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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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John Greenfield
John Greenfield
12 years ago

My dear Kenneth, your attempt at “nuance”, while admirable, is both disingenuous and a dismal failure. The greatest threat to the separation of powers, and more alarmingly Australian democracy, is not the defence power, but the external affairs power.

And yet you bally-hoo the HC’s – or let’s be more honest, the legal academic “Public International Law” Luvvies – love of substituting this power for the tedium of the legislature and its slavish thrall to the baying, unwashed, racist, xenephobic, misogynist, Islamophobic (do I REALLY need to go on) wretched hoi polloi!

To wit, your view is just as Stepford, and offensive to all believers in democracy, as the bovine unnuanced rhetoric sermonised by all the other white, bourgeois, baby-boomer, academic, leftist male blogosphere.

I hope this helps.

12 years ago

“(do I REALLY need to go on)”

No John, you REALLY don’t. Unless you mean “go on Australia’s Vacuousest Blowhards Season 4 – The Quickening“, in which case on you go.

Great analysis Ken.

12 years ago

… legislature and its slavish thrall to the baying, unwashed, racist, xenephobic, misogynist, Islamophobic (do I REALLY need to go on) wretched hoi polloi!

You really surprised me, I was expecting the sentence to end with “Prime Minister”.

But seriously, Howard’s saber rattling was never popular with the Australian people (Howard admitted as much himself). Even after the Daily Terrorgraph had their splash of hate speech and the hollow rain of US propaganda fell into our TV set, people still called a spade a spade and they still knew an oil war when they saw one. It remains as important as ever for all parties concerned (particularly the younger generation) to be familiar with Herman Goering’s work…. Hmmm, I wonder if there’s scope for a video game on this topic?

John Greenfield
John Greenfield
12 years ago

Hitlary Charlesworth and the gang will be spitting chardonnay now that Australia has done the right in boycotting the abomination of Durban II. Of course her own business-class flights and those of the politburo – George Williams, the Aboriginal Industry and so – will not be affected one jot.,25197,25356427-601,00.html

12 years ago

Great analysis Ken. I am inspired to try and find time to read the actual opinion!

I think the question of ‘appropriate judicial function’ is a very important and difficult one. I think that here, I (almost? – it is difficult!) agree with Hayne and Kirby JJ(!). But your concerns about letting the public service exercise these functions are the obvious counterweight. I recall that at law school I tended to think that the judiciary should exercise this kind of role all the time, on the same analysis. That put me at odds with a fair number of High Court decisions!

Now I give greater weight to the judicial role, possibly too much so. Nonetheless, I am uncomfortable with this situation where as the minority point out, the Judge is almost required by the limited terms of his decision-making power to rubber-stamp a departmental decision.

Could some reasonable compromise be a quasi-judicial appointment? ie appoint someome requiring 60% approval by parliament for a fixed term exceeding the the maximum life of two consecutive parliaments? Even better, appoint a panel of three, with the actual consultee chosen by ballot each time?

12 years ago

I won’t pretend to have any understanding of constitutional law, but if the control orders can be justified at all (and I agree that it should not be with the defence power) then it must be on the basis of an apprehended crime and thus only the judiciary would be competent to impose the penalty, which clear the orders are.

Even with the terrorist threat I still find the whole idea disturbing. Bring on a proper bill of rights in the constitution. Let’s have the first to the nineth except the second and third. I’m not sure the 10th is necessary with our constitution, but put it in if it is not already covered. Oh, and get rid of external affairs as a basis for increasing the field of legislative authority.

12 years ago

Are you familiar, Pedro, with Gregory Wayne Kable or Garry David or that Veen guy?

12 years ago

“Are you familiar, Pedro, with Gregory Wayne Kable or Garry David or that Veen guy?”

Nope, who are they?

12 years ago

The first two are people who NSW and Vic legislatures respectively decided should be locked up indefinitely or in effect in perpetuity, to protect the community. The HCA said essentially that they could do this, but more to the point, that they could not ask a judge to authorise it (Ken will correct me if I am wrong!).

In other words they said that only a Judge would not be competent to impose a control order on the basis of apprehended crime, if I understand correctly.

Veen is a red herring, my memory played tricks on me. I had thought that he was also the subject of such an order (and perhaps he was later in life) but his High Court appearances were on sentencing.

I do however support a bill of rights along the lines you suggest.

You should note, however, that we already have two-thirds of the first amendment, partly implied partly express. Likewise with the fifth – all we really want from that is the due process clause, and the tenth. The fourth I have doubts about, the seventh I don’t think is helpful at all.

