Thomas v Mowbray

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Citation: [2007] HCA 33.

This information can be found in the Textbook: Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014), pp.

Background facts

  • New anti-terrorism laws were enacted after the 9/11 attacks.
  • The Appellant [Thomas] had apparently admitted to training with terrorist organizations, however he claimed that this evidence was obtained under duress and he was eventually acquitted.
  • Nevertheless, he was issued a 'control order' imposing restrictions on him, under the new anti-terrorism laws. He challenged the validity of those laws.

Legal Issues


  • The court rejected the Communist Party‚Äôs Case reasoning which held that the defence power is primarily concerned with external threats.
  • The protection from a terrorist act falls within the central conception of defence power.
  • Callinan J applied found the measure was reasonably proportionate to the threat on the facts even on the Communist Party Case test.
  • Note: although the court decided that terrorism engages the power, it still maintained the peace/war distinction.
  • Kirby J expressed strong dissent.
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