- Kent Roach, ‘The Eroding Distinction Between Intelligence and Evidence in Terrorism Investigations' in Nicola McGarrity, Andrew Lynch and George Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice After 9/11 (Routledge 2010) 55. For the significance of intelligence, see Phillip Flood, Report of the Inquiry into Australian Intelligence Agencies (Department of the Prime Minister and Cabinet, 2004); Department of the Prime Minister and Cabinet, Securing Australia—;Protecting our Community (Counter-Terrorism White Paper 2010); Ministry of Justice, Justice and Security (Green Paper, Cm 8194, 2011). This is not to discount the significant issues posed by the new terrorism offences introduced in both jurisdictions post 9/11 that have been put to much greater use than control orders. Tadros, for example, has argued that the extension of the criminal law, the breadth and vagueness of the new terrorism offences, and the disproportionate sentences imposed on conviction constitute the most concerning aspects of post 9/11 anti-terror law in the United Kingdom: Victor Tadros, ‘Justice and Terrorism’ (2007) 10 New Criminal Law Review: An International and Interdisciplinary Journal 658.
- Lucia Zedner ‘Pre-crime and Post-criminology?’ (2007) 11 Theoretical Criminology 261; Lucia Zedner, Security (Routledge 2009) 73.
- Roach, ‘The Eroding Distinction’ (n 1) 52. See also Clive Walker, Terrorism and the Law (OUP 2011) 56.
- This definition adopts features of definitions by Marx, Lyon, Haggerty and Ericson. See Gary T Marx, ‘What's New About the “New Surveillance“? Classifying for Change and Continuity' (2002) 1 Surveillance and Society 9; David Lyon, Surveillance after September 11 (Themes for the 21st Century Series) (Polity Press, 2003) 15; Gary T Marx, ‘Surveillance and Society’ in George Ritzer (ed), Encyclopedia of Social Theory (Sage 2005) 2; Kevin D Haggerty and Richard V Ericson, ‘The New Politics of Surveillance and Visibility’ in Kevin D Haggerty and Richard V Ericson (eds), The New Politics of Surveillance and Visibility (University of Toronto 2005) 3.
- Kent Roach, ‘Secret Evidence and its Alternatives’ in Aniceto Masferrer (ed), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Springer 2012) 180.
- Secrecy, however, is not a defining characteristic of intelligence. As Roach points out, ‘Although some forms of intelligence are public, the traditional essence of intelligence has been that it is secret' (‘Secret Evidence’ (n 5) 180).
- Roach, ‘Secret Evidence’ (n 5); Roach, ‘The Eroding Distinction’ (n 1).
- See, however, the following contributions: Megan Caristo, ‘Secretary of State for the Home Department v AF: A Lesson for Australia' (2010) 32 Sydney Law Review 693; Simon Bronitt and Susan Donkin, ‘Australian Responses to 9/11: New World Legal Hybrids?’ in Masferrer (n 5) 223–39; Andrew Lynch, Tamara Tulich, and Rebecca Welsh, ‘Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in the United Kingdom and Australia' in David Cole, Federico Fabbrini and Arianna Vedaschi (eds), Secrecy, National Security & the Vindication of Constitutional Law (Edward Elgar Publishing forthcoming 2013).
- While Australian and United Kingdom control order regimes have been comparatively studied, most notably by Lynch and Roach, the focus on secret evidence provisions in light of recent developments such as the replacement of control orders with TPIMs in the United Kingdom generates fresh insights: Andrew Lynch, ‘Control Orders in Australia: A Further Case Study in the Migration of British Counter-Terrorism Law' (2008) 8 Oxford University Commonwealth Law Journal 159; Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (CUP 2011).
- This is not to discount linkages with executive security orders employed in the colonies, nor connections with contemporary civil preventive orders: Roach, 9/11 Effect (n 9) 280.
- Both the United Kingdom and Australian governments have adopted, and continue to adopt, the language of ‘prevention’ to describe coercive domestic anti-terror legislation aimed at identifying and thwarting a terrorist attack before it occurs. See United Kingdom Home Office, Prevent Strategy (Cm 8092, 2011); Department of Prime Minister and Cabinet, Securing Australia (n 1). However, the term ‘pre-emption’ is a more accurate descriptor, capturing those domestic laws that share the same logic as the Bush Administration's ‘doctrine of pre-emption'—;namely, the targeting of threats before they materialise: Jude McCulloch and Sharon Pickering, ‘Counter-Terrorism: The Law and Policing of Pre-emption' in McGarrity, Lynch, and Williams (n 1) 13–29; Lucia Zedner ‘Preventative Justice or Pre-Punishment? The Case of Control Orders' (2007) 60 Current Legal Problems 174.
