Effective Measures to Fight Terrorism as well as Strong Precedents Established by USA and the United Kingdom,

Australian Constitutional law

The events witnessed on September 11 have pressured many countries to take measures regarding the threats posed by terrorism. In Australia’s case, the government has been simultaneously pressured in two ways, namely an open-ended directive of the UN Security Council for states to take effective measures to fight terrorism as well as strong precedents established by USA and the United Kingdom,

Australian constitutional decisions regularly present various starting stands for analysis. Section 51(vi) of the constitution of Australia addresses the defence power and is a subsection that accords the commonwealth parliament the right to establish laws with respect to its military and naval defence and that of the several states. It also ensures control of the forces for carrying out and maintaining commonwealth laws. The Powers in section 51 can also be legislated by the states In cases of inconsistency, however; the law of commonwealth will have to prevail.

This paper examines whether the defence power, constitution s 51(vi) is suited to a situation in which it is claimed to that there is a “war on terror”.  It shall do so through the analysis of the nature of the defence power, scope of defence power conferred in s 51(vi), and the possible threats this application poses to the operation of democracy. It shall maintain that the section is in fact suited to a ‘war on terror’, considering the size and impact terrorism has on national security. However, s51(vi) should not be applied lightly in the case of “the war on terror” because it still remains in question whether Australia is in fact in danger of terrorism. In addition, doing so might place the democracy in danger since the extent of power in the section is highly dependent upon the discretion of Parliament and the Court, meaning that it can enact and execute unnecessarily vague or extensive anti-terrorism laws, thereby restricting individuals’ fundamental rights.

Nature of the Defence power

Australian Defence power is elastic[1]. This means that the scope is determined based on ‘Australia’s Defence needs at any given time’[2]. As these needs change over time, so does the scope of power. It is indeed a purposive authority. This has the implication that a law can be justified not because it falls under the defence topic but simply because it can reasonably be termed conducive to that purpose and will therefore have a bigger scope in times of war. Though the meaning of the constitution remains the same, its application may vary according to circumstances.

The scope of power conferred in s51(vi)

The scope of power conferred in s51(vi) involves the question of “proportionality”, i.e. whether the degree of threat is significantly urgent or extreme to justify the degree of departure from usual assumptions about how federal legislative power is to be exercised. In answering this, one takes into account such factors as the nature and dimensions of the conflict, the actual and apprehended dangers, exigencies, and course of the war, and so on[3]. It has been observed that the language of s 51(vi) is expansive, thus allowing various threats (either internal or external) to attract Defence power conferred under s51 (VI). This was suggested in Thomas v Mowbray[4]. There, the judges rejected the view that defence power is concerned with war and the possibility of war with an extra-Australian nation or organism[5]. Gleeson CJ suggested that the power to make laws under s51(vi) is not limited to Defence against external threats. Rather, it goes further than the traditional sense of combat between forces of nations[6].

S51(vi) suited to a situation “War on Terror”

Terrorism seems to fall within the categories of situations where the power conferred in s51(vi) can be evoked because it poses real threat to the peace and order of the Commonwealth given its capacity to cause death and destruction on a scale comparable to that of regular military action by a regular military[7]. In Thomas v Mowbray, the judges affirmed this approach by stating that the ‘terrorism fell squarely within the scope of the defence power’[8] considering the ‘unprecedented threat posed by terrorism in the contemporary world’.[9]

S51(vi) suited to a situation “War on Terror” – indecisive nature of threats

One should not however forget that “the war against terrorism” is a range of contested assumptions and values[10] – its nature and the degree of real harm are indecisive as to determine the boundary of Defence power that can be allowed. This uncertainty may lead to the enactment of laws which exceed the stated purpose of providing protection from violent acts of terrorism, thereby undermining individual liberties and the effective operation of democracy.

Firstly, categorising war on terror under the defence power conferred in s 51(vi) is unreasonable considering the assessed risk posed by the terrorist attack in Australia in relation to the nature of defence power conferred in s51(vi). Prior to Sept 11th incident the Commonwealth parliament was unable to address the clear need for the far reaching laws designed to fight genuine acts of terrorism. The shock of Sep 11th has provided a good chance for the government to justify laws for the purposes of protection that pose far reaching attack upon the civil and political liberties of the Australian public. The challenge posed by Terrorism is nothing new for Australia.[11] The assessed risk has always existed and it has neither increased nor decreased. In fact, as was highlighted by Roos, the assessed risk of a terrorist attack on Australian soil is in terms of the risk of death or serious injury, of a lesser order of magnitude than the risk posed by motor vehicles, outbreak of disease, the use and abuse of drugs, and even organised crime.[12] Therefore, the ‘war on terror’ situation in Australia is insufficient for invoking defence power because it is indeed a power for defence, not a more general power for security or public safety. The power cannot be used to validate all laws operating to protect individuals from every single risk, however slight or remote[13]. In this sense, the wrong decision was reached in Thomas v Mowbray[14], in that the Court’s application of defence power erroneously equated the threat posed by terrorism to Australia and other western states with the threat of war or insurrection against the sovereign government of Australia.[15]

