Abstract
The central hypothesis of this chapter is that the post 9/11 era has spawned a new hybrid form of terrorism regulation. The Oxford English Dictionary defines hybrid as follows: “Derived from heterogeneous or incongruous sources; having a mixed character; composed of two diverse elements; mongrel” (Oxford English Dictionary, 2nd edn, online version, http://www.oed.com/view/Entry/89809, Accessed 4 Aug 2011). Hybrid for the purpose of our legal analysis is defined as a measure or law containing elements/characteristics of two previously distinct legal entities. The contention is not entirely novel. Control orders in the United Kingdom as hybrids between criminal and civil law, and melding powers of an executive/judicial nature. Equally, in the Australian context, scholars have identified the hybridisation of techniques of power, as well as the blurring of police and military powers, and crime and war. Hybrids are not however exclusive to terrorism law. Legal hybrids are also evident in fields such as drug law and public order, where strict liability, reverse onus clauses and civil standards of proof have been long applied. That said, the scale and extent to which regulatory efforts to counter terrorism in Australia span various modes of governance (criminal versus civil measures; judicial versus administrative power) makes legal hybrids a mode of regulation worthy of examination.
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Notes
- 1.
See for example: Michael Head, “Counter-Terrorism” Laws: A Threat To Political Freedom, Civil Liberties And Constitutional Rights,” Melbourne University Law Review 34 (2002); Nicole Rogers and Aidan Ricketts, “Fear of Freedom: Anti-Terrorism Laws and the Challenge to Australian Democracy,” Singapore Journal of Legal Studies (2002): 149; George Williams, “One Year On: Australia’s Legal Response to September 11,” Alternative Law Journal 27, no. 5 (2002): 212. See also A. Lynch, E. MacDonald & G. Williams (Eds.), Law and Liberty in the War on Terror. Sydney: Federation Press.
- 2.
For an edited collection which draws more widely on sociological, psychological and criminological perspectives see M. Gani and P. Mathew, eds., Fresh Perspectives on the ‘War on Terror’ (Canberra: ANU E Press, 2008), chap. 5.
- 3.
There are four offences in Div 104: murder of an Australian citizen or a resident of Australia (s 104.1); manslaughter of an Australian citizen or a resident of Australia (s 104.2); intentionally causing serious harm to an Australian citizen or a resident of Australia (s 104.3) and recklessly causing serious harm to an Australian citizen or a resident of Australia (s 104.4). The offences attract the following maximum penalties: murder, life imprisonment; manslaughter, 25 years imprisonment; intentionally causing serious harm, 20 years imprisonment; and recklessly causing serious harm, 15 years imprisonment.
- 4.
The Bali bombers were charged under special terrorist offences, rather than simple murder, enacted soon after the bombings. The Constitutional Court held that these laws were invalid, incompatible with the Indonesian Constitution’s prohibition of retrospective criminal laws: S. Butt and D. Hansell, “Case Note: The Masykur Abdul Kadir Case: Indonesian Constitutional Court No 013/PUU-I/2003 (Bali Bombing case),” Asian Law 6, no. 2 (2004): 176. The outcome of the constitutional challenge however did not quash the convictions or indeed, lead to a stay of execution.
- 5.
The federal provisions are specified to apply retrospectively, from 1 October 2002, as the drafters intended to use them to prosecute those involved with the 12 October Bali bombings: Parliament of the Commonwealth of Australia, House of Representatives, Criminal Code Amendment (Offences Against Australians) Bill 2002, Second Reading.
- 6.
Another example is the decision by the High Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 where the majority of the High Court held that the appointment of a Federal Court judge by the Commonwealth Government to report on matters connected with the construction of a bridge to Hindmarsh Island was invalid as being incompatible with her role as a judge.
- 7.
Grollo v Palmer (1995) 184 CLR 348, 359; Hilton v Wells (1985) 157 CLR; Coco v The Queen (1994) 179 CLR 427; Love v Attorney-General (NSW) (1990) 169 CLR 307.
- 8.
Grollo v Palmer (1995) 184 CLR 348, 364–365 (Brennan CJ, Deane, Dawson and Toohey JJ). The majority referred, with approval, to the US Supreme Court decision in Mistretta v United States 488 US 361, 404 (1989).
- 9.
Grollo v Palmer (1995) 184 CLR 348, 367 (Brennan CJ, Deane, Dawson and Toohey JJ).
- 10.
The British control order scheme was abolished in January 2012 and replaced by Terrorism Prevention and Investigation Measures (TPIMs).
- 11.
R v Manchester Crown Court [2003] 1 AC 787.
