Thomas v Mowbray — Guilty until proven innocent? Control orders and the circumventing of due process

Basil Naimet examines Australia’s terrorism and security laws with respect to control orders.

Laws in relation to terrorism are becoming increasingly pervasive in the lives of the Australian people and increasingly infringe on our civil liberties. This is exemplified in the 2006 case of Thomas v Mowbray and the subsequent High Court challenge in 2007 as an example of the extreme measures placed on an individual through ‘control orders’. These controls, in effect mean the person charged with terrorist offences will have their freedom restricted considerably.

In his article Alarmed, but not alert in the ‘War on Terror’? The High Court, Thomas v Mowbray and the Defence power’, academic Oscar Roos observes that Division 104 part 5.3 was inserted into the Criminal Code 1995 (Cth). Entitled ‘Control Orders,’ ss 104.2 to 104.5 relate to interim orders to be made by a federal court. Roos argues the ‘critical provision’ in Thomas v Mowbray was s 104.4 which provides, amongst other things, that an interim control order can be made pursuant to:

© the court is satisfied on the balance of probabilities:

(i) that making the order would substantially assist in preventing a terrorist act; or

(ii) that the person has provided training to, or received training from, a listed terrorist organization.

The magistrate in Thomas v Mowbray, Graham Mowbray granted the control orders be placed on Thomas as he believed, on the balance of probabilities, that both grounds of subsections (i) and (ii) of s104.4(1)© were fulfilled. But is the balance of probabilities a sufficient standard for a country that prides itself on sustaining an offenders’ freedom until proven guilty beyond reasonable doubt? Professor Andrew Lynch from the University of New South Wales, who authored ‘Thomas v Mowbray: Australia’s War on Terror Reaches the High Court’ , states there was no evidence implicating Thomas in any terrorism related activities or having any associations with terrorist organisations when he returned to Australia which may have indicated to the Australian Federal Police (AFP) that any future terrorist activity could occur. Professor Lynch argues the AFP arraigned Thomas on terrorism charges, claiming he may have been a ‘sleeper’ for Al-Qaeda and could have contributed to carrying out a domestic terrorist attack in the future.

Thomas had a raft of restrictions placed upon him as a result of the control order, even after a jury acquitted him of the charge of ‘supporting’ a terrorist organisation and agreeing to act as a ‘resource’, covered under s 102.7 of the Criminal Code. The restrictions included a curfew forbidding him from leaving his house between midnight and 5am and reporting to police three days a week. There was also a restriction on his use of phone services (including not being able to use a payphone), having to seek written approval to make telephone calls, and a prohibition on contacting up to 50 people whom the Department of Foreign Affairs and Trade (DFAT) identified as terrorists, including Osama bin Laden.

So, what about the future of terrorism offences in Australia, and what about the liberty of those subjected to these control orders? Does the standard of balance of probabilities not pose a threat to individuals who may be innocent of terrorism charges?

Following a Melbourne man’s arrest in November 2017 on terrorism charges, these control orders raise the question of whether we are using excessive power to simply achieve a conviction at the risk of imposing on someone’s rights?

Control Orders for terrorist activity

Following the London bombings in July 2005, control orders were implemented into the Criminal Code 1995 (Cth) via the Anti-Terrorism Act [№2] 2005 in Australia. Division 101 of the Criminal Code makes reference to terrorism activity and the penalty associated with it.

Section 101.6 states:

Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the person’s act is not done in preparation for, or planning, a specific

terrorist act;

That’s all well and good. If a person is found guilty of a terrorist activity in any form, then the law should apply with the appropriate punishment handed out. The standard for terrorist acts and other criminal behaviors should be viewed as equal and stand side-by-side, even when making control orders. In the absence of incontrovertible evidence, as was the case in the Thomas v Mowbray decision, the failure to do so means we are no less than a dictatorial state.

Bibliography

A. Journal Articles

1. Lynch, Andrew. ‘Thomas v Mowbray: Australia’s ‘War on Terror’ Reaches the High Court’ (2008) 32 (3) Melbourne University Law Review 1182
2. Roos, Oscar. ‘Alarmed, but not alert in the “war on terror”? the High Court, Thomas v Mowbray and the Defence Power’ (2008) 15 James Cook University Law Review 169

B. Legislation:

1. Anti-Terrorism Act [No 2] 2005 (Cth)
2. Criminal Code 1995 (Cth)