Secondly, the use of defence power is risky in that it may rationalise “anti-terrorism” laws which exceed their stated purpose of providing enhanced protection from terrorist attacks and which can thereby infringe upon the effective operation of democracy. As suggested by Callinan J in Thomas v Mowbray[16], “too ready and ill-considered an invocation of the defence power may have the capacity to inflict serious damage upon a democracy”. For instance, during the national crisis of WWII, the enormous expansion of the section 51(vi) defence power was allowed, resulting in many restrictions becoming valid despite being very tenuously linked to defence.[17]

The meaning of defence power given by s51 (VI) can be extended to anti-terrorism laws. These laws are often stated so broadly that their potential impact extends well beyond the control of terrorism.[18] This was exemplified in Thomas v Mowbray[19], where the provision in issue, s104.4 (1) (c) (ii) of the Code makes reference to ‘training’. This can be interpreted to include cooking and language training. These validated legislations can be used to impose restrictions on individuals’ rights of meaningful protest in Australia.[20] The end result would be that without sophisticated rights-based arguments for evaluating anti-terrorism laws, the individuals confronting these laws are left with little on which to hang their challenges.[21] If parliament is given power to legislate any anti-terrorism laws using defence power, the end result would be that Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject.[22] This in turn will mean that limitations imposed upon Commonwealth power by a carefully framed Constitution would disappear and the separation of powers conferred by democracy would no longer exist.[23]

Circumstances where the defence power can be invoked in “war on terror” state

However, it is not to deny that the Constitution s51 (VI) cannot at all be used for the purposes of “war on terror”, as its use may be necessary when there is a grave threat in the preservation of Commonwealth. What is of critical importance is the rational and correct interpretation of s51 (VI) of Constitution, in order to determine the scope of the defence power. There are three things in which the Parliament and the Court should consider in interpretation and application – perceived risk in the state of ‘war on terror’, the purpose and the language of the legislation.

To begin with, the threat should be grave and extensive enough in nature that the existing law itself cannot effectively cope with it, unless the defence power conferred in s51(vi) of Constitution is evoked. The threat, in order to invoke defence power, does not have to be directed at the bodies’ politics (as argued by Kirby in Thomas v Mowbray). Such attempt to articulate the boundary of defence power seems improper as the principle means of attacking the Commonwealth and the States is through killing individuals and destroying their property.[24]

However, the harm should necessarily be serious enough to invoke defence power. The ‘scale, gravity, severity of quantum of harm or anticipated harm should be carefully assessed as to determine whether the situation is better dealt with through the administration of s51(vi) Constitution than the ordinary measures provided by general law.[25]. Failure to establish a distinctive component between violent crime aspects such as terrorism and the common law has failed to boost the state’s efforts in dealing with terrorism related threats. The commonwealth powers to defend the nations against terrorist related threats has been considered an option vital for making meaningful strides, in relation to terrorism.   In other words, the state competency in relation to defence power application in dealing with terrorist threats has been compromised by the courts. The courts have been blamed for causing legal bureaucracies which have resulted in the state failing to address terrorism adequately.[26] Rogers and Ricketts indeed argue that existing criminal laws in Australia, such as section 357 of the Crimes Act 1900 (NSW) empowering the police to search and seizure any person, vessel or vehicle in any public place under both the Firearms Act 1996 and the Weapons Prohibition Act 1998), is sufficient to provide sanctions against any act of terrorism.[27]

Secondly, the language and the purpose of the legislation should be clear enough, if the risk of catastrophic harm to the Australian public is the critical justification for the invocation of the defence power.[28] The foremost concern in many anti-terrorism laws is that the definitions are so wide as to include a broad range of otherwise part of everyday practice of Australian democracy.[29] Political protests for instance can fall under the definition of ‘terrorist act’ because protests may intimidate the public and cause damage to individuals’ property.

Determining whether the challenged law is reasonably appropriate for the defence purpose is another crucial question to be addressed by the Court.[30] What this means is that not only legislation should be sufficiently connected to the defence power, but also that laws that can be justified by the enlarged operation of the defence power conferred in s51(vi) Constitution must not “extend beyond what is reasonably necessary to handle such abnormal and temporary conditions”[31]. One should consider the adverse effect of an impugned provision upon well recognised human right.[32] The suggestions of Kirby in Thomas v Mowbray indicate the need to become sensitive to crucial constitutional aspects which directly coordinate and influence a nation’s effort on eliminating terrorism. Thus, there is need for the courts to avoid scenarios where legal and constitutional exceptionalism is encouraged.[33]

As the above arguments portray the defence power, Constitution s51(vi) is indeed subject to qualifications if it were to be adopted to a situation called ‘war on terror’.

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