may it please the court, i will begin with my first submission.
the Terrorism (Preventative Detention, Pulp Mills Security Amendment) Act 2005 is repugnant to the function of the chapter III Courts. it is submitted that the state of the Supreme Court exercising the Federal Court Jurisdiction must act in the court-like-manner exhibiting feature of traditional judicial process of the Federal Courts. this was stated in the dissenting judgment of honourable Justice Kirby in Fardon case in which he stated that
"state courts shall remain at all times curial receptacles proper to the exercise of federal jurisdiction. although they are not, as such, federal courts, subject to the express strictures of Chapter III, their inclusion in the integrated judicature of the commonwealth, the provision for appeal from them to the federal courts and the facility for vesting federal jurisdiction all imply that they cannot be required by state law to perform function inconsistent with chapter III"
what has been regarded as the traditional court like manner as refer by Kirby J in Fardon and Baker are such as punishment must be followed by the admissible evidence (retrospective punishment)-the court must be independent or allowed to exercise its discretions - fair trial must be seen to be done. in the presence case, no evidence adduced as to the individual responsibility of any of these individuals in the violence, viz, most video of the incident was obscured by smoke or dust, the violent offenders were masked and there's no surveillance on site. Moreover the AG was able to make an Exparte application to the court for a preventative detention order. this suggests strongly that the Taurine Tigers had not be given a fair trial and the parliament has a final say to the given case, i.e. the court has not exercised its discretion. therefore, the Act and the order are repugnant to chapter III courts. the second submission in based on whether the Act and its objective are proportionate. Kirby J in Baker at para [20] said that the bidding contest in extreme punishment in which the members of parliament had become involved and warned that 'subject to constitution, only court of this country stands as guardians of proportionality and the avoidance of serious excess and departure from Human Rights. In Baker, what had been considered as non-proportionate and in infringement of Human Rights was the life imprisonment with non-release recommendation. Likewise in Fardon in the dissenting judgment of Kirby J, it offends the double jeopardy principles and retrospective punishment principles, i.e. fardon has served its sentence in its entirety, nevertheless pursuant to the order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qlsd), he remained a prisoner. in the present case, it infringes the retrospective punishment principles namely the Taurine Tigers have been detained for what they have not done in the past and future and past actions were merely suspicion. if it pleases the court, that concludes my submission.
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