Drawing from this vein of social psychological research discussed above, I would further argue that legitimacy in law is not simply about how the law is enforced by the executive and the judiciary — it is supported by beliefs about the propriety of the process by which the applicable laws are made and reformed. Harsh laws that divide the community may nevertheless be obeyed where there is a genuine effort to consider the concerns and interests in the legislative process. There is much scepticism, in the current political climate, as to whether the existing scrutiny of terrorism law through parliamentary committees or, indeed, through law reform agencies is effective in addressing these concerns and interests.^[39]

The political imperative to act in order to reassure the electorate proves to be irresistible in the aftermath of a terrorist attack. Prior to the 2002 reforms, the Attorney-General’s Department undertook no systematic review of the reach of existing laws; there was no consideration of whether minor adaptation (with sentence enhancement for crimes with a terrorist motive) could achieve a result more consistent with the existing fabric of our criminal laws.^[40] Despite its immense importance, forging new terror legislation has occurred largely ‘on the cheap’. With limited time and resources, government has been encouraged to draw on ‘off the shelf’ solutions. In the Australian context, the legislature has borrowed heavily from UK models in relation to key definitions, and to new legal measures such as control orders and preventative detention.^[41] The core definition of ‘terrorist act’, which triggers many of the counter-terrorism powers and forms an element of a number of the terrorism offences in the Code, was drawn directly from the Terrorism Act 2000 (UK). In one respect, not highlighted in the debates in federal Parliament, the UK definition significantly extends the normal jurisdictional reach of the criminal law. The effect of this borrowed definition is that the terrorist act extends to behaviour that has no connection with Australia. Under the Criminal Code the terrorist act must be done, or the threat made, with the intention of (inter alia):

While this definition of terrorism bears similarity to conventional political crimes such as treason and sedition, the extension to any foreign country is a clear manifestation of the globalisation of the concept of security. The recognition that the security of Australia is now dependent upon the security of other states (not just allies) justifies the adoption of expanded offences and powers that promote global rather than exclusively national security. The extended definition has another effect, potentially criminalising persons who support resistance movements that oppose tyrannical and undemocratic regimes. As the English Court of Appeal has noted in a recent case upholding the conviction of a person engaged in action to overthrow the Libyan dictatorship of Colonel Gaddafi:

These new offences, which apply universal jurisdiction under Category D extended jurisdiction provisions in the Criminal Code, define terrorism in terms of threats to international security (which have no bearing on our own domestic security). With the adoption of such far-reaching definitions (in both senses of the term), there is a further blurring of the traditional distinction between internal and external security, and a significant extension of the mandate of the Australian Federal Police (AFP). Surely such a significant shift in scope for counter-terrorism law and policy deserved greater critical consideration and public debate! This form of covert law reform is simply unacceptable in modern parliamentary democracies.

This pattern of expedited law reform has prevailed over the past five years.^[44] The damage to the integrity of the parliamentary process is most evident in the most recent round of reforms: amendments introducing preventative detention and control orders and reframing the offence of sedition in the Anti-Terrorism Act (No 2) 2005 (Cth). Despite allowing only one week for public submissions, the Senate Standing Committee on Legal and Constitutional Affairs received submissions from 294 individuals and organisations. At the close of submissions the Senate Committee had only 11 business days to review and make recommendations on the Bill. Not surprisingly, few significant changes were made to the Bill before its enactment.

Federal Parliament is not the only institution compromised by this climate of fear. Another example of how the normal law reform processes are distorted by political exigency is the 2005 Cronulla riots. Following a series of violent confrontations at Cronulla, the New South Wales Parliament introduced and passed on the same day an emergency package of powers for police, allowing them to ‘lock down’ suburbs.^[45] Without the involvement of any judicial officer or court, senior police can declare an area they define as ‘locked down’, in which case the following powers apply: police may close licensed premises; declare an emergency alcohol-free zone for up to 48 hours; set up roadblocks and employ stop and search (without warrant) powers to persons, vehicles, and anything in the possession of those persons; and seize and detain any vehicle, mobile phone or similar device. Outside the realm of locked down areas, the amendments also empower any police officer to stop a vehicle if the officer has reasonable grounds for believing there is large-scale public disorder occurring or threatening to occur and that such action is reasonably necessary.^[46] In the immediate aftermath of the violence, charges of riot and violent disorder were laid, though the overwhelming majority related to minor traffic infringements.^[47] Most significantly, in the context of our discussion of terrorism laws, these extraordinary police powers were enacted hastily, without proper review of the adequacy of existing laws or objective analysis of the underlying causes of these disturbances.^[48]

