The Australasian Legal Information Institute has the decision for the Thomas vs Mowbray up on its website. This is over control orders and whether they are constitutional under Defence Powers. The other arguments against the control order is that it gives a non-judicial power to a court and it is not supported under the heads of power in the Constitution.

Firstly IANAL, so hopefully I am not reading or summarising the decision incorrectly. Gleeson writes:

I agree with Gummow and Crennan JJ that, subject to questions 1 and 2, the legislation is supported by the defence power and the external affairs power. It is therefore unnecessary to deal with the arguments concerning the references of matters by the States.

The extent, if any, to which other anti-terrorist provisions of the Criminal Code depend upon the references by the States does not arise for consideration. I also agree with the reasons given by Gummow and Crennan JJ for their conclusion as to question 3, and would add only some brief points on that topic.

By making terrorism a 'defence' and 'external affairs' power it now becomes the domain of the national government and potentially one that can have martial responses - not civil ones. This potentially paves the way for the militarization of terror responses domestically. This is basically the High Court agreeing with the Government's military responses in this area such as the ADF having a terror response group and the use of the military in Iraq as a claimed extension to a war on terror.

It might be wise to compare how our northern neighbour - who has had two significant terror attacks on its soil - dealt with the problem. Indonesia did so through police work and then the judicial system. It was totally above board and appears to have quelled that type of activity. It is doubly remarkable as under Suharto there was no police force, only the military police.

I don't think Australia will militarise totally of course, but it gives this government and future governments - or more accurately the executive - the option of doing so where it suits their purpose.

Gleeson continues:

The power to make laws 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, is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public.

So defence as a head of power is now redefined as any violence against the public. Defence has become domestically oriented such that violence in Australia can now have a martial response. This line has been blurred for a while; for instance we use 500 million dollar battle Frigates to pick up refugees. Prior to the use of the Frigates for this work, classes of RAN Patrol Boats were built specifically for that function.

The ADF is one of the few bodies that maintains a constant long-haul and logistical capacity, so it is often used for supply and specialist skills support. For instance ADF personnel were deployed in the recent Indigenous issues emergency - not trigger pullers, but support staff. Rather than just helping with Bush Fires, the ADF is being used more and more by the Executive in domestic policy.

The definition of terrorism as per the act is:

The object of Div 104 is to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act (s 104.1).

The definition of terrorist act (s 100.1) requires three elements for an action or threat of action to be a terrorist act. First, the action must fall within a certain description, and must not be of a kind excluded by another description. The inclusory aspect of the definition is that the action must (to put it briefly) cause death, serious physical harm, or serious damage to property, endanger life, create a serious risk to public health or safety, or seriously interfere with or disrupt certain vital systems. The exclusory aspect of the definition excludes advocacy, protest, dissent or industrial action that is (to put it briefly) not intended to cause death or serious injury, or endanger life or public safety.

The second necessary element is that the action is done, or the threat of action is made, with the intention of advancing a political, religious or ideological cause. The third necessary element is that the action is done, or the threat of action is made, with the intention of coercing, or influencing by intimidation (to put it briefly), a government, or of intimidating the public or a section of the public.

This is why it was not necessary to claim the authority for the control order through the defence or external affairs head of power. Violence in this manner is a criminal act - not a martial one. When I say that terrorism is a civil matter I mean non-martial. There is no need to bring in a potential military reading into what is a constitutional decision that has the effect of expanding allowable national constitutional practice.

It is just flat-out unnecessary.

If a control order is necessary to protect against civil disorder from someone who has admitted to Al Queda training then it should be argued as constitutional under criminal or civil law; not defence powers.

To jump outside of the constitutional issues for a minute: on the issue of the control order, I am comfortable with it personally if it is issued by the Attorney-General (executive) and approved by the Judicial (federal court) with a sunsetting period of three months. The other check and balance I would add in there is that the individual under the control order can sue the executive to have it over-turned or removed. I think the judicial is an effective apolitical and impartial arbiter in this area and combined with a sunsetting on the order will stop permanent suspension of liberties.

The problem is that it may be used for political purposes to vilify individuals, smear them through the power of government and restrict their liberties unreasonably. Simply because of the political nature of terrorism this is always going to be an issue. However, we recognise as a reasonable society that sometimes specific control orders are necessary, such as in domestic violence , where maybe there isn't enough evidence for a criminal conviction.

Other than the misreading of control orders being justified constitutionally as defence and external affairs powers I don't have too much of an issue with the decision.

It looks like Kerby and Heydon wrote opinions in addition to Gleeson's. I will try and go through them in other posts.

Dyson Heydon in the Thomas vs Mowbray decision writes on the doctrine of Judicial Review. This is where the court has the authority and sovereignty over determining if a statute is unconstitutional. The competing doctrine, which is conservative view of the dominant executive, is that the executive by forming government has popular sovereignty which trumps the doctrine of judicial review when the executive is acting in national security or national interest.

Constitutionalism in liberal democracy is based on limited government where the constitution defines the boundaries of government authority and action. For republicanism and liberalism to be healthy the judicial cannot have its sovereignty on judicial review revoked by executive action. Fundamental law (the constitution) must be dominant over popular sovereignty (parliament).

Heydon writes:

Another explanation is that the Court has an overriding duty to enforce the Constitution for all citizens or residents which it must fulfil even if the limited class of citizens or residents who comprise the parties before it will not adequately assist it to do so. From the earliest times this Court has seen itself as having, in general, a duty to determine the validity, one way or the other, of legislation alleged to be unconstitutional.

It is a duty which not even statute can interfere with, "because under the rigid federal Constitution of the Commonwealth a provision is not valid if it would operate to withdraw from the courts of law, and so ultimately from this Court, the decision of any question as to the consistency of a statute or an executive act with the Constitution".

Putting to one side the political consequences of a legislature embarking on the enactment of unconstitutional legislation, there is no body other than the judiciary capable of preventing an abuse of legislative power. These factors are seen as outweighing the difficulty of finding the facts relevant to validity.

He is arguing that for the court to fulfil the doctrine of judicial review then facts in the case can be wider in scope than that brought directly to the case if it is needed to determine the constitutionality of the statute.

Since this Court has ultimate responsibility for the enforcement of the Constitution, it has ultimate responsibility for the resolution of challenges to the constitutional validity of legislation, one way or the other, and cannot allow the validity of challenged statutes to remain in limbo.

It therefore has the ultimate responsibility for the determination of constitutional facts which are crucial to validity. That determination "is a central concern of the exercise of the judicial power of the Commonwealth".

This principle of necessity - that constitutional facts must be investigated by this Court if it is to fulfil its duty to conduct judicial review of the constitutional validity of legislation - also accounts for the width of the principles pursuant to which it finds constitutional facts.

Heydon is arguing that the purpose of the court is to determine constitutionality first and foremost. As a result the facts in a case can be expanded, if need be, in order to determine if a statute is constitutional or not. Otherwise the High Court is failing its duty under limited government.