Lynch, Andrew --- "Thomas v Mowbray: Australia's 'War on Terror' Reaches the High Court" [2008] MelbULawRw 37; (2008) 32(3) Melbourne University Law Review 1182
[*] [2007] HCA 33; (2007) 233 CLR 307 (‘Thomas’).
[†] LLB (Hons), LLM (QUT), PhD (UNSW); Associate Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, The University of New South Wales.
[1] [2007] HCA 33; (2007) 233 CLR 307.
[3] Constitution s 51(xxxvii).
[5] [1951] HCA 5; (1951) 83 CLR 1.
[6] For a thorough discussion of this process, including the relevant Senate Committee inquiry, see Greg Carne, ‘Prevent, Detain, Control and Order?: Legislative Process and Executive Outcomes in Enacting the Anti-Terrorism Act (No 2) 2005 (Cth)’ [2007] FlinJlLawRfm 2; (2007) 10 Flinders Journal of Law Reform 17, 26–32, 43–64. Additionally, the parliamentary debate and Senate Committee inquiry must be understood against the backdrop of parts of the original Bill having been broken away and separately enacted as an urgent response to an ‘imminent terrorist threat’: see Andrew Lynch, ‘Legislating with Urgency — The Enactment of the Anti-Terrorism Act [No 1] 2005’ [2006] MelbULawRw 24; (2006) 30 Melbourne University Law Review 747.
[7] Other than Jack Thomas, only David Hicks has been issued with a control order: Jabbour v Hicks [2007] FMCA 2139; (2007) 215 FLR 454; Jabbour v Hicks [2008] FMCA 178 (Unreported, Donald FM, 19 February 2008).
[8] One important distinction is that the Australian law has nothing equivalent to s 8 of the United Kingdom’s Prevention of Terrorism Act 2005 (UK) c 2, which requires that when deciding to make the order the Secretary of State must consider, and a Control Order Review Group must subsequently monitor, whether the subject of an order could be criminally prosecuted instead.
[9] Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, ss 21(1), 23.
[10] Opened for signature 4 November 1950, 213 UNTS 222, arts 5, 14 (entered into force 3 September 1953).
[11] A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (‘Belmarsh Case’).
[12] Under s 4(6) of the Human Rights Act 1998 (UK) c 2, legislation remains in force notwithstanding a declaration of incompatibility, though so far every declaration has been responded to by the government by remedying the defect so as to ensure compatibility with the Convention rights: Helen Fenwick, Civil Liberties and Human Rights (4th ed, 2007) 201–2.
[13] See Clive Walker, ‘Keeping Control of Terrorists without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1407.
[14] See further Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post-Charge Questioning, House of Lords Paper No 157, House of Commons Paper No 394, Session 2006–07 (2007) 31–45. See also ibid 1430–2.
[15] Criminal Code s 104.1. The expression ‘terrorist act’ is given a lengthy, multi-partite definition in s 100.1 of the Criminal Code.
[16] Prevention of Terrorism Act 2005 (UK) c 2, s 1(4).
[17] Criminal Code s 104.5(3).
[18] Criminal Code s 104.5(3).
[19] Conor Gearty has noted the aversion by legislatures to the employment of the term ‘house arrest’ in relation to provisions which clearly enable this. As he infers, this must be to soften the unease surrounding the introduction of ‘a form of coercion that … was surely thought incapable of being used in a modern democratic state’: Conor Gearty, Can Human Rights Survive? (2006) 103.
[20] Criminal Code s 104.27.
[21] Criminal Code s 104.2(1).
[22] The Commonwealth Attorney-General maintains a list of proscribed terrorist organisations (of which there are currently 18) from which various criminal offences arise, such as membership, support or association with such organisations: Criminal Code div 102.
[23] Criminal Code s 104.4(1)(d).
[24] Criminal Code s 104.4(2).
[25] Criminal Code s 104.5(1)(h).
[26] Criminal Code ss 104.5(1)(e), (1A).
[27] Thomas [2007] HCA 33; (2007) 233 CLR 307, 336 (Gummow and Crennan JJ).
