Although a pervasive feature of public policy in the field of counter-terrorism, the balancing approach has been subject to significant academic criticism. As Jeremy Waldron points out, the concept of balancing must be subjected to careful analytical and empirical scrutiny in the context of counter-terrorism measures.[6] Notwithstanding the intuitive appeal of balancing, there are many objections to its use to guide terrorism law reform.[7] For criminal justice scholars, the balancing debate resonates with the pre-9/11 critique of balancing models applied to guide criminal justice reform.[8]
Rather than security versus liberty, the criminal justice debate was framed as striking a balance between crime control and due process, or variants thereof.[9] In both contexts, several objections may be levelled at balancing.[10] A common objection is that balancing promotes consequentialism in which the ‘ends justify the means’, a calculus in which individual interests are sacrificed for community gains. The logic of such utilitarian approaches[11] has even led some US and Australian scholars to propose that torture, if regulated through judicial supervision, may be justified to avert imminent terrorist attacks.[12] Such preventive measures are justified in terms either of self-defence (a doctrine which extends to defence of others and property) or of necessity. In reality, however, in respect of self-defence, this defensive action is not likely to be directed against the perpetrators of terrorism, but rather against ‘soft targets’ such as the suspected terrorist’s associates or family members. A further point of distinction from the typical self-defence scenario here is that the defensive action is not being performed by a private citizen, but by law enforcement officials or defence personnel, thus invoking what amounts to a broader claim of legal justification based on necessity.
The defence of necessity, which admits that there will be circumstances where a person may legitimately break the law, involves the weighing of lesser evils. There is little case law on the defence, though the courts have held that necessity and duress are unavailable in murder cases — the courts are seemingly hostile to utilitarian calculations in cases that have involved the intentional sacrifice of one person’s life to ensure the survival of many.[13] Recognising necessity in torture cases would similarly deny the autonomy and moral existence of the subject as a human being.[14] Even if the torture is ‘regulated’ so as to avoid the risk of death, the victim of torture is not only subjected to serious pain but also experiences a form of moral death. [15] Respect for human life and human dignity is a paramount value, and in modern times, the common law has not been willing to entertain legal argument about the relative value of one human life over many.
Another objection relates to the weight attached to these competing values. Jeremy Waldron reposes the question as how these two societal ‘goods’ in tension (namely security and liberty) should be justly distributed?[16] A recurrent problem with these balancing models is that there is no indication of the relative weight that should be attached to the competing interests. As a leading criminal justice scholar, Lucia Zedner, put it:
Typically, conflicting interests are said to be ‘balanced’ as if there were a self-evident weighting of or priority among them. Yet rarely are the particular interests spelt out, priorities made explicitly, or the process by which a weight is achieved made clear. Balancing is presented as a zero-sum game in which more of one necessarily means less of the other … Although beloved of constitutional lawyers and political theorists, the experience of criminal justice is that balancing is a politically dangerous metaphor unless careful regard is given to what is at stake.[17]
As Michael Freeman points out, the distributive effects between security and liberty are uneven: security is typically enhanced not through interference with our own liberty, but by sacrificing the freedoms of others, typically young Muslim males.[18]
Balancing becomes more problematic when we move beyond physical harm to less tangible and direct interests, such as individual or communal security. In this context, security is measured not only by the actual state of being secure, but also the psychological need to feel secure. These feelings will be based in part on a perception of the nature of the security threat and what works to address that insecurity — matters which are rarely determined by empirical evidence but dictated by political imperatives and priorities. Promoting the happiness of the majority (whether or not the policies are evidence-based) necessarily tips the balance heavily in favour of the state over the individual.
