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Article Excerpt
[The High Court of Australia's decision in Thomas v Mowbray is important in two distinct senses. First, the case concerned constitutional powers and limitations which are either infrequently considered (in particular, the Commonwealth's legislative power with respect to defence) or subject to regular uncertainty (crucially, the abstractions which have accumulated around the constitutionally implied separation of judicial power). Secondly, the case presented yet another opportunity for the Court to reflect upon the deeper ramifications of preventative justice, but the first occasion on which this squarely intersected with the pure judicial power of the federal court system. Not only is this a matter of constitutional significance, but it also poses challenging policy questions as to the role which the judicial arm is best positioned to play under a substantial body of law based upon the pre-emptive restriction of individual liberty and developed since the terrorist attacks of 11 September 2001.]
CONTENTS I Introduction II Control Orders in Australia III 'Jihad Jack' Thomas and the Courts IV The Constitutional Challenge: Thomas v Mowbray in the High Court A The Source of Legislative Power 1 Defence Power and the Terrorist Threat 2 The External Affairs Power 3 The References Power B Compliance with Chapter III 1 The Courts, Deprivation of Liberty and an Absence of Guilt 2 Standards and Criteria Capable of Judicial Application 3 Policy V Conclusion
I INTRODUCTION
Constitutional decisions of the High Court of Australia regularly present multiple starting points for analysis. Nonetheless, even against usual standards, the 2007 case of Thomas v Mowbray ('Thomas') (1) is striking in this regard. While the importance of the decision to uphold the validity of control orders against individuals who may have links to terrorism is indisputable, any attempt to encapsulate the several reasons for this in a single characterisation would be most unwise. The judgments in Thomas cast new light on infrequently considered yet important sources of Commonwealth power--those of defence (2) and referrals of state law-making capacity (3)--while also touching upon the ramifications of a global 'war on terror' for the power to legislate with respect to external affairs. (4) At the same time, the case provided the Court with a significant occasion on which to add to the fertile, yet ever perplexing, area of constitutional jurisprudence arising from the implied separation of judicial power in the Constitution. In the course of deciding these issues, the standing of the Court's landmark decision in Australian Communist Party v Commonwealth ('Communist Party Case') (5) was directly questioned by some justices while staunchly defended by another.
In addition to these arresting features, Thomas is also clearly of major importance for Australia's anti-terrorism laws more generally, including the scope of 'terrorist act' in s 100.1 of the Criminal Code Act 1995 (Cth) sch 1 ('Criminal Code'), which underpins the vast legal national security framework constructed by the Commonwealth since the events of 11 September 2001. At the same time, the case directly addresses the policy arguments over the best way for the judiciary to moderate excess in the responses made by the political arms of government to the threat of terrorism. 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? If the latter, can this be accommodated within the prevailing orthodoxy of federal judicial power under the Constitution?
II CONTROL ORDERS IN AUSTRALIA
Division 104, which provides a scheme for the making of control orders against individuals, was inserted into the Criminal Code by the Anti-Terrorism Act [No 2] 2005 (Cth). That Act was devised as a response to the London bombings of July 2005 and was passed after a controversial and expedited parliamentary process. (6) The Act contained several very substantial new measures against terrorist activity, including preventative detention orders, the use of 'advocacy' of terrorism as a basis for the proscription of organisations, and a revamped and modernised law of sedition. Despite the government's insistence that all parts of the law, including sedition, were immediately necessary for Australia's national security, only control orders have been used to date, and those in respect of just two individuals. (7)
Division 104 draws substantially (but not entirely) upon the control order scheme enacted by the United Kingdom in March 2005. (8) The Prevention of Terrorism Act 2005 (UK) c 2 replaced Part IV of the Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, which had provided for the indefinite detention of any alien reasonably believed by the Home Secretary to be a 'risk to national security' and 'a terrorist'. (9) At the end of 2004, the House of Lords had found Part IV incompatible with the rights to both liberty and freedom from discrimination, which are guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms ('European Convention on Human Rights'), (10) and had issued a declaration to this effect under s 4 of the Human Rights Act 1998 (UK) c 2. (11) Although persisting with the scheme of indefinite detention was theoretically possible, (12) this was not a viable option for several reasons, such as the prospect of future litigation. (13) Control orders were thus created to enable something which was both less than the total detention of persons and not limited to non-citizens in its application. It is worth stressing that the strongest justification given for the continued existence of control orders in the UK is the inadmissibility of intercept evidence in criminal prosecutions in that jurisdiction. (14) Such a restriction does not affect the prosecution of terrorists in Australia.
