Australia’s recent responses to the threat posed by ‘foreign fighters’ highlights a key issue raised by anti-terror lawmaking since September 11: how far can—and should—Parliament go in legislating to prevent acts of terrorism?
Prevention of terrorism
Prevention of terrorism has been a defining feature of anti-terror lawmaking, in Australia and overseas, since September 11. In the aftermath of the terrorist attacks on the United States, the United Nations Security Council passed a number of resolutions that imposed obligations on Member States to take action domestically to prevent and prosecute terrorist acts. Australia, the United Kingdom and the United States, for example, were all quick to introduce tough new anti-terror laws that prioritised the prevention of terrorism. During this period, the Australian Parliament passed a number of pieces of legislation criminalising terrorism and introducing preventive offences such as those that criminalise acts taken that are preparatory to an act of terrorism.
The marked emphasis on prevention has remained prominent in successive bouts of lawmaking to address the evolving terrorist threat. In the mid-2000s, the threat of home grown terrorism, amplified by the London Bombings, generated a wave of new anti-terror lawmaking with a strong emphasis on the prevention of terrorism. Australia, following the United Kingdom’s lead, introduced anti-terror control orders which enable restrictions and obligations to be placed on an individual for the purpose of preventing a terrorist act.
Over the last year, the threat posed by foreign fighters—citizens who engage in, and return from, hostile activities in foreign countries, such as the conflicts in Syria and Iraq, or train with extremist groups overseas—has heightened. In response to this threat, the Australian Parliament passed the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) which extended the control order and preventive detention regimes. The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is currently before Parliament and proposes changes to citizenship law to strip dual citizens engaged in terrorism-related activity of their Australian citizenship.
The limits of ‘preventive’ lawmaking in Australia
Prevention forms a significant part of Australia’s legal response to terrorism, and understandably so: to prevent a terrorist act from occurring is far better than responding to a terrorist attack that has occurred. However, the costs associated with using the law to prevent future harm—in particular, to established legal principles and rights—need to be recognised. Preventive laws have been criticised for stretching the boundaries of the criminal law—enabling intervention well before, and well after, that which is traditionally accepted in the criminal justice system—and for evading its protections. Control orders, for example, are issued in civil proceedings and thereby enable significant restrictions to be imposed upon an individual’s liberty without the enhanced procedural protections, including for example a higher standard of proof, that attach to the criminal justice system. However, a person who contravenes, without reasonable excuse, any of the terms of a control order commits an offence with a maximum penalty of five years imprisonment—a maximum term of imprisonment that exceeds that of most criminal offences.
The deviation from accepted principles, such as the open court principle and standard of proof, were not, however, an impediment to constitutional validity. In Thomas v Mowbray (2007), a majority of the High Court held that the interim control order process—which provided for an ex parte hearing and a standard of proof of balance of probabilities—did not require the exercise of judicial power in a manner incompatible with the principles contained in Chapter III of the Constitution. Similarly, the predictive exercise undertaken by the court in issuing a control order did not offend Chapter III. To issue a control order, the court is required to determine what is ‘reasonably necessary’ to protect the public from a terrorist act. As Hayne J made clear, this requires consideration of ‘what other measures are being taken to guard against the threat’, and is based on intelligence that will often be kept secret for reasons of national security. Intelligence would ‘rarely, if ever … be information about which expert evidence, independent of the relevant governmental agency, could be adduced’, leaving the court ‘with little practical choice except to act upon the view that was proffered by the relevant agency’. The Majority did not, however, find that this contravened Chapter III of the Constitution. In this respect, Chapter III has not served as a strong limit upon legislative innovation in counter-terrorism.
These issues have resonance beyond the national security context. The modelling of preventive innovations—within and between jurisdictions—has become an increasingly prominent feature of lawmaking since September 11. State and territory governments have been quick to model federal preventive anti-terror innovations, most notably in their legislative responses to organised crime. Serious organised crime control orders, based on anti-terror control orders, now exist in all but two Australian jurisdictions. In this way, federal preventive anti-terror measures risk creating a template for the expansion of preventive incursions on liberty more generally. Here again, the separation of powers—as it applies to state courts exercising federal jurisdiction—has not limited the spread or extent of preventive measures. At the state level, invalidity will only arise where the functions conferred on the court jeopardise its institutional integrity; that is, where a state parliament requires a court to act in a manner contrary to its ‘defining characteristics’ as a court such as independence, impartiality and fairness. A law that deviates from accepted legal principles, such as the open court principle, by providing for an ex parte hearing or for reliance upon criminal intelligence, will not necessarily offend this principle.
There are some constitutional and democratic limits on the power of the Australian Parliament to legislate to prevent and pre-empt acts of terrorism, although the absence of a bill of rights in Australia makes the question of the limits of prevention in lawmaking more acute. The Special Series on this Blog on the Citizenship Amendment Bill illustrates how Parliament might be constrained in this area by the scope of Commonwealth’s legislative power, the separation of powers and democratic legitimacy. However, as noted, the separation of powers, and the protections of judicial process sourced in Chapter III of the Constitution, have thus far failed to modify or mollify the spread of preventive measures.