In the balance between liberty and security, security is invariably viewed as paramount. Security looms larger in this equation for a number of reasons. First, security threats are not confined to national borders or interests, but have a global reach. This aspect of globalisation, which is acute in the context of terrorism law, attaches further weight to the security side of the scales.[19] Second, our capacity to enjoy freedom rests on security. Indeed, Phillip Ruddock, the former federal Attorney-General, justified broader security measures as upholding the right to ‘human security’, which he views as the paramount human right.[20] This ‘new’ approach, however, distorts the conventional understandings of the right to liberty and to security of person. It also corrupts the new paradigm of human security being advocated by influential human rights and development scholars. Before this recasting by the Attorney-General, the concept of human security had been developed to shift the focus of debate from the security of the state to the security of the people.[21] However, as previously noted, ‘in this new era, fundamental human rights related to liberty and security can acquire radically new meanings’.[22] A cursory review of the case law under the ‘right to security’ in international human rights law would reveal a basic concern with confining the power of the state to coerce its citizens through powers of arrest and detention.[23] Indeed the correct approach, since human rights are not absolute, is to view national security as a competing public interest that may place some necessary and proportionate restriction on the exercise of a particular human right. To be sure, the idea of feeling safe should not be underestimated — there are social, legal and economic dimensions to this, but the promotion of such a feeling can hardly be paramount. Indeed, treating security as paramount can be disastrous, as the International Commission of Jurists noted in the Berlin Declaration:
A pervasive security-oriented discourse promotes the sacrifice of fundamental rights and freedoms in the name of eradicating terrorism. … [S]afeguarding persons from terrorist acts and respecting human rights both form part of a seamless web of protection incumbent upon the state.[24]
A further objection to balancing relates to the inverse relationship between liberty and security, namely that more of one thing (liberty) means less of another (security) and vice versa. This underlies the assumption that higher levels of human rights protection or due process necessarily will impede the effectiveness of law enforcement. To promote maximum collective security we must sacrifice our civil liberties: sadly it seems that human rights and due process prove too costly precisely at the moment that they are needed most. However, these assumptions are contestable. Recent procedural reforms to the law governing criminal investigation suggest that some innovations, such as the mandatory recording of interviews and custodial access to lawyers, do not unreasonably fetter law enforcement. The practice of taping, though resisted by police initially, has in fact proved to deliver significant benefits for law enforcement, reducing the number of disputed confessions and providing credible evidence to refute suspect allegations of improper or oppressive treatment during investigation.[25]
In light of these insights from the field of criminal justice, it is not unrealistic to propose that effective counter-terrorism law can be promoted with high levels of human rights and due process. Indeed, it is important to avoid symbolic legislation, and ill-considered knee-jerk responses that prove to have limited impact or, worse still, to have potential counterproductive effects or unintended consequences.
Human rights law is not a straitjacket for effective counter-terrorism measures. As many human rights lawyers and organisations have pointed out, human rights are rarely unqualified or absolute, with permissible limitations in the name of security on rights such as privacy and fair trial provided they are both necessary and proportionate.[26] Since the legal expression of human rights is rarely unqualified,[27] the correct approach to policy development is to promote strict compliance with (rather than wide derogation from) fundamental human rights protected under international law or contained in domestic human rights legislation.[28] The problem is that this approach to necessary and proportionate qualification is regularly misunderstood by the courts and legislature. As Laurence Lustgarten has pointed out in the context of British courts addressing the human rights standards in the European Convention on Human Rights (ECHR) through the Human Rights Act 1998 (UK):
It often seems something is lost in the transition (or is it translation?) from Strasbourg to the UK courts, a process in which the ECtHR’s [European Court of Human Rights] references to the necessary ‘balance’ between individual rights and public interest has led — not only in the context of terrorism — to the ‘balancing away’ of defendant’s rights in a manner that arguably fails to comply with convention requirements … the practical import is that the seductive metaphor of ‘balance’ can readily be used to override convention and other protections when the public clamour is loud enough.[29]
What this suggests is that both the courts and those responsible for legislative policy in these fields must develop a more sophisticated grasp of human rights law. Furthermore, an understanding of these obligations should inform their decision‑making.
