Derogating from International Human Rights Obligations in the ‘War Against Terrorism'? — A British–Australian Perspective

ABSTRACT

This article examines the United Kingdom's Anti-terrorism, Crime and Security Act 2001 and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 (Cth) from an international human rights law perspective. It argues that both pieces of legislation raise serious concerns in relation to international legal obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Both international treaties allow for ‘derogation’ from certain provisions in times of ‘public emergency’. While the United Kingdom has officially derogated from some of its treaty obligations, Australia has yet to submit a similar notification. This article argues, however, that the United Kingdom's derogation is unlawful. Likewise, current circumstances in Australia would not permit lawful derogation from the ICCPR.

Notes

UNSC Res. 1368, 12 Sept. 2001, UN Doc. S/Res/1368 (2001) and UNSC Res. 1373, 28 Sept. 2001, UN Doc. S/Res/1373 (2001).

Paul Wilkinson, Terrorism and the Liberal State (New York: New York University Press, 1986) p.125–36; Grant Wardlaw, Political Terrorism: Theory, Tactics, and Counter-measures (Cambridge: Cambridge University Press, 1982) p.63–75; Peter Chalk, ‘The Response to Terrorism as a Threat to Liberal Democracy,’ Australian Journal of Politics and History Vol.44, No.3 (1998) p.373–77.

Wilkinson, (note 2) p.125. Moreover, several scholars argued that an ability to deal with terrorism in a way that is widely held to be in conformity with established political and judicial principles will, in actuality, strengthen the commitment to uphold democratic institutions and, thus, further isolate and weaken those who seek to destroy them. See e.g., Peter Chalk, ‘The Liberal Democratic Response to Terrorism,’ Terrorism and Political Violence vol. 7, No. 4 (winter 1995) p.10.

UN GA Res. 54/164 ‘Human Rights and Terrorism’ 17 Dec. 1999, UN Doc. A/RES/54/164 (1999) (emphasis added).

Relevant legislation includes the Terrorism Act 2000, the Immigration Act 1971, the Extradition Act 1989, the Taking of Hostages Act 1982, the Customs and Exercise Management Act 1979 and the Export of Goods (Control) Order 1994.

The act received royal assent on 14 Dec. 2001. The full text version and other related information can be found at http://www.hmso.gov.uk/acts/acts2001/20010024.htm

Adam Tomkins, ‘Legislating against Terror: The Anti-terrorism, Crime and Security Act 2001’, Public Law (Summer 2002) p.205. See also Rhiannon Talbot, ‘The Balancing Act: Counterterrorism and Civil Liberties in British Anti-terrorism Law’, in John Strawson (ed), Law After Ground Zero (2002) p.123–32. Talbot, however, examines British counterterrorism legislation from a civil liberties angle rather than from the international human rights perspective.

For a good summary of the principal changes made by the act, see http://www.homeoffice.gov.uk/oicd/antiterrorism/atcsa.htm.

According to s. 21 (3) a group is an international terrorist group for the purposes of subsection (2)(b) and (c) if: (a) it is subject to the control or influence of persons outside the United Kingdom, and (b) the secretary of state suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism. S. 21 (4) states that for the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.

For the Terrorism Act 2000, see http://www.hmso.gov.uk/acts/acts2000/20000011.htm. Section 1 reads:

1. In this Act ‘terrorism’ means the use or threat of action where:

   1. the action falls within subsection (2),

   2. the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

   3. the use or threat is made for the purpose of advancing a political, religious or ideological cause.

2. Action falls within this subsection if it:

   1. involves serious violence against a person,

   2. involves serious damage to property,

   3. endangers a person's life, other than that of the person committing the action,

   4. creates a serious risk to the health or safety of the public or a section of the public, or

   5. is designed seriously to interfere with or seriously to disrupt an electronic system.

