Michaelsen, Christopher --- "Reforming Australia's National Security Laws: The Case for a Proportionality-Based Approach" [2010] UTasLawRw 2; (2010) 29(1) University of Tasmania Law Review 31

Reforming Australia’s National Security Laws: The Case for a Proportionality-Based Approach

CHRISTOPHER MICHAELSEN^[∗]

Abstract

This article contends that a ‘balancing’ approach is unsuitable when it comes to reconciling the interests of combating and preventing terrorism and protecting human rights and civil liberties. Instead, it suggests that any restrictions of human rights and civil liberties in the name of national security need to be strictly justifiable through the application of a proportionality test. The article explores whether, and to what extent, the proportionality principle can be applied in the context of reforming Australia’s counter-terrorism law and policy. It argues that while a full proportionality test is yet to be formally recognised in Australian law, it is nonetheless appropriate to review and reform Australian counter-terrorism law and policy on the basis of proportionality.

I INTRODUCTION

On 18 March 2010, the federal Attorney-General, Robert McClelland, introduced the National Security Amendment Bill 2010 (Cth) into the House of Representatives. The Bill implements the Labor Government’s response to several inquiries into the operation of Australia’s national security legislation, including the Clarke Inquiry into the Haneef case,^[1] the Parliamentary Joint Committee on Intelligence and Security (PJCIS) Review of Security and Counter-Terrorism Legislation,^[2] the PJCIS Inquiry into the proscription of ‘terrorist organizations’ under the Australian Criminal Code,^[3] and the Australian Law Reform Commission’s review of Australia’s sedition laws.^[4] All these inquiries identified significant shortcomings in Australia’s anti-terrorism legislation. Responding to the reviews, the Government expressed its commitment to ensure that ‘Australia has strong counter-terrorism legislation that protects the values and freedoms that are part of Australia’s way of life’.^[5] At the same time it acknowledged that it was important that ‘Australia’s national security legislation reflects Australian democratic standards and is enacted and enforced in an accountable way’.^[6]

In addressing this (alleged) tension between security and liberty, the Labor government adopted the rhetoric of the previous Howard government and maintained that a ‘balance’ needed to be struck between civil liberties and the threat to public safety arising from terrorism. In its Discussion Paper on National Security Legislation, released in August 2009, the Government referred to this ‘balance’ no less than eleven times.^[7] In doing so, it drew on Prime Minister Rudd’s ‘First National Security Statement to the Parliament’ of 4 December 2008 in which he argued that the ‘balance’ between security and liberty represented a ‘continuing challenge of all modern democracies seeking to prepare for the complex national security challenges of the future’ and that this ‘balance’ needed to ‘remain a conscious part of the national security policy process’.^[8] Likewise, in his second reading speech of the National Security Amendment Bill 2010 (Cth), Attorney-General McClelland claimed that the proposed measures were ‘balanced and suited to the achievement of a just and secure society’.^[9]

This article argues that a ‘balancing’ approach is unsuitable when it comes to reconciling the interests of combating and preventing terrorism and protecting human rights and civil liberties. In particular, it finds that the ‘balancing’ model is unsuitable as a means of reviewing and reforming Australia’s anti-terrorism legislation. Exploring alternative analytical approaches, the article suggests that any legislative reform should be based on the principle of proportionality. To this end, the article first examines the proportionality principle as a principle of law, public policy and good governance. It then explores the application of the proportionality principle in the context of reforming Australia’s national security legislation. It concludes that despite the fact that a full proportionality test is yet to be formally recognised in Australian law, there is ample justification for applying the proportionality principle as key tool of legislative reform.

II BALANCING ‘SECURITY’ AGAINST ‘LIBERTY’?

