By Stephen Tully -
Snapshot
- In R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222, it was held that section 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) is constitutionally valid.
- The principle of proportionality operates as a constraint on a purposive head of constitutional power.
- Proportionality is only relevant to one aspect of the external affairs power: treaty implementation.
In R v Alqudsi; Alqudsi v Commonwealth of Australia, Justice Adamson dismissed a challenge to the constitutional validity of s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (the Act). The NSW Supreme Court also considered the extent to which proportionality applies to each aspect of the external affairs power.
Background
Hamdi Alqudsi was committed for trial on the basis that in 2013 he assisted seven men to travel without detection to Syria via Turkey and engage in armed hostilities against the Syrian government.
Section 7(1)(e) of the Act makes it an offence for a person to provide certain forms of assistance with the intention of supporting or promoting incursions into foreign States to engage in hostile activity. Mr Alqudsi sought to quash the indictment. The head of constitutional power relied on by the Commonwealth to support the legislation included s 51(xxix), that is, the power to make laws with respect to external affairs.