3. The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

4. In this section:

   1. ‘action’ includes action outside the United Kingdom,

   2. a reference to any person or to property is a reference to any person, or to property, wherever situated,

   3. a reference to the public includes a reference to the public of a country other than the United Kingdom, and

   4. ‘the government’ means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

5. In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

Examples for a ‘point of law’ preventing removal include other international obligations such as Article 3 ECHR (see note 13). An example for ‘practical consideration’ would be the absence of relevant travel documents.

The author acknowledges that the ATCSA provisions also breach obligations under the ICCPR, specifically Article 9(4). Although there are slight differences in the wording of Article 5 ECHR and Article 9 ICCPR, the provisions are similar. As Article 9(4) ICCPR will be subject to an in-depth analysis in the Australian context, focus here is on Article 5 ECHR only.

The paradigm example for removal from the United Kingdom being prevented by a ‘point of law’ is the case where such removal would expose the person to the risk of torture, or of inhuman or degrading treatment (Article 3 EHCR). See Chahal v. United Kingdom, (1996) 23 EHCR 413.

In Chahal v. United Kingdom the European Court of Human Rights held that ‘any deprivation of liberty under Article 5 (1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible’. Chahal v. United Kingdom, (1996) 23 EHHR 413 para.113.

In particular, s. 23 ATCSA does not fall under the exeption of Article 5(1)(c) ECHR.

Patrick Wintour, ‘Blunkett Rejects “Airy Fairy” fears’, The Guardian 12 Nov. 2001.

Human Rights Act 1998, (Designated Derogation) Order 2001, No. 3644. The relevant passage reads: ‘There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organizations or groups which are so concerned or having links with members of such organizations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15 (1) of the Convention, exists in the United Kingdom’.

The United Kingdom also notified the UN secretary-general of its Article 4(1) ICCPR derogation from Article 9(1) ICCPR.

SIAC was established by the Special Immigration Appeals Commission Act 1997 to hear appeals against immigration and deportation decisions that have been taken on national security grounds.

It seems worthy to note, however, that a cancellation does not prevent the secretary of state from issuing a new certificate, ‘whether on the grounds of a change of circumstance or otherwise’ (s. 27(9)).

X v. United Kingdom, (1981) ECHR Applic. No. 7215/75 para.53.

See e.g., Singh v. United Kingdom, Hussain v. United Kingdom, (1996) 22 EHRR 1.

Bouamar v. Belgium, (1987) 11 EHRR 1.

Sanchez-Reisse v. Switzerland, (1986) 9 EHRR 71; Lamy v. Belgium, (1989) 15 EHRR 529. See also Toth v. Austria, (1991) 14 EHRR 551; Kampanis v. Greece, (1995) 21 EHRR 43.

Special Immigration Appeals Commission Act 1997, s. 6.

Except in the Northern Territory, see Criminal Code Act (NT), Part III Div. 2.

These five bills include the Security Legislation Amendment (Terrorism) Bill 2002 (No. 2), Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002.

The bill introduced a definition of ‘terrorist act’ into federal law and contains criminal sanctions for involvement with a terrorist organisation, including for providing support or funding, recruiting members, directing its activities or being a member. According to s. 102.1 a terrorist organisation is ‘an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)’.

The ASIO Bill, as read a third time, is available at http://zem.squidly.org/cache/asio-11100200.pdf. For the bill, as read a first time, see http://www.aph.gov.au/house/committee/pjcaad/TerrorBill2002/terrorism2002.pdf. For the revised version of 20 March 2003, see http://parlinfoweb.aph.gov.au/piweb/Repository/Legis/Bills/Linked/17040301.pdf.

General Daryl Williams, quoted in Mark Forbes, ‘Deadlock on ASIO Bill’, The Age 13 Dec. 2002. See also Daryl Williams, ‘How the Anti-Terrorism Laws Assure Security and Freedom’, The Age 11 June 2002 (emphasis added).