A common assertion in the discourse on the liberal democratic response to terrorism has been the claim that a ‘balance’ needs to be struck between ‘security’ and ‘liberty’.^[10] In Australia the balance metaphor is routinely employed by scholars^[11] and politicians alike.^[12] In various parliamentary debates both the Government and the Opposition invoked the balancing paradigm to justify or criticise proposed anti-terrorism legislation. Defending the first package of anti-terrorism laws in the Senate in June 2002, the then Minister for Justice and Customs, Chris Ellison, for instance, argued that the proposed legislation ‘strikes a balance between those security needs and the rights and liberties of all Australians’.^[13] Similarly, in March 2006, the then Attorney-General, Philip Ruddock, declared that ‘the measures contained in the [ASIO Amendment] bill maintain an appropriate balance with civil liberties’.^[14] The then Labor opposition employed the balance metaphor as well. Responding to Senator Ellison in June 2002, Labor Senator John Faulkner pointed out that ‘the challenge remains for this parliament to get the balance right’.^[15] Likewise, in a historical December 2002 debate on new detention and questioning powers for Australia’s domestic intelligence agency, the then Leader of the Opposition, Simon Crean, claimed that ‘the [ASIO] bill that is before us, the bill that we say the government should accept, gets the balance right between protecting our security and protecting our citizens’.^[16] In government, Labor has continued to employ the ‘balance’ rhetoric in the context of reforming Australia’s national security legislation.^[17]

While the language of balance has featured prominently in the post-9/11 public and academic debate on security and human rights and civil liberties, its usage is by no means new. Scholars have previously employed the metaphor in the discourse on countering terrorism in the democratic context.^[18] Nevertheless, it is submitted here that the rhetoric of balance is unsuitable for reconciling respect for civil liberties and human rights with the (alleged) imperatives of national security. In fact, the language of balance is problematic for a number of reasons.^[19]

First, a fundamental problem with the ‘balancing’ approach is that there is no indication of the relative weight that should be attached to the competing interests. As Lucia Zedner, has pointed out:

Typically, conflicting interests are said to be ‘balanced’ as if there were a self-evident weighting of or priority among them. Yet rarely are the particular interests spelt out, priorities made explicitly, or the process by which a weight is achieved made clear. Balancing is presented as a zero-sum game in which more of one necessarily means less of the other … Although beloved of constitutional lawyers and political theorists, the experience of criminal justice is that balancing is a politically dangerous metaphor unless careful regard is given to what is at stake.^[20]

Second, a simple balancing approach does not give adequate consideration to the philosophical and conceptual underpinnings of the notions of liberty and security. Liberty is a precondition of and closely interrelated with security. As a consequence, the two goods cannot be balanced against each other logically.^[21] Third, there are major rights-based objections against a simple balancing exercise. These include the jurisprudential problem of whether and to what extent civil liberties can be actually balanced against community interests.^[22] Other rights-based objections range from the difficulties of conceiving security as an individual right to the distributive character of the measures curtailing liberty themselves.^[23] It is not the entire population, for instance, which is trading off liberty for greater security but only certain parts of it.^[24] Fourth, commentators invoking the balance metaphor to justify new security laws to counter the immediate dangers posed by terrorism do not give appropriate weight to the long-term consequences of curtailing fundamental rights and liberties.^[25] Despite some possible short-term gains in security, some counter-measures may actually increase the potential for terrorism and diminish security in the long run. Finally, detailed questions have to be asked as to whether a diminution of liberty actually enhances security or whether one is trading off civil liberties for symbolic gains and psychological comfort.^[26]

But what is the significance of this argument? Does it really matter? And, what is more, is there an alternative? It may be argued that using the image of balance is necessary to facilitate and foster public debate on the problem of curtailing civil liberties and human rights in the name of national security. Indeed, using simple metaphors to explain difficult and complex problems may be considered helpful to communicate with the broader public. However, the use of metaphors becomes problematic when academics, policy makers and legislators adopt the terminology and the concept uncritically. This then leads to an unwarranted reduction of the complexity and scope of the issues at hand. Furthermore, it leads to sloppy reasoning, faulty decision-making and, ultimately, to fundamentally flawed public policy. It appears that this is exactly what has happened in the case of the balance metaphor being employed in the context of civil liberties, human rights and national security and counter-terrorism. In this case the ‘balance’ appears to routinely tip towards ‘security’. Yet, little effort is usually made to enquire whether counter-terrorism measures that impair human rights and civil liberties diminish the terrorist threat or whether other, less repressive, measures are available to reach the objective at hand.

