R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222

R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222

Section 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. It criminalises conduct in Australia intended to support armed hostilities or incursions into foreign States and has a sufficient connection to Australia's obligations not to acquiesce in acts threatening the sovereignty of other nations. There is no requirement of proportionality on the facts; the Act is supported by both the external relations and geographical externality aspects of the external affairs power.

Parties
Respondent: Regina (Crown / Respondent); Accused/applicant/plaintiff: Hamdi Alqudsi; Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
27 August 2015
Procedural Posture
Criminal and Constitutional Law Proceedings / Motion to Quash Indictment and Application for Declaratory Relief Challenging Constitutional Validity
Outcome
Notice of motion to quash indictment dismissed; Amended summons dismissed; Plaintiff to pay defendant's costs in declaratory proceedings
Legal Topics
External Affairs Power, Preparations for Foreign Incursions, Legislative Validity, Proportionality, Incursion Offences, Preparatory Criminal Conduct
Constitutional Law Criminal Law External Affairs Power Preparations for Foreign Incursions Legislative Validity Proportionality Incursion Offences Preparatory Criminal Conduct

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Parties

Regina (Crown / Respondent)

Respondent

Hamdi Alqudsi

Accused/applicant/plaintiff

Commonwealth of Australia

Defendant

Procedural Posture

Criminal and Constitutional Law Proceedings / Motion to Quash Indictment and Application for Declaratory Relief Challenging Constitutional Validity

Legal Issues

  1. 1 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
  2. 2 Whether the external affairs power is qualified by proportionality
  3. 3 Whether s 7(1)(e) is constitutionally invalid on the basis that it lacks a sufficient connection to external affairs or defence

Ratio Decidendi

Section 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. It criminalises conduct in Australia intended to support armed hostilities or incursions into foreign States and has a sufficient connection to Australia's obligations not to acquiesce in acts threatening the sovereignty of other nations. There is no requirement of proportionality on the facts; the Act is supported by both the external relations and geographical externality aspects of the external affairs power.

Court Disposition

Notice of motion to quash indictment dismissed; Amended summons dismissed; Plaintiff to pay defendant's costs in declaratory proceedings

Orders

  • Dismiss the applicant's (accused's) notice of motion filed on 27 July 2015.
  • Dismiss the amended summons.