Prevention is presented by politicians as the principal driving force behind our new laws. The former Commonwealth Attorney-General, Philip Ruddock, justified the 2005 package of anti-terrorism legislation on the basis that it ‘ensures we are in the strongest position possible to prevent new and emerging threats’.[56] In Jude McCulloch’s view, this package is suggestive of a new paradigm based on ‘pre‑emption’ in the sense that it involves ‘prevention of the perceived risk of terrorism’:[57]
Under this model it is legitimate to punish and coerce without evidence and before any terrorist act, even a ‘terrorist act’ under the legislation that involves no harm or plan to do harm. The rationale of prevention takes priority over other considerations including the rights of the accused and the need for reliable and convincing evidence of guilt prior to punishment. Anti‑terrorism legislation is ‘preemptive’ in that it seeks to punish or apply coercive sanctions on the basis of what it is anticipated might happen in the future.[58]
In similar terms, Andrew Goldsmith has argued that the counter-terrorism strategies adopted post-9/11 are part of a wider culture of prevention and risk management in society, and the movement to a ‘world risk society’ and ‘government through fear’. He argues that this cultural change gives rise to pressure towards legal exceptionalism, as fear of the unknown (and unknowable) leads to enhanced powers of proscription — a ‘small price to pay for greater security’. He suggests that the precautionary principle may be used by governments to implement draconian measures: ‘Extreme caution is justified as prudent in response to profound uncertainty. For some however, it merely provides a convenient cover for adopting conservative or even repressive responses.’[59]
The precautionary principle, which was first developed in the field of environmental regulation, posits that where the risk of a harm (in this case through terrorist attack) is unpredictable and uncertain, and where the damage that would be brought about by that harm is irreversible, any lack of scientific certainty in relation to the nature of the harm or consequences should not justify inaction. This promotes what Cass Sunstein calls the ‘Laws of Fear’, in which the precautionary principle displaces risk-based or evidence-based approaches to public policy.[60] Whether this principle should be applied to counter-terrorism policy is highly contentious. Unlike the field of environmental policy, no state has claimed to have embraced the precautionary model for terrorism law.[61] Indeed, much of the language of counter-terrorism policy continues to be expressed in terms of either prevention or pre-emption rather than precaution. Nevertheless, upon closer scrutiny the discourse of public policy has shifted from one based on risk assessment and risk management (where policy‑makers claim to weigh the likelihood of attack against the costs and benefits of particular strategies) to one based, in the face of uncertainty, on the need for precautionary action. It is possible to detect new counter-terrorism strategies, particularly those using technologies that permit surveillance of suspect ‘places’ rather than individual suspect persons, and displace or by-pass traditional protective safeguards.[62]
Indeed, the recent creation of new powers allowing the military to use lethal force to deal with serious aviation incidents is best understood in terms of moving beyond preventative to precautionary models of legal action. The recent amendments to Part IIIAAA of the Defence Act 1903 (Cth) create a legislative framework for prospective authorisation of force — including lethal force — by the military in aid of civil power. These amendments give Australian Defence Force (ADF) personnel a range of powers, including the power to destroy an aircraft.[63] The Act now provides an expanded legislative basis for military action. Previously, such action would be limited to use of force falling within the ADF’s (largely untested) powers to use force within the framework of general defences relating to self-defence (which includes defence of others), necessity, sudden/extraordinary emergency or lawful authority under the Criminal Code. The constitutional legitimacy of using such force would be supported by the defence powers in s 51(vi) of the Commonwealth Constitution. However, a review in 2004 noted that the existing powers were too reactive (modelled around a siege situation) and that there needed to be a more proactive model — hence the 2006 amendments. These include powers to take defensive action to protect critical infrastructure within Australia, and specifically to take action against hijacked aircraft.[64]
In using force or other measures against a vessel or aircraft, or ordering such, the ADF member must conform to the requirements of s 51SE(2) or (3), which require that:
the order was not manifestly unlawful;
the member has no reason to believe that circumstances have changed in a material way since the relevant order was given;
the member has no reason to believe that the order was based on a mistake as to a material fact, and
taking the measures was reasonable and necessary to give effect to the order.
The purpose of these provisions is to ensure that defence personnel are under strict control, through a chain of command, when they are receiving orders. Subsections 51SE(2) and (3) draw heavily, according to the Explanatory Memorandum, on the principles of the defence of acting under lawful authority (paragraph 37). However, it is probably best described as a hybrid between lawful authority and necessity.
