Commentary on Thomas v Mowbray [2007] HCA 33

In Thomas v Mowbray [2007] HCA 33, is Justice Kirby expressing a coherent theory of what law is, or is he merely expressing regret that the law is not what he wants it to be?

MICHAEL ZHOU

In the Thomas case, the High Court decided by a 5-2 majority that an interim control order on Mr. Jack Thomas of Victoria was valid. But behind that simple outcome, the case was one of the most important in decades in relation to the separation of powers, State and Federal rights, and human rights in Australia. This article will first examine the role of differing courts in the Australian legal hierarchy and the different legal principles respective courts apply. Then it will discuss the distinctive role that the High Court plays in judicial decision making and how the differing perceptions of its role by individual Justices on the High Court influence their respective judgments. Finally it will discuss how legal principle can assist in the analysis of what law is, in addition to what Justice Kirby in his dissent is trying to evoke.

1. INTRODUCTION

The question with which this article is concerned can be analysed using two basic processes. These processes are established by Justice Kirby in Thomas v Mowbray as to the origins of constitutional knowledge which he posits as being found in legal principle. The two processes involve first, analysing lessons learnt from constitutional history and alternatively, the devastating consequences it may cause if such elements are forgotten or neglected by a court ‘under the passing pressures of time’.

At the jurisprudential level, Justice Kirby posits himself as someone who is in between that of a natural lawyer and a positivist legal theorist and this is also present in many of his judgements which have come to be known as the ‘Kirby Doctrine’ .

However, before proceeding to the subjective task at hand it is necessary to provide an overview of the present processes which courts use when making judicial decisions in relation to their respective positions within the judicial hierarchy.


2. OUTLINE OF THE PRESENT SYSTEM FOR JUDICIAL DECISION MAKING

The decision-making roles of magistrates and judges have been controversial at times — do they make law and, if so, what factors do they, and should they, consider? To answer this, we need to first examine the position of individual courts in relation to the overall judicial hierarchy.


2(a) The Differing Levels of Courts

In Australia, there are two broad levels within the judicial hierarchy: the federal level and the state and territory level. While the Court system is separate from one state to another, with the exception of the Federal Court of Australia and some quasi-judicial organisations, the High Court of Australia remains the ultimate court of appeal in the Australian system .

As Australia is a common law jurisdiction both at federal and state levels , the application of precedents handed down by superior courts form a large proportion of judicial decision making . It is also due to this principle that inferior courts have very little room to maneuver in terms of law making . Due to its inability to make new laws, lower courts constantly apply laws and judicial precedents handed down by superior courts . Owing to the disposition of inferior courts in the legal hierarchy, and their distinctive role in the application of law, lower courts find themselves utilising a more positivist legal approach. Although a purely positivist legal approach would see that there is no inherent or necessary connection between the validity conditions of law and ethics or morality, the evolution of both common law and equity have reduced this somewhat .

Looking beyond the role of inferior courts, mid-tier courts also find themselves restricted by precedents but they have more maneuverability in terms of independent law making . This is especially prevalent amongst state supreme courts and to a lesser degree district/county courts, thus such courts tend to apply a more moderate/conservative approach in judicial decision making. This is very similar to Dworkin’s theory in that mid-tier courts are more prevalent to assert individual rights . In addition, the majority of Justices in these courts do not believe criminal law should be concerned with private morality; however, individuals should nonetheless be treated equally .

From this, one can see the shift in trend towards the different principles courts from differing positions within the legal hierarchy choose (and in some cases, are obligated) to employ. This shift in principle, from a purely application based, positivist legal perspective (in lower level courts) to a moderate/conservative approach (in mid-tier courts), shifts again for superior courts especially that of the High Court of Australia.


2(b) The Special Role of the High Court

The High Court of Australia is the highest court in the Australian legal hierarchy . Its authority and jurisdiction is far reaching and is the only court in this country to have the power of a judicial review over the laws passed by the parliament of Australia . With this additional authority and power, the role of the court and its Justices differs from that of other courts . Therefore, the legal principles with which this court chooses to apply in its judicial decision making should reflect this change .

3. THE USE OF LEGAL THEORY IN THE HIGH COURT OF AUSTRALIA

Section 3 will further discuss the application of legal principles in the High Court. In addition, it will examine how Justice Kirby’s remarks in Thomas v Mowbray can assist in this analysis.


3(a) Judicial Decision Making in the High Court of Australia

It is necessary for the High Court to recognise the changing social values in their judicial decisions . These ‘contemporary values’ are shaped by the climate of the day, therefore, High Court judges need to reflect and analyse these contemporary values . This is evident in Mabo v Queensland (No.2) where the High Court ruled unanimously that the laws of the time patterning to native titles were out of touch with contemporary values in society.

Similarly, in Thomas v Mowbray the High Court by majority recognised this change in the climate as justifying these stricter penalties. This is because we are a different society post 9/11 than we were before. Our value systems have changed because we feel more strongly about the need for protection.

It is, therefore, up to the High Court to decide whether the provisions of the Crimes Act could be justified within S51 of the constitution under the defence power or the external affairs power . The Federal Parliament can state that they are passing laws under one of the above categories but they cannot put it beyond question. It is still up to the High Court to decide its constitutional validity.