- Lucia Zedner, ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process' in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Hart 2007); Kent Roach, ‘The Criminal Law and Its Less Restained Alternatives’ in Victor V Ramraj and others (eds), Global Anti-Terrorism Law and Policy (2nd edn, CUP 2012).
- Criminal Code Act 1995 (Cth) (Aus) s 104.27 (Criminal Code); Prevention of Terrorism Act 2005 (UK) s 9 (PTA 2005); Terrorism Prevention and Investigation Measures Act 2011 (UK) s 23 (TPIM Act 2011).
- While these remarks were made in respect to another species of civil preventive order in the United Kingdom, the Anti-Social Behaviour Order, they are of equal relevance to control orders and TPIMs: Andrew Ashworth and Lucia Zedner, ‘Preventive Orders: A Problem of Undercriminalisation?’ in R Duff and others (eds), The Boundaries of the Criminal Law (OUP 2010) 74–75.
- Roach, ‘The Eroding Distinction’ (n 1) 55.
- Walker, Terrorism (n 3) 56.
- Greg Elmer and Andy Opel, Preempting Dissent: The Politics of an Inevitable Future (Arbeiter Ring 2008) p 18–19. A debate exists in surveillance studies as to whether there has been a ‘switch in time from past-orientated to future-orientated surveillance' and whether surveillance is in fact capable of being ‘future-orientated’ and of meeting the prophetic aspirations of pre-emption: David Lyon, ‘Surveillance After September 11, 2001’ in Kirstie Ball and Frank Webster (eds), The Intensifcation of Surveillance: Crime, Terrorism and Warfare in the Information Age (Pluto 2003) 23–24. For the purposes of this article, it is argued that surveillance may, as part of the shift to pre-emption, support pre-emptive measures and be imbued with a concomitant pre-emptive logic, whether or not pre-emptive surveillance is in fact possible.
- Elmer and Opel (n 17) 19–20.
- Elmer and Opel (n 17) 22–24.
- Australian Law Reform Commission, Keeping Secrets: The Protection of Classifed and Security Sensitive Information (ALRC Report 98, 2004) [11.205].
- Abraham S Goldstein, ‘Refections on Two Models: Inquisitorial Themes in American Criminal Procedure’ (1974) 26 Stanford Law Review 1009, 1016.
- David Bonner, Executive Measures, Terrorsim and National Security: Have the Rules of the Game Changed? (Ashgate 2007) 276; Mirjan Damaška, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study' (1973) 121 University of Pennsylvania Law Review 506; Jenny McEwan, Evidence and the Adversarial Process: The Modern Law (Blackwell 1992); DA Ipp, ‘Reforms to the Adversarial Process in Civil Litigation—;Part I’ (1995) 69 Australian Law Journal 705, 712; David Luban, ‘Twenty Theses on Adversarial Ethics’ in Helen Stacy and Michael Lavarch (eds), Beyond the Adversarial System (Federation Press 1999) 139.
- Damaška (n 22) 563
- Bonner (n 22) 276.
- Goldstein (n 21) 1017.
- Damaška (n 22) 583, 565.
- Azzopardi v R [2001] HCA 25 (High Court of Australia (HCA)); Dyers v R [2002] HCA 45 (HCA).
- The Honourable J J Spigelman AC, Chief Justice of New South Wales, ‘Public Confdence in the Administration of Criminal Justice' (2007) 19 Current Issues in Criminal Justice 219, 221.
- [2011] UKSC 34 (United Kingdom Supreme Court (UKSC)) [93].
- Regulation of Investigatory Powers Act 2000 (UK), s 18, as amended by the TPIM Act 2011 (n 13) sch 7, s 4.
- Telecommunications (Interception and Access) Act 1979 (Cth) (Aus), pts 2–6.
- In Australia, 37 people have been charged with terrorism related offences, resulting in 25 convictions under the Criminal Code. These charges have predominately involved preparatory offences or membership offences. No individual has been charged with the offence of engaging in a terrorist act. For a comprehensive treatment of Australia's terrorism prosecutions, see Nicola McGarrity, ‘“Testing” Our Counter-terrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia' (2010) 34 Criminal Law Journal 92.