References
Ashworth, A., and L. Zedner. 2007. Defending the criminal law: Reflections on the changing character of crime, procedure, and sanctions. Criminal Law and Philosophy 2(1): 21–51.
Attorney General’s Department. 2010. Telecommunications (Interception and Access) Act 1979. Report for the year ending 30 June 2010.
Bonner, D. 2007. Executive measures, terrorism and national security: Have the rules of the game changed? Aldershot: Ashgate.
Bronitt, S. 2003. The criminal law of Australia. In The handbook of comparative criminal law, ed. M. Dubber and K. Heller. Stanford: Stanford University Press.
Bronitt, S., and B. McSherry. 2010. Principles of criminal law, 3rd ed. Sydney: Thomson Reuters.
Bronitt, S., and J. Stellios. 2006. Regulating telecommunications interception and access in the twenty-first century: Technological evolution or legal revolution? Prometheus 24(4): 413–428.
Dixon, D. 1997. Law in policing: Legal regulation and police practices. Oxford: Oxford University Press.
Dixon, D. 2007. Interrogating images. Sydney: Institute of Criminology.
Finnane, M. 2008. The public rhetorics of policing in times of war and violence: Countering apocalyptic visions. Crime, Law and Social Change 50: 17–24.
Fox, R., and Lydeker, J. 2008. The militarisation of Australia’s federal criminal justice system. Criminal Law Journal 32:287–302.
Grieve, J. 2004. Developments in UK criminal intelligence. In Strategic thinking in criminal intelligence, ed. J. Ratcliffe. Sydney: Federation Press.
Hawley, M. 2008. Consilience, crime control and community safety. In Handbook of intelligent policing: Consilience, crime control, and community safety, ed. C. Harfield, A. MacVean, J. Grieve, and D. Phillips. Oxford: OUP.
Mares, H. 2002. Balancing public interest and a fair trial in police informer privilege: A critical Australian perspective. International Journal of Evidence and Proof 6(2): 94–124.
McCulloch, J., and B. Carlton. 2006. Preempting justice: Suppression of financing of terrorism and the war on terror. Current Issues in Criminal Justice 17: 397–412.
McSherry, B. 2009. Expanding the boundaries of inchoate crimes: The growing reliance on preparatory offences. In Regulating deviance: The redirection of criminalisation and the futures of criminal law, ed. B. McSherry, A. Norrie, and S. Bronitt. Oxford: Hart Publishing.
McSherry, B., and Keyzer, P. 2009. Sex offenders and preventive detention: Politics, policy and practice. Sydney: The Federation Press.
Michaelsen, C. 2005. Australia’s antiterrorism laws lack adequate oversight mechanisms. Canberra: Democratic Audit of Australia.
Norrie, A. 2005. Law and the beautiful soul. London: The GlassHouse Press.
Oxford English Dictionary, 2nd ed. 2011. Online version. http://www.oed.com/view/Entry/89809 (accessed August 4, 2011).
Packer, H. 1968. The limits of the criminal sanction. Stanford: Stanford University Press.
Parker, C., N. Lacey, and J. Braithwaite. 2004. Regulating law. Oxford: OUP.
Pickering, S., McCulloch, J., and Wright-Neville, D. 2008. Counter-terrorism policing: Community, cohesion and security. New York: Springer.
Saul, B. 2007. The curious element of motive in definitions of terrorism: Essential ingredient or criminalising thought? In A. Lynch, E. MacDonald, and G. Williams (Eds.), Law and liberty in the war on terror. Sydney: Federation Press.
Security Legislation Review Committee (SLRC). 2006. Report of the Security Legislation Review Committee. Canberra: Commonwealth of Australia.
Stellios, J. 2010. The federal judicature: Chapter III of the constitution. Sydney: LexisNexis Butterworths.
Tyler, T. and T. Murphy. 2011. Procedural justice, police legitimacy and cooperation with the police: A new paradigm for policing. CEPS Briefing Paper, May 2011.
Vile, M.J.C. 1967. Constitutionalism and the separation of powers. Oxford: Clarendon.
Walker, C. 2004.Terrorism and criminal justice. Criminal Law Review May 2004 311–327.
Williams, G. 2004. The case for an Australian bill of rights: Freedom in the war on terror. Sydney: UNSW Press.
Zedner, L. 2009. Security. Abingdon: Routledge.
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Bronitt, S., Donkin, S. (2012). Australian Responses to 9/11: New World Legal Hybrids?. In: Masferrer, A. (eds) Post 9/11 and the State of Permanent Legal Emergency. Ius Gentium: Comparative Perspectives on Law and Justice, vol 14. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4062-4_10
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