Thomas v Mowbray Case Note (Defence Power) PDF

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Thomas v Mowbray (2007) 233 CLR 307 Facts  

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Following London tube bombings Australia introduced Anti-Terrorism Act [No 2] 2005 (Cth). It created a number of new measures including the creation of a ‘control order’ regime under Div 104 of the Criminal Code Control orders can have somewhat similar terms that you might attach to a person on parole, it imposes a series of obligations on individuals that can quite drastically control their movement, associations, compel them to wear tracking equipment and impose curfews on them. Two stages in approval of control orders - ‘interim’ and ‘confirmed’. Must be sought by senior AFP officer and obtained from issuing court on the balance of probabilities Jack Thomas (known in the media as “Jihad Jack”) was the first person to be convicted under Australia’s (at the time) new anti-terrorist laws (Anti-Terrorism Act [No 2] 2005 (Cth)). An interim control order was placed upon him by the Federal Magistrates Court. In order to grant an interim control order, section 104.4(1)(c) required that: o (i) ‘making the order would substantially assist in preventing a terrorist act’; or o (ii) ‘that the person [subject to the order] has provided training to, or received training from, a listed terrorist organisation’. The Federal Magistrate, Graham Mowbray, granted the order after an ex parte hearing at which he found that both of the available grounds in section 104.4(1)(c) were made out — that making the order would ‘substantially assist’ in preventing the occurrence of a terrorist attack and also that Thomas had received training from Al Qaeda during time spent in Afghanistan in 2001. Thomas appealed to the High Court, arguing that the law was invalid based on the following three grounds: o conferral on a federal court of non-judicial power is contrary to Chapter III of the Constitution; o in so far as the Division confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III; and o an absence of express or implied legislative power.

The High Court majority of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ held that the laws providing for the issuing of interim control orders were valid. The High Court found that section 51(vi) of the Constitution (the defence power) allowed for laws to be made to combat internal threats to Australia, as well as external. The Court rejected Mr Thomas’s argument that the characteristics of control orders meant that the power to make them was exclusively legislative or executive and not judicial and so could not be conferred on a court. The Court held that the interim control order provisions provided for or assumed all the usual indicia of the exercise of judicial power (e.g., evidence, legal representation, cross-examination, the application of law to facts etc.). Parliament’s selection of the balance of probabilities as the appropriate standard of proof was consistent with Chapter III Gleeson CJ [15]: “The power to restrict or interfere with a person’s liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislative, or only administratively.” The defence power extending to international threats… o Callinan J took broadest interpretation and looked favourably towards Latham CJ in Communist Party case: The real question in every case will be, is the Commonwealth or its people in danger or at risk of danger by the application of force, and as the which the Commonwealth military and naval forces, either alone or in conjunction with the State and other federal agencies, may better respond, than State police and agencies along. o Gummow and Crennan J held the defence power had always been intended to support internal threats, drawing on English legal history, and not limited to ‘bodies politic’ o Gleeson CJ agreed with Gummow and Crennan J: “The power …is 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” o Hayne J pointed to the broader challenges of delineating internal and external threats Kirby J took the narrowest view. Said that while defence power was not confined to external threats, was concerned with the broad definition of “terrorist act” under the regime:“I am not convinced that the actual provisions of Div 104 are appropriate and adapted (that is, proportionate) to meet this threat. Div 104, in my opinion, travels far beyond responding to such a threat. It intrudes seriously...upon the police powers of the states. It also intrudes upon areas of civil governance normally regulated under our constitution by state law. It is the overreach of Div 104 that ensures that the division is not supported by [the defence power].....“I did not expect that, during my service, I would see the Communist Party Case sidelined, minimised, doubted and even o

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criticised and denigrated in this court. Given the reasoning expressed by the majority in these proceedings, it appears like that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present court to demands for more and more governmental powers, federal and state, that exceed or offend the constitutional text and its abiding values.” (Good example of the role of judges) Facts that were considered when interpreting the defence power o Callinan J looked at ‘notorious facts of which judicial notice may be taken’ o Heydon J considered in greater detail how and when the high court could recognise ‘constitutional facts’ This Court ... has ultimate responsibility for the resolution of challenges to the constitutional validity of legislation, one way or the other, and cannot allow the validity of challenged statutes to remain in limbo. It therefore has the ultimate responsibility for the determination of constitutional facts which are crucial to validity. o Kirby J: “The language of war might be deployed for reasons of political rhetoric. But it cannot convert the subject matter of legislation into a character that it does not, in fact, possess. Without more, the identified events did not call forth the first limb of s 51 (vi). (lighthouse principle) discussion around the fact that just because the government calls something anti-terrorist or a war of terror doesn’t mean it actually is. Can’t make that assumption o

Impact of this case  The federal government has substantial broadened control order regime and since 2001 has enacted 82 anti-terrosim laws which meant there was a new law passed every 6.7 weeks  An area that has turned into instead of being one that is confined to times of defined wars, it has sort of infiltrated every day life in ways there a regular passage of legislation that can be legitimated under the authorisation of the defence power...