George Williams, ‘Why the ASIO Bill is Rotten to the Core’, The Age 27 Aug. 2002. For a critical examination of Australian antiterrorism legislation see also George Williams, ‘One Year On – Australia's Legal Response to September 11’, Alternative Law Journal vol. 27, No. 5 (2002) p.212; Joo-Cheong Tham, ‘ASIO and the Rule of Law’, Alternative Law Journal, vol. 27, No. 5 (2002) p.216.

Attorney-General, Stronger Tools for ASIO to Combat Terrorism, http://nationalsecurity.ag.gov.au

According to Section 34B of the ASIO Act, the ‘prescribed authority’ is either the deputy president or a senior member or member of the Administrative Appeals Tribunal (AAT) who has been enrolled as a legal practitioner for at least five years.

Australia signed the ICCPR on 18 Dec. 1972 and ratified it on 13 Aug. 1980.

Manfred Nowak, UN Covenant on Civil and Political Rights: Commentary (Kehl, N.P. Engel, 1993), p.178.

Van Alphen v. The Netherlands, (1990) HRC Comm. No. 305/1988, UN Doc. A/45/40 para.5.8 (emphasis added). See also A v. Australia, (1997) HRC Comm. No. 560/1993 para9.2.

‘Australia Will Be Terrorist Target for Years: ASIO’, The Age 19 April 2002.

Ibid.

C-36 (An Act to Amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and Other Acts, and to Enact Measures Respecting the Registration of Charities, in Order to Combat Terrorism), s. 83.28 (1) and s. 83.28 (11). Available at http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C-36/C-36_4/C-36TOCE.html

HRC General Comment 8 (1982) para.2.

Freemantle v. Jamaica, (1998) HRC Comm. No. 625/1995.

Brogan v. United Kingdom, (1988) ECHR Applic. No. 11209/84.

See above note 33 and accompanying text.

See above notes 20–25 and accompanying text.

Chahal v. United Kingdom, (1996) 23 EHRR 413 para.131.

The ASIO Bill may also violate Article 17(1) ICCPR which provides that ‘no one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’. In McVeigh, O'Neill and Evans v. United Kingdom the European Commission of Human Rights found that the detention of suspected terrorists for forty five hours without access to their wives breached Article 8 ECHR, the equivalent to Article 17 ICCPR in the European Convention. McVeigh, O'Neill and Evans v. United Kingdom, (1980) 5 EHRR 71.

For ‘strict liability’, see s. 6.1 of the Criminal Code.

Saunders v. United Kingdom, (1996) 23 EHRR 313.

HRC General Comment 13 (1984) para.14 (emphasis added).

Emphasis added. The UN Convention on the Rights of the Child (CROC) is available at http://www.unicef.org/crc/crc.htm

The bill may also breach Articles 2(2), 3(1) and 19(1) CROC. Article 2(2) provides that a child must not be discriminated against on the basis of the expressed opinions of their parents. Article 3 (1)1 provides that in all actions concerning children the best interests of the child shall be a primary consideration. Article 19(1) provides that the state must take all appropriate measures to protect the child from all forms of injury or abuse.

Accounts on emergency derogations in general include Rosalyn Higgins, ‘Derogations under Human Rights Treaties’, British Yearbook of International Law 48 (1976–77) p.281; Thomas Buergenthal, ‘To Respect and Ensure: State Obligations and Permissible Derogations’, in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) p.72–91; Joan F. Hartman, ‘Working Paper for the Committee of Experts on the Article 4 Derogation Provision’ Human Rights Quarterly vol. 7, No.1 (1985) p.89; David J. Harris, Michael O'Boyle and Chris Warbrick, Law of the European Convention on Human Rights (London: Butterwoth 1995) pp.489–507; Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception (The Hague: M. Nijoff, 1998).

Article 15 ECHR reads:

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law.

2. No derogations from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Article 4 ICCPR reads:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Convention may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Lawless v. Ireland, (No.3) (1961) IEHRR 15.