Most contentious, under Division 3B, is the power to use lethal force in order to protect critical infrastructure designated by the authorising Ministers. Section 51T of the Defence Act 1903 (Cth) provides:
(2B) Despite subsection (1), in exercising powers under subparagraph 51SE(1)(a)(i) or (ii) or Division 3B [action against aircraft], a member of the Defence Force must not, in using force against a person or thing, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member believes on reasonable grounds that:
(a) doing that thing is necessary to protect the life of, or to prevent serious injury to, another person (including the member); or
(b) doing that thing is necessary to protect designated critical infrastructure against a threat of damage or disruption to its operation; or
(c) doing that thing is necessary and reasonable to give effect to the order under which, or under the authority of which, the member is acting. [emphasis added]
By contrast, the law relating to self-defence in the Criminal Code expressly excludes this level of force to protect property. The purpose of the new provisions in relation to aviation security incidents under the Act is to provide clear legal authority for the military to act. The provisions obviate the need to engage in the deliberative exercise of weighing competing interests as required under the law relating to necessity; to evaluate the imminence of the threat posed as required for self-defence; or to resort to the vagaries of prerogative or executive powers in order to defend the realm. The provisions seek to structure the decision-making process — and also to move beyond the reactive ‘call-out’ model — to designate a set of circumstances where the Chief of Defence is already pre-authorised or prospectively authorised to act (whether in Australia or offshore). In these cases, the military can act without ministerial authorisation or the Governor-General’s order.
While the precautionary rationale is apparent in these powers, there are some further features of the legislation that pull against precautionary action. For example, the call‑out powers have always raised a concern about excessive or disproportionate force by the military against civilians. To address this, specific measures were included to limit the use of force. Thus, s 51T(3) imposes a duty on defence personnel, where practicable, to first call on someone to surrender before using force likely to cause death or grievous bodily harm. Significantly, the Act seeks to promote more legal certainty for defence personnel by conferring immunity from state and territory criminal law (criminal offences such as murder, causing grievous bodily harm, etc) and ensuring that defence personnel will be dealt with only by reference to offences under the Commonwealth criminal law, and military discipline offences available under the Defence Force Discipline Act 1982 (Cth).
These new counter-terrorism laws move beyond a conventional preventative to a more precautionary model — under this new legislation, key decision-makers are not weighing up competing harms (choosing the lesser of evils) but rather authorising and taking action (including the intentional use of lethal force) where the level of danger to life or limb is unknown or uncertain. This new legislation permits pre-emptive designation of places as critical infrastructure, which authorises the use of lethal force even though there is no prospect that this action would save a greater number of people, and may even foreseeably involve the killing of a significant number of people on the ground where the plane crashes. It is this particular scenario that presents the most serious challenge for human rights law and the right to human life and dignity, which is protected under international human rights law.[65]
[56] Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2005, 102 (Philip Ruddock, Attorney-General) during the 2nd Reading Speech to the Anti-Terrorism Bill (No 2) 2005 (Cth).
[57] McCulloch, above n 38, 359 (emphasis in original).
[58] Ibid (emphasis in original).
[59] Goldsmith, above n 40.
[60] C Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005).
[61] Like ‘zero tolerance’ policing in relation to drug law enforcement, precaution is not an official (that is, legislatively endorsed) principle guiding policy, though particular strategies and approaches conform more closely to a precautionary approach. For a discussion of the concept of zero tolerance policing, see Bronitt and McSherry, above n 8, ch 13.
[62] On the recent adoption of B Party warrants and powers to access stored data without warrants see S Bronitt and J Stellios, ‘Regulating Telecommunications Interception and Access in the Twenty-First Century: Technological Evolution or Legal Revolution?’ (2006) 24(4) Prometheus 413, 417‑21. Also see the new powers in New South Wales (discussed above) and the broad powers to stop and search etc under the Terrorism (Police Powers) Act 2002 (NSW).
[63] See Revised Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006, 2, noting that this Part provides for ‘the use of reasonable and necessary force when protecting critical infrastructure designated by the authorising Ministers’ and enables a ‘call out’ of the ADF to respond to incidents or threats to the Commonwealth in the air environment’ as well as ensuring that ‘powers conferred on the ADF under Part IIIAAA can be accorded to the ADF in the course of dealing with a mobile terrorist incident and a range of threats to Australia’s security’.
[64] Defence Act 1903 (Cth) s 51SE allows ADF members operating under orders given by the Chief of the Defence Force to do certain things in relation to persons, vessels, aircraft or offshore facilities. These include destroying a vessel or aircraft (or ordering it to be destroyed) and preventing, or putting an end to acts of violence. For a review of these powers see M Head, ‘Australia’s Expanded Military Call-Out Powers: Causes For Concern’ (2006) 3 University of New England Law Journal 125, and S Bronitt and D Stephens, ‘“Flying Under the Radar” — The Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments’ (2007) 7(2) Oxford University Commonwealth Law Journal 265.
[65] The right to life is protected by ICCPR, opened for signature 16 December 1966, 999 UNTS 171, art 6 (entered into force 23 March 1976). Following this line of argument, the German Constitutional Court recently held that the Aviation Security Act (11 January 2005) authorising the direct use of military force against hijacked aircraft was contradictory to the paramount rights in the federal Constitution: art 2 II 1 GG (which guarantees the right to life), and art 1 I GG (which guarantees the right to human dignity): see O Lepsius ‘Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti‑terrorism Provision in the New Air-transport Security Act’ (2006) 7(9) German Law Journal 761; M Bohlander, ‘In Extremis – Hijacked Airplanes, “Collateral Damage” and the Limits of Criminal Law’ [2006] Criminal Law Review 579; and S Hufnagel, ‘German Perspectives on the Right to Life and Human Dignity in the “War on Terror”’ (2008) 32 Criminal Law Journal 100.