Bright lines and open prisons
The effect of a statutory human rights instrument on control order regimes
The control order regime in Division 104 of the Australian Criminal Code Act 1995 (Cth) ('Criminal Code') is one of the exceptional measures introduced into Australian anti-terrorism law after the 2005 London bombings. Like the UK regime on which it was based, it threatens to erode long-established principles of public and criminal law by severely restricting individual liberty on the basis of future conduct and without prior determination of criminal guilt. The Australian legislation is likely to remain in its original form for the foreseeable future, while the UK control order regime in the Prevention of Terrorism Act 2005 ('POTA') is now the subject of a proposed wholesale revision by the UK government.1
This article compares the approach of the Australian High Court in Thomas v Mowbray2 with recent control order jurisprudence in the UK, which has been influenced by the presence of the Human Rights Act 1998 (UK) ('HRA'). It examines the effect that a statutory bill of rights can have on the judicial interpretation of rights-infringing anti-terror legislation — and on political support for the same over time.