As well as fostering legitimacy, strict adherence to human rights law and due process may pay dividends in terms of wider compliance with these laws among the citizenry. There is a strong argument from social psychological research that individual compliance with even unpopular and harsh laws can be promoted by the belief that the processes of enforcement and adjudication are legitimate (that is, procedurally fair and just). As the social psychological research on procedural justice reveals, legal systems with a highly punitive criminal justice system, can deliver high levels of compliance with the law when combined with the processes that are perceived to be fair to accused persons.[30]
A common claim is that human rights observance is too costly in cases involving terrorism.[31] But a wider sweep of the history of criminal justice supports the above hypothesis about the importance of procedural justice to compliance. It is important to recall that ‘due process’ rights were not forged in the lower courts in relation to minor misdemeanours, but rather were first articulated in relation to serious security offences, such as treason and sedition. The history of the Star Chamber is often misrepresented by common lawyers as one of inquisitorial oppression and torture, overlooking its critical role in forging many of the key procedural protections that underwrite human rights law today.[32] As Geoffrey Robertson has pointed out, the key elements of modern Anglo-American justice (such as the right to counsel and the privilege against self-incrimination) are products of periods of intense political repression. Robertson contends that the more serious and inherently political the crime, the greater the legal quest for legitimacy through procedural safeguards, reminding us that it was in trials of treason that prisoners were first permitted defence counsel. Indeed, Robertson has argued that the seventeenth century trial of Charles I — the first trial of a head of state for tyranny and a precursor to modern war crimes trials — provided common lawyers and judges with the opportunity to fashion many significant legal innovations.[33]
Indeed, a similar point about the importance of the ideology of justice was made by Doug Hay in his study of eighteenth century English criminal justice, and the operation of the ‘Bloody Code’ under which an increasing number of offences were made felonies punishable by death.[34] In his view, the approach of the ruling class was to manipulate the ideology of law, to use it as ‘an instrument of authority and a breeder of values’ in order to maintain the legitimacy of the existing social order. Since fear alone could not establish deference to the law, the structures of the law itself might be used ideologically, to establish deference without force, to legitimate the class structure, and to maintain the domination of the holders of property. Hay emphasises how the elements of majesty, justice and mercy, embodied in the practices of the criminal law, served these ends.[35]
By looking to legal history, albeit briefly, we see that due process of law (with its symbolic and instrumental aspects) was considered more (not less) important during periods of insecurity and state repression. Why is this so? As foreshadowed above, the answer must be legitimacy — put simply, in cases where the political taint of the crime and the threat to security is manifest, the state must play and be seen to play scrupulously by the rules. This has implications for modern terrorism offences. Rather than advocate for terrorism crime to be defined widely and to incorporate strict or absolute liability elements supported by extensive use of reverse onus provisions, legislatures should maintain fidelity to the default standards of criminal justice: namely the burden of proof resting with the prosecution, and offences requiring proof of subjective fault. This would be consistent with the principles of responsibility applied to the Criminal Code and the published federal guidelines on the appropriate use of absolute (no fault) liability.[36] Robertson argues that ‘the justice we dispense to alleged terrorists cannot be exquisitely fair, but need not be rough. Above all, it must be justice that conforms with our inherited Anglo-American traditions.’[37] Indeed, the quashing of the conviction in the Jack Thomas case in 2006, on the basis that the confession evidence used against him at trial was obtained in coercive circumstances and in derogation of the requirements of Australian law, may be viewed as the judiciary seeking to uphold these values scrupulously in trials for offences that have been widely condemned as exceptional and draconian.[38]
[6] Waldron, above n 1.
[7] For criticism of these balancing models see S Bronitt, ‘Constitutional Rhetoric v Criminal Justice Realities: Unbalanced Responses to Terrorism?’ (2003) 14 Public Law Review 76, 76‑80; M Gani, ‘Upping the Ante in the “War on Terror”’ in P Fawkner (ed), A Fair Go in an Age of Terror (Victoria: David Lovell Publishing, 2004) 80‑91; and G Carne, ‘Brigitte and the French Connection: Security Carte Blanche or A La Carte’ (2004) 9(2) Deakin Law Review 573, 613‑14.
[8] For an overview of the debate about balancing see L Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32(4) Journal of Law and Society 507; S Bronitt and B McSherry, Principles of Criminal Law (Sydney: LawBook Co, 2nd ed, 2005) 871‑6. In the criminal justice context, see earlier articles by A Ashworth, ‘Crime, Community and Creeping Consequentialism’ [1996] 43 Criminal Law Review 220, 220‑30; S Bronitt, ‘Electronic Surveillance, Human Rights and Criminal Justice’ (1997) 3(2) Australian Journal of Human Rights 183.
[9] In the criminal justice context, the balancing metaphor is a powerful image, linking to the scales of justice and our adversarial system of justice. For a review of the key contributions to this debate by Herbert Packer, Doreen McBarnet and Andrew Ashworth, see Bronitt and McSherry, above n 8, 36ff.