- David Anderson, Corrected Transcript of Oral Evidence before the Joint Committee on the Draft Enhanced Terrorism Prevention and Investigations Measures Bill, 11 July 2012 (HC 495-i) 9 <www.parliament.uk/documents/joint-committees/Draft%20ETPIMS%20Bill/HC%20495-i%2011%20July%202012%20corrected%20transcript%20FINAL%20Publication.pdf> accessed 21 November 2012; David Anderson, Control Orders In 2011: Final Report of the Independent Reviewer on the Prevention of Terrorism Act 2005 (Stationery Office 2012) 17–18.
- [2004] UKHL 56 (House of Lords (HL)).
- PTA 2005 (n 13) s 1.
- PTA 2005 (n 13) s 2(1).
- PTA 2005 (n 13) s 3(2)(a).
- PTA 2005 (n 13) s 3(5).
- PTA 2005 (n 13) ss 3(10)–(11).
- Anderson, Control Orders (n 33) 29.
- United Kingdom Home Office, Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations (Cm 8004, 2011) 41.
- United Kingdom Home Office, Review of Counter-Terrorism (n 41) 41.
- The TPIM Act does not provide for a measure that derogates from the European Convention on Human Rights, as existed with a derogating control order. However, the government has prepared a draft bill containing ‘enhanced’ TPIM measures (ie greater restrictions) which, it is intended, would be passed as emergency legislation if needed: Draft Enhanced Terrorism Prevention and Investigation Measures Bill <www.homeOffice.gov.uk/publications/about-us/legislation/etpim-bill-docs/etpim-draft-bill?view=Binary> accessed 4 December 2012; See also TPIM Act 2011 (n 13) s 26; Explanatory Notes to TPIM Act 2011 (n 13) [133]–[137]. <www.legislation.gov.uk/ukpga/2011/23/notes/division/3/12/data.pdf> accessed 4 December 2012.
- TPIM Act 2011 (n 13) s 6.
- TPIM Act 2011 (n 13) s 9.
- TPIM Act 2011 (n 13) ss 9(1)–(2).
- TPIM Act 2011 (n 13) s 5.
- TPIM Act 2011 (n 13) s 3(6); TPIM Act 2011 Explanatory Notes (n 43) [21]–[22].
- TPIM Act 2011 (n 13) ss 2, 3.
- PTA 2005 (n 13) s 1(3).
- PTA 2005 (n 13) s 1(4)(a)–(p) lists these obligations. For examples of UK litigation over these issues, see Secretary of State for the Home Department v JJ and others [2006] EWHC 1623 (Admin) (England and Wales High Court, Administrative Court (EWHC (Admin))); Secretary for the Home Department v JJ and others [2007] UKHL 45 (HL).
- TPIM Act 2011 (n 13) sch 1. See sch 1(1) for the overnight residency measure, sch 1(8) for the association measure, and sch 1(12) for the monitoring measure.
- For an extended discussion of the distinctions between control orders and TPIMs see Helen Fenwick, ‘Preventive Anti-terrorist Strategies in the UK and ECHR: Control Orders, TPIMs and the Role of Technology' (2011) 25 International Review of Law, Computers & Technology 129; Clive Walker and Alexander Horne, ‘The Terrorism Prevention and Investigations Measures Act 2011: One Thing But Not Much the Other?’ (2012) Criminal Law Review 421; Lucia Zedner, ‘Terrorizing Criminal Law’ (forthcoming) Criminal Law and Philosophy <link.springer.com/article/10.1007/s11572–012–9166–9> accessed 21 November 2012.
- TPIM Act 2011 (n 13) ss 10–11. For an excellent discussion of the prioritisation of prosecution and the attendant danger of perverting the criminal justice process, see Zedner, ‘Terrorizing’ (n 53).
- Lord Macdonald, Review of Counter-Terrorism and Security Powers: A Report by Lord Macdonald of River Glaven QC (Cm 8003, 2011) 9–10.
- Anderson, Control Orders (n 33) 33.
- Joint Committee on Human Rights, Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill (second report) (2010–12, HL 204, HC 1571) 7–8.
- TPIM Act 2011 (n 13) s 21.
- PTA 2005 (n 13) ss 13(2)–(3).
- PTA 2005 (n 13) ss 13(4)–(5).
- TPIM Act 2011 (n 13) ss 19(1)–(2) and 20.
- HC Deb 19 June 2012, vol 546, col 57WS.
