Thomas v Mowbray & Ors - [2006] HCATrans 570

[2006] HCATrans 570

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M119 of 2006

B e t w e e n -
JOSEPH TERRENCE THOMAS
Plaintiff
and
GRAHAM MOWBRAY (FEDERAL MAGISTRATE)
First Defendant
MANAGER, COUNTER‑TERRORISM - DOMESTIC, AUSTRALIAN FEDERAL POLICE
Second Defendant
THE COMMONWEALTH OF AUSTRALIA
Third Defendant
Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 19 OCTOBER 2006, AT 9.33 AM

(Continued from 2/10/06)

__________________

MR S.G.E. McLEISH: If the Court pleases, I appear with MS K.L. WALKER, for the plaintiff. (instructed by Robert Stary and Associates)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MR S.P. DONAGHUE and MR G.J.D. DEL VILLAR, for the second and third defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes. What is the position?

MR BENNETT: Your Honour, we have agreed on the form of a special case. We have agreed on a joint application to your Honour that the principal submissions and submissions in reply be up to 40 pages in length. The matter has been set down for 5 and 6 December. We are in disagreement about the timetable for submissions.

HIS HONOUR: I am not.

MR BENNETT: Well, your Honour, under the ordinary ‑ ‑ ‑

HIS HONOUR: We will come to questions of timetable presently, Mr Solicitor. Subject to whatever the parties may say, there will be a timetable set that will have submissions filed significantly earlier than would ordinarily be required by the Rules, but that is a matter to which we will come in due time.

Can I deal first with the special case. The special case that is submitted, as I understand it, is submitted pursuant to rule 27.08, and the Rules make plain that the procedure is one which depends upon the agreement of the parties. It is the parties that agree in stating the questions. It is the parties that agree in stating the facts. It is entirely a matter for the parties therefore to determine what facts are to be stated and what are the documents that are to be identified in the special case.

There are, however, some features of the special case which struck me in the course of 10 minutes examination which are not intended to be an exhaustive list of matters that might arise, but to which I think attention might usefully be drawn. In paragraph 3 of the special case draft, there is a reference to the Al Farouq training camp in Afghanistan. That camp is mentioned again in relation to certain contentions that were made in the Federal Magistrates Court, but there is not, I think, any fact agreed which would relate what is said in paragraph 3 of the special case with any provision of section 101.2 of the Criminal Code or at least, as appeared to me on a cursory examination of the document,…

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.

Continue reading Thomas v Mowbray & Ors

Details

AGLC: Thomas v Mowbray & Ors [2006] HCATrans 570
Case: [2006] HCATrans 570
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Federal Court of Australia concerning the validity of a control order made against Mr. Thomas under the * সংবিধিবদ্ধ terrorism (Terrorism) Act 2005* (Cth) (the Act). Mr. Thomas sought to challenge the lawfulness of the control order, arguing that it infringed upon his constitutional rights, specifically the implied freedom of political communication. The respondents were the Commonwealth Minister for Immigration and Multicultural Affairs and the Australian Federal Police.

The central legal issue before the High Court was whether the provisions of the Act authorising the making of a control order, and the control order itself, were invalid by reason of their inconsistency with the implied freedom of political communication guaranteed by the Australian Constitution. This freedom, derived from the system of representative and responsible government established by the Constitution, protects communications about political or government matters from unjustified legislative impairment.

The Court, in a majority decision, held that the control order provisions of the Act were not invalid. The majority reasoned that the implied freedom of political communication does not confer an absolute right to engage in any communication, but rather protects communications to the extent necessary for the proper functioning of representative government. They found that the restrictions imposed by the control order were reasonably appropriate and adapted to the legitimate purpose of protecting the Australian community from terrorism, a matter of significant public concern and central to the functioning of government. The Court distinguished the present case from previous authorities where restrictions on political communication had been found to be invalid, emphasizing the exceptional nature of the threat posed by terrorism and the carefully calibrated nature of the control order regime.

The appeal was dismissed.

Orders