Portland, Oregon, United States of America on 6 September 2007
Civil liberties in the age of terrorism have evoked great controversy. It is often said that we have to sacrifice the former to protect ourselves from the latter. The usual caution of the judiciary in developing and applying the criminal law has been challenged by a rapidly changing legal and legislative environment since the attacks on the United States of America on September 11, 2001. In Australia, the Federal and State parliaments have not been slow to react. A raft of legislative enactments has entered the statute books and the surveillance and control powers of the executive branch of government have expanded considerably in the name of the war on terror. The judiciary’s response to these challenges is no less important. What is at stake is no less than public confidence in the proper administration of justice, the rule of law and maintenance of democratic government. If we loose sight of these fundamental principles, we will fail to defend what is most important to our system of government. This paper seeks to examine these fundamental issues in the light of two controversies that arise from the recent High Court of Australia case of Thomas v Mowbray  HCA 33. Firstly, what constitutional powers does the federal parliament of Australia have to make laws in order to meet the threat of terrorism? Secondly, do the new laws designed to meet terrorism risk breaching the separation of powers enshrined in the Australian constitution. Introduction
In the case of Thomas v Mowbray, the High Court considered the constitutional validity of Div 104 of the Criminal Code (Cth). The Code confers power on a federal court to make an ‘interim control order’ imposing obligations and restrictions against a person for the purpose of protecting the public from a terrorist act.
Control orders raise questions concerning whether the Commonwealth of Australia has been conferred with the power to make such orders under the Constitution, specifically under the defence power and external affairs power, and whether the issuing of a control order by a court is a proper exercise of the judicial power of the Commonwealth.
Issuing of the Control Order
On 27 August 2007, Federal Magistrate Mowbray issued an interim control order against the plaintiff Mr Thomas at the request of an officer of the Australian Federal Police. The order was issued ex parte and the control order imposed a series of restrictions on Mr Thomas’ personal liberty.
Division 104 of the Code
The order was made pursuant to s 104.4 of the Code which states, in part:
(1) The issuing court may make an order under this section in relation to the person, but only if:
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, or received training from, a listed terrorist organisation; and
(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
Grounds for the Control Order
The Federal Magistrate was satisfied of these elements on the following grounds:
Mr Thomas had admitted training with Al Qa’ida in 2001, including undertaking weapons training involving the use of explosives and automatic weapons;
Al Qa’ida is a listed terrorist organisation under s 4A of the Criminal Code Regulations 2002 (Cth), made under the Criminal Code Act1995 (Cth);
there are good reasons to believe Mr Thomas is an available resource to Al Qa’ida and has the capacity to assist in the execution of terrorist acts; and
Mr Thomas is vulnerable on account of his wife’s links with extremists such as Abu Bakar Bashir from Jama Islamiah in Indonesia.
The control order required Mr Thomas to:
remain at his residence in Williamstown, a Western suburb of Melbourne, between midnight and 5:00am each day, unless he informs the Australian Federal Police of a change of address;
report to the police 3 times a week;
have his finger prints taken;
be prohibited from acquiring or manufacturing explosives;
refrain from communicating with certain named individuals (including Osama bin Laden); and
refrain from using certain communications technology.
Mr Thomas applied to the High Court to quash the order on the ground that Div 104 of the Code is unconstitutional because of the following:
the issuing of the order is not supported by any express or implied Commonwealth head of power (such as the defence power at s 51(vi));
it confers non-judicial power on a court in violation of the separation of powers enshrined in Chapter III of the Australian Constitution; or
if it confers judicial power on a court, its use is contrary the separation of powers enshrined in Chapter III of the Australian Constitution.
Is Div 104 of the Criminal Code Within Power?
The Court considered whether the defence power was a valid head of power for the enactment of Div 104 of the Code. This question concerns how the Court should characterise terrorism and terrorist acts and more broadly how the law should respond to terrorism.
Under s 51(vi) of the Australian Constitution, the Commonwealth has power to make laws with respect to:
“the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth.”
The plaintiff argued that the so called ‘defence power’ should be given a narrow interpretation and that it should be limited to conventional external conflicts between nation states. The majority rejected this argument and gave an expansive and purposive interpretation to the defence power.
Gleeson CJ said at , 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; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public.”
All other Justices, apart from Kirby J, agreed with the Chief Justice’s opinion. In accordance with this view, the threat of terrorism, although sometimes indiscriminate and unconventional, does pose a clear danger to the defence of the Commonwealth. According to the majority, terrorism and terrorist acts seek to inflict, through covert means, violence and destruction on the public at large, thereby undermining the security of the State and the legitimacy of the ruling government. According to this view, the defence power is an appropriate head of power to meet the threat of terrorism.
