Constitutional Validity OF Interim Control Orders PDF

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CONSTITUTIONAL VALIDITY OF INTERIM CONTROL ORDERS: THOMAS V MOWBRAY I INTRODUCTION The Australian constitution is an important document, which not only allows for the expressing of the rights and freedoms enjoyed by Australian’s, but also dictates the manner in which Australia is run as a nation.1 The Constitution specifically describes how Federal and State governments share power, as well as the roles of the executive arm of government, as well as the Judiciary in the form of the High Court of Australia.2 The High Court of Australia acts as the guardian of the constitution, having the power to assess laws on both a federal and state level, and determine the validity of said laws both in terms of constitutional validity, and whether they were created within the powers granted to the relevant level of government by the Constitution.3 The case of Thomas v Mowbray4 is an example of such a situation, wherein the High Court sought to determine the constitutional validity of Interim Control Orders. II THE CREATION OF INTERIM CONTROL ORDERS The Anti-Terrorism Act5 introduced Division 104 into the Criminal Code Act6, which created the necessary provisions which allowed for the making of control orders against individuals. The act was created in response to the global rise in terrorist activity, namely the September 11 Attacks, and the London bombings which occurred just prior. As outlined in Subdivision A of Division 1047, the main aims are to protect the public and aid in the prevention of terrorist acts. It is important to note, that the Anti-Terrorism Act8 draws heavily from the UK based Prevention of Terrorism Act 20059, as such, the conditions that are held within Division 104, are similar to that of its UK counterpart. The conditions that can be placed upon an individual vary as to the degree in which their freedom is affected, such conditions can include among others10; 1 Australian Constitution 2 "The Australian Constitution In Focus - Parliamentary Education Office", Peo.Gov.Au (Webpage, 2020)

3 Ibid 4 Thomas v Mowbray [2007] HCA 33 5 [No 2] 2005 (Cth) 6 (Cth) 1995 7 Criminal Code Act (Cth) 1995 8 [No 2] 2005 (Cth) 9 Prevention of Terrorism Act 2005 (UK) 10 Criminal Code Act (Cth) 1995, Div 104

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Having to wear a tracking device

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Only being in specific area’s or places at certain times and days

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Being unable to leave the country

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Restrictions on the individuals or organisations that can be contacted

As with most acts, provisions exist wherein there are checks and balances to such restrictions. As per s104.4 of the Criminal Code11, there exists conditions which must be satisfied on the balance of probabilities for the interim control order to take effect; 

That making the order would substantially assist in preventing a terrorist act; or

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That the person has provided training to, received training from or participated in training with a listed terrorist organisation; or etc.

With the establishment of interim control orders, the first to be granted and issued was in the case Jabbour v Thomas12. While an important case, it was the appeal and subsequent retrial that followed which went on to rule that interim control orders were indeed constitutional by a 5:2 majority.13 III THOMAS V MOWBRAY PRELUDE As briefly discussed previously, the first control order that was to be granted in Australia was issued against Jack Thomas, or as the media had dubbed him, ‘Jihadi Jack’.14 Jack Thomas was initially found guilty in the Victorian Supreme Court for various charges, chief among them being the receiving of funds from a terrorist organisation.15 The control order was issued in August 2006, but only came about due to his being acquitted by the Victorian Supreme Court of Appeal.16 The order was only issued as the conditions stipulated within section 104.4(1c) were satisfied on the balance of probabilities by Federal Magistrate Graham Mowbray.17 Thomas would later go on to appeal to the High Court of Australia, challenging the Interim Control order as to be unconstitutional, on the basis that the ability to grant and enforce Control Orders was a non-judicial power, to be found in conflict with chapter 3 of the constitution, 11 Ibid 12 Jabbour v Thomas [2006] FMCA 1286 (27 August 2006) 13 Thomas v Mowbray [2007] HCA 33 14 Thomas guilty on terror charge, the Age online, 26 February 2006. 15 Jabbour v Thomas [2006] FMCA 1286 (27 August 2006) 16 R v Thomas (2006) 14 VR 475 17Jabbour v Thomas [2006] FMCA 1286 (27 August 2006)

which as mentioned earlier within the essay that defines and gives power to the judicial branch of Australian Governance. The terms of his Control order were;18 

a communication ban with individuals such as Osama Bin Laden and any other terrorist organisation

