Thomas v Mowbray

Constitutional law (Cth) – Div 104 of the Criminal Code (Cth) confers power on Ch III courts to make interim control orders imposing obligations, prohibitions and restrictions upon an individual for the purpose of protecting the public from a terrorist act - The plaintiff is subject to an interim control order made by the first defendant, Mowbray FM, at the application of the second defendant, an officer of the Australian Federal Police - Whether the interim control order was validly made against the plaintiff.

Constitutional law (Cth) – Legislative power - Defence - Whether Div 104 is a law with respect to defence - Whether the defence power is limited to defence against external threats - Whether the defence power is limited to defence of the Commonwealth and the several States as bodies politic - Whether the defence power extends to defence against non-state actors - Relevance of purposive power.

Constitutional law (Cth) – Legislative power - External affairs - Whether Div 104 is a law with respect to external affairs - Relevance of relations with foreign countries - Relevance of definition of "the public" in Div 104 including the public of a foreign country - Whether Div 104 concerns a "matter or thing" external to Australia - Whether Div 104 implements a treaty obligation.

Constitutional law (Cth) – Legislative power - Matters referred by the Parliament of a State - Whether Div 104 is a law supported by the Terrorism (Commonwealth Powers) Act 2003 (Vic) - Presumption against alteration of common law rights.

Constitutional law (Cth) – Judicial power - Meaning of judicial power - Justiciable controversy - Whether Div 104 confers jurisdiction upon a Ch III court to make an interim control order - Whether power conferred by Div 104 gives rise to a justiciable controversy - Whether Div 104 concerns non- justiciable matters - Relevance of political matters - Meaning of "non- justiciable".

Constitutional law (Cth) – Judicial power - Meaning of judicial power - Whether interim control order proceedings involve the exercise of judicial power - Whether reposing the power to make an interim control order in a Ch III court imparts a judicial character to that power - Relevance of historical analogues to power conferred by Div 104.

Constitutional law (Cth) – Judicial power – Meaning of judicial power – Discretion – Whether the criteria in Div 104 impermissibly concern non-judicial matters – Whether the criteria in Div 104 repose a discretion in the court making an interim control order – Relevance of "legal criteria" – Relevance of "policy" – Meaning of "may" – Meaning of "reasonably necessary".

Constitutional law (Cth) – Judicial power – Meaning of judicial power – Future conduct – Whether Div 104 impermissibly confers power upon a Ch III court to make orders by reference to future risks or conduct rather than by reference to past conduct or existing rights and obligations.

Constitutional law (Cth) – Judicial power – Exercise of judicial power – Whether Div 104 compels the exercise of judicial power in a manner contrary to Ch III – Relevance of ex parte hearing – Relevance of standard of proof – Relevance of withholding evidence – Relevance of restrictions upon personal liberty – Relevance of historical analogues to power conferred by Div 104.

Evidence – Constitutional facts – Manner in which constitutional facts are to be established – Scope of judicial notice in constitutional cases.

Words and phrases – "constitutional fact", "control order", "defence", "external affairs", "judicial notice", "judicial power", "jurisdiction", "legal criteria", "matter", "naval and military defence", "non-justiciable", "policy", "procedural fairness", "reasonably appropriate and adapted", "reasonably necessary", "terrorism", "terrorist act".

Constitution – ss 51(vi), 51(xxix), 51(xxxii), 51(xxxvii), 68, 69, 71, 75, 76(ii), 76(iii), 77(i).

Acts Interpretation Act 1901 (Cth) – s 15C.

Criminal Code (Cth) – Div 104, s 100.8.

Terrorism (Commonwealth Powers) Act 2003 (Vic).

High Court Rules 2004 – r 27.08.5.