[10] Feminists have also critiqued the bipolar or binary construction of this balancing model, which conceals the significant legitimate interests of victims: see P Easteal, ‘Beyond Balancing’ in P Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998).
[11] ‘Utility’, for Jeremy Bentham, meant the greatest happiness (or welfare) of the greatest number with its maximisation being the proper end of humankind. The implications of utilitarianism for law is discussed in S Bottomley and S Bronitt, Law in Context (Sydney: Federation Press, 3rd ed, 2006) 45ff.
[12] See A Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002); M Bagaric and J Clarke, ‘Not Enough Official Torture in the World? The Circumstances in Which Torture is Morally Justifiable’ (2005) 39(3) University of San Francisco Law Review 1. It is not surprising that the father of utilitarian philosophy, Jeremy Bentham wrote an essay on the utility of torture, concluding that its use depended in each case on its ‘overall utility’: see W Twining and P Twining, ‘Bentham on Torture’ (1973) 24 Northern Ireland Law Quarterly 307; discussed in J Kleinig, ‘Ticking Bombs and Torture Warrants’ (2005) 10(2) Deakin Law Review 614, 614. In the modern law, torture is strictly prohibited, as it is subject to an absolute ban under international human rights law and prohibited under the Criminal Code Act 1995 (Cth) (‘Criminal Code’).
[13] In R v Dudley and Stephens (1884) 14 QBD 273, the English common law established the limits of the defence, denying its availability as a defence to murder in a case of survival cannibalism where the crew, consistent with maritime custom of the time, had drawn lots to determine who they would kill in order to ensure their survival. Similar limitations apply to the availability of the defence of duress under common law.
[14] D Manderson, ‘Another Modest Proposal’ (2005) 10(2) Deakin Law Review 640, 651.
[15] As Manderson points out ‘our societies have, at least since the Enlightenment, feared pain more than death, believed that human dignity requires absolute protection under all circumstances, and thought torture a more serious act than execution’: ibid 649.
[16] Waldron, above n 1.
[17] Zedner, above n 8, 510‑11.
[18] M Freeman, ‘Order, Rights, and Threats: Terrorism and Global Justice’ in R A Wilson (ed), Human Rights in the ‘War on Terror’ (Cambridge: Cambridge University Press, 2005) 48.
[19] A point made by Carne, above n 7: ‘The national security aspect in the balance is inevitably given special weighting, producing a structural inequality in that “balance”. These considerations suggest a general unsuitability of the balancing paradigm for reconciling national security and democratic interests.’
[20] P Ruddock, ‘A New Framework – Counter-Terrorism and the Rule of Law’ (2005) 16 The Sydney Papers, 113, 116‑17.
[21] Commission on Human Security, Human Security Now. Protecting and Empowering People (New York: United Nations Human Security Unit, 2003). The concepts underlying human security are discussed by M Robinson, ‘Connecting Human Rights, Development and Human Security’ in Wilson above n 18, 313ff.
[22] Bottomley and Bronitt, above n 11, 414.
[23] The case law on art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 213 UNTS 222 (entered into force 3 September 1953) is reviewed in M Macovei, The Right To Liberty and Security of the Person, Human Rights Handbooks, No 5 (Strasbourg: Council of Europe, 2002) <http://www.coe.int/T/E/Human_rights/hrhb5.pdf>. The right to liberty and security of person under art 9 of the International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171 (entered into force 23 March 1976) ‘guarantees against arbitrariness in relation to arrest and detention’, rather than some broader right to safety: see N O’Neill, S Rice and R Douglas, Retreat from Injustice: Human Rights in Australia (Sydney: Federation Press, 2nd ed, 2004) 214.
[24] The Berlin Declaration: the International Commission of Jurists Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, adopted 28 August 2004.
[25] See generally, D Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford, New York: Clarendon Press, 1997) on the relationship between law and policing, and recognition that due process is not necessarily antagonistic to crime control.
[26] This point has been made recently in a submission by the Human Rights and Equal Opportunity Commission to the SLRC, discussed in its Report, above n 4, 39. See also C Gearty, Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004) ch 2.
