RESTRICTIONS imposed on Melbourne terror suspect "Jihad" Jack Thomas are unconstitutional because they require Federal Court judges to act as police, the High Court heard yesterday. In the first major test of the Howard Government's anti-terrorism regime, lawyers for Mr Thomas asked the full bench to consider whether federal courts had the constitutional scope to restrict a person's behaviour in order to protect the public from a terrorist act. In August, a federal magistrate approved Australia's first control order against Mr Thomas, subjecting him to a curfew from midnight until 5am, limiting his phone and internet use and banning him from contacting terrorists, including the elusive Osama bin Laden. The secretive hearing that imposed the control order on Mr Thomas came just days after the Victorian Court of Appeal quashed his convictions for receiving funds from al-Qa'ida and holding a false passport.
Mr Thomas's lawyer, former federal court judge Ron Merkel, argued yesterday that the section of the Criminal Code that covered control orders was invalid because it conferred non-judicial powers on federal courts, contrary to Chapter III of the Constitution. Chief Justice Murray Gleeson questioned whether control orders differed to apprehended violence orders, which are frequently used in domestic violence disputes to limit access between estranged partners. "A fear that a person may commit a violent act becomes the basis for restraints ... against conduct which is not unlawful," he said.