The Dissenting Opinion
In his Honour’s dissenting opinion, Kirby J rejected the view that the defence power could be used as a valid head of power to support Div 104 of the Code. Kirby J makes the distinction between threats to the bodies politic, whether internal or external, and threats to individual life and property. The former may support the use of the defence power while the later does not. Accordingly, his Honour states at :
“by its terms, that Division is not directed towards the protection of the bodies politic of the Commonwealth and the States. It is directed at the protection of people and of property within the bodies politic.”
This conception of terrorism necessarily brings Div 104 of the Code outside of power. Lacking any other valid head of power, it is therefore, unconstitutional.
In the age of terrorism, this may be considered to be a brave judgment. Having said that, Kirby J has gained a reputation for fearless dissent from the majority. Kirby J’s dissent may yet prove to be, in the words of Chief Justice Hughes of the US Supreme Court, “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”1
Does Div 104 of the Criminal Code breach the Separation of Powers?
The second fundamental issue to arise from the case is whether Div 104 of the Code offends against the separation of powers doctrine enshrined in the Constitution.2 It is well established constitutional law in Australia that judicial power may not be conferred on a non Ch III court,3 and that non-judicial powers may not be conferred on a Ch III court.4The question arises then, whether the issuing of control orders by a Ch III court is an impermissible exercise of a non-judicial power.
The Court considered the classic definition of judicial power provided by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead5. In that case, his Honour said:
"[T]he words 'judicial power' as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property."
Nonetheless, the nature of judicial power is not always so clear cut. The current controversy arises from the fact that control orders are largely preventative in character. That is, the order is not based on what a person has done, but rather what a person could probably do. In relation to the preventative nature of control orders, his Honour Gleeson CJ said at :
“that is not only the purpose of the legislation generally, it is the purpose to which the control order must be directed, and with which it must conform.”
If control orders are concerned with preventing future behaviour, it is conceivable that what is actually occurring is not the exercise of judicial power at all but rather the creation of future rights and obligations, which is more akin to the legislative or executive, rather than the judicial power of the Commonwealth. Therefore, Mr Thomas argued that control orders breached the separation of powers doctrine and should be struck down as unconstitutional.6
The majority rejected this argument. The majority held that the nature of control orders was not exceptional. Courts are often called upon to make orders for the prevention of apprehended violence and to exercise other coercive powers. Gummow and Crennan JJ said at :
“In assessing whether the courts have adequate legal standards or criteria "for the purpose of protecting the public from a terrorist act" it is relevant to note, not only that a judicial procedure has been laid down, but also that the orders which may be made are a familiar part of judicial power to make orders restraining the liberty of the subject, for the purposes of keeping the peace or preserving property. Orders, which are not orders for punishment following conviction, but which involve restraints upon the person to whom they are directed, can be made after a judicial assessment of a future risk.’”
The majority expressed a preference for judicial oversight in the issuing of control orders, thereby taking an active interest and role in the exercise of coercive powers to fight the threat of terrorism. This is a pragmatic view of judicial power that demonstrates a willingness on the part of the High Court to provide oversight and sometimes exercise coercive powers that are not typically exercised by courts, despite concerns expressed regarding the separation of powers.
The Dissenting Opinion.
Kirby and Hayne JJ each delivered dissenting opinions on this issue. Kirby J’s judgement was noted for its attack on the majority of the Court and was widely reported in the media. His Honour accused the majority of being “rubber stamps for the assertions of officers of the Executive Government,”7 and their decision as being “another instance of the constitutional era of laissez faire through which the Court is presently passing“.8
Kirby J’s objections to the constitutional validity of control orders spring from what his Honour perceives as the conferral of executive and legislative power on Ch III courts by Div 104 of the Code. His Honour contends that: 
“the role of determining what is necessary for the protection of the public from a terrorist act, where that is the sole consideration, is atypical of the functions reposed in courts.”
The argument here is that Div 104 of the Code requires the creation of rights and liabilities by the judiciary according to ill defined standards and tests that are more common to the legislature than the judiciary.
At  Kirby J argues that:
“control orders undoubtedly impinge upon the basic rights to liberty of those made subject to them. This Court's duty under the Constitution is to guard against unwarranted departures from fundamental rights and freedoms which the Constitution and applicable law defend. Yet Div 104, in its present form, undermines the judicial power of the Commonwealth by attempting to deploy federal judges upon tasks that are non normative and that are performed in accordance with procedures that seriously depart from the basic rights normal to judicial process.”