With limited time to review such proposals before passage, legislatures are often content to reassure themselves by mandating a review of the law’s operation after a specified number of years. This form of post hoc review takes two forms: oversight and periodic review by the Ombudsman; and/or review by independent committees reporting to Parliament. The outcomes of these reviews have thus far not been promising. The first wave of terrorist offences introduced in 2002 has recently been the subject of review by the Sheller Committee; however, confidence in the review process was undermined when the Committee’s recommendations were dismissed by the Government.^[49] The legitimacy deficit in relation to both the content of terrorism laws, and the processes by which these laws are made and reviewed, is manifest.

There remains a strong belief that our democratic processes, in particular our system of legislative scrutiny and parliamentary committees, can produce laws in a time of emergency that balance the competing interests of security with liberty.^[50] It is a strength of our system that citizens and organisations can indeed express concern about the breadth and impact of new counter-terrorism laws, and that scrutiny committees can make significant changes to legislation. Indeed, the Senate Committee reviewing the first wave of terrorism offences introduced in 2002 objected strenuously to the overuse of absolute liability, which resulted in significant remodelling of the Bill.

The post-9/11 environment, however, seems to have privileged some stakeholders in that process, particularly those members of the security and law enforcement communities who are viewed as more knowledgeable about the nature and scale of the threats faced, and expert about the range of legal reforms required to neutralise these threats effectively. While the former claim may be true, the latter is certainly contestable. The deference to counter-terrorism specialists over legal and criminal justice experts manifested itself in the way witnesses were ‘oriented’ before giving evidence to the Australian Capital Territory (ACT) Legislative Assembly Committee on a scheme of preventative detention. The first substantive question (directed to all witnesses) was whether they had been privy to various AFP or Australian Security Intelligence Organisation (ASIO) briefings on the nature of the terrorist threat to Australia. The import of this line of questioning was unsettlingly clear to the witnesses — clearly the proposers of preventative detention (namely the Prime Minister and Premiers who form the Council of Australian Governments) had received such a briefing, and on the basis of this intelligence were prepared to adopt these measures, with only the ACT Chief Minister willing to impose higher standards of due process because of the Human Rights Act 2004 (ACT). By implication, those who opposed the Bill without such knowledge were simply not qualified to know the seriousness of the threat and what drastic steps are needed to avert devastating terrorist acts.^[51] The line of questioning illustrates the power of security culture to sideline critical voices. It is, of course, also disingenuous since the true nature and risk of the terrorist threat is probably unknowable, as the 9/11 Commission itself found to be the case.^[52]

What this discussion supports is the emergence of an uncivil politics of law reform.^[53] Those committed to high standards of respect for human rights (even those who have experienced the abuse of emergency powers in liberal democracies in Europe) occupy a very narrow ledge of legitimacy. Commentators arguing for wider powers and laws tend to deride human rights law as vague and illegitimate, echoing Bentham’s famous jibe against natural law rights as ‘nonsense upon stilts’.^[54] On this view, the legitimacy of counter-terrorism laws lies in their democratic origins, and if any critique is entertained, a narrow set of liberal concerns, such as necessity and clarity, are applied to new offences.^[55] The criticism that international human rights law lacks democratic foundations overlooks the fact that these human rights are legal rules, which have been ratified by the Australian Parliament! The claim of inherent vagueness also overlooks the significant detailed body of jurisprudence, which has been built up through the cases, particularly those coming out of the European Court of Human Rights and the United Nations Human Rights Committee. This commonsense approach to counter-terrorism, which purports to distance the critics from any moral or political standpoints, embraces a model of law reform that focuses on prevention, pre-emption and precaution, which are examined in the next section.