There are also Parliament-led initiatives, such as sunset clauses, that limit the extent of preventive laws; however, these have proven to be weak protection in the face of the security imperative. The recent extension of the sunset clauses in the control order and preventive detention order regimes to 2018 as part of the Foreign Fighter reforms illustrates how legislative safeguards designed to provide a democratic check on preventive laws can be easily overcome by rushed legislative processes and political expediency.
Preventive Justice scholarship
Preventive Justice scholarship is the comparative study of preventive policies and practice to engender the development of legal principles and values—a preventive jurisprudence—to guide and limit action by governments to prevent future harm. It offers an alternative way to evaluate preventive measures.
Preventive justice is an old concept, traceable to Blackstone’s Commentaries in the late 18th Century. Blackstone employed preventive justice to describe an area of law devoted to preventing future crime by intervening where there exists ‘a probable suspicion, that some crime is intended or likely to happen’. Preventive justice scholarship is of much more recent origin, arising out of the work of American academic Carol Steiker in the late 1990s. Steiker invoked the preventive state concept to describe the array of measures introduced in the United States to prevent crime by incapacitating or treating those deemed dangerous. These included pre-trial preventive detention to post-sentence indefinite detention of serious violent sex offenders.
Steiker highlighted that unlike ‘the punitive state’, in respect of which the constitutional and due process limitations on state action were well enshrined and maintained, the limits of state action to prevent harm remained largely unchecked. This was, she noted, in part a function of the timing of the drafting of the American Constitution. The dangers of the punitive state were well known to the Founders, and thus constraints on the state as punisher were included in the Constitution. The emergence of the preventive state came later, with the creation of the modern police force and prisons and psychiatric hospitals in the 19th Century and the growth of the regulatory state in the 20th Century. As a result, preventive practices and institutions were ‘cabined’ within the existing constitutional framework, making it ‘harder to see the preventive state as a category than it is to so view the punitive state’. Steiker identified that the question of the limits of preventive action had been sidelined because, amongst other reasons, the courts were preoccupied with whether a measure amounted to punishment, and therefore whether the enhanced protections of the criminal justice system apply. This leaves what Steiker argues is the ‘mistaken impression that if the state is not punishing, it is not doing anything objectionable at all, constitutionally speaking or otherwise’.
Steiker argued that preventive policies and practices were being treated as discrete and unrelated, rather than, as she argued they should be, as part of a ‘unified problem’. Importantly, for Steiker, focusing attention on the collection of preventive practices employed by governments would enable the articulation and policing of the limits of the preventive state, and avoid the blind reproduction of rights offensive measures. This might also, as Lucia Zedner highlights:
permit the articulation of larger principles and values by which preventive justice might legitimately be pursued without the need for reference back to the entrenched and often inappropriate provisions of civil and criminal procedure.
Following September 11, renewed calls were made for attention to be paid to the development of principles and values to guide the use of preventive restraints by the state. Andrew Ashworth and Lucia Zedner, have developing an account of the justifications for, and principles to guide and limit, preventive justice in England and Wales. For example, they argue for the following restraining principles in the counterterrorism context:
The necessity principle, that any restriction of, or deprivation of, liberty be necessary for the prevention of terrorist activity, and should continue for no longer than is absolutely necessary for that purpose.
The principle of the least restrictive appropriate means, that any restrictions on liberty must be a last resort and the least intrusive that are consistent with the preventive purpose.
The principle of sufficient substantiating evidence, requiring a high standard of proof (beyond reasonable doubt) and avoiding the use of fallible secret intelligence.
The right to a fair trial, including the principles of openness, transparency, and accountability, in terms of the right to know upon what grounds the measure is needed, open access to evidence, rights of challenge and appeal, legal assistance to do so, and a presumption in favour of open proceedings…
Their work highlights the potential of preventive justice scholarship: the development of legal principles to guide and constrain legislatures when crafting preventive laws.
Questions remain about preventive justice. Can prevention ever be just? Does preventive justice risk legitimising laws and practices that offend rights and liberties? Are preventive practices and policies amenable, as Steiker suggests, to categorisation as part of a unified problem? Where should the boundaries of preventive justice lie?
As the evolving threat posed by foreign fighters generates a new round of anti-terror lawmaking in Australia, it is timely to explore these questions and consider what safeguards and legal protections ought to attach to preventive laws more generally.
Dr Tamara Tulich is a Lecturer at the Faculty of Law at the University of Western Australia.
Suggested citation: Tamara Tulich, ‘The Limits of Preventive Lawmaking’ on AUSPUBLAW (21 August 2015) <https://auspublaw.org/2015/08/the-limits-of-preventive-lawmaking/>.
 William Blackstone, Commentaries on the Laws of England (R. Bell, 1772), Bk IV, 248.