Meyerson, Denise --- "Using Judges to Manage Risk: The Case of Thomas v Mowbray" [2008] FedLawRw 8; (2008) 36(2) Federal Law Review 209
[*] BA (Witwatersrand), LLB (Cape Town), B Phil (Oxon), D Phil (Oxon); Professor in Law, Division of Law, Macquarie University.
[1] I am grateful to Peter Radan and Alex Reilly for very helpful comments.
[2] Geoffrey Marshall, 'Justiciability' in A G Guest (ed), Oxford Essays in Jurisprudence: A Collaborative Work (1961) 265, 267-8.
[3] [1956] HCA 10; (1956) 94 CLR 254 ('Boilermakers').
[4] Ibid 272 (Dixon CJ, McTiernan, Fullager and Kitto JJ).
[5] Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). In Thorpe v Commonwealth (No 3) [1997] HCA 21; (1997) 144 ALR 677, 692 Kirby J observed that if a question is not of its nature apt to a court performing court-like functions, 'it matters little in practical terms whether the court … rules that it lacks jurisdiction for want of a "matter" engaging its powers, or … [whether] it says that any such "matter" would be non-justiciable'.
[6] [2007] HCA 33; (2007) 237 ALR 194 ('Thomas').
[7] Ulrich Beck, World Risk Society (1999).
[8] George W Bush, 'Remarks at West Point: "New Threats Require New Thinking"' in M L Sifrey and C Cerf (eds), The Iraq War Reader (2003) 268, 269, quoted in Keith Spence, 'World Risk Society and War Against Terror' (2005) 53 Political Studies 284, 289.
[9] Clive Walker, 'Keeping Control of Terrorists without Losing Control of Constitutionalism' (2007) 59 Stanford Law Review 1395, 1400. See also Andrew Ashworth and Lucia Zedner, 'Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure and Sanctions' (2008) 2 Criminal Law and Philosophy 21, 40.
[10] Criminal Code s 104.1. A terrorist act is defined as an action or threat of action with certain characteristics. First, it must be done or made with the intention of 'advancing a political, religious or ideological cause' (s 100.1(1)). Second, the intention must be to coerce or influence by intimidation either an Australian or foreign government, or the public, including the public of a country other than Australia (s 100.1(1)). Third, the action which is committed or threatened must satisfy one or more of six criteria. These are causing death, or serious physical harm, or serious damage to property, or endangering life, or creating a serious risk to public health or safety, or seriously interfering with or disrupting certain vital systems (s 100.1(2)).
[11] Criminal Code s 104.5(3).
[12] Criminal Code s 104.2(1).
[13] Criminal Code s 104.4(1)(c).
[14] Criminal Code s 104.4(1)(d).
[15] Criminal Code s 104.4(2).
[16] Criminal Code s 104.4(1).
[17] Criminal Code s 104.5(1)(e).
[18] Criminal Code s 104.12A(2).
[19] Criminal Code s 104.12A(3).
[20] Criminal Code s 104.16(1)(d); s 104.16(2).
[21] Criminal Code s 104.27.
[22] Callinan J generally agreed with Gummow and Crennan JJ's judgment and Heydon J stated that he agreed with all of the other majority judges on the Chapter III issues.
[23] 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, 1088.
[24] Ibid 1092.
[25] Ibid.
[26] The classic statement is Griffith CJ's observation in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357:
the words "judicial power" … mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
See also Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140, 148-9 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) quoting Kitto J in R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 AJLR 40, 43: 'the power of judicial determination … includes … "the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct."'
[27] See, for instance, Gaudron J's exposition of the doctrine in Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323, 360: 'some powers are essentially judicial … while others take their character from the tribunal in which they are reposed and they way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses'.
[28] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 ('Tasmanian Breweries'), 396 (Windeyer J).
[29] See, for instance, Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188–9 (the Court):
The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it.
[30] [1977] HCA 62; (1977) 138 CLR 1 ('Consolidated Foods Corporation Case').
[31] [1957] HCA 81; (1957) 100 CLR 277.
[32] Ibid 305.
[33] See, for instance, R v Davison [1954] HCA 46; (1954) 90 CLR 353, 382 (Kitto J).
[34] John de Meyrick, 'Whatever Happened to Boilermakers? Part II' (1995) 69 Australian Law Journal 189, 190.
[35] P H Lane, 'The Decline of the Boilermakers Separation of Powers Doctrine' (1981) 55 Australian Law Journal 6, 6: 'If the two notions of judicial power and non-judicial power develop towards anonymity their separation becomes meaningless.'
[36] Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144.
[37] See, for instance, Deane J's statement in Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 608: 'There are some functions which … have become established as incontrovertibly and exclusively judicial in their character. One … of such functions is the adjudgment of guilt of a person accused of a criminal offence.'
[38] (1992) 176 CLR 1 ('Lim').
[39] Ibid 27.
[40] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v Moffat (1997) 91 A Crim R 557. See also Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575, 634 (Kirby J) ('Fardon').
[41] [2004] HCA 46; (2004) 223 CLR 575.
