In undertaking research for this chapter, I repeatedly came across statements that we now live in an ‘Age of Terror’ in both political and scholarly literature. Although some scholars have argued that this best fits the US experience and may not be replicated around the globe,^[67] it seems that many liberal democracies are facing very similar challenges. In the US, Australia and the UK, an uncivil politics of law reform prevails in the field of counter-terrorism. Security culture leaves little space for human rights language and instruments. Under the sway of balancing models and the rationale of promoting preventative or precautionary measures, human rights tend to be traded away as a threshold issue.

The impact of 9/11 on the legitimacy of the law reform process has been highly deleterious: community consultation on draft legislation; the involvement of professional law reform agencies, as well as parliamentary oversight, have been seriously debased (if not sidelined entirely). The question is how long these trends will continue and how best to promote strategies for the civil politics of law reform in which human rights are protected and respected, rather than trumped by security considerations.

The problem in the current and future law reform context will be the likely ‘trickle down’ effect of this uncivil culture — the normalisation of emergency powers seems inevitable. Indeed, this trend has long been evident in the UK, where exceptional measures (such as the abolition of the right to silence) in Northern Ireland in the 1980s were subsequently brought to the mainland in the 1990s.^[68] In Australia, the trend toward the enactment of preventative powers will continue — in relation both to combating terrorism and to ordinary crimes, which target suspect classes or groups rather than individuals.

This chapter has exposed the subtle but significant shift from preventative to precautionary models in the field of counter-terrorism. Prevention no longer seems the objective or end game. Rather, consistent with the precautionary model, in a security environment characterised by uncertainty, the law increasingly favours pre-emptive action, mass surveillance and disruption tactics. The sense of an impending apocalyptic disaster, whether it be environmental or security related, promotes a fatalism in which liberalism and established legal norms are viewed as simply too costly. In truth, there is a serious risk of irreversible harm — not just the harm that terrorism presents to our security, but also the threat that counter-terrorism measures themselves pose to human rights.

As the International Commission of Jurists noted in its Berlin Declaration:

One solution might be to invert the precautionary principle so that protection of human rights (like protection of the environment) is the principal value or objective prioritised. In the face of harm being done to human rights by opportunistic governments around the world, we must act to promote higher levels of protection of human rights even though we may lack knowledge that particular measures will be effective in this respect. There remains a broader debate, for example, over whether the adoption of bills of rights or the existing common law presumptions in favour of liberty provide an effective mechanism for upholding these important rights. Precautionary logic might suggest that we should act now to implement such measures, whilst remaining careful to monitor whether such reforms are having the desired impact. In relation to both the making and the enforcement of counter-terrorism laws, a re-modelled precautionary principle serves to uphold rather than to trade away human rights. It would certainly place human rights protection (and its various institutions) at the heart of regulatory design. In light of the arguments above, this attention to human rights would enhance both the legitimacy and effectiveness of our responses to terrorism (objectives that should be viewed as mutually reinforcing rather than antagonistic in the way that the balancing model presumes). The decision to prioritise human rights is ultimately a political rather than a strictly legal choice, especially so in the Australian system, which lacks an entrenched bill of rights. Somewhat pessimistically, my conclusion is that it is unrealistic to expect any significant policy change in the near future — the prevailing uncivil politics of law reform will regrettably continue to marginalise such unorthodox perspectives.