[28] Julia Medew, ‘Federal Court Lifts “Terror” Restrictions on Jack Thomas’, The Age (Melbourne), 24 August 2007, 5.
[29] See further Andrew Lynch and George Williams, What Price Security? Taking Stock of Australia’s Anti-Terrorism Laws (2006) 45–6.
[30] Thomas [2007] HCA 33; (2007) 233 CLR 307, 335 (Gleeson CJ), 366 (Gummow and Crennan JJ), 511 (Callinan J), 526 (Heydon J).
[31] Cf ibid 342 (Gummow and Crennan JJ).
[32] [2006] FMCA 1286; (2006) 165 A Crim R 32.
[33] Criminal Code s 102.7(1).
[34] Thomas was originally convicted under Criminal Code s 102.6(1) (intentionally receiving funds from a terrorist organisation) and Passports Act 1938 (Cth) s 9A(1)(e) (possession of a falsified passport): DPP (Cth) v Thomas [2006] VSC 120 (Unreported, Cummins J, 31 March 2006).
[35] R v Thomas [2006] VSCA 165; (2006) 14 VR 475. This decision and the various public reactions to it are considered in Andrew Lynch, ‘Maximising the Drama: “Jihad Jack”, the Court of Appeal and the Australian Media’ [2006] AdelLawRw 9; (2006) 27 Adelaide Law Review 311.
[36] Jabbour v Thomas [2006] FMCA 1286; (2006) 165 A Crim R 32, 38 (Mowbray FM).
[37] Lord Carlile of Berriew, Third Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, Cm 7367 (2008) 17.
[38] See Andrew Lynch and Alexander Reilly, ‘The Constitutional Validity of Terrorism Orders of Control and Preventative Detention’ [2007] FlinJlLawRfm 4; (2007) 10 Flinders Journal of Law Reform 105; Michael McHugh, ‘Constitutional Implications of Terrorism Legislation’ (2007) 8 Judicial Review 189, 203–4.
[39] Lynch, ‘Maximising the Drama’, above n 35, 318–21.
[40] Jabbour v Thomas [2006] FMCA 1286; (2006) 165 A Crim R 32, 34.
[41] Lucia Zedner, ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (2007) 257, 265. See also Fenwick, above n 12, 1340–2.
[42] DPP (Cth) v Thomas [2006] VSC 120 (Unreported, Cummins J, 31 March 2006) [5].
[43] Criminal Code s 104.4(1)(d).
[44] Jabbour v Thomas [2006] FMCA 1286; (2006) 165 A Crim R 32, 43–6 (Mowbray FM).
[45] Ibid 39.
[46] Ian Munro and Mark Forbes, ‘Magistrate Slams “Farcical” Ban on Bin Laden’, The Age (Melbourne), 1 September 2006, 5; Natasha Robinson, ‘Ban on Bin Laden Contacts Just “Silly”’, The Australian (Sydney), 1 September 2006, 6.
[47] The power is granted with respect to ‘the naval and military defence of the Commonwealth and of the several states, and the control of the forces to execute and maintain the laws of the Commonwealth’: Constitution s 51(vi).
[48] Carl von Clausewitz, On War (J J Graham trans, first published 1832, 1873 ed) 1–13 [trans of: Vom Kriege].
[49] Thomas v Mowbray [2006] HCATrans 660 (Hayne J, 5 December 2006).
[50] Thomas [2007] HCA 33; (2007) 233 CLR 307, 452.
[51] [1951] HCA 5; (1951) 83 CLR 1, 194 (Dixon J).
[52] Ibid 259 (Fullagar J).
[53] Thomas [2007] HCA 33; (2007) 233 CLR 307, 360–2.
[54] Ibid 457–9.
[55] Ibid 503.
[56] Ibid 504.
[57] Ibid 505, cf 393, 442–3 (Kirby J). This part of Callinan J’s opinion echoes many of the comments he made in his delivery of the Sir John Latham Memorial Lecture on 3 May 2005: I D F Callinan, ‘International Law and Australian Sovereignty’ (2005) 49(7) Quadrant 9, 9–11.
[58] Thomas [2007] HCA 33; (2007) 233 CLR 307, 511.
