Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform

Abstract

Introduction: The Balancing ModelMuch of the debate post-September 11 (9/11) about expansion of state power to combat terrorism has been framed as striking a balance between security and liberty. 1 The 'balancing approach', whereby security is reconciled with respect for fundamental liberal rights and values, has been very influential in counter-terrorism law reform in Australia. 2 As the former federal Attorney-General Philip Ruddock pointed out:We don't live in an ideal world. We live in a world of trade-offs. And now we live in a world where we must accept the costs associated with protecting ourselves from terrorism … There will always be a trade-off between national security and individual rights. The task of government is to recognise these trade-offs and preserve our security without compromising basic rights and liberties. 3

Upholding whose right? Discretionary police powers to punish, collective ‘pre-victimisation’ and the dilution of individual rights

“…Rather than being in conflict individual rights and collective security can co-exist, with one not necessarily reducing the other. Bronitt (2008) cites evidence from the fields of procedural justice and police legitimacy 10 to demonstrate that procedural fairness and proportionality can engender compliance (p. 71). However, under the auspices of the war on terror in the US, Australia and the UK, 'human rights tend to be traded away as a threshold issue' that extends 'to ordinary crimes, which target suspect classes or groups rather than individuals' (Bronitt, 2008, p. 82).…”

Terrorism and government: Between history and criminology

“…While there may have been terrorism before 9/11, and a government response to it, the events of that time and the subsequent more local impact of the Bali bombing have inspired an extraordinary raft of special legislation, accompanied by an escalation of government resources devoted to policing and surveillance. The legislative activism has resulted in laws that risk harming the human rights of suspects and innocent people alike (Bronitt and Stellios, 2006;Bronitt, 2003Bronitt, , 2008Gani and Mathew, 2008;Lynch et al, 2007;Lynch and Williams, 2006;McGarrity et al, 2010). The policing and prosecution of actions that harm has been expanded to include actions or even thoughts that might result in a future terrorist action, in a strategic manoeuvre that has been characterised as 'pre-emption' (McCulloch and Pickering, 2009).…”

Preventing Terrorism and Controlling Risk

“…On the other hand, control orders have been widely criticised by politicians, civil liberties organisations and academics alike, much of the criticism focusing on procedural issues and human rights implications. Control orders have been described as unsafe, unfair, and undermining the right to a fair trial and the presumption of innocence (Liberty; , which goes against British traditions of liberty and justice (Bronitt 2008;. A vocal critic of the scheme, described them as ''unprecedentedly intrusive' ' (p. 176).…”