[42] Re Woolley; Ex parte Applicants M 276/2003 (2004) 225 CLR 1, 26 (McHugh J).
[43] Thomas [2007] HCA 33; (2007) 237 ALR 194, 288–9 [341]–[344] (Kirby J); 319 [462], 322 [472] (Hayne J).
[44] Ibid 288 [340] (Kirby J); 322 [472] (Hayne J).
[45] Cf Simon Evans, 'The Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-Based Approaches' [2006] UNSWLawJl 43; (2006) 29 University of New South Wales Law Journal 207, 235: 'the absence of classical definitions that can be expressed in terms of necessary and sufficient characteristics does not mean that … terms cannot be given a stable, workable meaning.'
[46] Thomas [2007] HCA 33; (2007) 237 ALR 194, 205 [15] (Gleeson CJ, citing Fardon [2004] HCA 46; (2004) 223 CLR 575, 596–7 (McHugh J)).
[47] Thomas [2007] HCA 33; (2007) 237 ALR 194, 207–10 [19] – [27] (Gleeson CJ); 226–7 [100] – [103] (Gummow and Crennan JJ).
[48] Ibid 219–21 [73] – [76] (Gummow and Crennan JJ); 356 [596] (Callinan J).
[49] Ibid 228 [109] (Gummow and Crennan JJ); 356 [595] (Callinan J).
[50] Ibid 205–6 [16] (Gleeson CJ); 222 [79], 229–30 [116] – [121] (Gummow and Crennan JJ); 356 [595] – [596] (Callinan J).
[51] Ibid 206–7 [18] (Gleeson CJ); 229 [116] (Gummow and Crennan JJ). Before Thomas was decided, some commentators took the view that the restrictions on liberty imposed by a control order might be so severe as to amount to detention. If so, and if Gummow J's statement in Fardon were to be accepted that, exceptional cases aside, 'the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt' ((2004) [2004] HCA 46; 223 CLR 575, 612), this would give reason to doubt the constitutionality of at least the more draconian aspects of the control order regime: 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, 121–3. This argument has now been foreclosed by the view taken in Thomas that there is a qualitative difference between detention in custody and other restrictions on liberty. By contrast, the European Court of Human Rights has recognised that restrictions on liberty short of detention in custody may be functionally equivalent to detention. See, for instance, Guzzardi v Italy [1980] ECHR 5; (1981) 3 EHRR 333. The House of Lords took a similar view in the case of Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385, in which a majority held that control orders with 18 hour curfews amounted to a deprivation of liberty, not merely a restriction of it.
[52] Thomas [2007] HCA 33; (2007) 237 ALR 194, 211 [30] (Gleeson CJ); 228–30 [112] – [121] (Gummow and Crennan JJ); 357 [598] – [599] (Callinan J).
[53] Ibid 211 [30] (Gleeson CJ)
[54] Ibid.
[55] Ibid.
[56] Ibid 230–1 [122] – [125] (Gummow and Crennan JJ).
[57] Lon L Fuller, The Morality of Law (1964) 107.
[58] Ibid 40.
[59] Ibid 106.
[60] John Finnis, 'Natural Law: The Classical Tradition' in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (2002) 1, 11.
[61] Ibid 36.
[62] Joseph Raz, Practical Reason and Norms (1975) 137.
[63] [1972] HCA 54; (1972) 127 CLR 588 ('Cominos').
[64] Ibid 591 (McTiernan and Menzies JJ); 599 (Gibbs J); 605 (Stephen J); 608 (Mason J).
[65] Ibid 593 (Walsh J).
[66] Ibid 594–5 (Walsh J); 602 (Stephen J).
[67] Ibid 599 citing Sanders v Sanders [1967] HCA 33; (1969) 116 CLR 366, 379–80.
[68] [1976] HCA 48; (1976) 135 CLR 194 ('Shop Distributive Employees Case').
[69] Thomas [2007] HCA 33; (2007) 237 ALR 194, 322 [473].
[70] [1976] HCA 48; (1976) 135 CLR 194, 201.
[71] Thomas [2007] HCA 33; (2007) 237 ALR 194, 230–1 [317] – [319], 281–2 [321] – [322], 291–2 [354] (Kirby J); 323–4 [476] – [477], 332 [515] – [516] (Hayne J). In Tasmanian Breweries [1970] HCA 8; (1970) 123 CLR 361, 376 the fact that a tribunal had the power to determine whether restrictions and practices were contrary to the public interest was held to be a strong indicator that its powers were non-judicial. Kitto J stated that the Act did not require the Tribunal to decide whether the relevant restriction or practice satisfied an 'ascertained standard' but referred the Tribunal 'ultimately to its own idiosyncratic conceptions and modes of thought.'
[72] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 195.
[73] Kent Greenawalt, 'Discretion and the Judicial Decision: The Elusive Quest for the Fetters that Bind Judges' (1975) 75 Columbia Law Review 359, 366
[74] Ibid 365–6.
[75] Ibid 374.
