Thomas v Mowbray

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Thomas v Mowbray
Coat of Arms of Australia.svg
Court High Court of Australia
Full case nameJoseph Terrence Thomas; Plaintiff v Graham Mowbray, Federal Magistrate & Ors; Defendants
Decided2 August 2007
Citation(s) [2007] HCA 33, (2007) 233 CLR 307
Case history
Prior action(s)None
Case opinions
(5:2) Subdivision B of Division 104 of the Commonwealth Criminal Code, which allows for the making of "interim control orders", is a valid law of the Commonwealth (per Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ; Kirby J & Hayne J dissenting in separate judgments)
Court membership
Judge(s) sitting Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

Thomas v Mowbray, [1] was a decision handed of the High Court of Australia on 2 August 2007 concerning the constitutional validity of "interim control orders" under the Commonwealth Criminal Code. [2] 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. [3] The High Court ruled, by a 5:2 majority, that interim control orders were constitutional.

High Court of Australia Highest court in Australia

The High Court of Australia is the highest court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.


Background facts

Thomas had been the first Australian to be convicted under anti-terrorism laws introduced in Australia after the 11 September 2001 attacks in the United States. [4] He was sentenced on 31 March 2006 to five years prison with a non-parole period of two years. [5] The trial was highly controversial, as the evidence used to prosecute Thomas consisted solely of an interview conducted in a Pakistani military prison. [6] 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. [7] [8]

September 11 attacks Attacks against the United States on September 11, 2001

The September 11 attacks were a series of four coordinated terrorist attacks by the Islamic terrorist group al-Qaeda against the United States on the morning of Tuesday, September 11, 2001. The attacks killed 2,977 people, injured over 6,000 others, and caused at least $10 billion in infrastructure and property damage. Additional people have died of 9/11-related cancer and respiratory diseases in the months and years following the attacks.

United States Federal republic in North America

The United States of America (USA), commonly known as the United States or America, is a country comprising 50 states, a federal district, five major self-governing territories, and various possessions. At 3.8 million square miles, the United States is the world's third or fourth largest country by total area and is slightly smaller than the entire continent of Europe. With a population of over 327 million people, the U.S. is the third most populous country. The capital is Washington, D.C., and the most populous city is New York City. Most of the country is located contiguously in North America between Canada and Mexico.

Supreme Court of Victoria Superior court of the state of Victoria, Australia

The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state. Those courts lying below it include the County Court of Victoria and the Magistrates' Court of Victoria. The Victorian Civil and Administrative Tribunal, which is not a court, serves a judicial function. Above it lies the High Court of Australia. This places it around the middle of the Australian court hierarchy. The building itself is on the Victorian Heritage Register.

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: [9]

The order placed the following restrictions on Thomas:


A curfew is an order specifying a time during which certain regulations apply. Typically it refers to the time when individuals are required to return to and stay in their homes. Such an order may be issued by public authorities but also by the head of a household to those living in the household. For instance, an au pair is typically given a curfew, which regulates when they must return to the host family's home in the evening.

Australian Federal Police federal police agency of the Commonwealth of Australia

The Australian Federal Police (AFP) is the national and principal federal law enforcement agency of the Australian Government with the unique role of investigating crime and to protect the national security of the Commonwealth of Australia. The AFP is an independent agency of the Department of Home Affairs and is responsible to the Minister for Home Affairs and accountable to the Parliament of Australia. Since October 2014 the Commissioner of the Australian Federal Police has been Andrew Colvin.

Osama bin Laden Co-founder of al-Qaeda

Osama bin Mohammed bin Awad bin Laden, also rendered Usama bin Ladin, was a founder of the pan-Islamic militant organization al-Qaeda. He was a Saudi Arabian citizen until 1994, a member of the wealthy bin Laden family, and an ethnic Yemeni Kindite.

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 officer that brought the application for the control order and the Commonwealth as defendants in the action. The Attorneys-General for New South Wales, South Australia and Western Australia intervened, largely in support of the Commonwealth. [15] The Federal Magistrates Court proceedings were, therefore, adjourned by consent of the parties.

New South Wales State of Australia

New South Wales is a state on the east coast of Australia. It borders Queensland to the north, Victoria to the south, and South Australia to the west. Its coast borders the Tasman Sea to the east. The Australian Capital Territory is an enclave within the state. New South Wales' state capital is Sydney, which is also Australia's most populous city. In March 2019, the population of New South Wales was over 8 million, making it Australia's most populous state. Just under two-thirds of the state's population, 5.1 million, live in the Greater Sydney area. Inhabitants of New South Wales are referred to as New South Welshmen.

South Australia State of Australia

South Australia is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of 983,482 square kilometres (379,725 sq mi), it is the fourth-largest of Australia's states and territories by area, and fifth largest by population. It has a total of 1.7 million people, and its population is the second most highly centralised in Australia, after Western Australia, with more than 77 percent of South Australians living in the capital, Adelaide, or its environs. Other population centres in the state are relatively small; Mount Gambier, the second largest centre, has a population of 28,684.

Western Australia State in Australia

Western Australia is a state occupying the entire western third of Australia. It is bounded by the Indian Ocean to the north and west, and the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Australia is Australia's largest state, with a total land area of 2,529,875 square kilometres, and the second-largest country subdivision in the world, surpassed only by Russia's Sakha Republic. The state has about 2.6 million inhabitants – around 11 percent of the national total – of whom the vast majority live in the south-west corner, 79 per cent of the population living in the Perth area, leaving the remainder of the state sparsely populated.

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 [1]

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.<ref>Thomas v Mowray [1]

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 [1]

Q4 #Who should pay the costs of the special case?

A The plaintiff should pay the costs of the Commonwealth of the special case. [1]

His appeal was therefore dismissed, and the interim control order upheld.

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  1. 1 2 3 4 5 Thomas v Mowbray [2007] HCA 33 , (2007) 233 CLR 307.
  2. Subdivision B of Division 104 of the Criminal Code (Cth).
  3. Jabbour v Thomas [2006] FMCA 1286 , (2006) 165 A Crim R 32, Federal Magistrates' Court (Australia).
  4. Thomas convicted under terror laws, The Age, 26 February 2006
  5. Thomas sentenced under terror laws,, 31 March 2006
  6. The Convert Archived 20 November 2009 at the Wayback Machine , Four Corners, 27 February 2006
  7. Australian terror convictions quashed [ permanent dead link ] - The Australian. 18 August 2006.
  8. R v Thomas [2006] VSCA 165 (18 August 2006), Court of Appeal (Vic,Australia).
  9. Thomas v Mowbray [2007] HCA 33 , (2007) 233 CLR 307 per Gleeson CJ at [1]
  10. "Curfew order for Jack Thomas". Sydney Morning Herald. Fairfax. 28 August 2006. Retrieved 28 August 2006.
  11. Helen Brown; et al. (28 August 2006). "Transcript: Govt places curfew on Jack Thomas". Lateline. Australian Broadcasting Corporation. Retrieved 29 August 2006.
  12. ABC staff (28 August 2006). "Thomas family vows to fight control order". ABC online. Australian Broadcasting Corporation. Archived from the original on 26 September 2006. Retrieved 29 August 2006.
  13. Tom Allard (29 August 2006). "Jihad Jack wife's terror link". Sydney Morning Herald. Fairfax. Retrieved 29 August 2006.
  14. Mark Dunn (29 August 2006). "Curfew after terrorism acquittal". The Courier-Mail. News Limited. Retrieved 29 August 2006.[ dead link ]
  15. Thomas v Mowbray [2007] HCA 33 , (2007) 233 CLR 307 per Gummow & Crennan JJ at [37].