High Court of Australia
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
JOSEPH TERRENCE THOMAS PLAINTIFF
AND
GRAHAM MOWBRAY, FEDERAL MAGISTRATE & ORS DEFENDANTS
Thomas v Mowbray [2007] HCA 33
2 August 2007
M119/2006
ORDER
The questions stated in the further amended special case filed on 15 February 2007 be answered as follows:
(1)
Q. Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
(2)
Q. Is Division 104 of the Criminal Code invalid because in so far as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?
A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
(3)
Q. Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?
A. Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
(4)
Q. Who should pay the costs of the special case?
A. The plaintiff should pay the costs of the Commonwealth of the special case.
Representation
R Merkel QC and S G E McLeish and K L Walker for the plaintiff (instructed by Robert Stary & Associates)
Submitting appearance for the first defendant
T M Howe for the second defendant (instructed by Australian Government Solicitor)
D M J Bennett QC, Solicitor-General of the Commonwealth and H C Burmester QC with T M Howe, S P Donaghue and G J D del Villar for the third defendant (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
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