Thomas v Mowbray

Thomas v Mowbray, was a decision handed of the High Court of Australia on 2 August 2007 concerning the constitutional validity of "interim control orders" under the Commonwealth "Criminal Code". 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 constitutional.
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 States. 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:
High Court judgment.
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 Australian 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.