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Much 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]
The balancing paradigm has been a touchstone even for critics of the terrorism laws enacted since 2002. The Sheller Committee (the Security Legislation Review Committee), which undertook the five-year review of the first wave of terrorism offences inserted into the Criminal Code Act 1995 (Cth) (‘Criminal Code’), conceived its task in the following terms:
an appropriate balance must be struck between, on the one hand, the need to protect the community from terrorist activity, and on the other hand, the maintenance of fundamental human rights and freedoms.[4]
Likewise, the Australian Law Reform Commission’s recent review of sedition approached the process of reform as one of ‘balancing anti-terrorism measures with human rights’.[5] A similar approach also characterises the legal policy environment in the United Kingdom (UK), the United States (US) and elsewhere.
[*] Professor of Law, ANU College of Law and Director, National Europe Centre, The Australian National University, Canberra, Australia. This research has been supported by a Discovery grant from the Australian Research Council: ‘Terrorism and the Non-State Actor After September 11: The Role of Law in the Search for Security’ (DP0451473). I am grateful for the research assistance provided by Niamh Lenagh-Maguire. All errors are mine.
[1] J Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11(2) The Journal of Political Philosophy 191.
[2] The balancing approach was adopted in the Senate Standing Committee on Constitutional and Legal Affairs, Report of Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills – Interim Report (3 May 2002). It is also adopted by G Williams, ‘Australian Values and the War on Terrorism’, Australian Financial Review (Melbourne), 7 February 2003, 6‑7 (edited version of National Press Club Address, 29 January 2003); G Williams, The Case For An Australian Bill of Rights: Freedom in the War on Terror (Sydney: UNSW Press, 2004); G Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8(1) Journal of Comparative Policy Analysis 43.
[3] P Ruddock, ‘The Commonwealth Response to September 11: The Rule of Law and National Security’ (Speech delivered at the National Forum in the War on Terrorism and the Rule of Law, New South Wales Parliament House, 10 November 2003) [26]‑[29].
[4] Security Legislation Review Committee (SLRC), Report of the Security Legislation Review Committee (2006) 3. See also p 47 where the SLRC notes ‘[s]triking this balance is an essential challenge to preserving the cherished traditions of Australian society’.
[5] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104 (2006) 101, 105.