[59] See Geoffrey Lindell, ‘The Scope of the Defence and Other Powers in the Light of Thomas v Mowbray’ (2008) 10 Constitutional Law and Policy Review 42, 46.
[60] David Dyzenhaus and Raynor Thwaites, ‘Legality and Emergency — The Judiciary in a Time of Terror’ in Andrew Lynch, Edwina MacDonald and George Williams (eds), Law and Liberty in the War on Terror (2007) 9, 23.
[62] Thomas [2007] HCA 33; (2007) 233 CLR 307, 363 (Gummow and Crennan JJ).
[63] Ibid 361–3.
[64] Ibid 504.
[65] Ibid 458.
[66] Ibid 396.
[67] Thomas v Mowbray [2007] HCATrans 76 (David Bennett QC, 20 February 2007).
[68] Thomas [2007] HCA 33; (2007) 233 CLR 307, 395.
[69] Ibid.
[70] Criminal Code s 104.1.
[71] Thomas [2007] HCA 33; (2007) 233 CLR 307, 338.
[72] Ibid 363. Gleeson CJ and Callinan J did no more than lay out the definition in s 100.1.
[73] Ibid 449–52. See also von Clausewitz, above n 48, 12.
[74] Thomas [2007] HCA 33; (2007) 233 CLR 307, 401–2.
[75] This seems a preferable distinction to that proposed by Ben Saul (with whose analysis of the Court’s discussion of the defence power I am otherwise in general agreement) based instead upon ‘the scale, gravity, severity or quantum of harm or anticipated harm’: Ben Saul, ‘Terrorism as Crime or War: Militarising Crime and Disrupting the Constitutional Settlement? Comment on Thomas v Mowbray’ (2008) 19 Public Law Review 20, 27. Those criteria seem unhelpfully vague — both inherently so, but also particularly as a yardstick for the validity of legislation aimed at preventing future and unknowable acts of terrorist violence.
[76] Thomas v Mowbray [2007] HCATrans 76 (20 February 2007).
[77] Thomas v Mowbray [2007] HCATrans 78 (Callinan J, 21 February 2007).
[78] Ibid (Ron Merkel QC, 21 February 2007).
[79] Ibid (Callinan J, 21 February 2007).
[80] Thomas v Mowbray [2007] HCATrans 76 (David Bennett QC, 20 February 2007).
[81] Thomas [2007] HCA 33; (2007) 233 CLR 307, 525, cf 398–9 (Kirby J).
[82] Ibid 487–92.
[83] Ibid 511–25.
[84] Ibid 446.
[85] Ibid 350.
[86] ‘[T]he idea that the way to deal with the challenges to the West sharpened by the events of 9/11 is by waging a “war on terror” was from the beginning, and is ever more, preposterous’: Dyzenhaus and Thwaites, above n 60, 9.
[87] For a recent analysis of the foreign and domestic costs in the context of the United States, which has led the charge on both these fronts, see David Cole and Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror (2007); Stephen Holmes, The Matador’s Cape: America’s Reckless Response to Terror (2007).
[88] For a recent local discussion of competing ways in which the debate on terrorism may be framed, see Martin Krygier, ‘War on Terror’ in Robert Manne (ed), Dear Mr Rudd: Ideas for a Better Australia (2008) 127, 131–4.
[89] Ken Macdonald, ‘Foreword’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (2007) v, vi.
[90] See Clive Walker, ‘Clamping Down on Terrorism in the United Kingdom’ (2006) 4 Journal of International Criminal Justice 1137, 1137–8. The UK’s criminal justice approach towards terrorism can be compared with the war approach taken by the US: at 1145–6; Conor Gearty, ‘The Superpatriotic Fervour of the Moment’ (2008) 28 Oxford Journal of Legal Studies 183. See also Lucia Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 507.
[91] David Bonner, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed? (2007) 352.
[92] Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457, 472 (Dixon J).
[93] Gabe Mythen and Sandra Walklate, ‘Criminology and Terrorism: Which Thesis? Risk Society or Governmentality?’ (2006) 46 British Journal of Criminology 379, 389.
