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Using Judges to Manage Risk: The Case of Thomas V Mowbray

Published online by Cambridge University Press:  24 January 2025

Denise Meyerson
Denise Meyerson*
Affiliation:
Division of Law, Macquarie University
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Extract

In an illuminating analysis of the concept of justiciability, Geoffrey Marshall distinguishes two senses of the term. In the first, descriptive sense, justiciable issues are issues which have, in fact, been committed by parliaments to a judicial forum. Any question which has been made subject to adjudication is, in the descriptive sense of the word, a justiciable question. In the second, prescriptive sense, justiciable issues are issues which are suitable to be resolved judicially. In the United Kingdom, there is no obstacle to Parliament requiring courts to resolve questions which are not suitable to be resolved judicially. By contrast, in terms of the Australian Constitution, the Chapter III courts are limited to answering questions which are justiciable in the prescriptive sense of the term.

Type
Research Article
Information
Federal Law Review , Volume 36 , Issue 2 , June 2008 , pp. 209 - 229
Copyright
Copyright © 2008 The Australian National University

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References

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, 267-8Google Scholar.

3 (1956) 94 CLR 254 (‘Boilermakers’).

4 Ibid 272 (Dixon CJ, McTiernan, Fullager and Kitto JJ).

5 Re Judiciary and Navigation Acts (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). In Thorpe v Commonwealth (No 3) (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) 237 ALR 194 (‘Thomas’).

7 Ulrich, Beck, World Risk Society (1999)Google Scholar.

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) 268Google Scholar, 269, quoted in Keith, Spence, ‘World Risk Society and War Against Terror’ (2005) 53 Political Studies 284Google Scholar, 289.

9 Clive, Walker, ‘Keeping Control of Terrorists without Losing Control of Constitutionalism’ (2007) 59 Stanford Law Review 1395, 1400.Google Scholar 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, 40Google Scholar.

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) 31 Melbourne University Law Review 1072Google Scholar, 1088.

24 Ibid 1092.

25 Ibid.

26 The classic statement is Griffith CJ’s observation in Huddart, Parker & Co Pty Ltd v Moorehead (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) 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) 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) 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) 138 CLR 1 (‘Consolidated Foods Corporation Case’).

31 (1957) 100 CLR 277.

32 Ibid 305.

33 See, for instance, R v Davison (1954) 90 CLR 353, 382 (Kitto J).

34 John, de Meyrick, ‘Whatever Happened to Boilermakers? Part II’ (1995) 69 Australian Law Journal 189, 190Google Scholar.

35 P H, Lane, ‘The Decline of the Boilermakers Separation of Powers Doctrine’ (1981) 55 Australian Law Journal 6Google Scholar, 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) 87 CLR 144.

37 See, for instance, Deane J’s statement in Polyukhovich v Commonwealth (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) 164 CLR 465; R v Moffat (1997) 91 A Crim R 557. See also Fardon v Attorney General (Qld) (2004) 223 CLR 575, 634 (Kirby J) (‘Fardon’).

41 (2004) 223 CLR 575.

42 Re Woolley; Ex parte Applicants M 276/2003 (2004) 225 CLR 1, 26 (McHugh J).

43 Thomas (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) 29 University of New South Wales Law Journal 207Google Scholar, 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) 237 ALR 194, 205 [15] (Gleeson CJ, citing Fardon (2004) 223 CLR 575, 596–7 (McHugh J)).

47 Thomas (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) 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) 10 Flinders Journal of Law Reform 105Google Scholar, 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 (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 [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) 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) 107Google Scholar.

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) 1Google Scholar, 11.

61 Ibid 36.

62 Joseph, Raz, Practical Reason and Norms (1975) 137Google Scholar.

63 (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 (1969) 116 CLR 366, 379–80.

68 (1976) 135 CLR 194 (‘Shop Distributive Employees Case’).

69 Thomas (2007) 237 ALR 194, 322 [473].

70 (1976) 135 CLR 194, 201.

71 Thomas (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) 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) 195Google Scholar.

73 Kent, Greenawalt, ‘Discretion and the Judicial Decision: The Elusive Quest for the Fetters that Bind Judges’ (1975) 75 Columbia Law Review 359Google Scholar, 366

74 Ibid 365–6.

75 Ibid 374.

76 D J, Galligan, Discretionary Powers: A Legal Study of Official Discretion (1986) 14Google Scholar.

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) 33Google Scholar.

78 Lucia, Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 507, 512Google Scholar.

79 [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) 95Google Scholar.

83 Thomas (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 489Google Scholar.

85 Prevention of Terrorism Act 2005 (UK) c 2, ss 2(1), 4(7)(a).

86 Thomas (2007) 237 ALR 194, 287 [338].

87 Prevention of Terrorism Act 2005 (UK) c 2, s 1(3).

88 Thomas (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 [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, 281Google Scholar.

92 As H L A Hart believes: The Concept of Law (1994) 130. But contrast Tom, Campbell, The Legal Theory of Ethical Positivism (1996) 64Google Scholar.

93 Thomas (2007) 237 ALR 194, 291–3 [354] – [358].

94 John, Finnis, Natural Law and Natural Rights (1980) 268Google Scholar.

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, xviiGoogle Scholar.

98 See Thomas (2007) 237 ALR 194, 293 [358] (Kirby J).

99 N W, Barber, ‘Prelude to the Separation of Powers’ (2001) 60 Cambridge Law Journal 59, 59Google Scholar.

100 Lon, L Fuller developed the concept of polycentricity in ‘Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353Google Scholar.

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, 222-3Google Scholar.

102 John, Allison, ‘The Procedural Reason for Judicial Restraint’ (1994) Public Law 452, 455Google Scholar.

103 Peter, Cane, An Introduction to Administrative Law (1996) 38Google Scholar.

104 Cheryl, Saunders, ‘The Separation of Powers’ in Brian, Opeskin and Fiona, Wheeler (eds), The Australian Federal Judicial System (2000) 3, 10Google Scholar.

105 SirWilliam, Blackstone, Commentaries on the Laws of England (17th ed, 1830) vol 1, 269Google Scholar.

106 Thomas (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) 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, 21Google Scholar.

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) 27 Adelaide Law Review 311Google Scholar, 324–30.

111 Alan, B Morrison ‘A Non-Power Looks at Separation of Powers’ (1990) 79 Georgetown Law Journal 281Google Scholar, 285, 299.