Under Division 104, the Commonwealth's control orders allow obligations, prohibitions and restrictions to be imposed 'for the purpose of protecting the public from a terrorist act.' (15) The list of conditions available in s 104.5(3) for inclusion in control orders bears strong similarities to that operating in the UK (16) and ranges from very minimal intrusion on an individual's freedom to an extreme deprivation of their liberty. The order can include prohibitions or restrictions on the individual:
* being at specified areas or places;
* leaving Australia;
* communicating or associating with certain people;
* accessing or using certain forms of telecommunication or technology (including the internet);
* possessing or using certain things or substances; and
* carrying out specific activities (including activities related to the person's work or occupation). (17)
The order can also include the requirement that the person:
* remain at a specified place between certain times each day, or on specified days;
* wear a tracking device;
* report to specified people at specified times and places;
* allow photographs or fingerprints to be taken (for the purpose of ensuring compliance with the order); and
* if the person consents--participate in specified counselling or education. (18)
Unlike preventative detention orders in Division 105 of the Criminal Code, control orders stop short of imprisoning the subject in a state facility. Nevertheless, it is clear that an order incorporating either a prohibition or restriction on the person being at specified areas or places, or a requirement that they remain at specified premises between specified times each day or on specified days, may well amount to 'detention' in all but name. (19) A person who contravenes any of the terms of a control order to which they are subject commits an offence with a maximum penalty of five years' jail. (20)
Control orders may be sought only by senior members of the Australian Federal Police ('AFP') after obtaining the written consent of the Attorney-General to request an interim order from an issuing court, unless the order is urgently required, in which case consent may be sought retrospectively. (21) Once consent has been granted, the AFP member can request the interim control order from an 'issuing court' (the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates Court of Australia). The court must receive the request in the same form as it was presented to the Attorney-General, except for any changes required by the latter, plus a copy of the Attorney-General's consent. Under s 104.4 of the Criminal Code, the court can only make the order if it is satisfied of the grounds upon which the AFP has made the request. The threshold criteria is found in s 104.4(1)(c), which enables the court to issue the order if satisfied that, on the balance of probabilities:
(i) 'making the order would substantially assist in preventing a terrorist act'; or
(ii) 'that the person [subject to the order] has provided training to, or received training from, a listed terrorist organisation'. (22)
Additionally, under sub-s (d), the court must be satisfied that each of the obligations, prohibitions and restrictions to be imposed are 'reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.' (23) In determining these matters, the court must take into account the impact of the obligations, prohibitions and restrictions on the person's circumstances--including financial and personal. (24)
If the court issues an interim control order, it is of no effect until served personally upon its subject. Amongst other matters, the order must set out a summary of the grounds upon which it has been made, (25) and also inform the person as to when--as soon as practicable, but at least 72 hours after the order is made--they may attend a court hearing for the order to be confirmed, revoked or declared void. (26) However, by arrangement between the parties, the interim control order made in respect of Jack Thomas was given an extended life so that his constitutional challenge to Division 104 could be resolved before any confirmation hearing. (27) Despite the Commonwealth's victory before the High Court, the AFP subsequently chose not to seek confirmation of the order but instead obtained from Thomas undertakings about conditions he was to observe pending his retrial for terrorism offences in the Supreme Court of Victoria. (28) For this reason, further consideration of the confirmation process is not required, (29) though it essentially utilises the same tests as those for interim control orders. Hence, although the majority in Thomas declined to confirm the validity of Division 104 as a whole, (30) it seems safe to say that their approval of interim control orders in Subdivision B serves to secure the entire scheme. (31)
III 'JIHAD JACK' THOMAS AND THE COURTS
In Jabbour v Thomas, Australia's first interim control order was granted by the Federal Magistrates Court against Jack Thomas, frequently referred to by the Australian media as 'Jihad Jack'. (32) The order was made after Thomas had been acquitted.by a Victorian Supreme Court jury of two counts of providing support to a terrorist organisation, (33) and then after having two lesser charges of which he was convicted (34) quashed by the Victorian Court of Appeal. (35)
The Federal Magistrate, Graham Mowbray, granted the order after an ex parte hearing at which he found, on the balance of probabilities, that both of the available grounds in s 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 a proscribed organisation (namely, Al Qa'ida during time spent in Afghanistan in 2001).
Two comments may be made on this. First, the evidence of Thomas's training with Al Qa'ida sustained the order not only on the second training-related ground, but was also used to show that, consequently, controlling him would 'substantially assist in preventing a terrorist act'. No evidence was submitted to establish that Thomas had engaged in any activities or associations since returning to Australia--including in the almost 18 months he was a free man before criminal charges were laid--which might point to planned or likely future terrorist activity on his part. The AFP overcame this difficulty by asserting that Thomas was in effect a 'sleeper' agent for the organisation--'an Al Qa'ida resource to facilitate or carry out a terrorist attack at any time in the future.' (36) It seems far from ideal to accept claims of this sort as a sufficient basis to obtain a control order against an individual on the first ground of s 104.4(1)(c) without some more definite indication that they are presently engaged in behaviour which must be curtailed if a terrorist act is to be prevented. Apart from anything else, it ignores the accepted wisdom that terrorist organisations 'prefer to use for operational purposes "clean skins", persons who are not known ever to have been arrested' (37)--if Thomas had ever been a 'sleeper' agent, the likelihood of his posing such a threat after a highly publicised criminal trial must have been very low.
Secondly, and more closely attuned to the constitutional objections to the scheme as a whole, (38) a broader observation may be made about the evidence substantially relied upon to satisfy the Magistrate. This consisted primarily of a record of interview conducted with Thomas by the AFP in Pakistan in early 2003, which was found by the Victorian Court of Appeal not to have been voluntarily made, leading to his conviction on some charges being quashed. (39) While this was acknowledged by Mowbray FM, he went on to say that the material was, nevertheless, admissible at the ex parte hearing for the interim control order as it was an interlocutory civil case. (40) Thomas's reversal of fortune from released prisoner to subject of a control order hinges on this shift--a clear instance, one might argue, of 'jurisprudential context-shopping ... [so as to avoid] the procedural requirements of the criminal law'. (41) Additionally, it should be noted that even with access to the tainted record of interview, the jury in Thomas's criminal trial had acquitted him of the most serious charge: namely, that he 'supported' a terrorist organisation under s 102.7 of the Criminal Code by having agreed to act as a 'human resource' to it at some future point in time. (42) This was the very allegation made by the AFP, using the same evidence, to obtain real restrictions on his liberty in this civil proceeding.
Amongst the conditions placed on Thomas by the order, and thus 'reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act', (43) was a curfew prohibiting him from leaving his house between midnight and 5am, a requirement that he report to police three days a week, a prohibition on acquiring or making explosives, a restriction on his use of various telecommunications devices without prior approval, and a prohibition on contacting up to 50 individuals listed by the Department of Foreign Affairs and Trade or any other individuals whom Thomas knew to...
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