Balancing national security and human rights: Assessing the legal response of common law nations to the threat of terrorism

Abstract

In this article the authors address the impact which post-September 11 counter-terrorist legislation has had on human rights and civil liberties in a number of common law jurisdictions. The authors conclude that the counter-terrorist legislative regimes in the countries discussed in the article do impinge significantly upon human rights, and argue in favour of a ‘balancing approach’ towards reconciling such legislation with domestic, regional and international human rights obligations. The authors conclude with some general guidance for legal and policy decision-makers on how to balance the (frequently opposed) interests of national security and human rights protection.

Acknowledgement

Both authors thank the anonymous reviewers of the journal for their constructive comments on earlier versions of this paper.

Notes

1. We note the developments in counter-terrorist law and practice in non-common law jurisdictions but for the reasons referred to above (as well as time and space constraints), our analysis is limited to common law jurisdictions. However, the reader is referred to Ramraj et al. (2005), a recent collection of essays which addresses legal counter-terrorist developments in jurisdictions such as South East Asia, the Middle East and the European Union.

2. For example, see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (2002), available at: http://www.aph.gov.au/Senate/committee/legcon_ctte/terrorism/report/report.pdf (accessed July 26, 2004); Foreign Affairs, Defence and Trade Committee, Parliament of New Zealand, Counter-Terrorism Bill, available at: http://www.clerk.parliament.govt.nz/Content/SelectCommitteeReports/27bar2.pdf (accessed August 21, 2004). The South African Bill was referred to the Portfolio Committee on Justice and Constitutional Affairs of the National Assembly. The Canadian Bill was referred to both the House of Commons Standing Committee on Justice and Human Rights and the Special Senate Committee on the Subject Matter of Bill C-36.

3. SC Res 1373, UN SCOR (4385th mtg), UN Doc S/Res/1373 (2001).

4. There is an enormous volume of literature on these Acts. For example, see Cole and Dempsey (2002) (US), Conte (2003) (NZ), Hocking (2003) (Australia), Roach (2003) (Canada), D. Williams (2003) (UK), G. Williams (2003) (Australia).

5. (2004) UKHL 56 (“A. v. Secretary of State”), delivered on December 16, 2004. This case is discussed in more depth below.

6. See the Hon. Tony Blair, MP, Prime Minister's Statement on Anti-Terror Measures, available at: http://politics.guardian.co.uk/terrorism/story/0,15935,1543385,00.html (accessed September 13, 2005).

7. See Prime Minister John Howard, Counter-Terrorism Laws Strengthened, Media Release, September 8, 2005, available at: http://www.pm.gov.au/news/media_releases/media_Release1551.html.

8. The Australian, United Kingdom, Canadian and South African legislation makes reference to the public or a certain section of the public, while the United States and New Zealand legislation simply refers to the public in general. See the references to specific definitions, note 15 below, and the text adjoining.

9. For example, see ss. 12, 13, 15–20 of the Terrorism Act 2000 (UK); ss. 7–10, 12–13A of the Terrorism Suppression Act 2002 (NZ); ss. 101.1–101.6 of the Criminal Code Act 1995 (Cth); ss. 83.02–83.04, 83.18–83.23 of the Criminal Code, RSC 1985, c. 46; ss. 2339A–B of Title 18 to the United States Code; and ss. 2–3, 11–14 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 2004 (SA).

10. For example, see s. 3 of the Terrorism Act 2000 (UK); ss. 20, 22 of the Terrorism Suppression Act 2002 (NZ); s. 102.1 of the Criminal Code Act 1995 (Cth); and s. 83.05 of the Criminal Code, RSC 1985, c. 46.

11. Some of these laws implement national obligations assumed under the International Convention for the Suppression of the Financing of Terrorism, December 9, 1999, 39 ILM 270 (entered into force April 10, 2002). For example, see Part 2 of the Anti-terrorism, Crime and Security Act 2001 (UK); and s. 23 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 2004 (SA). Compare President George W. Bush's Executive Order of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.

12. For example, see the powers contained in Part 5 of the Terrorism Act (UK) and Part 10 of the Anti-terrorism, Crime and Security Act 2001 (UK); the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth); ss. 83.3(6)–(7) of the Criminal Code, RS 1985, c. 46; and ss. 22–24 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 2004 (SA).

13. For example, see Part 4 of the Anti-terrorism, Crime and Security Act 2001 (UK) and the changes made by the Border Security Legislation (Amendment) Act 2002 (Cth). See also some of the planned measures in the wake of the London bombings, discussed in the Prime Minister's Statement on Anti-Terror Measures, above note 6.

14. Section 802 of the USA PATRIOT Act amended the definition of “domestic terrorism” within Title 18 of the United States Code (it also inserted a definition of “international terrorism” which is, for our purposes, substantively similar). Section 2331 of Title 18 now provides as follows:

• (5) the term “domestic terrorism” means activities that –

  1. involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

  2. appear to be intended –

     1. to intimidate or coerce a civilian population;

     2. to influence the policy of a government by intimidation or coercion; or

     3. to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

  3. occur primarily within the territorial jurisdiction of the United States.

• In the United Kingdom, s. 1(1) of the Terrorism Act 2000 (UK) contains the following definition of terrorism:

  1. 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.