Ibid. p.31.

Greek Case (1969) 12 Yearbook ECHR 1.

The relevant part reads: ‘Une situation de crise ou de danger public exceptionnelle et imminente … ’ (emphasis added).

Greek Case (note 56) para.153.

Some members of the commission argued that when the organs of the state are functioning normally, there is no grave threat to the life of the nation, and therefore emergency measures are not legitimate. However, the majority in the commission did not follow this reasoning. In practice, both criteria (2) and (3) are generally applied in a rather relaxed way.

Evidence of these requirements being recognised as general legal standards in the process of determining the meaning of ‘public emergency’ can also be found in the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, reproduced in Human Rights Quarterly vol. 7, No. 1 (1985) p.3. The Siracusa Principles were drafted by a group of thirty one distinguished experts in international law convened by a number of well-respected organisations such as the International Commission of Jurists. The conference was held in Siracusa, Italy in the Spring of 1984. In addition, these criteria are expressed in the International Law Association's (ILA) work on the issue, the Paris Minimum Standards of Human Rights Norms in a State of Emergency. For the ILA Paris Minimum Standards, see American Journal of International Law vol. 79, No. 4 (1985) p.1072.

HRC General Comment 29 (2001) para.154.

As Ronald St. J. Macdonald observed, it is the doctrine of margin of appreciation which allows the court to escape the dilemma of ‘how to remain true to its responsibility to develop a reasonably comprehensive set of review principles appropriate for application across the entire Convention, while at the same time recognizing the diversity of political, economic, cultural and social situations in the societies of the Contracting Parties’. See Ronald St. J. Macdonald, ‘The Margin of Appreciation’, in Ronald St. J. Macdonald et al. (eds), The European System for the Protection of Human Rights (The Hague: M. Nijoff, 1993) pp.83–124.

See e.g., Daniel O'Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’, Human Rights Quarterly 4 (1982) p.474.

Ireland v. United Kingdom, Series A No. 35 (1978) para.207 (emphasis added).

Ibid.

Landinelli Silva v. Uruguay, (1981) HRC Comm. No. 34/1978.

HRC General Comment 29, (2001) para.2. This requirement mainly seeks to reduce the incidence of the de facto states of emergency by obliging states to declare the emergency following the procedures of municipal law.

Nowak (note 35) p.80.

Lawless v. Ireland, (note 55) paras. 44–5.

Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During States of Emergency (Philadelphia: University of Pennsylvania Press, 1994) p.59.

A reference to a bona fide proclamation is also made in Siracusa Principle 66.

See Article 15(1) ECHR and Article 4(1) ICCPR.

See e.g., Marc-Andre Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’, in Ronald St. J. Macdonald et al. (eds), The European System for the Protection of Human Rights (1993) pp.125–37.

Ibid.

Ireland v. United Kingdom (note 64) para.207.

See Siracusa Principles 54 and 57.

See e.g., Jaime Oraa, Human Rights in States of Emergency in International Law (Oxford: Clarendon Press, 1992) p.178.

Ibid. pp.30–1.

Francis X. Taylor, Address to the Institute for National Strategic Studies, National Defense University, Washington DC, 23 Oct. 2002. Also available at http://www.state.gov/s/ct/rls/rm/14570pf.htm. (emphasis added).

The list of Islamic extremist terror organisations is both a long and an open one. It is also noteworthy that although the 9/11 attacks are considered to be initiated by Osama bin Laden, to this date neither Al-Qaeda nor any other terrorist group has officially claimed responsibility.

Parliamentary Assembly of the Council of Europe, ‘Combating Terrorism and Respect for Human Rights’, Res. 1271 (2002), paras. 9, 12. Also available at http://assembly.coe.int/Documents/AdoptedText/ta02/ERES1271.htm. (emphasis added).

