Thomas v Mowbray and the State of Exception

“Jihad” Jack Thomas

I’ve been meaning for ages to write about the High Court’s 2007 decision in Thomas v Mowbray, in fact ever since it was handed down.

Complex constitutional decisions are really difficult to write about in a way that’s accessible and interesting to a general audience.  Thomas v Mowbray, however, is one that’s worth the effort. It’s a key decision on the evolving nature of the High Court’s attitude to judicial power and separation of powers, not to mention the defence power (section 51(vi) of the Commonwealth Constitution, and also says interesting things about the external affairs power (51(xxix) and reference of State powers (51(xxxvii).

Fortunately, rewriting my lecture notes on judicial power for first year undergraduate LLB students over the last few weeks has provided the spur to spin off a blog post that with a bit of luck might be readable.

Judicial power and separation of powers

Thomas v Mowbray illustrates the tensions inherent in drawing a workable dividing line between powers and functions that may be performed judicially and those that are too political or policy-oriented.  The case concerned the constitutional validity of a federal law creating a regime of “control orders” imposing restrictions on the liberties of persons suspected of possible future involvement in international terrorism (but who had not yet committed any offence).  The task of deciding whether to impose a control order on a particular person is performed by federal judges under the new Div 104 of the Criminal Code (Cth) inserted following various terrorist act (e.g. 9/11 and the Bali bombings).  “Jihad” Jack Thomas had received money from Al Qaeda in Afghanistan supposedly to form a terrorist cell in Australia, but had had second thoughts and not in fact done so.  Federal authorities sought and obtained a control order against him after they failed to obtain a conviction for various offences in court (the evidence was tainted through having been extracted while Thomas was under detention in Pakistan and possibly subject to threat of torture).  

One can certainly mount a persuasive argument that someone like Thomas warrants supervision and significant restrictions on his liberty just in case he was only pretending to have changed his mind about starting a terrorist cell in Australia.  However, is this a proper task for a federal judge as an aspect of judicial power? 

First, it involves assessing future risk rather than adjudicating on the legality of past conduct (which is what judicial power normally involves).  

Secondly, the criteria for issue of a control order under the legislation are extraordinarily vague, whereas judicial power normally involves application of rather more determinate, objective criteria (although my old University of Sydney jurispudence lecturer Professor Julius Stone famously referred to such seemingly objective criteria as “categories of illusory reference”). 

 The majority in Thomas v Mowbray had little difficulty in concluding that this was nevertheless an appropriate subject for conferral on federal judges as judicial power.  It’s easy in a sense to see why they strove to do so.  Someone needs to have the power to issue such orders given the severe threat of catastrophic terrorism events, and all things being equal it’s better for an independent, impartial judge trained in evaluating evidence to do so rather than some official of the executive government.  The majority took the view that, although the factors bearing on issue of a control order were expressed in very vague terms in the Code, federal judges would be able to approach the task according to the “skills and professional habits” of the judicial branch of government and would “develop and elaborate criteria regulating the discretion” which would convert this vague, amorphous task into a proper judicial function.  

However, Kirby and Hayne JJ wrote powerful dissenting judgments on this point.  As Hayne J argued (having reviewed the authorities on the nature of judicial power):

It is with these principles in mind that the impugned provisions must be examined. That examination will show that the impugned provisions have a number of features common to many forms of the exercise of judicial power. There is the giving of the power to courts, the requirement to find facts, the specification of a standard of proof, the articulation of the connection that is to be drawn between premise and conclusion using terms familiar to judges and lawyers (“reasonably necessary” and “appropriate and adapted”). But what sets the impugned provisions apart from an exercise of judicial power is the indeterminacy of the criterion that the courts are required to apply – “for the purpose of protecting the public from a terrorist act”.

That criterion is unlike any that hitherto has been engaged in the exercise of judicial power. It is a criterion that does not call for the judicial formulation of standards of conduct or behaviour. It is a criterion that does not require the application of any familiar judicial measure of a kind found in fields as diverse as the law of tort (“reasonable”), matrimonial causes (“just and equitable” or “necessary … to do justice”), corporations law or related fields (“just and equitable”), regulation of contractual relations (“inequitable or unduly onerous”) or industrial relations (“oppressive, unreasonable or unjust”). It is a criterion that does not direct attention to whether an identified person is likely to offend against the criminal law if released from prison. It is a criterion that seeks to require federal courts to decide whether and how a particular order against a named person will achieve or tend to achieve a future consequence: by contributing to whatever may be the steps taken by the Executive, through police, security, and other agencies, to protect the public from a terrorist act. It is a criterion that would require a federal court to consider future consequences the occurrence of which depends upon work done by police and intelligence services that is not known and cannot be known or predicted by the court. …

What is of critical importance is that the focus of the statutory question for a court asked to make an interim control order is upon protecting the public from a terrorist act. What is the standard which is thus engaged?

A court deciding whether to grant an interim control order, and deciding how that order would be framed, would usually, perhaps inevitably, give close attention to what the evidence adduced reveals about what the person who is to be the subject of the order would do, or would be likely to do, if the order were not made. The Code does not require, however, that the court decide, or even consider, whether the conduct to be restrained would otherwise be lawful or not. The Code offers no legal standard of that kind as a standard against which threatened or intended conduct on the part of the person who is to be the subject of the order is to be measured. No question of antecedent right or liability is to be determined. Rather, the focus of the relevant provisions of the Code falls exclusively upon a future consequence: the order’s achieving, or tending to the achievement of, “the purpose of protecting the public from a terrorist act”.

The indeterminacy of the inquiry requires the conclusion that the task assigned to a federal court by s 104.4 is not the authority to decide a “matter”. The task assigned is not to exercise the judicial power of the Commonwealth.

