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''Thomas v Mowbray'', was a decision handed of the
High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
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 Counterterrorism (alternatively spelled: counter-terrorism), also known as anti-terrorism, relates to the practices, military tactics, techniques, and strategies that governments, law enforcement, businesses, and intelligence agencies use to co ...
laws introduced in Australia after the
11 September 2001 attacks The September 11 attacks, also known as 9/11, were four coordinated Islamist terrorist suicide attacks by al-Qaeda against the United States in 2001. Nineteen terrorists hijacked four commercial airliners, crashing the first two into ...
in the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
.Thomas convicted under terror laws
The Age ''The Age'' is a daily newspaper in Melbourne, Australia, that has been published since 1854. Owned and published by Nine Entertainment, ''The Age'' primarily serves Victoria (Australia), Victoria, but copies also sell in Tasmania, the Austral ...
, 26 February 2006
He was sentenced on 31 March 2006 to five years prison with a non-parole period of two years.Thomas sentenced under terror laws
News.com.au, 31 March 2006
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: *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
curfew A curfew is an order that imposes certain regulations during specified hours. Typically, curfews order all people affected by them to remain indoors during the evening and nighttime hours. Such an order is most often issued by public authorit ...
, 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 Police The Australian Federal Police (AFP) is the principal Federal police, federal law enforcement agency of the Australian Government responsible for investigating Crime in Australia, crime and protecting the national security of the Commonwealth ...
. 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 Laden Osama bin Laden (10 March 19572 May 2011) was a militant leader who was the founder and first general emir of al-Qaeda. Ideologically a pan-Islamist, Bin Laden participated in the Afghan ''mujahideen'' against the Soviet Union, and support ...
,
Ayman al-Zawahiri Ayman Mohammed Rabie al-Zawahiri (; 19 June 195131 July 2022) was an Egyptian-born pan-Islamism, pan-Islamist militant and physician who served as the second general emir of al-Qaeda from June 2011 until Killing of Ayman al-Zawahiri, his dea ...
and
Abu Musab al-Zarqawi Abu Musab al-Zarqawi (; , "Father of Musab, of Zarqa"; October 30, 1966 – June 7, 2006), born Ahmad Fadeel Nazal al-Khalayleh (), was a Jordanian militant jihadist who ran a training camp in Afghanistan. He became known after going to Iraq a ...
* He must agree to be fingerprinted. * He must not leave Australia.


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 The Australian Federal Police (AFP) is the principal Federal police, federal law enforcement agency of the Australian Government responsible for investigating Crime in Australia, crime and protecting the national security of the Commonwealth ...
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 (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...
,
South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. With a total land area of , it is the fourth-largest of Australia's states and territories by area, which in ...
and
Western Australia Western Australia (WA) is the westernmost state of Australia. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Aust ...
intervened, largely in support of the Commonwealth. per Gummow & Crennan JJ at 7 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.


References

{{reflist, 30em High Court of Australia cases Australian constitutional law Defence power in the Australian Constitution cases 2007 in Australian law 2007 in case law