The author acknowledges that European countries, particularly France, Germany (e.g., Munich Olympics, 1972) and the United Kingdom (e.g., Lockerbie crash of Pan Am 103, 1988) have been subject to attacks from terrorist groups with links to the Middle East. However, to this day, there have not been any attacks in Europe from Islamic fundamentalist terrorists commonly associated with Al-Qaeda.

Figures quoted by Adam Tomkins, ‘Legislating against Terror: The Anti-terrorism, Crime and Security Act 2001’, Public Law 205 (2002) pp.215–6.

See e.g., Rohan Gunaratna, Inside Al Qaeda–Global Network of Terror (New York: Columbia University Press, 2002); Yonah Alexander and Michael S. Swetnam, Osama bin Laden's al-Qaida: Profile of a Terrorist Network (Ardley, NJ: Transnational Publishers, 2001); Bruce Hoffman, Inside Terrorism (New York: Columbia University Press, 1998).

Wintour. The (note 16).

‘The Committee notes with concern that the State Party, in seeking inter alia to give effect to its obligations to combat terrorist activities pursuant to Resolution 1373 of the Security Council, is considering the adoption of legislative measures which may have potentially far-reaching effects on rights guaranteed in the Covenant, and which, in the State Party's view, may require derogations from human rights obligations. The State Party should ensure that any measures it undertakes in this regard are in full compliance with the provisions of the Covenant, including, when applicable, the provisions on derogation contained in Article 4 of the Covenant’.

SIAC judgment in A and Others v. Secretary of State for the Home Department, 30 July 2002, Appeal No. SC/1-7/2002.

See above notes 67–71 and accompanying text. As the British government notified the Council of Europe and the UN secretary-general about the derogation from the ECHR and ICCPR, the requirement of notification has been fulfilled and is not discussed here any futher.

HRC General Comment 29 (2001) para.1.

Wintour, (note 16).

Well-respected human rights lawyer David Pannick QC, in an opinion prepared for the National Council for Civil Liberties (Liberty), made the additional point that the derogation from Article 5(1) is prompted by concern about an inability to remove foreign nationals from the United Kingdom because of Article 3 ECHR. He was ‘very doubtful’ that it is a valid use of Article 15(1) to impose detriments on persons because they seek to take advantage of rights conferred by Article 3, especially when Article 15(2) prohibits any derogation from Article 3 itself because of its fundamental nature. For Pannick, it is strongly arguable that the home secretary is not seeking to derogate from Article 5(1) because of a public emergency threatening the life of the nation, but because Article 3 prevents him removing from the United Kingdom asylum-seekers who may face persecution abroad. See Joint Committee on Human Rights (2001–02) Fifth Report, HL 51, HC 420 (London: HMSO 2002) Appendix 5, para.6(5). Available at http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/51/5102.htm.

It is significant to note that some of the measures, as a former home secretary admitted in the House of Lords, have been ‘hanging around in the Home Office for a long time’ waiting for a suitable legislative opportunity to arise. Quoted by A Tomkins (note 83) p.220.

Aksoy v. Turkey, (1996) ECHR Applic. No. 21987/93.

Quoted in Joint Committee on Human Rights (note 91) Appendix 3, para.10.

In Home Secretary v. Rehman, (2001) 3 WLR 877, it was held that ‘action against a foreign state may be capable indirectly of affecting the security of the United Kingdom’ and that ‘the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security’, at 884E and 894H.

For the Tamil Tiger example, see David Anderson QC and Jemima Stratford, Opinion Prepared for JUSTICE, Joint Committee on Human Rights (note 91) Appendix 3, para. 21–2.

Walter Pincus and Dana Priest, ‘Spy Agencies’ Optimism on Al Qaeda Is Growing’, Washington Post 6 May 2003.

George W. Bush, quoted in Mark Hosenball and Michael Isikoff, ‘Al Qaeda Strikes’, Newsweek, 20 May 2003.