3(b) Justice Kirby’s Doctrine for Thomas v Mowbray

In Thomas v Mowbray, Justice Kirby in his dissent, delivered possibly his most important consideration for the rule of law in Australia. His unprecedented dissent included many ‘un-judge-like’ criticisms both of the High Court of Australia as well as some of his fellow judges . In addition, Justice Kirby pointed out that the High Court’s “surrender” to the demands for more executive power that ‘exceed or offend the constitution’ and the liberty of the individual in Australia could be “grave” as a result.

Throughout his dissent, references to natural rights, individual liberty and equality are continually evident . This, in some ways reflect the overall structure of natural law principles in that such rights, liberty and freedom come from a higher order/being. In looking at this from a common law perspective, these laws, ethical/moral obligations would be bound by all levels of the judiciary. If it is recognised by the individual courts, as Justice Kirby have done in this case, then in theory, these laws would and can be considered as precedents for lower courts. To fully understand the reason behind the application of such principle, one must reflect on the hierarchical nature and purpose of the High Court of Australia.

As previously stated, the High Court of Australia is the single most dominant court in this country, which brings unprecedented powers over all other courts and judicial organisations within Australia. The High Court is therefore, not bound by any precedents. Without any direction in the guidance of judicial decision making, judges should consider a broader range of implications in their judgements.

Justice Kirby’s judgement focused especially on individual rights as opposed to the majority of the other High Court Justices who had a more liberalist/utilitarianism approach. In this regard, Justice Kirby defends his position by pointing out that even though other countries such as the UK have implemented such measures in their respective legislatures, such incursions on fair trial, privacy, liberty and equality before the law occurred in circumstances where there were actual terrorist atrocities taking place in Belfast, Birmingham and Knightsbridge . We in Australia have not reached such levels of terrorist activity on our shores, but yet we have the draconian laws .

Looking at this from a positivist legal perspective, it is clear that the majority of Justices have taken a literal approach to its interpretation in that the role and jurisdiction of the High Court extends so far as to the constitutional validity of federal legislation, not to its fairness or impact on society. This is one of the core ideology for which Justice Kirby is in conflict with his colleagues on the High Court bench. On one hand, Justice Gummow and Justice Crennan stated that there is a need for the court to consider things in the context of current policy. In doing so, they considered what is meant by policy and how that changed over time. In addition they discussed how the court must take into account policy arrangements but at the same time, place it in a context which is clearly able to be articulated (in other words, what is the policy context of this legislation and how can it be defended). On the other hand, Justice Kirby commented that this seemed to be a retreat from the protection that had been granted by cases like the communist party case. What he is saying is that because the situation is different now, one cannot abandon all of the underpinning principle democracy holds dear to. In other words, he is articulating that the decision to hand that power over is perhaps unprincipled and ignores both legal and constitutional philosophical underpinnings.


3(c) Lessons of Constitutional History

To fully comprehend the context with which Justice Kirby is referring to, one must consider the historical constitutional considerations which lead to his dissent, with reference most notably to the communist party case and more recently Al-Kateb v Godwin.

For a long time, the Communist Party case was regarded as a benchmark and a clear signpost that the high court would be there to stop overreaching powers by the Commonwealth parliament. It is argued that the Thomas case raised similar issues. Could you essentially deem a person to be a treat to Australia/to the defence of Australia/ to Australian people, without them ever actually having been found to have done anything wrong? This is where Kirby’s dissent took its context from. The Justices disagreed about what it meant or what were necessary to protect the public, so they interpreted the legislation in the context of what they believed were the current political climate and the nature of the treat that was posed to Australia. This perception can be very general just like legal philosophy which always talks at a general level.

Furthermore, in Al-Kateb v Godwin , the High Court ruled by a 4-3 majority that the indefinite detention of a stateless person was lawful. Similarly to the Thomas case, the High Court focused on two main issues concerning whether the relevant act (in this case the Migration Act ) was valid and if so, whether this was permissible under the Constitution of Australia . The Justices in the majority took a similar interpretation to that of the Thomas case (by using more or less a positivist legal approach), however, the position of Justice McHugh (who ruled in the affirmative ) later changed and has since spoken out openly about his mistake and regret in this judicial decision . This is exactly the kind of mistake Justice Kirby is referring to and cautions about.

4. CONCLUSION

Through analysis, this article contends that in Thomas v Mowbray, Justice Kirby is evoking his own perception of the law and what he envisage the law to be, although, in the process, he makes reference to legal theory to further his reasoning for such a system of judicial decision making in the High Court of Australia, taking into account its unique role and position in the Australian legal hierarchy. In 1971, an Australian Chief Justice found it ‘hardly possible to disentangle any general principle’ for the case law on the subject. He considered the law to be ‘in a state of flux and confusion.’ In 1982 Sir William Wade concluded that:

“Probably…there can be no hard and fast rules for determining when the court may or may not allow collateral challenge. In some situations it will be suitable and in others it will be unsuitable, and no classification of the case is likely to prove exhaustive.”

Over the ensuing years, no general principle has emerged. What has emerged, however, are differences of judicial opinion about when and when not collateral challenge is suitable.

*Apologies that footnotes did not show. If you would like references to the above mentioned material please let me know via email. Michael