[27] There are only a few absolute rights, such as torture. Though even in this area, as Gearty notes, the prohibition ‘is shown by the jurisprudence of the European Court of Human Rights to have plenty of grey areas around its fringes in which disputes have been able to thrive’: Gearty, ibid 9.
[28] Australia has not yet adopted a bill of rights, though the Australian Capital Territory and Victoria have adopted human rights legislation modelled on the Human Rights Act 1998 (UK): Human Rights Act 2004 (ACT), Charter of Human Rights and Responsibilities Act 2006 (Vic).
[29] L Lustgarten, ‘National Security, Terrorism and Constitutional Balance’ (2004) 75(1) The Political Quarterly 4, 14. Ashworth makes a similar point that ‘balancing’ of interests is used indiscriminately, an approach he believes is simply wrong. He criticises the UK application of the ECHR, arguing that the broad brush approach taken does not take into account the hierarchy of rights that is explicit from the Convention structure (created by art 15), and thus a more precise approach is required to correctly apply the protections provided. Specifically, he suggests that although some rights may be ‘outweighed’ as necessary under a democratic society, others are not to be defeated by public interest, including the right to liberty and security (Art 5) and the right to a fair trial (Art 6): A Ashworth, ‘What Have Human Rights Done for Criminal Justice in the UK?’ (2004) 23 University of Tasmania Law Review 151.
[30] The key research in this field has been undertaken by T Tyler: Why People Obey the Law (New Haven: Yale University Press, 1990). This research is discussed by J Braithwaite, ‘Crime in A Convict Republic’ [2001] 64(1) Modern Law Review 11, 21, in the context of his study of convict justice in the eighteenth and nineteenth centuries. The commitment to procedural justice in an otherwise harsh legal system not only constrained abuses of power by officials, but also assisted convicts realign their identities to law abiding citizens. In his view, it was these features of the system, overlooked by many historians, that explains high levels of reintegration and low levels of re‑offending, during this period.
[31] For a recent article making this claim, see G Rose and D Nestorovska, ‘Australian Counter-Terrorism Offences: Necessity and Clarity in Federal Criminal Law Reforms’ (2007) 31 Criminal Law Journal 20.
[32] Geoffrey Robertson highlights the role of the Star Chamber in Jesuitical persecution in the 1600s, which led to its demise during Cromwell’s Commonwealth: G Robertson, ‘Fair Trials for Terrorists’ in Wilson (ed), above n 18, ch 8; G Robertson, The Tyrannicide Brief (London: Chatto & Windus, 2005). This is the period in which most of the fundamental due process protections were forged — trial by jury (absent in the Star Chamber), open justice and privilege against self-incrimination. The oppressive features of the Star Chamber can be overstated. As Barnes points out, many of the modern features of due process we associate with the common law were established in the Star Chamber procedure — foremost, the right to counsel (which was denied to the common law courts in relation to felony). Moreover, the Star Chamber placed much value on procedural regularity — namely the rigour of pleadings to define issues — and copious legal argument before judgment. An enduring myth, that the chamber promoted confession by torture was not entirely true either: treason was investigated and torture was used, but never by the judges, rather it was the officers working for the Privy Council who used these methods. See further T Barnes, ‘Star Chamber Mythology’ (1961) 5(2) American Journal of Legal History 1.
[33] Robertson, The Tyrannicide Brief, ibid.
[34] D Hay, ‘Property, Authority and the Criminal Law’ in D Hay et al, Albion’s Fatal Tree (London: Allen Lane, 1975) 17; discussed in S Bottomley and S Bronitt, above n 11, 217‑19.
[35] Ibid.
[36] The federal government’s first proposals relating to terrorism offences contained in the Security Legislation Amendment (Terrorism) Bill 2002 departed from its own guidelines and were drafted as absolute liability offences: this egregious departure from the presumption of subjective fault in relation to offences of such a serious nature was justified in the Explanatory Memorandum. Whilst these provisions (as proposed) did not pass into law, the terrorism offences have strict liability elements.
[37] Robertson, ‘Fair Trials for Terrorists’, above n 32.
[18] R v Joseph Terrence Thomas [2006] VSCA 165 (18 August 2006). The implications of this case are discussed in J McCulloch, ‘Australia’s Anti-Terrorism Legislation and the Jack Thomas Case’ (2006) 18(2) Current Issues in Criminal Justice 357.