This would seem to suffice as additions:

1 Neither Parliament nor any State shall make any law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.
2 No person shall be deprived of life, liberty, or property, without due process of law.
3 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial before an impartial jury, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
4 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
5 The enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others, which are inherently retained by the people.

Religion (‘the establishment clause’ of the first amendment) and just terms (the ‘takings clause’ of another) are already in there.

12 years ago

I’ll comment only on the non-rights issues here given the new thread.

David died, so that was that. I had thought that Kable the specificity was a problem but my reading was that they also disapproved very strongly of the idea of judges making such prospective decisions. Fardon as I understand it differs in that the decision is essentially judicial: these are the facts and here is the consequence; slightly less so than a trial but slightly more so than an as-yet-unconvicted terrorist (although there are certainly conceivable cases which would be so open-and-shut, leaving aside the question of evidence).

Maybe I read too much into it (and I haven’t really read Fardon since it came out).

12 years ago

I should have thought Fardon was justified on the grounds of protection of the public from a dangerous criminal certain to reoffend.

12 years ago


Gregory Kable
11 years ago

Hi Friend, I just want to remind you that 911 was an inside job, done by the CIA and Mossad terrorist agents. Bali 2002, London 77, and on the train in Spain, were all false flag attacks by NATO allies and their spy agencies. Many people subscribe to this notion. You can view the short Youtube video: When False Falgs Don’t Fly.

The reason for that was NATO had pre war plans, committed pre emptive attacks on the Sovereign nations of Afghanistan and Iraq, where, they occupied, installed puppet governments, committed genocide, maiming, rendition, secret prisons, torture, murdered unarmed journalists trying to report the war crimes, and legislated draconian laws, like the US Patriot Act, and the Anti-terrorist ACT here in Australia. Those draconian laws were meant to be used to ‘validated’ alleged scapegoats for the Coalition of the Killing’s Resource Wars in the Middle East.

People like David Hicks and Jack Thomas were just two of those scapegoats.

So your argument that, “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.” Is quite wrong!

In relation to predictions and draconian laws.

Latest UN decision in Robert Fardon V QLD:

4) The “detention” of the author as a “prisoner” under the DPSOA was ordered because it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation. The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts. But psychiatry is not an exact science. The DPSOA, on the one hand, requires the Court to have regard to the opinion of psychiatric experts on future dangerousness but, on the other hand, requires the Court to make a finding of fact of dangerousness. While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise. To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of the author throughout the 14 years during which he was in prison.

You also say, “Someone needs to have the power to issue such orders given the severe threat of catastrophic terrorism.”

So what happens when governments do it? The false flags? I don’t know if you have heard of it but you can Google the short video: David Icke’s Problem Reaction Solution. The government false flags, blames the people they want to attack, for a call to arms,and creates the problem. The public react, then the government creates the solution, despotism.

One is a secret court, the other is reducing the standards of evidence. Then scapegoats and witches, can given a quick 20 years to life, for thought crimes. No crime at no place at no time. As well as seeking to control them with orders that take away their intrinsic rights.

The Australian government was complicit in committing war crimes against humanity. How can you trust them?

Date is now 2 August 2010

Google: Unknown News Casualties. These are the results on that site: Total injured in Afghanistan 48,644, Total injured in Iraq 1,673,138. Total killed in Afghanistan 19,180. Total killed in Iraq 890,501. NATO rocket fire last week killed more than 50 civilians, largely women and children, in the Sangin district of Helmand Province. The attack was one of the worst since the May 2009 Gerani air strike, in neighboring Farah province, which killed 140 civilians, including 93 children and 28 women.

Mike Pepperday
Mike Pepperday
9 years ago

Educated concern for an alleged “tyranny of the majority” is invariably supported by quoting JS Mill. Why? Why call on this 19C philosopher? Quoting authority is not evidence.

Why not give some actual evidence? Why not list some of the tyrannical oppressions meted out by referendums?

Because there aren’t any. Round the world, thousands of state and national referendums have been held. The tyranny of the majority is a myth. By comparison, the tyrannies of legislatures (and judges) are countless.

There may have been some municipal referendums that were discriminatory. But they are nothing compared with the oppressions of elected councils.

“…the judiciary is the obvious check to majoritarian tyranny…”

Obvious? In the least oppressive country, the country with the legendary record of freedom, national referendums are held at the rate of about 8 a year. (Canton and municipal referendums are on top of that.) The federal constitutional court may say nothing about the constitutionality of any federal law, whether passed by parliament or by the people at referendum. Not only is there no recourse to the court, but the court may offer no criticism of any federal law.

This system has been in operation for upwards of 160 years. I would say Switzerland has solved the real problem, the problem that has been with society from the beginning of time: tyranny of the minority.