Terrorism experts believe that recent terrorist attacks in Riyadh and Morocco were ‘probably not orchestrated by al Qaeda’ and have ‘little or no connection to Osama bin Laden’. The attacks are rather believed to have been carried out by local groups with antimonarchist motivations. See e.g., William O. Beeman, ‘Saudi-Bombing – A Calculated Act With a Political Message’, Pacific News Service 14 May 2003.

It is not without significance that a number of British MPs rejected extending SIAC powers to rule on appeals of detention orders. Replying to the home secretary's argument that MPs did not object to the creation of SIAC in 1997, one member of parliament pointed out that ‘had MPs known that SIAC – a star chamber of an organisation, with draconian powers over evidence – was to be used as an appeals procedure, not for deportation but for the indefinite incarceration of people without charge or trial, MPs would not have voted for it’.See Bob Marshall-Andrews MP, A Fundamental Attack on Liberty Which Must Be Stopped, http://www.poptel.org.uk/scgn/articles/0112/page6d.htm

See above notes 20–25 and accompanying text.

Home Secretary v. Rehman, [2001] 3 WLR 877 at 897–7 (Lord Hoffman).

Brown v. Stott, [2001] 2 WLR 817 at 834–5 (Lord Bingham of Cornhill).

A and Others v. Secretary of State for the Home Department, [2002] EWCA Civ 1502 para.40 (Lord Woolf CJ).

Chahal v. United Kingdom, (1996) 23 EHRR 413 para.131.

See above notes 20–25 and accompanying text.

‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’, AJIL 79 (1985) p. 1072, section B 2(d). As Colin Warbrick observed correctly, the list of prohibited grounds of discrimination is both a long one and an open one. Colin Warbrick, ‘The Principles of the European Convention on Human Rights and the Response of States to Terrorism’ European Human Rights Law Review vol. 3, No.3 (2002) p. 313–4.

Belgian Linguistics, Case (No. 2) (1962) 1 EHRR 252.

Gaygusuz v. Austria, (1997) 23 EHRR 365 para.42.

Peter Beaumont, ‘Briton Held in US Camp as Al-Qaeda Prisoner’, Observer 13 Jan. 2002. In addition, nine British citizens allegedly involved in terrorist activities were detained as a consequence of allied military action in Afghanistan. One of these detainees was recruited by a British preacher from a London mosque. See e.g., Richard Willing, ‘London Mosque Called Central to Al-Qaeda Efforts’, USA Today 30 Aug. 2002.

Richard Reid tried to blow up a transatlantic flight from Paris to Miami on 22 Dec. 2001 using explosives hidden in his sports shoes. See e.g., Gary Younge and Duncan Campbell, ‘Shoe-Bomber Sentenced to Life in Prison’, The Guardian 31 Jan. 2003.

A and Others v. Secretary of State for the Home Department, (2002 EWCA Civ 1502 paras. 45–56.

‘Australia Will Be Terrorist Target for Years: ASIO’ (note 37).

An audiotaped message from Osama bin Laden in November 2002 warned of further terrorist attacks on countries ‘allying themselves with America’. Although bin Laden referred to Australia as potential future target, Australia was mentioned only after Britain, France, Italy, Canada and Germany. See ‘Official: Voice on Tape Is Bin Laden's’, CNN News 13 Nov. 2002 http://www.cnn.com/2002/WORLD/meast/11/12/binladen.statement

see note 113.

See above notes 50–51 and accompanying text.

Benjamin Franklin, quoted in Emily Morrison Beck (ed), Bartlett's Familiar Quotations: A Collection of Passages, Phrases, and Proverbs Traced to their Sources in Ancient and Modern Literature, 15th edn., 125th edn., (London: McMillan, 1980) p.348.

Michael Kirby, Speech to the Law Council of Australia, Thirty-second Australian Legal Convention, 11 Oct. 2001. Available at http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_after11sep01.htm.