Using Judges to Manage Risk: The Case of Thomas V Mowbray
| DOI | 10.22145/flr.36.2.4 |
| Date | 01 June 2008 |
| Author | Denise Meyerson |
| Published date | 01 June 2008 |
| Subject Matter | Article |
USING JUDGES TO MANAGE RISK: THE CASE OF
THOMAS V MOWBRAY
Denise Meyerson*
I INTRODUCTION1
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.2 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.
This conclusion follows in part from the finding in R v Kirby; Ex parte Boilermakers'
Society of Australia3 that, by virtue of the separation of judicial power, Chapter III
courts cannot be asked to exercise functions 'foreign to the character and purpose of
the judicature',4 except to the extent that such functions are ancillary or incidental to
the exercise of judicial power. Chapter III courts can as a result be asked only to decide
issues which are of a judicial character. In addition, the fact that the jurisdiction of the
Chapter III courts is confined to 'matters' implies that their jurisdiction is confined to
judicially cognisable issues. A matter will not exist unless there is 'some immediate
right, duty or liability to be established by the determination of the Court'.5 In these
ways, the Constitution confines Chapter III courts to the performance of a specialised
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* 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) 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'.
210 Federal Law Review Volume 36
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set of tasks — judicial tasks. But what exactly makes a task judicial? What makes an
issue suitable or unsuitable to be resolved by a court of law? This question was at the
heart of the case of Thomas v Mowbray,6 which involved a challenge to the
constitutional validity of Division 104 of the Criminal Code Act 1995 (Cth) ('Criminal
Code'), which provides for the making of control orders as one of a new range of
counter-terrorism measures.
II LEGAL AND FACTUAL BACKGROUND
Terrorism is increasingly perceived as a risk control issue in what has aptly been called
the 'world risk society'.7 President Bush expressed this view when he said: 'If we wait
for threats to fully materialize, we will have waited too long'.8 The control order
regime contained in Division 104 of the Criminal Code exemplifies an anticipatory
response of just this kind. It enlists federal courts in what Clive Walker calls the tactics
of prevention, disruption and countering,9 by authorising such courts to impose
potentially very onerous obligations, prohibitions and restrictions on people who are
not charged with a criminal offence 'for the purpose of protecting the public from a
terrorist act'.10
The prohibitions and restrictions that may be imposed by a control order include
prohibitions and restrictions on being at specified areas or places; on communicating
or associating with specified individuals; on using certain forms of telecommunication,
such as the internet; and on carrying out certain activities in respect of the person's
work or occupation. The obligations include the wearing of a tracking device;
remaining at a specified place for certain periods; and reporting at specified times and
places.11
In terms of subdivision B of Division 104, an interim control order may be sought
only by senior members of the Australian Federal Police (AFP) after having received
the written consent of the Attorney-General.12 The offi cer can request an interim order
from the Federal Court, the Family Court or the Federal Magistrates Court, all of which
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6 (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).
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