- John Howard, ‘Counter-Terrorism Laws Stengthened’ (Prime Minister of Australia, Newsroom, 8 September 2005) <netipr.org/saorg/terrorlaw/static/20050908_PM_PressRelease1551.html> accessed 21 November 2012.
- Roach, 9/11 Effect (n 9) 310, 335. An Australian Government had not held a majority of the House of Representatives and Senate since 1981. See John Uhr, ‘How Democratic is Parliament? A Case Study in Auditing the Performance of Parliaments' (Democratic Audit of Australia Discussion Paper, 2005) 3 <democratic.audit.anu.edu.au/papers/20050630_uhr.pdf> accessed 21 November
- Lynch (n 9) 174.
- Roach, 9/11 Effect (n 9) 310, 359–60.
- Kent Roach, ‘The Post-9/11 Migration of Britain's Terrorism Act 2000’ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (CUP 2006) 374; Roach, 9/11 Effect (n 9); Lynch (n 9).
- Lynch (n 9) 181–94.
- Roach, 9/11 Effect (n 9), 358–60; Lynch (n 9) 181–94.
- Jabbour v Hicks [2007] FMCA 2139 (Federal Magistrates Court of Australia (FMCA)); Jabbour v Hicks [2008] FMCA 178 (FMCA); Jabbour v Thomas [2006] FMCA 1286 (FMCA).
- Thomas v Mowbray [2007] HCA 33 (HCA).
- An ‘issuing court’ is defned as the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates Court: Criminal Code (n 13) s 100.1.
- The hearsay rule does not apply to evidence if the party leading the evidence adduces evidence of its source: Criminal Code (n 13) s 104.28A; Evidence Act 1995 (Cth) s 75; for further implications of the hearing being interlocutory, see Thomas (n 71) [56] (Gummow and Crennan J J).
- Where an urgent control order is sought, the first two steps are reveresed: an AFP Officer may apply directly to the issuing court but must seek approval from the Attorney-General within four hours of the interim control order being issued: Criminal Code (n 13) s 104.10.
- Criminal Code (n 13) ss 104.4(c)–(d).
- Thomas (n 71).
- Section 4 of the TPIM Act 2011 (n 13), which effectively reproduces the definition in s 1(9) of the PTA 2005 (n 13), reads:
- For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following—;
- the commission, preparation or instigation of acts of terrorism;
- conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
- conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
- conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c); and for the purposes of this Act it is immaterial whether the acts of terrorism in question are Specific acts of terrorism or acts of terrorism in general.
- Criminal Code (n 13) s104.5(3).
- Criminal Code (n 13) s 104.4(2).
- For a comprehensive dicussion of the status and review of Australia's anti-terror legislation, see George Williams, ‘A Decade of Australian Anti-Terror Laws' (2011) 35 Melbourne University Law Review 1136, 1157–60.
- Council of Australian Governments (COAG), Communiqué: Special Meeting on Counter-Terrorism (COAG Archive, September 2005) 3 <archive.coag.gov.au/coag_meeting_outcomes/2005–09–27/index.cfm> accessed 21 November 2012.
- Williams (n 80) 1159, citing COAG, Details and Process for Council of Australian Governments' (COAG) Review of Counter-Terrorism Legislation (2006) 2; COAG, Council of Australian Governments' Meeting: 10 February 2006—;Communiqué (2006).
- ABC News, ‘PM Announces Terrorism Laws Review’ (ABC News Online, 9 August 2012) <abc.net.au/news/2012–08–09/gillard-announces-terrorism-laws-review/4187782> accessed 21 November 2012.
- Criminal Code (n 13) s 104.32.
- Civil Procedure Rules 1998 (CPR) 76.28(1)(b). Part 76 of the CPR was made under the PTA 2005 and related to control order proceedings. Following the repeal and replacement of the control order regime with TPIMs, Part 76 was repealed and Part 80, which contains the rules relating to TPIM proceedings, was introduced: see The Civil Procedure (Amendment No 3) Rules 2011 (UK); TPIM Act 2011 (n13) sch 4.
- CPR 80.24(1)(b).
- Andrew Boon and Susan Nash, ‘Special Advocacy: Political Expediency and Legal Roles in Modern Judicial Systems’ (2006) 9 Legal Ethics 103; Constitutional Affairs Committee, The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates (HC 2004–05, 323–I) [69]–[74].
- CPR 80.1(b), 80.19; Explanatory Notes (n 43) [110].
- CPR 80.21.
- CPR 80.20; Constitutional Affairs Committee (n 87) 24; Aileen Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 Modern Law Review 836.
