Thomas v Mowbray: Australia's "war on terror" reaches the High Court

• Andrew Lynch
• Melbourne University Law Review

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22 June 2009The High Court of Australia’s 2007 decision that interim control orders were not unconstitutional in Thomas v Mowbray is important in two distinct senses. First, the case concerned constitutional powers and limitations which are either infrequently considered (in particular, the Commonwealth’s legislative power with respect to defence) or subject to regular uncertainty (crucially, the abstractions which have accumulated around the constitutionally implied separation of judicial power). Secondly, the case presented yet another opportunity for the Court to reflect upon the deeper ramifications of preventative justice, but the first occasion on which this squarely intersected with the pure judicial power of the federal court system. Not only is this a matter of constitutional significance, but it also poses challenging policy questions as to the role which the judicial arm is best positioned to play under a substantial body of law based upon the pre-emptive restriction of individual liberty and developed since the terrorist attacks of 11 September 2001.

[from Wikipedia] 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.