[94] See Lucia Zedner, ‘Preventative Justice or Pre-Punishment? The Case of Control Orders’ (2007) 60 Current Legal Problems 174. See generally Clive Walker, ‘Terrorism and Criminal Justice — Past, Present and Future’ [2004] Criminal Law Review 311, 327.
[95] Thomas v Mowbray [2007] HCATrans 78 (Ron Merkel QC, 21 February 2007).
[96] Thomas [2007] HCA 33; (2007) 233 CLR 307, 324–6 (Gleeson CJ), 364 (Gummow and Crennan JJ).
[97] Ibid 364–5. On the last point, their Honours were drawing essentially on Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 632 (Dawson J).
[98] Thomas [2007] HCA 33; (2007) 233 CLR 307, 410.
[99] Ibid.
[100] Under s 104.32 of the Criminal Code, the Division is subject to a 10 year sunset clause, supporting an inference that its continued operation seems of dubious vitality to Australia’s international relations.
[101] See Thomas [2007] HCA 33; (2007) 233 CLR 307, 405–6 (Kirby J).
[102] [1982] HCA 27; (1982) 153 CLR 168, 216–21.
[103] A majority of four justices applied the test in Tasmania v Commonwealth [1983] HCA 21; (1983) 158 CLR 1 (‘Tasmanian Dam Case’), but only one of them (Murphy J) was in the majority on the result reached. Most recently, the test of international concern was considered but not applied by the Court in XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532. In Thomas [2007] HCA 33; (2007) 233 CLR 307, 410, Kirby J effectively said that his earlier comments on the power rendered consideration of the ‘international concern’ test unnecessary.
[104] Resolution on Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1373, UN SCOR, 56th sess, 4385th mtg, [2(b)], UN Doc S/Res/1373 (2001).
[105] Thomas [2007] HCA 33; (2007) 233 CLR 307, 409.
[106] (1996) 187 CLR 416, 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
[107] Daryl Williams, ‘The War against Terrorism: National Security and the Constitution’ (Summer 2002–03) Bar News 42, 43. These powers included:
powers relating directly to criminals (s 51(xxviii), s 119); to Commonwealth places (s 52(i)) and territories (s 122); other express powers (including those dealing with foreign, trading or financial corporations — s 51(xx), electronic, postal and other like services — s 51(v), and external affairs — s 51(xxix)), in addition to the implied power to protect the Commonwealth and its authorities.
[108] Ibid. See also Criminal Code s 100.3.
[109] Thomas [2007] HCA 33; (2007) 233 CLR 307, 462.
[110] Ibid.
[111] Ibid 461–2.
[112] Ibid 375–9.
[113] See, eg, Corporations (Commonwealth Powers) Act 2001 (Vic) s 3(1).
[114] Thomas [2007] HCA 33; (2007) 233 CLR 307, 378, quoting Victoria, Parliamentary Debates, Legislative Assembly, 25 March 2003, 525 (Rob Hulls, Attorney-General).
[115] Thomas [2007] HCA 33; (2007) 233 CLR 307, 381–3.
[116] Ibid 462.
[117] Ibid 509.
[118] Ibid 310–15. For the procedural requirements relating to a Special Case, see High Court Rules 2004 (Cth) r 27.08.
[119] [1956] HCA 10; (1956) 94 CLR 254.
[120] A-G (Cth) v The Queen; Ex parte Boilermakers’ Society of Australia [1957] HCA 12; (1957) 95 CLR 529. See also Thomas [2007] HCA 33; (2007) 233 CLR 307, 412 (Kirby J).
[121] Leslie Zines, The High Court and the Constitution (5th ed, 2008) 215.
[122] See, eg, R v Joske; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation [1974] HCA 8; (1974) 130 CLR 87, 90 (Barwick CJ); A-G (Cth) v Breckler (1999) 197 CLR 83, 113 (Kirby J).
[123] See, eg, Thomas [2007] HCA 33; (2007) 233 CLR 307, 413 (Kirby J).
[124] Thomas v Mowbray [2007] HCATrans 76 (David Bennett QC, 20 February 2007).
[125] [2004] HCA 46; (2004) 223 CLR 575.