- A v United Kingdom [2009] ECHR 301 (European Court of Human Rights) [220].
- A v United Kingdom (n 91); Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 (HL).
- Special Immigration Appeals Commission Act 1997 (UK) (SIAC Act 1997), s 6.
- [1996] ECHR (European Court of Human Rights) 54.
- Chahal (n 94); Treasury Solicitor, Special Advocates: A Guide to the Role of Special Advocates (Treasury Solicitor's Department 2005) 4.
- HC Deb 1 March 2010, vol 506, col 739.
- National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSIA 2004) s 3.
- R v Lodhi [2006] NSWSC 571 (Supreme Court of New South Wales (NSWSC)) [82] (Whealy J).
- NSIA 2004 (n 97) s 31.
- Attorney-General's Department, National Security Information (Criminal and Civil Proceedings) Act 2004: Practitioners' Guide (Attorney-General's Department 2008) 20.
- Special advocates may be appointed by a court in exercise of its inherent power. Court appointment of special advocates has been raised in terrorism-related proceedings: see R v Lodhi [2006] NSWSC 586 (NSWSC) and R v Kazaal [2006] NSWSC 106 (NSWSC); Trent Glover, ‘Public Interest Immunity Claims in National Security Trials and the Role of Special Counsel’ (2009) 33 Criminal Law Journal 309.
- This argument has been made by Emerton and Williams with respect to the closed disclosure in criminal proceedings: Patrick Emerton, ‘Paving the Way for Conviction Without Evidence—;A Distrubing Trend in Australia's “Anti-Terrorism” Laws' (2004) 4(2) QueenslandUniversity of Technology Law and Justice Journal 1, 33–34; George Williams, ‘Anti-Terror Legislation in Australia and New Zealand’ in Ramraj and others (n 12) 556–57.
- NSIA 2004 (n 97) ss 38D and 46C. It is an offence punishable by two years imprisonment to fail to notify the Attorney-General.
- NSIA 2004 (n 97) ss 38D(5) and 38E(6).
- NSIA 2004 (n 97) s 46D. It is an offence punishable by two years imprisonment to disclose information contrary to a non-disclosure certifcate.
- NSIA 2004 (n 97) ss 38I(7)–(8).
- Lohdi v R [2007] NSWCCA 360 (New South Wales Court of Criminal Appeal (NWSCCA)).
- NSIA 2004 (n 97) s 38I(4).
- NSIA 2004 (n 97) ss 38I(2)–(3).
- For example, see Luke Beck, ‘Fair Enough? The National Security Information (Criminal and Civil Proccedings) Act 2004' (2011) 16 Deakin Law Review 405, 415.
- NSIA 2004 (n 97) ss 8 and 17.
- Criminal Code (n 13) s 104.2(3).
- Criminal Code (n 13) s 104.2(3A).
- Criminal Code (n 13) s 104.5(1)(h).
- Criminal Code (n 13) s 104.2(3A).
- Criminal Code (n 13) s 104.12A(2). The AFP member is also required to supply the controlee with a statement of any facts the member is aware of regarding why any of the obligations, prohibitions or restrictions should not be imposed on the controlee.
- Criminal Code (n 13) s 104.12A(3).
- Criminal Code (n 13) s 104.5(2A).
- Criminal Code (n 13) s 104.14.
- Criminal Code (n 13) ss 104.14(3)–(7).
- Daphne Barak-Erez and Matthew C Waxman, ‘Secret Evidence and the Due Process of Terrorist Detentions' (2009) 48 Columbia Journal of Transitional Law 2, 37.
- Barak-Erez and Waxman (n 121) 39.
- These concerns have been raised chiefy by the special advocates themselves, and are also a by-product of the review and oversight of the JCHR, the Constitutional Affairs Committee and the Independent Reviewer of Terrorism Legislation (although Lord Carlile's criticism as Independent Reviewer arose in the context of his overarching support of contol order legislation): see, for example, Lord Carlile, Sixth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (Stationery Office 2011) 48–50; Kavanagh (n 90) 838; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation (2009–10, HL 64, HC 395) [54]–[73].
- Special Advocates, Justice and Security Green Paper: Reponse to Consultation from Special Advocates (Justice and Security Consultation, December 2011) [17] <http://adam1cor.fles.wordpress.com/2012/01/js-green-paper-sas-response-16–12–11-copy.pdf> accessed 4 December 2012.
- Justice and Security: Response (n 124).
