with the criminal proceedings, after the High Court refused to remove the criminal proceedings into that Court and instead remitted the declaratory proceedings to the Supreme Court.
The accused sought to quash the indictment and obtain a permanent stay of the criminal proceedings, as well as a declaration that s 7(1)(e) was invalid, either wholly or at least in its operation with ss 6(1)(a) and 6(3)(aa) of the Act.
Legal Issues
- Whether s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) is a valid law with respect to external affairs under s 51(xxix) of the Constitution.
- Whether the external affairs power is qualified by a principle of proportionality, such that the provision could be struck down on that basis.
- Whether, if necessary, the provision could alternatively be supported by the defence power (s 51(vi)) or the incidental power (s 51(xxxix)) of the Constitution.
Decision
Adamson J held that s 7(1)(e) is a valid law with respect to the external affairs power in s 51(xxix) of the Constitution, and dismissed both the motion to quash the indictment and the declaratory proceedings.
The court examined the various aspects of the external affairs power as developed in High Court authority. Her Honour found that the subject matter of the provision had a sufficient connection to Australia's external affairs, particularly given its concern with the conduct of Australians in relation to foreign states and its bearing on Australia's international relations. The provision was not found to have a merely remote, fortuitous, or insubstantial connection to external affairs.
Her Honour also accepted the Commonwealth's submission that the external affairs power extended to giving effect to the recommendations of international agencies, including the United Nations, in pursuit of international objectives. Adamson J found that the legislation could be regarded as implementing principles reflected in the UN Friendly Relations Declaration, a subject of genuine international concern and concern to Australia as a member of the international community. This provided an additional, independent basis on which the external affairs power was enlivened.
Because s 7(1)(e) was valid under the external affairs power, the court found it unnecessary to consider whether the defence power or the incidental power could also support the provision, and accordingly did not determine whether a proportionality requirement applies to those powers.
Orders Made
- Motion by the accused to quash the indictment (filed 27 July 2015) in the criminal proceedings: dismissed.
- Amended summons in the declaratory proceedings: dismissed.
- The plaintiff ordered to pay the Commonwealth's costs of the declaratory proceedings.
Key Takeaways
- Section 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which criminalises providing assistance intended to support armed incursions into foreign states, was upheld as a valid exercise of the Commonwealth's external affairs power under s 51(xxix) of the Constitution.
- A sufficient connection to external affairs exists where legislation directly concerns the conduct of Australians in relation to foreign states and bears on Australia's international relations; the connection need not be to an international treaty to engage the power.
- The external affairs power extends to implementing recommendations of international agencies such as the UN, pursued in furtherance of international objectives, even where those recommendations do not impose binding legal obligations on states.
- Where a provision is sustained under one head of constitutional power, the court held it unnecessary to determine whether other powers (here, defence or incidental) could independently support it, leaving questions about proportionality under those powers unresolved.
- The decision confirms that challenges to the constitutional validity of foreign incursions offences can be heard alongside criminal proceedings in the Supreme Court, following the High Court's refusal to remove the criminal matter and its remittal of the declaratory proceedings.
Legislation and Cases Referenced
Legislation:
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 5, 6, 7, 8, 9
- Criminal Code Act 1995 (Cth), Division 119
- Constitution, ss 51(vi), 51(xxix), 51(xxxix)
- Criminal Procedure Act 1986 (NSW), s 128
Cases:
- Commonwealth v Tasmania (1983) 158 CLR 1
- Koowarta v Bjelke-Petersen (1982) 153 CLR 168
- Polyukhovich v The Commonwealth (1991) 172 CLR 501
- Thomas v Mowbray [2007] HCA 33; 233 CLR 307
- Victoria v The Commonwealth (1996) 187 CLR 416 (Industrial Relations Act Case)
- The King v Burgess; ex parte Henry (1936) 55 CLR 608
- XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532
- Vasiljkovic v The Commonwealth [2006] HCA 40; 227 CLR 614
- Leask v The Commonwealth (1996) 187 CLR 579
- Tajjour v New South Wales [2014] HCA 35; 88 ALJR 860
- R v Mohamed (Ruling No. 1) [2015] VSC 290