Defence Power

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: • •
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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.

[2007] 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: [2007] HCA 33 at [253]. 4 Attorney-General for the Commonwealth v Colonial Sugar Refining Co Ltd [1914] AC 237 (PC).

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(ii) It is true that Const s 119 obliges the Commonwealth to protect every State against