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Restriction to his home between the hours of midnight and 5am

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Mandatory reporting to police 3 times a week

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And monitored, restricted use of telephone and internet

IV THOMAS V MOWBRAY CASE SUMMARY While the Interim control order was indeed issued, the actual confirmation of said order was deferred. This was to allow for the challenge of s104’s validity to be heard by the High Court of Australia19. The following are the questions that were posed to the High Court by Thomas, and the decision of the High Court;20 1. Q. Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution? A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer. 2. Q. Is Division 104 of the Criminal Code invalid because insofar as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution? A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer. 3. Q. Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution? A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer. 4. Q. Who should pay the costs of the special case? A. The plaintiff should pay the costs of the Commonwealth of the special case. As mentioned previously, the High court with a majority of 5:2 decided that Division 104 (B) was constitutionally valid.21 Gleeson CJ and Gummow, Heydon, Callinan and

18 Thomas v Mowbray [2007] HCA 33 19 Ibid 20 Ibid 21 Thomas v Mowbray [2007] HCA 33

Crennan JJ were to comprise the majority, while Kirby and Hayne JJ were to make dissenting judgements.22 V FUNDAMENTAL ISSUES RAISED A. Criminal Code Within Power? Major issues that were raised within the case include questions such as whether the enactment and use of Division 104 of the Criminal Code was within power. The judgement that was held within the court went on to define how the law was to characterise and respond to terrorism.23 Within the case, the plaintiff put forward the notion that s 51 (vi) of the Australian Constitution, otherwise known as the ‘defence power’, should be interpreted in a narrow manner, and thus limited to historically conventional conflicts between other nations of an external nature.24 Section 51 (vi) of the constitution bequeaths unto the Commonwealth the power with which to make laws with respect to:

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“the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth.”

In response to the question posed, Gleeson CJ stated25 that the defence power was: “not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public.” This opinion was agreed upon by all Justices bar Kirby J.26 The consensus among the Justices was that terrorism did indeed pose a danger to the Commonwealth and it’s public. The view was held that the security of the nation would be undermined by terrorist acts, which at their core seek to inflict violence and destruction on the public.27 Through this frame of reference, it was ruled that the defence power was indeed a legitimate head of power in response to terrorism and terrorist acts.28

22 Ibid 23 Civil Liberties in the Age of Terrorism – The Jack Thomas Case, Justice Shane Marshall, 6 September 2007 24 Thomas v Mowbray [2007] HCA 33 25 Ibid 26 Ibid 27 Ibid 28 Thomas v Mowbray [2007] HCA 33

In contrast to the above judgement, Kirby J29 went on to state that the defence power was not a valid head of power to support Division 104 of the Criminal Code. Kirby J states that the aim of Division 104 is not to provide for power through the protection of “the bodies politic of the Commonwealth and the States”. It’s aim however is “Directed at the protection of people and of property within the bodies politic”.30 Through Kirby’s view, Division 104 of the Criminal Code would fall outside of power, thereby being deemed as unconstitutional. B. Is Division 104 in breach of the Separation of Powers? Another issue that was to arise from this case, was whether Division 104 of the Criminal Code is to be regarded as breaching the Separation of Powers that is prescribed in the Constitution, then further clarified in R v Kirby; Ex parte Boilermakers’ Society of Australia31. The issue relates directly relates to the decision in the Boilermakers’ case, wherein the use of judicial power was to be restricted to be used only by Chapter III courts 32, as well as further establishing that said courts could not exercise any other power outside of the judiciary’s scope.33 The question that arose, was that of whether the issuing of control orders by a Chapter III court is an exercise of a non-judicial power.34 It was argued by Mr Thomas, that the Control order was in breach of the separation of powers, as it was more comparable to that of legislative or executive powers, as it is akin to the creation of future rights and obligations.35 This argument was subsequently rejected by the majority, bar Kirby and Hayne JJ.36 It was decided that the prevention of apprehended violence and the exercising of other coercive powers are often utilised by Courts, Gummow and Crennan JJ state37: “In assessing whether the courts have adequate legal standards or criteria “for the purpose of protecting the public from a terrorist act” … orders which may be made are a familiar part of judicial power … Orders, which are not orders for punishment following conviction, but which involve restraints upon the person to whom they are directed, can be made after a judicial assessment of future risk.”

