‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ by Rebecca Ananian-Welsh and George Williams in (2014) 38(2)
Melbourne University Law Review comments
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.
The authors argue
The ‘war on terror’ that arose after the September 11 attacks in the United
States triggered an expansion of international1 and domestic legal frameworks directed at the prevention of terrorism. Today, that conflict appears to
be waning, but in many respects the expanded frameworks remain intact. This
is enabling processes of ‘normalisation’ by which such measures come to be
treated as unexceptional, rather than as extreme measures that ought to be
strictly limited in their application. In this form, they are more readily
adapted to other areas of the legal system. Outside of the anti-terror context,
the now-normalised measures can give rise to even more extreme laws that
further challenge fundamental values. In this sense the legal responses to the
war on terror can continue indefinitely outside of the anti-terror context and
have a permanent impact on constitutional values.
We explore this dynamic by focusing on an Australian case study, namely
the migration of control orders from the anti-terror context to the body of
legislation that has emerged in what might be called a ‘war on bikies’. Control
orders are civil orders that empower courts to impose a wide range of
restrictions and obligations on an individual, such as curfews, limits on
communication, and the like, for the purpose of preventing future criminal
acts. A person may be the subject of a control order, and therefore subject to a
deprivation of liberty, without any finding that they have transgressed the law.
In this way, control orders operate independently of any concept of guilt
or innocence.
We begin in Part II by introducing Australia’s response to the global threat
of terrorism and the rhetoric of urgency, exceptionalism and war that attended
the enactment of a host of anti-terror laws following the 9/11 attacks,
including control orders. In Part III, we document the proliferation of control
order-like schemes across Australia, tracing their migration from the antiterror
context to the fight against serious and organised crime. This process of
migration and subsequent normalisation has not gone unnoticed. Writing in
2010, Gabrielle Appleby and John Williams observed the ‘creep’ of anti-terror
laws to the law and order context, and one of us writing with Nicola McGarrity
said: ‘counter-terrorism laws have become a permanent fixture of the legal
landscape. … Over time, what were once seen as extraordinary laws have
become accepted as “normal”’.
Not only has the control order device itself migrated across contexts, but it
has provided a vehicle for the more subtle migration of certain characteristic
features of national security laws. Hence, the expanded use of secret evidence,
crimes of association and preventive constraints on liberty have also gone
through a similar process of normalisation.
In Part IV, we explore more recent developments that signal the next phase
of the migration and normalisation process. In the ongoing political race to be
‘tough on crime’, the adaption of once-extreme measures has given rise to the
extension of these measures into new, even more extreme territory. In Part V,
we reflect on this process of migration, normalisation and extension and
examine the role played by constitutional values in both checking and
facilitating such trends.
