The Scope of the Defence and other Powers: Thomas v Mowbray 1 1. Introduction (i) There is nothing new about terrorism, as avid readers of the reports of the Cabinet Papers for 1977 will recall: • when they were reminded of the terrorist threat posed by the Indian Ananda Marga Sect and the bombing of the Hilton Hotel the bombing occurred during the meeting of Commonwealth Heads of State in 1978 and resulted in the deaths of three people; • three sect members were convicted of offences arising out of that incident and also the murder of the Leader of the National Front even though those convictions were quashed on appeal except for one sect member who saw out his sentence for the Hilton Hotel bombing incident 2 (ii) These cases were dealt with under the ordinary criminal law. (iii) So why was it found necessary in 2003 to take more drastic legal action to address terrorism? (iv) It will be argued by some that the answer can be found in the allegedly different nature of modern terrorism • as graphically exemplified by the events of 11 September 2001 (in the United States) and recent terrorist events in a number of places including Bali, Madrid and London. 3
2. Pre-existing position (i) The issue addressed in Thomas v Mowbray was the power of the Commonwealth Parliament to deal with the threat of terrorism: • • 1 2
especially given the absence of specific powers to deal with that subject or the general criminal law, 4 both of which otherwise come within State legislative power.
 HCA 33 (2 August 2007). The Australian, 1 January 2008, p 8. 3 See in that regard the nine factors submitted by the Commonwealth Solicitor-General which characterizes the threat of terrorism posed to Western civilization in general and Australian in particular:  HCA 33 at . 4 Attorney-General for the Commonwealth v Colonial Sugar Refining Co Ltd  AC 237 (PC).
(ii) It is true that Const s 119 obliges the Commonwealth to protect every State against domestic violence • • but this only arises if the Executive Government of the State seeks assistance; although the obligation may assume that there is authority to use military forces under the defence power in Const s 51(vi) in order to perform that obligation given the provisions of the Const s 114 which prevent the States from raising or maintaining their own military forces without the consent of the Commonwealth. 5 (iii) But the Hilton Hotel bombing case highlighted the absence of any need for the Commonwealth to rely on its obligation to protect the States where the Commonwealth’s own interests and authority is involved eg Const ss 61, 51(xxxix) and other powers in ss 51 and 52 generally and including the external affairs powers regarding the safety of those attending the 1978 Commonwealth Heads of State meeting held in Australia. That authority has long been acknowledged in US and Australia. 6 (iv) But the assumption made about the defence power was that it was confined to dealing with external threats or enemies • while internal threats (eg treason and subversion) fell within the power of the Commonwealth Parliament to make laws that were incidental to the execution of the Commonwealth executive power under Const ss 51(xxxix) and 61 7 ; and also
See also R v Sharkey (1949) 79 CLR 121 per Dixon J at p 151 (“The reference to invasion [in Const s 119] explains the words ‘and of the several States’ in s 51 (vi), the defence powers.”) 6 J Quick and A Garran, The Annotated Constitution of the Australian Commonwealth (1901) at p 964-5 and also W Harrison Moore 2nd ed at pp 338-9 and generally the “Protective Security Review Report” (AGPS, 1979) 148 – 152 paras 10.23 – 10.35 (“the Hope Report”) and the legal opinion given by Sir Victor Windeyer, published in Appendix 9, at p 277-282 paras 2-13. 7 See Australian Communist Party v The Commonwealth (1951) 83 CLR 501 (Communist Party Case) Dixon J at p 186 and Fullagar J at p 259. Dixon J did however leave open the...
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