29 Ibid 30 Ibid 31 (1956) 94 CLR 254 32 Australian Constitution 33 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 34 Civil Liberties in the Age of Terrorism – The Jack Thomas Case, Justice Shane Marshall, 6 September 2007 35 Ibid 36 Thomas v Mowbray [2007] HCA 33 37 Ibid

VI OTHER INSTANCES OF CONTROL ORDERS To date, there has only been one other instance of an issuing of a control order. Said control order was issued against David Hicks in the case Jabbour v Hicks38. The matter was comparable as Hicks was convicted of the offence of providing material support to terrorism39, and many terms of his interim control order were comparable to that of Jack Thomas. This case differs however, insofar as Mr. Hicks did not challenge the Interim control order in and of itself, he however sought to ask the court to reduce and alleviate the severity of some of the conditions that were stipulated in his order. The interim control order that was placed on Hicks drew criticism, as the act for which he was issued the order for was yet to be fully determined as to its illegality under Australian Law at the time.40 VII CRITICISMS OF CONTROL ORDERS Since their inception, Control orders have garnered criticism for a range of reasons, many of which were discussed in court in dissenting judgements. A major criticism that received focus in Thomas v Mowbray, was that control orders were a largely preventative measure, in so far that the orders are not based on what an individual has done per se, but on what said individual could or would do.41 This criticism was responded to by Gleeson Cj42: “that is not only the purpose of the legislation generally, it is the purpose to which the control order must be directed, and with which it must conform.” Gleeson CJ also further went on to state, and differentiate orders involving depravation of liberty, and what he described the control order as a ‘preventative restraint on liberty by judicial order’43. He states that courts have already and shall continue to utilise the power (when necessary and lawful) to interfere with an individual’s liberty on the, based on potential future conduct.44 Another criticism that has arisen (by some academics) from the case of Thomas v Mowbray, was the worrying notion that an interim control order can be misused for the purpose of

38 [2008] FMCA 178 39 Allard, Tom (28 December 2007). “Prisoner of political fortune set free”. The Sydney Morning Herald. Fairfax Media. 40 Australian Lawyers for Human Rights, Submission to the Senate Legal and Constitutional Affair inquiry into the Anti-terrorism Bill (No. 2) 2005, Canberra, November 2005. 41 Civil Liberties in the Age of Terrorism – The Jack Thomas Case, Justice Shane Marshall, 6 September 2007 42 Thomas v Mowbray [2007] HCA 33 43 Ibid 44 Ibid

detaining individuals where there has been no conviction45. The is in reference specifically to the use of the control order directly after the Court of Appeal had initially overturned Thomas initial conviction. The Griffith Law Review46 goes on further to say that Preventative detention orders and control orders may be used to detain people even when there is not enough evidence to lay forward charges, or where no conviction has been recorded after the trial.47 As posed by Andrew Lynch,48 “Should courts be defending liberty through a traditional review function, or should they play a more active role in the development of viable processes of preventative justice?”, and if so, can this be accommodated within what the constitution deems to be within Federal judicial power? VIII CONCLUSION As preventative control orders are still a relatively new addition to the powers in which the Judicial arm of Government can utilise, there is still much that is open for debate and discussion. As only two interim control orders have been issued since the time of its enactment, there is not much material which can yet be evaluated to its full extent. As with any aspect of Law, with societal ever-changing needs and values, the rules, regulations and the control order themselves will continue to be progressed, with Thomas v Mowbray standing as a solid foundation on which future cases can rely upon and expand. At this point in time, it can be confirmed that interim control orders are indeed constitutional. Word Count: 2247

45 E. MacDonald and G. Williams, Combating Terrorism: Australia s Criminal Code since September 11, 2001 , in Griffith Law Review vol 16, no.1, 2007. 46 Ibid 47 E. MacDonald and G. Williams, Combating Terrorism: Australia s Criminal Code since September 11, 2001 , in Griffith Law Review vol 16, no.1, 2007. 48 Lynch, Andrew --- "Thomas v Mowbray: Australia's 'War on Terror' Reaches the High Court" [2008] MelbULawRw 37; (2008) 32(3) Melbourne University Law Review 1182...