15. Compare s. 1(1) of the Terrorism Act 2000 (UK) (this definition is also adopted in the Anti-terrorism, Crime and Security Act 2001 (UK) and s. 2331 of Title 18 to the United States Code with s. 83.01 of the Criminal Code, RSC 1985, c. 46; s. 100.1 of the Criminal Code Act 1995 (Cth); s. 5 of the Terrorism Suppression Act 2002 (NZ); and s. 1(1)(xxv) of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 2004 (SA).

16. It is of course necessary to bear in mind the differing levels of constitutional protection in the jurisdictions we are discussing. For example, The United States Bill of Rights provides overriding constitutional protection for freedom of speech in the First Amendment. This instrument, and the high degree of protection afforded to the concept of freedom of speech in American constitutional jurisprudence, is likely to prevent the application of general definitions of terrorism to civil protest that would not normally be regarded as terrorism. On the other hand, the United Kingdom Bill of Rights, the Human Rights Act 1998 (UK) c. 42, only enables courts to interpret legislation “[s]o far as it is possible to do so” in a way that is compatible with rights such as “freedom of expression”. Although the Human Rights Act also enables a court to make a declaration of incompatibility where it finds that a statute, such as the Terrorism Act, is incompatible with a listed right, the making of such a declaration does not affect the operation of the statute.

17. See cll. 34F(1), (4), (8) of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No 1] (Cth).

18. Another example of a hierarchy of rights protection at the national level is provided by the Canadian Charter of Rights and Freedoms, which states in section 33(1): “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” A declaration made under this section operates for five years, after which the override can be re-enacted. The clause does not apply to all of the rights listed in the Charter, just to the rights listed in sections 2 and 7–15. This means that a Canadian parliament can override rights such as “the right not to be arbitrarily detained or imprisoned” in section 8 or even the right to equality under the law in section 15, but rights such as the right to vote in federal elections in section 3 are, as a matter of constitutional law, beyond its reach.

19. The Constitutional Court's decision of 23 July 2004 in the Masykur Abdul Kadir case is reported in the Australian Journal of Asian Law, 6, 2004, pp. 2176–2196.

20. We are not endorsing the view of Professor Dershowitz here. We are merely pointing to the example of how the right to life might conflict with the right to be free from torture – an example much discussed in the literature on counter-terrorism and human rights. For example, see the recent exchange in the New York Law School Law Review (Strauss 2003–2004, Dershowitz 2003–2004).

21. [1991] 2 All ER 319 at 334.

22. Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2004, p. 31,701 (Philip Ruddock, Attorney-General).

23. Ibid.

24. Ibid., p. 31,702.

25. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 per the Court.

26. [1986] 1 SCR 103 at 138–139 (“Oakes”).

27. There is precedent for the suggestion offered here. In many jurisdictions it is a requirement for the making of delegated legislation (that is, legislation made by a delegate of the democratic body such as a Governor in Council or an administrative body) such as rules, regulations, by-laws, and so forth, that an impact statement be prepared in advance of the delegated legislation. Moreover, it is often a requirement of such a statement that the delegate consider the implementation of alternative measures. For example, see s. 5 and Sch. 2 of the Subordinate Legislation Act 1989 (NSW). More generally, in the field of human rights, many domestic human rights statutes place a requirement upon the government (which usually falls to the Attorney-General) to account for any planned legislation's compatibility (or otherwise) with protected rights. Whether or not non-compliance with the rights necessarily vitiates the proposed legislative action, these mechanisms do provide for a kind of democratic accounting (in advance) for the legislation's human rights impact. For example, see s. 7 of the Bill of Rights Act 1990 (NZ) and s. 19 of the Human Rights Act 1998 (UK).

28. For a useful discussion of the role of law in the context of deterring terrorism, see Murphy (1981–1982). For a more recent discussion of deterrence in the context of terrorism, written primarily from a psychological and criminological perspective, see the collection of essays in Silke (2003).

29. For a comprehensive account of this phenomenon as it has occurred in the United States, see Hagopian (2004) and Nguyen (2005).

30. 323 US 214 (“Korematsu”). Korematsu concerned the internment and exclusion of people of Japanese descent in the Second World War. Mr Korematsu was an American citizen who knowingly violated Civilian Exclusion Order No 34, was convicted and subsequently (unsuccessfully) challenged the constitutionality of the Order in the Supreme Court. The executive detention of Muslims in Guantánamo and other United States military bases post-September 11, 2001 provides a contemporary analogue.

Additional information

Notes on contributors

Ben Golder

Ben Golder is a doctoral candidate at Birkbeck College, University of London, researching counter-terrorism laws from a philosophical and legal theoretical perspective. Currently, he teaches at the School of Law, University of East London; the Faculty of Laws, University College London; and, NYU in London (an affiliate of New York University). He has published articles in Australian and international journals on criminal law and legal theory. George Williams is the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law (http://www.gtcentre.unsw.edu.au) at the Faculty of Law, University of New South Wales. He is the author and co-author of books including Treaty (2005), The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004), Human Rights Under the Australian Constitution (1999) and Australian Constitutional Law and Theory: Commentary and Materials (3rd edition, 2002), and is an editor of The Oxford Companion to the High Court of Australia (2001). George also practises as a barrister in courts such as the High Court of Australia and the Supreme Court of Fiji.