[76] D J Galligan, Discretionary Powers: A Legal Study of Official Discretion (1986) 14.
[77] Ibid 6–8. Cf Ronald Dworkin's analysis of 'strong' discretion — the discretion which exists when '[an official's] decision is not controlled by a standard furnished by the particular authority we have in mind' in Ronald Dworkin,Taking Rights Seriously (1977) 33.
[78] Lucia Zedner, 'Securing Liberty in the Face of Terror: Reflections from Criminal Justice' (2005) 32 Journal of Law and Society 507, 512.
[79] [2004] UKHL 56; [2005] 2 AC 68.
[80] Ibid 102 [29].
[81] Ibid.
[82] Immanuel Kant, The Moral Law: or, Kant's Groundwork of the Metaphysic of Morals (H J Paton trans, 1948 ed) 95.
[83] Thomas [2007] HCA 33; (2007) 237 ALR 194, 285 [331], 287 [338] (Kirby J).
[84] For discussion of this issue see Eugene V Rostow, 'The Japanese American Cases — A Disaster' (1945) 54 Yale Law Journal 489.
[85] Prevention of Terrorism Act 2005 (UK) c 2, ss 2(1), 4(7)(a).
[86] Thomas [2007] HCA 33; (2007) 237 ALR 194, 287 [338].
[87] Prevention of Terrorism Act 2005 (UK) c 2, s 1(3).
[88] Thomas [2007] HCA 33; (2007) 237 ALR 194, 292 [355].
[89] Ibid.
[90] The Council of Europe Commissioner for Human Rights made this point about the UK control order legislation. See Secretary of State for the Home Department v MB [2007] EWCA Crim 2016; [2008] 1 AC 440, 470–71 [16] (Lord Bingham).
[91] Andrew Ashworth, 'Social Control and "Anti-Social Behaviour": The Subversion of Human Rights' (2004) 120 Law Quarterly Review 263, 281.
[92] As H L A Hart believes: The Concept of Law (1994) 130. But contrast Tom Campbell, The Legal Theory of Ethical Positivism (1996) 64.
[93] Thomas [2007] HCA 33; (2007) 237 ALR 194, 291–3 [354] – [358].
[94] John Finnis, Natural Law and Natural Rights (1980) 268.
[95] Ibid 283.
[96] Justin Gleeson makes a similar point, saying: 'under s 104.4, a person could end up being made the subject of a control order … in circumstances where the person could not have known in advance by inspection of the statute book or other reasonable enquiry that the person was engaging in conduct which would or might lead to such an order' ('Thomas v Mowbray' (paper delivered at Twelfth Annual Public Law Weekend, Australian National University, 10 November 2007, available at: <http://law.anu.edu.au/CIPL/Conferences & SawerLecture/2007/PLW%202007/07%20PLW%20Proceedings.htm> ).
[97] Richard Bellamy, 'Introduction' in Richard Bellamy (ed), The Rule of Law and the Separation of Powers (2005) xi, xvii.
[98] See Thomas [2007] HCA 33; (2007) 237 ALR 194, 293 [358] (Kirby J).
[99] N W Barber, 'Prelude to the Separation of Powers' (2001) 60 Cambridge Law Journal 59, 59.
[100] Lon L Fuller developed the concept of polycentricity in 'Forms and Limits of Adjudication' (1978) 92 Harvard Law Review 353.
[101] Barber, above n 99, 75–77. See also Frederick Schauer's comments on 'informational differentiation' — the distinctive way in which courts obtain their information — and its implications for the decisions they should be assigned in 'Legal Positivism and the Contingent Autonomy of Law' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 215, 222-3.
[102] John Allison, 'The Procedural Reason for Judicial Restraint' (1994) Public Law 452, 455.
[103] Peter Cane, An Introduction to Administrative Law (1996) 38.
[104] Cheryl Saunders, 'The Separation of Powers' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 3, 10.
[105] Sir William Blackstone, Commentaries on the Laws of England (17th ed, 1830) vol 1, 269.
[106] Thomas [2007] HCA 33; (2007) 237 ALR 194, 206–7 [18] (Gleeson CJ); 355, [592], 356 [595], 357 [599] (Callinan J).
[107] The dissenting judges thought otherwise: ibid 290 [349] (Kirby J); 329–30 [506] (Hayne J). See also Lynch and Reilly, above n 51, 110–1.
[108] Zedner, above n 78, 516.
[109] Thomas [2007] HCA 33; (2007) 237 ALR 194, 331 [512]. See also 296–7 [367]–[369] (Kirby J). For a contrary view, see David Dyzenhaus and Rayner 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, 21.
[110] Andrew Lynch discusses the public outcry which followed the Victorian Court of Appeal's quashing of the conviction of Thomas in 'Maximising the Drama: "Jihad Jack", the Court of Appeal and the Australian Media' [2006] AdelLawRw 9; (2006) 27 Adelaide Law Review 311, 324–30.
[111] Alan B Morrison 'A Non-Power Looks at Separation of Powers' (1990) 79 Georgetown Law Journal 281, 285, 299.