Thomas v Mowbray [2007] HCA 33

Thomas v Mowbray [2007] HCA 33

By majority, the High Court held that Subdivision B of Division 104 of the Criminal Code (Cth), which authorises the making of interim control orders to protect the public from a terrorist act, is valid as it is supported by the defence power (s 51(vi)) and, where necessary, the external affairs power (s 51(xxix)) of the Commonwealth Constitution. The conferral of the power to make such orders on federal courts does not, in the relevant respects, offend Chapter III of the Constitution, as the task assigned to the courts—despite involving predictive and preventative assessments—rests on legal standards broadly but adequately formulated (such as 'reasonably necessary' and 'reasonably...

Parties
Plaintiff: Joseph Terrence Thomas; First Defendant: Graham Mowbray, Federal Magistrate; Second Defendant: Ramzi Jabbour (an officer of the Australian Federal Police); Third Defendant: The Commonwealth of Australia; Intervener: Attorney-General for the State of Western Australia (intervening); Intervener: Attorney-General for the State of New South Wales (intervening); Intervener: Attorney-General for the State of South Australia (intervening)
Jurisdiction
Australia
Judgment Date
02 August 2007
Procedural Posture
Special Case (questions of Constitutional Law) / Final Judgment of the High Court of Australia
Outcome
By majority, Subdivision B of Division 104 of the Criminal Code (Cth) is valid and the challenge fails.
Legal Topics
Separation of Powers, Judicial Power, Defence Power, External Affairs Power, Validity of Control Orders, Referral of State Powers, Human Rights, Proportionality, Interim Control Orders, Anti Terrorism Legislation
Constitutional Law Separation of Powers Judicial Power Defence Power External Affairs Power Validity of Control Orders Referral of State Powers Human Rights +3 more

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Parties

Joseph Terrence Thomas

Plaintiff

Graham Mowbray, Federal Magistrate

First Defendant

Ramzi Jabbour (an officer of the Australian Federal Police)

Second Defendant

The Commonwealth of Australia

Third Defendant

Attorney-General for the State of Western Australia (intervening)

Intervener

Attorney-General for the State of New South Wales (intervening)

Intervener

Attorney-General for the State of South Australia (intervening)

Intervener

Procedural Posture

Special Case (questions of Constitutional Law) / Final Judgment of the High Court of Australia

Legal Issues

  1. 1 Whether Division 104 of the Criminal Code (Cth) providing for interim control orders is invalid as conferring non-judicial power upon a federal court contrary to Chapter III of the Constitution.
  2. 2 Whether Division 104 of the Criminal Code (Cth), to the extent it confers judicial power, requires exercise in a manner incompatible with Chapter III of the Constitution.
  3. 3 Whether Division 104 of the Criminal Code (Cth) is not supported by an express or implied head of Commonwealth legislative power.

Ratio Decidendi

By majority, the High Court held that Subdivision B of Division 104 of the Criminal Code (Cth), which authorises the making of interim control orders to protect the public from a terrorist act, is valid as it is supported by the defence power (s 51(vi)) and, where necessary, the external affairs power (s 51(xxix)) of the Commonwealth Constitution. The conferral of the power to make such orders on federal courts does not, in the relevant respects, offend Chapter III of the Constitution, as the task assigned to the courts—despite involving predictive and preventative assessments—rests on legal standards broadly but adequately formulated (such as 'reasonably necessary' and 'reasonably...

Court Disposition

By majority, Subdivision B of Division 104 of the Criminal Code (Cth) is valid and the challenge fails.

Orders

  • Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
  • Plaintiff to pay the costs of the Commonwealth of the special case.