Justice Kirby’s appeal to fundamental rights finds support in the recent United States Supreme Court case of Hamdan v Rumsfeld.9 His Honour points to the role the Supreme Court has played in upholding the requirements for a regularly constituted court to try enemy non-combatants under Art 75 of Protocol 1 to the Geneva Convention. In the Hamdan case, four of the Justices held that Art 75 of Protocol I to the Geneva Conventions should be regarded by the United States "'as an articulation of safeguards to which all persons in the hands of an enemy are entitled'"10. According to Kirby J:
“the detainees at Guantanamo Bay could expect therefore to enjoy the rights of an accused to be present at their trial and to be privy to all the evidence against them. Equivalent rights are not extended to those individuals in Australia like the plaintiff made subject to interim control orders under Div 104. Such orders may deprive those individuals of their liberty or seriously restrict it despite the absence of any proved or even alleged criminal wrongdoing and without any attention being directed to their past actions.”
Justice Kirby added at  that:
“In the face of contemporary dangers from terrorism, it is essential that this Court should insist on the steady observance of settled constitutional principles. It should demand adherence to the established rules governing the validity of federal laws and the deployment of federal courts in applying such laws. It should reject legal and constitutional exceptionalism. Unless this Court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia.”
Justice Hayne considered that Div 104 of the Code purported to confer judicial power on federal courts when what was really conferred was executive power. His Honour noted the lack of criteria to be applied in deciding whether an interim control order should be granted by an issuing court. At , Justice Hayne said:
“The impugned provisions offer no legal standard against which an application for a control order is to be judged.”
His Honour considered at  that a court:
“… is necessarily left to decide the case according to nothing more definite then its prognostication about the order’s achieving, or tending to achievement of, “the purpose of protecting the public from a terrorist act.”
Their Honour’s dissenting judgments are an appeal to a strict separation of powers between the legislative, judicial and executive branches of government, and a call for fundamental common law rights to be protected by the courts. The benefits of such an approach are obvious - liberties will be preserved and the judiciary will maintain its independence in the eyes of the public, thereby enhancing its prestige and authority.
Consider, however, what may be lost from such an approach. By retreating from these difficult issues and insisting on a strict separation of powers the judiciary may potentially be abdicating its role in the supervision and control of the exercise of coercive powers by the executive, at a time when events are rapidly developing and the executive is under pressure to respond. Should the courts adjust as well? That is a difficult question, but one which must be answered by resort to traditional methods of constitutional interpretation.
Reactions to the judgement in Australian have been predictably mixed.
In some quarters the majority judgments has been praised for “adapting constitutional interpretation to the exigencies of the times.”11
Likewise, Justice Kirby was criticised for “clos[sing] his eyes to the changed world in which we live.”12
On the other hand, the significance of the majority judgment for the extension of government power was widely reported. More moderate commentators have remarked that the “verdict is the first time the High Court has condoned an extension of state power outside a time of war, and reflects an acceptance by the majority bench of extraordinary government powers to combat what the Commonwealth described as a ‘new and evil’ threat to Western civilisation.”13
Of course there was also a good deal of hysteria generated by the judgements and Justice Kirby’s dissenting judgement in particular. His Honour was variously accused of being a “poster boy for civil libertarians”, “hilarious”, a “hypocrite”, and “a loving man” – and that was only one article.14
It is interesting to note that only recently, the control order has been lifted from Mr Thomas and a more relaxed regime of reporting agreed between the parties.15
The Thomas case raises in sharp focus for the first time in Australia, in the context of the war on terror, how far traditional methods of law enforcement can be altered to cope with the new challenges presented by an enemy which knows no uniform and no boundaries. The role of the courts in upholding the freedoms and civil liberties we hold dear, while responding appropriately to this new threat, is of central importance for the proper function of our system of democratic government. That is a principle that we cannot abandon and should safeguard in these difficult times.
2 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
3 Ibid. See, the first limb of the decision.
4 Ibid. See the second limb of the decision, generally considered to be less sound than the first limb.
5 (1909) 8 CLR 330 at 357, quoted in Thomas v Mowbray  HCA 33 per Kirby J at .
6 See Thomas v Mowbray  HCA 33 per Gleeson CJ at  for a summary of the plaintiff’s arguments.
7 Thomas v Mowbray  HCA 33 per Kirby J at .
8 Ibid, .
9 165 L. Ed. 2d 723, cited in Thomas v Mowbray  HCA 33 per Kirby J at .
10 Hamdanv Rumsfeld 165 L Ed 2d 723 at 779 (2006) per Stevens J (joined by Souter, Ginsburg and Breyer JJ), citing Taft, "The Law of Armed Conflict After 9/11: Some Salient Features", (2003) 28 Yale Journal of International Law 319 at 322.