Thomas v Mowbray
Encyclopedia
Thomas v Mowbray [2007] HCA 33, was a decision handed down in the High Court of Australia
on 2 August 2007 concerning the validity of Subdivision B of Division 104 of the Commonwealth Criminal Code, which allows the for imposition of "interim control orders". The case was brought by Joseph Terrence Thomas (referred to as "Jihad" Jack Thomas by the media), where he sought to challenge the interim control order that had been placed on him by a Federal Magistrate. The High Court ruled, by a 5:2 majority, that interim control orders were not unconstitutional.
. He was sentenced on 31 March 2006 to five years prison with a non-parole period of two years. The trial was highly controversial, as the evidence used to prosecute Thomas consisted solely of an interview conducted in a Pakistani military prison. Despite claims that the evidence was obtained under duress and that Thomas had been tortured, the judge deemed the interview to be admissible. The conviction was overturned on appeal by the Victorian Court of Appeal
in the case of R v Thomas
, with the appeals judges ruling that the trial judge should have ruled the evidence inadmissible.
On 27 August 2006, the Federal Magistrates Court (constituted by the first defendant) placed Thomas on an interim control order. The Court's order was made on the following grounds:
The order placed the following restrictions on Thomas:
Prior to the Federal Magistrates Court confirming the interim order, i.e. making it permanent, Thomas commenced his special case in the High Court. He joined the magistrate, the Australia Federal Police officer that brought the application for the control order and the Commonwealth as defendants in the action. The Attorneys-General for New South Wales
, South Australia
and Western Australia
intervened, largely in support of the Commonwealth. The Federal Magistrates Court proceedings were, therefore, adjourned by consent of the parties.
The special case that eventually came before the High Court posed the following four questions for the Court's consideration:
Q1 #Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer
Q2 #Is Division 104 of the Criminal Code invalid because insofar as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
Q3 Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer
Q4 #Who should pay the costs of the special case?
A The plaintiff should pay the costs of the Commonwealth of the special case.
His appeal was therefore dismissed, and the interim control order upheld.
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 2 August 2007 concerning the validity of Subdivision B of Division 104 of the Commonwealth Criminal Code, which allows the for imposition of "interim control orders". The case was brought by Joseph Terrence Thomas (referred to as "Jihad" Jack Thomas by the media), where he sought to challenge the interim control order that had been placed on him by a Federal Magistrate. The High Court ruled, by a 5:2 majority, that interim control orders were not unconstitutional.
Background facts
Thomas had been the first Australian to be convicted under anti-terrorism laws introduced in Australia after the 11 September 2001 attacks in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. He was sentenced on 31 March 2006 to five years prison with a non-parole period of two years. The trial was highly controversial, as the evidence used to prosecute Thomas consisted solely of an interview conducted in a Pakistani military prison. Despite claims that the evidence was obtained under duress and that Thomas had been tortured, the judge deemed the interview to be admissible. The conviction was overturned on appeal by the Victorian Court of Appeal
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
in the case of R v Thomas
R v Thomas
R v Thomas was an Australian court case decided in the Victorian Court of Appeal on 18 August 2006. It concerned the conviction in February 2006 of Joseph Thomas on terrorism-related charges, specifically receiving funds from Al Qaeda...
, with the appeals judges ruling that the trial judge should have ruled the evidence inadmissible.
On 27 August 2006, the Federal Magistrates Court (constituted by the first defendant) placed Thomas on an interim control order. The Court's order was made on the following grounds:
- Mr Thomas has admitted that he trained with Al Qa'ida in 2001. Al Qa'ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code Act 1995 . Mr Thomas also admitted that while at the Al Qa'ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons.
- There are good reasons to believe that given Mr Thomas has received training with Al Qa'ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa'ida or related terrorist cells. Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.
- Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community. Mr Thomas's links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas's vulnerabilities.
- Furthermore, the mere fact that Mr Thomas has trained in Al Qa'ida training camps, and associated with senior Al Qa'ida figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.
- The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas's knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.
The order placed the following restrictions on Thomas:
- He must abide by a curfewCurfewA curfew is an order specifying a time after which certain regulations apply. Examples:# An order by a government for certain persons to return home daily before a certain time...
, confining him to his home from midnight until 5am each morning. - He is restricted in the phone services he is allowed to operate (one mobile phone, one land line) and must have these approved by the Australian Federal PoliceAustralian Federal PoliceThe Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
. He is prohibited from using public pay phones. - He is required to seek written approval to make telephone calls.
- He is not to communicate with a list of persons identified as terrorists including Osama bin LadenOsama bin LadenOsama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
, Ayman al-ZawahiriAyman al-ZawahiriAyman Mohammed Rabie al-Zawahiri is an Egyptian physician, Islamic theologian and current leader of al-Qaeda. He was previously the second and last "emir" of the Egyptian Islamic Jihad, having succeeded Abbud al-Zumar in the latter role when Egyptian authorities sentenced al-Zumar to life...
and Abu Musab al-ZarqawiAbu Musab al-ZarqawiAbu Musab al-Zarqawi ; October 30, 1966 – June 7, 2006), born Ahmad Fadeel al-Nazal al-Khalayleh was a Jordanian militant Islamist who ran a paramilitary training camp in Afghanistan... - He must agree to be fingerprinted.
- He must not leave Australia.
Prior to the Federal Magistrates Court confirming the interim order, i.e. making it permanent, Thomas commenced his special case in the High Court. He joined the magistrate, the Australia Federal Police officer that brought the application for the control order and the Commonwealth as defendants in the action. The Attorneys-General for New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
, South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
and Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
intervened, largely in support of the Commonwealth. The Federal Magistrates Court proceedings were, therefore, adjourned by consent of the parties.
The special case that eventually came before the High Court posed the following four questions for the Court's consideration:
Q1 #Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer
Q2 #Is Division 104 of the Criminal Code invalid because insofar as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
Q3 Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer
Q4 #Who should pay the costs of the special case?
A The plaintiff should pay the costs of the Commonwealth of the special case.
His appeal was therefore dismissed, and the interim control order upheld.