GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
JOSEPH TERRENCE THOMAS PLAINTIFF
AND
GRAHAM MOWBRAY, FEDERAL MAGISTRATE & ORS DEFENDANTS
Thomas v Mowbray [2007] HCA 33 2 August 2007 M119/2006
ORDER
The questions stated in the further amended special case filed on 15 February 2007 be answered as follows:
(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 in so far 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.
Representation
R Merkel QC and S G E McLeish and K L Walker for the plaintiff (instructed by Robert Stary & Associates)
Submitting appearance for the first defendant
T M Howe for the second defendant (instructed by Australian Government Solicitor)
D M J Bennett QC, Solicitor-General of the Commonwealth and H C Burmester QC with T M Howe, S P Donaghue and G J D del Villar for the third defendant (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with B C Wells and S A McDonald intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Thomas v Mowbray
Constitutional law (Cth) – Div 104 of the Criminal Code (Cth) confers power on Ch III courts to make interim control orders imposing obligations, prohibitions and restrictions upon an individual for the purpose of protecting the public from a terrorist act – The plaintiff is subject to an interim control order made by the first defendant, Mowbray FM, at the application of the second defendant, an officer of the Australian Federal Police – Whether the interim control order was validly made against the plaintiff.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Thomas v Mowbray [2007] HCA 33
Case
[2007] HCA 33
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the validity of Division 104 of the *Criminal Code* (Cth), which empowers federal courts to make interim control orders imposing obligations, prohibitions, and restrictions on individuals to protect the public from terrorist acts. The plaintiff, who was subject to such an order made by the first defendant, Mowbray FM, at the application of the second defendant, an officer of the Australian Federal Police, challenged the validity of this order.
The central legal issues before the Court were whether Division 104 of the *Criminal Code* was constitutionally valid. This involved determining whether the Division conferred non-judicial power on Chapter III courts, whether it authorised the exercise of judicial power in a manner contrary to Chapter III, and whether it was supported by a valid head of legislative power under the Commonwealth Constitution. Specific sub-issues included whether the defence power extended to non-state actors, whether the external affairs power was engaged, and whether the provisions conferred non-justiciable matters or impermissibly directed courts to consider future conduct.
The majority of the Court found that Subdivision B of Division 104, which deals with the making of interim control orders, was valid. The Court reasoned that the power conferred by Division 104, while involving considerations of future risk, was sufficiently defined by legal criteria and did not amount to an impermissible delegation of non-judicial power or a compulsion to exercise judicial power in a manner contrary to Chapter III. The Court also found that the Division was supported by the defence power, which it held extends to protecting the Commonwealth from threats posed by non-state actors, and by the external affairs power. The Court concluded that the criteria for making an interim control order, such as whether it was "reasonably necessary" for the purpose of protecting the public from a terrorist act, provided sufficient legal guidance.
The Court answered the questions posed in the special case. It held that Subdivision B of Division 104 was valid, and it was inappropriate to answer the broader questions regarding the invalidity of the entire Division. The plaintiff was ordered to pay the costs of the Commonwealth.
Orders
Orders of the court
The questions stated in the further amended special case filed on 15 February 2007 be answered as follows:
(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 in so far 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. [Majority decision, Kirby and Hayne JJ dissenting]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GUMMOW AND CRENNAN JJ
(dissent)