- See Barak-Erez and Waxman (n 121); Walker, Terrorism (n 3) 268; Secretary of State for Constitutional Affairs and Lord Chancellor, Government Response to the Constitutional Affairs Select Committee's Report into the Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates (Cm 6596, 2005).
- Roach, 9/11 Effect (n 9) 239–42.
- [2002] UKHL 39 (HL). See Andrew Ashworth and Lucia Zedner, ‘Just Prevention: Preventive Rationales and the Limits of the Criminal Law' in RA Duff and Stuart P Green (eds), Philosophical Foundations of Criminal Law (OUP 2011) 279 for an excellent discussion of the different approaches taken to the civil/criminal hybrid.
- [2007] UKHL 46 (HL).
- Secretary of State v MB (n 129) [24] (Lord Bingham), [72–74] (Baroness Hale), [84] (Lord Carswell), [92] (Lord Brown).
- Secretary of State v MB (n 129) 3 (Bingham LJ).
- AF (No 3) (n 92).
- A v United Kingdom (n 91).
- AF (No 3) (n 92) [85] (Hoffmann LJ).
- AF (No 3) (n 92) [59], cited with approval by Carnwath LJ (Maurice Kay and Lloyd LJJ concurring) in AT v Secretary of State for the Home Department [2012] EWCA Civ 42 (England and Wales Court of Appeal (Civil Division)) [35].
- Secretary of State for the Home Department v AN [2008] EWHC 372 (Admin) [9] (Mitting J); Justice and Security (n 1). Although ‘gist’ quickly gained currency, the special advocates have argued that it is an inaccurate descriptor as the minimum disclosure standard articulated in AF (No 3) may in fact encompass more than what the term ‘gisting’ implies: Justice and Security: Response (n 124) [33].
- Al Rawi (n 29) [93].
- Al Rawi (n 29) [93].
- David Hamer, ‘21st Century Challenges in Evidence Law' (2011) 33 Sydney Law Review 325, 326.
- Barak-Erez and Waxman (n 121) 26.
- Roach, 9/11 Effect (n 9) 276.
- Kavanagh (n 90) 852.
- Counter-Terrorism Policy (n 123) 10.
- [2009] EWHC 2927 (Admin) [57] (Collins LJ).
- Anderson, Control Orders (n 33) [3.74].
- Anderson, Control Orders (n 33) [3.74].
- Counter-Terrorism Policy (n 123) 17–18.
- Counter-Terrorism Policy (n 123) 18.
- The Independent National Security Legislation Monitor is established by the Independent National Security Legislation Monitor Act 2010 (Cth) (Aus) ss 7 and 25.
- Bret Walker, Independent National Security Legislation Monitor Annual Report (16 December 2011) 48 <www.dpmc.gov.au/inslm/docs/INSLM_Annual_Report_20111216.pdf> accessed 4 December 2012.
- Thomas (n 71) [31].
- Thomas (n 71) [364].
- Thomas (n 71) [369].
- Thomas (n 71) [365].
- To adopt Roach's terminology: 9/11 Effect (n 9) 239–42.
- Luban (n 22) 141–42; Geoffrey Nettle, ‘Ethics: The Adversarial System and Business Practice’ (2005) 10 Deakin Law Review 67, 74–5.
- Zedner, ‘Terrorizing’ (n 53) 10.
- R v Carroll [2002] HCA 55 [21] (Gleeson CJ and Hayne J) (HCA).
- Zedner, ‘Terrorizing’ (n 53) 13.
- Damaška (n 22) 565.
- Zedner, ‘Terrorizing’ (n 53) 14–20.
- Zedner, ‘Terrorizing’ (n 53) 14–20.
- Clive Walker, ‘Intelligence and Anti-Terrorism Legislation in the United Kingdom' (2005) 44 Crime, Law and Social Change 387, 409–10.
- Walker, ‘Intelligence’ (n 163) 409–10.
- Gary Edmond, ‘Actual innocents? Legal limitations and their implications for forensic science and medicine' (2011) 43 Australian Journal of Forensic Sciences 177; Gary Edmond, Kristy Martire andMehera San Roque, ‘Unsound Law: Issues with (“Expert”) Voice Comparison Evidence' (2011) 35 Melbourne University Law Review 52. See generally the special issue of the Sydney Law Review on ‘21st Century Challenges to Evidence Law' ((2011) 33 Sydney Law Review 325–598).
Oxford University Commonwealth Law Journal
Volume 12, 2012 - Issue 2