However, if we accept that there is actually a need for some such powers given the reality and gravity of the threat of international terrorism (and I certainly do), you can run a convincing case that it’s better for a power like that to be exercised by independent, impartial judges trained in carefully and objectively weighing evidence, than by some faceless bureaucrat in the executive arm of government whose career in the Senior Executive Service rests on keeping his political masters happy (and by extension the voters who elect them) .  At the end of the day that’s the alternative, unless you believe that international terrorism is just a fiction or grossly exaggerated, in which case you would presumably feel completely relaxed about taking no precautions at all.  I’d prefer the precautionary principle given the gravity of potential harm, and I don’t feel comfortable with the political executive or its employees wielding that sort of power.  It’s always worth quoting JS Mill’s On Liberty in this context:

The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant society collectively, over the separate individuals who compose it its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

With all its faults, the judiciary is the obvious check to majoritarian tyranny, along with some carefully delimited bill of rights protections (but that’s another issue).  Accordingly, despite the eloquence of Kirby and Hayne JJ’s dissenting opinions, I feel pretty sanguine about the majority’s (unacknowledged) refashioning of the definition of judicial power to encompass federal judges supervising the issue of control orders against people suspected of plotting terrorist acts. Incidentally, and subject to suitable safeguards being included, I also don’t have a major problem with giving federal or state judges powers to proscribe criminal bikie gangs and impose similar restrictions on the liberty of members reasonably suspected of plotting major acts of violence and serious drug-dealing.

Defence power

The defence power argument in Thomas v Mowbray also raises finely balanced moral arguments.  The defence power has always been regarded as one whose scope waxes and wanes depending on whether Australia is at war.  Moreover, although there’s precedent for its use against purely domestic, non-military threats, those exceptions have always been seen as rare and narrow for obvious reasons of basic civil liberties.  The Communist Party Case, where the High Court rejected a Commonwealth argument that the defence power could be used in peacetime to prohibit a political party (albeit that elements of it preached violent revolution) is generally regarded as one of the Court’s finest moments, and yet some members of the Thomas v Mowbray majority seemed minded to overrule it or ‘distinguish’ it out of existence.   Justice Kirby put it like this:

With all respect, I do not accept that Latham CJ’s dissent in the Communist Party Case gains latter day authority because his political and diplomatic experience exceeded that of his colleagues. Dixon J too had very considerable diplomatic experience both during and after the War, working in wartime in close collaboration with Allied war leaders. He was to prove more aware of the lessons of history involving the misuse of executive powers. He also proved more capable of approaching the issue, as this Court should, as a legal and constitutional one – as guardian of the abiding values that lie at the heart of the Constitution.

The most eloquent explanation of the dangers of giving a broad interpretation to a potentially open-ended power like the defence power is provided by political philosopher Giorgio Agamben in State of Exception:

Because the sovereign power of the president is essentially grounded in the emergency linked to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was able to assume extraordinary powers to cope with the Great Depression by presenting his actions as those of a commander during a military campaign …

President Bush’s decision to refer to himself constantly as the “Commander in Chief of the Army” after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.

On this issue I agree with the Great Dissenter Kirby:

It may be accepted that, in certain instances, “terrorist acts”, as defined, could indeed threaten the bodies politic of the Commonwealth and the States, accepting that as the requisite criterion. The Commonwealth argued that the object of “terrorist acts” against the public, individuals and their property, was for the ultimate purpose of attacking and destroying the polity. According to this argument, targeting innocent civilians was intended to reduce popular support for the government, to create instability amongst the political parties, to threaten the economic sustainability of the country and, ultimately, to force the government either to change its policies or be overthrown. Depending on the evidence or matters proper to judicial notice, that might sometimes be the case. Nevertheless, Div 104 is not a properly calibrated law, drafted with the essential constitutional limitation provided by s 51(vi) in mind. Doubtless this was because, as drafted, Div 104 was expected to draw its constitutional validity from a referral of State powers – an attempt which was ventured but, as I would hold, has failed.

The defence power should not have been given the broad interpretation that the majority (indeed all except Kirby) embraced in Thomas v Mowbray. This was one of those matters where “hard cases make bad law”. The Court should have rejected the Commonwealth’s attempt to rely on the defence power, leaving the Commonwealth to negotiate a full referral of State powers adequate to support the “control orders” legislation (whose substance, I should stress, I support). Given the bipartisan nature of the terrorism debate, the Commonwealth would have had little difficulty renegotiating the referral of powers that had already been agreed (although some majority Justices thought the existing referral was sufficient in itself to support the law).

Readers who’ve made it this far are probably wondering why I’m labouring these points.  Well, the prevailing “State of Exception” mentality generated by September 11 evidently hasn’t receded or been limited to international terrorism.   Our Prime Minister shrilly denounces arty photos of naked teens and demands their banning, while his minions preside over moves to censor the Internet that must have our Communist Chinese trading partners smiling with awe-struck admiration.  Meanwhile, calls for widening of extreme laws against criminal bike gangs (see Gangs rally for legal challenge), and the probability of a renewed moral panic in the wake of the latest minor upsurge in “boat people” arrivals off northern Australia, seem certain to bring these questions back into sharp legal and political focus.

In case I haven’t made myself clear, my point is more nuanced than the tiresome left versus right dualism that pervades both the blogosphere and MSM.  Terrorism, criminal bikie gangs and people smuggling operations are entirely legitimate subjects for government concern and possibly legislative action.  However, they demand proportionate responses, and carefully considered checks and balances to reduce the risk of extraordinary powers being abused. Kneejerk populist political responses to media-fuelled moral panics don’t produce optimal or even workable laws or policies.