[126] See, eg, Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 8(2)(b)(ii), 13(5)(a).
[127] [1996] HCA 24; (1996) 189 CLR 51.
[128] Fardon [2004] HCA 46; (2004) 223 CLR 575, 591–2 (Gleeson CJ), 595–7, 601–2 (McHugh J), 619–21 (Gummow J), 647–8 (Hayne J), 652–8 (Callinan and Heydon JJ).
[129] The Court’s avoidance of this issue by focusing instead upon the procedural features of the Queensland legislation has been criticised: Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth’ (2008) 30 Sydney Law Review 100, 105–12; Dan Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16 Public Law Review 182, 185.
[130] Fardon [2004] HCA 46; (2004) 223 CLR 575, 592 (Gleeson CJ), 648 (Hayne J), 655–6 (Callinan and Heydon JJ).
[131] Ibid 596, though his Honour did not ultimately base his conclusion on that finding.
[132] Ibid 608–14 (Gummow J), 631 (Kirby J).
[133] Ibid 612.
[134] (1992) 176 CLR 1, 27, where their Honours famously declared:
putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.
[135] Thomas [2007] HCA 33; (2007) 233 CLR 307, 326–7 (Gleeson CJ). See further Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167, 188–92 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[136] Thomas [2007] HCA 33; (2007) 233 CLR 307, 328.
[137] Ibid 329.
[138] Ibid 333–4.
[139] This is a feature of all community protection orders developed by Australian states in respect of sex offenders: see, eg, Community Protection Act 1994 (NSW) s 5.
[140] To the extent that federal courts do make protective orders which impose restrictions on individuals, these are more properly understood as a form of anticipatory injunctive relief sought by another party for the protection of a specific legal right in relation to proceedings over which the court already has jurisdiction. The example which the Attorney-General’s Department produced for the Senate inquiry into the Bill, and which several of the majority justices in Thomas discussed (see Thomas [2007] HCA 33; (2007) 233 CLR 307, 348, 357 (Gummow and Crennan JJ)), was the power of the Family Court under s 114 of the Family Law Act 1975 (Cth). Bail orders are also quite inapt as an analogy since the individual is clearly subjected to the jurisdiction of the court which has been enlivened on the basis that they are facing prosecution for a past criminal act.
[141] Thomas [2007] HCA 33; (2007) 233 CLR 307, 347–8 (Gummow and Crennan JJ), 507 (Callinan J).
[142] Ibid 357.
[143] Ibid 356.
[144] Ibid 357.
[145] See ibid 433–7, where Kirby J, in dissent, systematically listed the grounds upon which distinctions could relevantly be made between the ‘unique’ scheme for control orders and all attempts at analogy.
[146] Fardon [2004] HCA 46; (2004) 223 CLR 575, 612 (Gummow J).
[147] Ibid.
[148] See, eg, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).
[149] Thomas [2007] HCA 33; (2007) 233 CLR 307, 330.
[150] Ibid 356.
[151] Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385.
[152] The UK Parliament’s Joint Committee on Human Rights has noted that as a consequence, and despite the government’s loss in the litigation, the Home Secretary has interpreted the decision as permitting 16 hour detention and has increased the curfew under a number of non-derogating control orders accordingly: Joint Committee on Human Rights, House of Lords and House of Commons, Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008, House of Lords Paper No 57, House of Commons Paper No 356, Session 2007–08 (2008) 13–14.
[153] Guzzardi v Italy (1980) 39 Eur Court HR (ser A) 33, quoted in Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385, 411 (Lord Bingham).
[154] Thomas [2007] HCA 33; (2007) 233 CLR 307, 429–30 (Kirby J). See also Gearty, Can Human Rights Survive?, above n 19, 103; Fenwick, above n 12, 1340.
[155] [2007] UKHL 45; [2008] 1 AC 385, 415.
[156] Thomas [2007] HCA 33; (2007) 233 CLR 307, 330–3.
[157] Ibid 352.
[158] Ibid 345.
[159] Ibid 344–8.
[160] [1960] HCA 46; (1960) 103 CLR 368, 383.
[161] Thomas [2007] HCA 33; (2007) 233 CLR 307, 345.
