Terrorism as Crime or War: Militarising Crime and Disrupting the Constitutional Settlement? Comment on Thomas vs. Mowbray (2007) 237 ALR 194; 81 ALJR 1414; [2007] HCA 33

Public Law Review, Vol. 19, No. 1, pp. 20-31, 2008

Sydney Centre for International Law Working Paper No. 2

Sydney Law School Research Paper No. 08/129

12 Pages Posted: 31 Oct 2008  

Ben Saul

The University of Sydney Law School

Date Written: October, 30 2008

Abstract

In the absence of a bill of rights in Australia with which to evaluate and challenge sophisticated rights-based arguments for evaluating anti-terrorism laws, those faced with arguably excessive laws are left with little upon which to hang their challenges. In the High Court case of Thomas vs. Mowbray (2007) 237 ALR 194; 81 ALJR 1414; [2007] HCA 33, a classic double attack on constitutional grounds was mounted against the imposition of a control order on Joseph (Jack) Thomas under Div 104 of the Criminal Code (Cth) first, Chapter III arguments about judicial and non-judicial power, and secondly, arguments about lack of legislative power. This comment briefly sets out the Chapter III arguments before focusing on the legislative power issues (specifically, whether the defence and external affairs powers support control orders), questioning whether the High Court exhibited too much deference towards government concerns about security threats.

Keywords: arbitrary detention, terrorism, emergency powers, human rights, constitutional power, defence power, external affairs power, control orders

JEL Classification: K10, K30, K33

Suggested Citation

Saul, Ben, Terrorism as Crime or War: Militarising Crime and Disrupting the Constitutional Settlement? Comment on Thomas vs. Mowbray (2007) 237 ALR 194; 81 ALJR 1414; [2007] HCA 33 (October, 30 2008). Sydney Centre for International Law Working Paper No. 2; Sydney Centre for International Law Working Paper No. 2; Sydney Law School Research Paper No. 08/129. Available at SSRN: https://ssrn.com/abstract=1292588

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://www.law.usyd.edu.au/about/staff/BenSaul/index.shtml

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