- Jack Thomas (known in the media as “Jihad Jack”) was the first person to be convicted under Australia’s (at the time) new anti-terrorist laws (Anti‑Terrorism Act [No 2] 2005 (Cth)).
- An interim control order was placed upon him by the Federal Magistrates Court.
- In order to grant an interim control order, section 104.4(1)(c) required that:
- (i) ‘making the order would substantially assist in preventing a terrorist act’; or
- (ii) ‘that the person [subject to the order] has provided training to, or received training from, a listed terrorist organisation’.
- The Federal Magistrate, Graham Mowbray, granted the order after an ex parte hearing at which he found that both of the available grounds in section 104.4(1)(c) were made out — that making the order would ‘substantially assist’ in preventing the occurrence of a terrorist attack and also that Thomas had received training from Al Qaeda during time spent in Afghanistan in 2001.
- Thomas appealed to the High Court, arguing that the law was invalid based on the following three grounds:
- conferral on a federal court of non‑judicial power is contrary to Chapter III of the Constitution;
- in so far as the Division confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III; and
- an absence of express or implied legislative power.
- The High Court majority of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ held that the laws providing for the issuing of interim control orders were valid.
- The High Court found that section 51(vi) of the Constitution (the defence power) allowed for laws to be made to combat internal threats to Australia, as well as external.
- The Court rejected Mr Thomas’s argument that the characteristics of control orders meant that the power to make them was exclusively legislative or executive and not judicial and so could not be conferred on a court.
- The Court held that the interim control order provisions provided for or assumed all the usual indicia of the exercise of judicial power (e.g., evidence, legal representation, cross-examination, the application of law to facts etc.). Parliament’s selection of the balance of probabilities as the appropriate standard of proof was consistent with Chapter III.
“The power to restrict or interfere with a person’s liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislatively, or only administratively.”
(Gleeson CJ at )
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