See UK Home Office, ‘Rapid review of counter-terrorism powers’ (Press Release, 13 July 2010); BBC News, ‘Control orders need replacing, David Cameron says’, 5 January 2011 <bbc.co.uk/news/uk-politics-12120911> at 18 February 2011; BBC News, ‘Control orders: BBC learns detail of replacement regime’, 11 January 2011 <bbc.co.uk/news/uk-politics-12163629> at 18 February 2011.
2.
(2007) 233CLR307.
3.
Criminal Code Act 1995 (Cth) ss 104.2(2), 104.3. ‘Issuing court’ means the Federal Court, Family Court, or Federal Magistrates Court of Australia.
4.
Criminal Code Act 1995 (Cth) s 104.4(1)(d).
5.
See the full list of possible restrictions at Criminal Code Act 1995 (Cth) 104.5(3).
6.
See R v Thomas [2006] VSCA 165.
7.
See Jabbour v Thomas [2006] FMCA 1286, sch 1.
8.
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
9.
Thomas v Mowbray (2007) 233 CLR 307 at [18].
10.
Thomas v Mowbray (2007) 233 CLR 307 at [116] (Gummow and Crennan JJ).
11.
Thomas v Mowbray (2007) 233 CLR 307 at [355].
12.
See Thomas v Mowbray (2007) 233 CLR 307 at [379]–[380].
13.
Prevention of Terrorism Act 2005 (UK) c 2, s 2(1)(a),(b), expressed as ‘and’.
14.
[2006] EWHC 1623 (Admin) (‘JJ1’).
15.
(1980) 3 EHRR 333
16.
JJ1 [2006] EWHC 1623 (Admin) at [73].
17.
JJ1 [2006] EWHC 1623 (Admin) at [74].
18.
JJ2 [2006] EWCA Civ 1141 at [23].
19.
Secretary of State for the Home Department v JJ & Ors [2007] UKHL 45 (‘JJ3’).
20.
JJ3 [2007] UKHL 45 at [17],[24].
21.
JJ3 [2007] UKHL 45 at [24].
22.
JJ3 [2007] UKHL 45 at [105].
23.
JJ3 [2007] UKHL 45 at [36].
24.
JJ3 [2007] UKHL 45 at [69].
25.
See FairallPaulLaceyWendy, ‘Preventative Detention and Control Orders under Federal Law: The Case for a Bill of Rights’ (2007) 31(3) Melbourne University Law Review1072, 1095.
26.
England and Wales High Court and Court of Appeal recently paved the way for individuals to claim damages for unlawful control orders. However, the HC also emphasised that damage claims, if successful, are likely to be extremely limited: see Secretary of State for the Home Department v AF [2010] EWHC 42 (Admin) (18 January 2010) (‘AF’); AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010).
27.
Thomas v Mowbray (2007) 233 CLR 307 at [27].
28.
Thomas v Mowbray (2007) 233 CLR 307 at [98].
29.
[2007] EWHC 233 (Admin) (‘E’).
30.
E [2007] EWHC 233 (Admin) at [186].
31.
E [2007] EWHC 233 (Admin) at [188].
32.
See Al-Kateb v Godwin (2004) 219 CLR 562 at [584] (McHughJ).
33.
See Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [499] (GleesonCJ).
34.
Secretary of State for the Home Department v MB (FC) [2007] UKHL 46 (‘MB’).
35.
MB [2007] UKHL 46 at [23].
36.
MB [2007] UKHL 46 at [24].
37.
Cf Human Rights Act (UK), c 42, s 2(1)(a), where a court must take into account judgments of the ECtHR, with s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) — a likely model for any federal human rights instrument in Australia — which currently provides that courts may take into account judgments of foreign and international courts and tribunals.
38.
MB [2007] UKHL 46 at [11] (BinghamLord), [47] (HoffmanLord), [78] (CarswellLord); Re MB [2006] EWHC 1000 [36] (Sullivan J). On appeal to the House of Lords, another appellant ‘AF’ was joined as a party to the proceedings.
39.
See EwingKeith DThamJoo-Cheong, ‘The Continuing Futility of the Human Rights Act’ (2008)(Winter) Public Law668, 669. See also EwingTham, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’ (2007) 31(2) Melbourne University Law Review462, and Tham, ‘Parliamentary Deliberation and the National Security Executive’ (2010)(Jan) Public Law79, 109, who argues the HRA has ‘not only made little difference in improving the protection of rights … but may very well have undermined such protection’.
40.
See SandsPhilippeBailinAlex, ‘Out of Control’, New Statesman (UK), 29 November 2010, 34; see also MorrisNigel, ‘A control order ruined my life — and my respect for Britain’, The Independent (UK), 7 January 2011, an account of the effects of a control order on Cerie Bullivant, who spent two years under house arrest in the UK.
41.
See above n 1; SandsBailin, above n 40.
42.
See A v Secretary of State for the Home Department [2004] UKHL 56, in which the House of Lords issued a statement of incompatibility in relation to the detention powers in the Anti-Terrorism, Crime and Security Act 2001 (UK), c 24.
43.
Section 4 of the HRA gives certain UK courts the power to issue ‘statements of incompatibility’ if satisfied legislation is incompatible with a convention right. Courts cannot, however, strike down legislation unilaterally, as in the Canadian Charter model: see Human Rights Act 1998 (UK), c 42, s 4; Canadian Charter on Rights and Freedoms, s 24, enacted as Schedule B to the Canada Act 1982, c 11.
44.
Section 13 of POTA requires an affirmative resolution by both Houses of the UK Parliament every 12 months for the control order powers in ss 1–9 to continue in force.
45.
See especially BBC News, ‘Control orders: BBC learns detail of replacement regime’, above n 1.
46.
See Joint Committee on Human Rights, Parliament of United Kingdom, Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008 — Tenth Report of Session 2007–08 (2008), 13–15, [37]–[49].
47.
[2010] HCA 39. French CJ employed reasoning more akin to the House of Lords than the Gleeson majority when considering the constitutionality of the SA ‘Bikie Legislation’, the Serious and Organised Crime (Control) Act 2008 (SA), stating, ‘The control order involves a serious imposition upon the personal liberty of the individual who is the subject of the control order… A person exposed to such a restriction and to criminal liability for its breach may be an entirely law-abiding citizen unlikely, on any view, to engage in contravention of the law.’
