The recent 2007 case Thomas v Mowbray46 changed the way involuntary detention was viewed and which head of power supports the legislation pertaining to detention (protective detention orders (PDO) and control orders (CO)) of people. Prior to this case the ambit of the defence head of power was only expanded when the Commonwealth was in a state of war47, however, this was changed in the Thomas48 case decision that was handed down by the High Court in August 2007.
The High Court held that the defence head of power is not limited to times of war or the threat of war from foreign nations or external threats, but the Parliament has the power to legislate in relation to the defence forces of the Commonwealth using the defence head of power at any time (even times of peace). 49 This could include general legislation to detain people that could be a perceived threat to the community and the nation by the issuing of PDOs and COs. 50
The majority of the heads of power seem to be too narrow to support legislation that allows detention of people that have not fallen foul of the law, and protection from involuntary confinement does not come from Ch III but rather that "subject to certain exceptions, a law authorising detention in custody, divorced from any breach of the law, is not law on a topic with respect to which s51 confers legislative power",51 however there are three possible exceptions to this. These are the defence, quarantine and race heads of power with the defence head of power52 being the focus in the Thomas53 case.
Jack Thomas was challenging the validity of Div 104 of the Criminal Code 1995 (Cth) (Code)54 because of an interim CO restricting his movements and who he could contract that was issued by a Magistrate of the Federal Court. 55 The question the High Court had to decide on in the Thomas56 case was if Division 104 of the Code57 was invalid because it gave power to a federal court that was non-judicial and it authorised the exercise of that power that would be opposed to Chapter III of the Constitution.
58 Also which express or implied head of power support Division 104 of the Code59? 60 The High Court found in the Thomas61 case that s 100. 3(1) of the Code62 was supported by the defence head of power (Constitution63 s 51(vi)) and the external affairs head of power (Constitution64 s 51(xxix)). 65 Gleeson CJ agreed with Gummow and Crennan JJ that that the defence head of power and the external affairs head of power supported the Code66 legislation in particular Div 104 and s 100.
8 so therefore it is valid legislation. 67 There are strict guidelines in place that must be followed in order to acquire a CO. To obtain a CO the procedure that the Federal Police must follow is they must provide the Attorney-General with a history of previous COs and detail grounds about the terrorist suspect in order to obtain his or her permission. They must then apply to a court for an interim CO under s 104. 4. Then after 72 hours the interim CO can be changed, revoked or confirmed at another hearing.
For the CO to be confirmed, the court would need to be satisfied "on the balance of probabilities" that either, the CO would go a long way in stopping terrorist activities, or a person poses a risk because they have had training with or given training to a terrorist group, and the preventions, requirements and limits imposed by the CO must be "reasonable necessary and reasonably appropriate and adapted for the purpose of protecting the public [form] terrorist acts" in order for the courts to issue a CO. 68 The power of the courts to issue COs comes from Chapter III of the Constitution and they must stay within that ambit of judicial power.
69 Likewise there are also strict guidelines imposed when a PDO is issued. The initial PDO can be issues by a senior member of the Federal Police and is valid for up to 24 hours. Then a continued and/or extended PDOs can be applied for and has to be issued by either a judge, a federal magistrate, a retired judge or Administrative Appeals Tribunal member. The continued PDO can last up 48 hours from when a person was first detained which is the maximum time that the Federal Police can detain a person "on the grounds that the detention" will stop the terrorist activity.
70 When seeking a continued PDO, the Federal Police must present to the hearing "any materials in relation to the application" that the suspect has given them. 71 Also "the detention of the person must be reasonably necessary for these purposes" and the Federal Police must provide solid evidence that the suspect is likely to carry out, or is preparing a terrorist attack and/or is in possession of material relating to terrorist activities. The High Court has, in a number of cases, recognised that the Parliament has the power to legislate in relation to people entering Australia's borders without valid documents.
The Executive has the power through legislation (with in-built requirements and terms of detention) to detain aliens while they are processed for either entry to or deportation from Australia. 73 While there are restrictions set out in the Act74 in relation to detention while the application for entry is being processed75 it seems to be the agreement of the High Court that an alien can be held indefinitely if an entry visa to Australia is refused and there is no country that the alien can be deported to.
The Thomas77 case has changed the ambit of the defence head of power. Prior to this case this head of power was only expanded when the Commonwealth was in a state of war,78 now with the High Court ruling the Parliament has the power to legislate relation to the defence forces of the Commonwealth using the defence head of power at any time (even time of peace)79 and this could include general legislation to detain people that could be a perceived threat to the community and the nation by the issuing of PDOs and COs.
80 However, the Executive is restrained by the Code81 as to how long the suspect may be detained and process they must go through to obtaining a CO82 or PDO. 83 It would appear that the consensus of the High Court in both the detention of aliens and terrorist suspects is that the legislation relating to the incarceration of these people are valid and that the legislation is supported by the relevant head of power.