Constitutional Validity Of Countering Terrorist Activities Act (2017) In Australia

Violation of Section 51 (xxxi)

 Defendant

According to the Countering Terrorist Activities Act (2017) (the CTA) Section 1 the Australian Anti-Terrorism Authority (AATA) will acquire the Pond University Library in form of a investigation and research center into allegations regarding terrorist activities which also includes the basis of material support like treatment of those involved in terrorist activities. Section 2 states that any dual citizen who has been convicted of terrorist activities would not be allowed to comment publicly on the Countering Terrorist Activities Act 2017 and vote in relation to any election of federal parliament. Both the provisions are a violation of section 51 (xxxi) in combination of section 51(vi) as well as section 51 (XIX). In addition section 2 also violates the implied freedom of political communication and implied right to vote.

In the case of Koroitamana v Commonwealth of Australiathe question before the court was that whether the applicant can be considered as Aliens under the meaning of section 51(xix) of the Constitution.  The court unanimously held that the decision of the full court was correct that the applicants were actually aliens under the provisions of section 51(xix) of the Constitution. The court in this case held that the commonwealth has wide range of powers to make law in relation to Naturalization and aliens. The applicant made the argument that the children were not aliens as they had been born in Australia but such argument of the applicant had been rejected by the court under the powers provided to the commonwealth under section 51(xix). However in this case it had also been provided that the power of the commonwealth is only limited to Aliens. A person whose citizenship status is stateless can be considered as an Alien under the section. However the present case in relation to persons having a dual citizenship. The government has been provided the power to make law to determine whether a person is an Alien or have been provided citizenship in relation to Thus the section does not provide any power to the commonwealth to make laws in relation to dual citizens as is the case in the present condition.

In the case of Pochi v Macpheeit had been ruled by Gibbs CJ that the parliament does not have the right to provide its own definition to “aliens” in order to expand the powers which have been provided to it under section 51(xix) so as to include those persons who possibly do not fall within the definition of section 51(xix) which is in the understanding of the world. Therefore it can be provided that the government is just expanding the definition of aliens to those who have a dual citizenship and in the general understanding of the world the dual citizens cannot be considered as aliens or those who have acquired citizenship through naturalization.

Violation of Section 51(vi)

In the same case the question before the powers was to determine whether the commonwealth has the power to overlap an existing provision which had been enacted to address a mischief. The Migration Act had been amended to ensure that no humiliation is done in relation to the deportation of immigrants. The action of the commonwealth to remove the applicant from Australia which would also lead to making the Australian wife and Children of the applicant to leave Australia was deemed as an act of misuse of power as well as implied conditions of common law. In the same way the Act of the commonwealth to prevent the person having dual citizenship from voting and public commentary would also be a misuse of power by the commonwealth.

In the case of Singh v Commonwealth of Australiathe question before the court was also to whether the plaintiff was an alien within the meaning of s 51(xix) of the constitution. The court had to determine the legislative powers of the parliament in relation to naturalization and aliens. The judge in this case held that the Australian government has the power to decide the conditions in which a citizenship may be acquired or lost by a person. In the case of Chu Kheng Lim v Minister for Immigration it had been provided by the court that after Australia has emerged as a sovereign nation and has been equipped with its own distinct citizenship the term alien has become synonymous with the meaning of non-citizen. The parliament only has the power to apply law within the class of people who fall under the description. Only under this qualification the commonwealth has the power to decide who is to be treated as a person giving the status of an alien for the purpose of an Australian legal provision and to any other restraint imposed by the constitution. Therefore the provisions which have been passed by the commonwealth in relation to CTA Section 2 would be deemed not to be valid under the provisions of section 51 (xix) of the Constitution. This is because dual citizenship does not directly come within the meaning of Aliens and therefore it is not within the power and scope of the commonwealth to impose law on them.

It has been agreed upon by everyone that the term alien cannot mean what the commonwealth wants it to mean. In the same way the term alien can also not mean want the judge or the court wants it to mean. A judicial statement has to be therefore made in accordance to standards which are more than contemporary public opinion. The will of the parliament in a democracy is the most legitimate and authentic expression of a public opinion. The judiciary’s role is not to give effect to a public opinion regarding any matter. Thus even through the parliament thinks dual citizens to be aliens and the will of the parliament is the will and opinion of the public it would not be considered as general understanding of the world. Therefore dual citizens must not be considered as aliens.

Implied Freedom of Political Communication

In the case of Thomas v Mowbraythe High Court of Australia ruled in relation to constitutional validity of "interim control orders" with respect to the Commonwealth Criminal Code. The plaintiff was the first Australian who had been convicted with respect to the anti-terrorism laws. These laws have been enacted after the attacks of 11th September took place. A sentence had been provided to the plaintiff for five year of imprisonment. Section 51 (vi) provides that the parliament has the power to enact laws in relation to the military and naval defense of the commonwealth and that of the several states along with the control of forces for the purpose of executing and maintain the laws of the commonwealth. In this case it had been ruled by the court the court that the commonwealth was right to enact law with respect to section 51(vi). However such powers of the commonwealth were also deemed by the court as limited. The constitution also provides power to the commonwealth to enact laws in relation to the external affairs.

In the case of Leask v The Commonwealthit had been provided by the court that powers in relation to section 51(iv) re provided by the reference of “aims or objective” and not by the “reference to subject matter”. In the case of Thomas the judges ruled that s 51(vi) is related to only meeting the danger of aggressions of any foreign nation should not be adjusted. In the same case it had been ruled that the interim order control system may be provided as being directed to apprehend situation of disturbance through violent thorough the meaning of terrorist attack. However the facts of this case are not at all consistent to that of the present case in hand. Here the parliament is making law to takeover a property without any real threat of terrorism as what had been done in Thomas case. Here the commonwealth just has the desire to take on the property in an apprehension which are not supported by any evidence.

There is an implied freedom in relation to political communication which have been provided to citizens. A citizen has the right to vote in relation to an election and also to provide commentary on any public policy. However the CTA section 2 does purports to restrict the powers of a dual citizen who has been convicted under a terrorist act in relation to voting and commenting on public policies. Therefore this act of the commonwealth is clearly a violation of the implied right provided to the citizens.

In the case of McCloy v New South Waleswhether Division 4A of Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) not valid wholly or in part or if yes to what extent because it is a burden on the implied freedom on communication on governmental and political matters against the constitution of the commonwealth. The court in this case ruled that the giving and taking of donation by a property developer to and from the government is not an invalid act against the constitution as it does not impermissibly burden the implied freedom of communication on governmental and political matters. All other questions were also answered in negative by the court in relation to the invalidity of the legislation with respect to the implied right of political communication. However the court in this case made the decision because it was prima facie clear that no implied right had been violated by the provisions of the legislation.

In the present case it is on the contrary prima faice clear that restricting the right to vote or make commentary can is a clear provision which have been passed for the purpose of securing political interest by the commonwealth. There is no advantage which the country would gain by restricting the rights of the individuals. Therefore it can be evident provided that section 2 of the CTA breaches the implied right.

Chu Kheng Lim v Minister for Immigration [1992] HCA 64

Koroitamana v Commonwealth of Australia [2006] 227 ALR 425

Leask v Commonwealth (1996) 187 CLR 579

McCloy v New South Wales (2015) 325 ALR 15

Pochi v Macphee [1982] HCA 60

Singh v Commonwealth of Australia [2004] HCA 43

Thomas v Mowbray [2007] HCA 33