[162] Ibid 334 (Gleeson CJ), 347–8 (Gummow and Crennan JJ), 507 (Callinan J).
[163] Ibid 417.
[164] Ibid 417–25.
[165] Ibid 468–9.
[166] Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 272, quoted in Thomas [2007] HCA 33; (2007) 233 CLR 307, 417 (Kirby J), 475 (Hayne J).
[167] Thomas [2007] HCA 33; (2007) 233 CLR 307, 477–8. In so saying, Hayne J appeared wary of the danger warned against by David Dyzenhaus of allowing the legislature ‘to create a hole that is grey rather than black [that is, distinct from absolute exceptionalism in the manner (initially) of detention at Guantánamo Bay], one in which there is the façade or form of the rule of law rather than any substantive protections’: David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006) 3.
[168] Thomas [2007] HCA 33; (2007) 233 CLR 307, 351.
[169] Ibid 413.
[170] Ibid 428–9.
[171] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 198.
[172] See, eg, Domestic and Family Violence Protection Act 1989 (Qld) s 13; Domestic Violence Act 1994 (SA) s 4.
[173] Denise Meyerson, ‘Using Judges to Manage Risk: The Case of Thomas v Mowbray’ (2008) 36 Federal Law Review 209, 223.
[174] By contrast, div 105 of the Criminal Code enables judicial officers acting in their personal capacity to issue preventative detention orders over individuals who may not be suspected of terrorism-related activity (but whose detention is deemed necessary for the preservation of evidence of, or relating to, a terrorist act): s 105.4(6).
[175] Thomas [2007] HCA 33; (2007) 233 CLR 307, 352 (Gummow and Crennan JJ).
[176] Cf ibid 479 (Hayne J). It is also worth noting that this consideration did not suggest to the majority that the law was not ‘reasonably appropriate and adapted’ to the purpose of defence when characterising div 104 under s 51(vi). This diminished the attempt by Gummow and Crennan JJ (at 363) to distinguish the legislation from the ‘vice’ of the Communist Party Dissolution Act 1950 (Cth) as identified by Dixon J — a failure to focus on conduct with objective standards or tests of liability: Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 192.
[177] Thomas [2007] HCA 33; (2007) 233 CLR 307, 329 (citations omitted). See also at 507–9 (Callinan J).
[178] Ibid 429 (Kirby J), 476 (Hayne J).
[179] Ibid 476.
[180] Ibid 335.
[181] Courts are only called upon to issue control orders when the conditions sought would require a derogation from the UK’s obligations under the European Convention of Human Rights: Prevention of Terrorism Act 2005 (UK) c 2, s 4. To date, no such order has been sought by the Home Secretary, who has preferred instead to adjust the conditions attached to non-derogating orders to accord with judicial decisions as to what will not offend against the guarantees of the Convention: see Carlile, above n 37, 19.
[182] Gearty, Can Human Rights Survive?, above n 19, 126.
[183] See Bonner, above n 91, 309–12; Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385; Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] 1 AC 440. For a far less favourable appraisal, see K D Ewing and Joo-Cheong Tham, ‘The Continuing Futility of the Human Rights Act’ [2008] Public Law 668.
[184] Thomas [2007] HCA 33; (2007) 233 CLR 307, 475, 479.
[185] Dyzenhaus and Thwaites, above n 60, 24.
[186] Zedner, ‘Preventative Justice or Pre-Punishment?’, above n 94, 203.
[187] Clive Walker, ‘Intelligence and Anti-Terrorism Legislation in the United Kingdom’ (2005) 44 Crime, Law and Social Change 387, 409–13.
[188] Though others are certainly possible: see Paul Fairall and Wendy Lacey, ‘Preventative Detention and Control Orders under Federal Law: The Case for a Bill of Rights’ [2007] MelbULawRw 40; (2007) 31 Melbourne University Law Review 1072, 1085–6.
[189] See generally Bonner, above n 91, 265–342.
[190] Zedner, ‘Preventative Justice or Pre-Punishment?’, above n 94, 183–7. See also Kent Roach, September 11: Consequences for Canada (2003) 75–9 (on the limits of ‘Charter-proofing’).