Counter Terrorism and Access to Justice: Public Policy Divided?

2009

This paper will consider the manner in which Australia’s counter-terrorism strategy has been operationalised, highlighting the implications of its strategy for access to justice. Access to justice, encompassing the ability of individuals, including persons suspected of terrorism offences and non-suspects, effectively to exercise their human and legal rights, can be an important curb on state power. But, in another equally important sense, providing individuals with access to justice also protects national security by helping to ensure that the law enforcement and security agencies focus their efforts on genuine terror suspects rather than wasting their resources on investigating and prosecuting genuine non-suspects. Accordingly, access to justice in the context of counter-terrorism, and more broadly, involves such things as suspects ’ (and, non-suspects’) enforceable rights: to be represented by competent, independent and affordable legal counsel (thus including the availability of ...

2007

This paper considers whether in the 'war against terrorism' national security is eroded or strengthened by weakening or removing the human rights of the individuals who constitute the polity. It starts with the view that national security is, at its most fundamental, founded upon the security and liberty of the person from criminal and violent acts, including terrorist attacks. Such attacks, and the individuals and groups who perpetrate them, constitute a grave threat to the peace and security of nations the world over and thus endanger the security and liberty of the individuals who make up their populations. Governments are therefore compelled to use the machinery of the state to protect the nation and the individual from these attacks. However, the paper is based on another, equally important, assumption. This is that the defence of national security requires individuals to be protected from the arbitrary exercise of state power even in situations where the state claims to be acting to protect national security and individual security against grave threats such as terrorist acts. The rule of law not only protects individuals from such an exercise of state power by protecting their human rights, in so doing it also protects the peace and security of the nation from excessive and unchecked state power. But what happens when the rule of law is overturned by governments declaring that they are protecting national security from the terrorist threat? Who or what is then able to protect the individual and the nation from the state? This paper will take up these important questions by considering the implications of the anti-terrorism legislation that has been introduced in Australia since September 2001. It will also consider whether Australia's national security has been enhanced or damaged by this legislation.

2007

This paper considers whether in the 'war against terrorism' national security is eroded or strengthened by weakening or removing the human rights of the individuals who constitute the polity. It starts with the view that national security is, at its most fundamental, founded upon the security and liberty of the person from criminal and violent acts, including terrorist attacks. Such attacks, and the individuals and groups who perpetrate them, constitute a grave threat to the peace and security of nations the world over and thus endanger the security and liberty of the individuals who make up their populations. Governments are therefore compelled to use the machinery of the state to protect the nation and the individual from these attacks. However, the paper is based on another, equally important, assumption. This is that the defence of national security requires individuals to be protected from the arbitrary exercise of state power even in situations where the state claims to be acting to protect national security and individual security against grave threats such as terrorist acts. The rule of law not only protects individuals from such an exercise of state power by protecting their human rights, in so doing it also protects the peace and security of the nation from excessive and unchecked state power. But what happens when the rule of law is overturned by governments declaring that they are protecting national security from the terrorist threat? Who or what is then able to protect the individual and the nation from the state? This paper will take up these important questions by considering the implications of the anti-terrorism legislation that has been introduced in Australia since September 2001. It will also consider whether Australia's national security has been enhanced or damaged by this legislation.

2010

This article explores the impact of counter-terrorism legislation and policy in Australia. In particular it explores how legislation facilitated prosecution and conviction of persons involved in home-grown terrorism, including analysis of investigation and prosecution policy surrounding the ul-Haque and Haneef cases. Particular attention is given to the terrorism trials involving Benbrika & Ors and Elomar & Ors. What makes these trials intriguing is the fact that most of those convicted could be more easily described as more vulnerable than menacing. Sentencing of those convicted was cognate with no policies for rehabilitation. The small number of convictions under the legislation when considered against the increased funding of counter-terrorism, loss of traditional rights and privileges and Australia's involvement in Afghanistan and Iraq raises issues about adequate policy setting in this area.

2008

This article considers whether in the „war against terrorism‟ national security is eroded or strengthened by weakening or removing the human rights of the individuals who constitute the polity. It starts with the view that national security is, at its most fundamental, founded upon the security and liberty of the person from criminal and violent acts, including terrorist attacks. Such attacks, and the individuals and groups who perpetrate them, constitute a grave threat to the peace and security of nations the world over and thus endanger the security and liberty of the individuals who make up their populations. Governments are therefore compelled to use the machinery of the state to protect the nation and the individual from these attacks. However, the paper is based on another, equally important, assumption. This is that the defence of national security requires individuals to be protected from the arbitrary exercise of state power even in situations where the state claims to be a...

Since September 11, Australia's federal Parliament has enacted a range of exceptional measures aimed at preventing terrorism. These measures include control orders, which were not designed or intended for use outside of the terrorism context. What has followed, however, has been the migration of this measure to new contexts in the states and territories, especially in regard to what some have termed the 'war on bikies'. This has occurred to the point that this measure, once considered extreme, has become accepted as a normal aspect of the criminal justice system, and has in turn given rise to even more stringent legal measures. This article explores the dynamic by which once-exceptional measures become normalised and then extended to new extremes. It explores these issues in the context of the role that constitutional values have played in this process.

Proscription is principally deployed as a means to (i) signal government’s disapproval of the ideas of an organisation deemed to be involved in terrorism, and (ii) empower policing and security agencies to dismantle the organisation’s capacity to further those ideas by confiscating resources, financial or otherwise, and prohibiting membership of the association. Yet, while there is a long history of the use of proscription powers in Australia and elsewhere, the legal and policy rationale for banning terrorist organisations has not kept pace with the evolving dimensions of international migration, domestic extremism, and political violence. In this submission, we put forward an alternative framework of proscription that seeks to mitigate some of the concerns that have been raised regarding the transparency, appropriateness and ‘heavy-handedness’ of current proscription powers. It is our view that proscription should be just one of a raft of instruments to tackle extremist violence associated with organisations. It is well-understood that extremism is an area of some subjectivity, particularly with regard to legal definitions of terrorism and organisation and the practical implications for proscription that follow. The framework put forward here seeks to provide government with a range of instruments that enhance the ability of government to (i) clarify whether an organisation is, in fact, oriented towards undertaking or supporting extremist violence; (ii) determine what sanction, if any, is appropriate; (iii) diminish the capacity of organisations to use or support the use of violence.

Australian journal of human rights, 2013

This article considers the interplay between international human rights standards and the development of, and debate around, personal secrecy provisions in two areas of Australian counter-terrorism policy-ASIO questioning, and detention warrants and preventative detention. These provisions prevent a detained person from notifying their family of the fact, place or length of their detention, for a period potentially of up to 7 or 14 days, respectively. This article's first contribution is showing how these secrecy provisions violate relevant international human rights standards in the ICCPR and ICPED. Second, the article argues that although international human rights standards have had some purchase in the formation of counter-terrorism policy in Australia, this has been insufficient to date to prevent the development of policies that violate those standards. The article's focus on the minutiae of policy detail makes an important contribution to future debates around compliance with human rights standards in the context of counter-terrorism policy making.

Journal of Pacific Affairs, 2012

Fresh Perspectives on the "War on Terror", 2008