The question, of course, is whether an alternative exists to the ‘balancing’ approach. It is submitted here that it is preferable to apply an analysis based on the principle of proportionality. What the principle of proportionality generally requires is that there is a reasonable relationship between the means employed and the aims sought. Essentially proportionality requires one to determine whether a measure of interference which is aimed at promoting a legitimate public policy objective is neither unacceptably broad in its application nor imposes an excessive or unreasonable burden on certain individuals. Generally speaking, public policy that takes into account the principle of proportionality should, inter alia, be carefully designed to meet the objectives in question and not be arbitrary, unfair or based on irrational considerations. In addition, it should impair human rights and civil liberties as little as possible and provide adequate mechanisms of review.

III THE NEED FOR PROPORTIONALITY

A Proportionality as a Principle of Law, Public Policy and Good Governance

An analysis based on the principle of proportionality is an analytical procedure which does not, in itself, produce substantive outcomes or answers to legal and policy problems. It is rather a decision-making procedure and an analytical structure that leads to the formulation of an opinion concerning policy implementation and which usually deals with tensions between two pleaded legal or political values and/or public policy goals.^[27] As Alec Stone Sweet and Jud Mathews have noted, proportionality analysis is a doctrinal construction which ‘emerged and then diffused as an unwritten, general principle of law through judicial recognition and choice’.^[28] Proportionality, however, is not only a judicial doctrine for courts to apply in reviewing the legality of government action. It is also a legislative doctrine for the political institutions to observe in their decision-making functions.^[29] As such, it forms an essential component of public policy and good governance.^[30]

As a general principle of law, some form of proportionality is found in most legal systems. At the international level, for instance, the proportionality principle features prominently in the framework of international law and relations.^[31] It is a key component of traditional just war theory which stipulates, inter alia, that force may be used only after all peaceful and viable alternatives have been seriously tried and exhausted.^[32] Just war theory further requires that the anticipated benefits of waging a war must be proportionate to its expected evils or harms. In contemporary international law, proportionality is a key requirement of lawful self-defence. While Article 51 of the United Nations Charter (self-defence) does not mention the principle explicitly, it is commonly agreed that the right of self-defence is limited by the principles of necessity and proportionality.^[33] The principle of proportionality also plays an important role in the emerging doctrine of humanitarian intervention^[34] and the so-called responsibility to protect as well as in international humanitarian law (jus in bello or the laws of war).^[35]

At the national level, many liberal democratic systems recognise the principle of proportionality as a key component of criminal, administrative and constitutional law. In its domestic application, however, the principle is usually framed more strictly than it is in the sphere of international law. It is, for instance, readily applied in criminal justice policy and criminal law where the severity of punishment is expected to be proportionate to the seriousness of the crime. The proportionality principle, moreover, is often considered to be a fundamental element of regulative policy and public administration. It has been described as a defining principle of limited government and a key requirement of good governance.^[36] In this context, proportionality is used as an analytical and evaluative tool for regulative policy and concerns the ends of public action and the means used to attain them. As Robert Thomas has explained:

To achieve its objectives the administration must adopt effective means of policy implementation since the justification for the very existence of public administration is to realise collective goals through programmes of state action. In so doing the administration may adversely affect the interests of a private individual. It would be an impossible task for the administration to fulfil social needs and avoid any such interference. Clearly, private interests have to be subordinated to the greater public good. However, it may be argued that the extent of the interference was unnecessary since the public goal could have been achieved through different means. … If there are alternative means, less restrictive of the individual’s interests but equally effective for the realisation of the public objective, then the interference is unnecessary and disproportionate.^[37]

The proportionality principle in regulative public policy and administration finds its origins in German constitutional and administrative jurisprudence.^[38] Over the past fifty years, however, it has become a preferred procedure for managing disputes involving an alleged conflict between two rights claims, or between a rights provision and a legitimate state or public interest.^[39] From its German origins, the proportionality analysis spread across Europe into Commonwealth systems including England, Canada, New Zealand, South Africa, and Israel.^[40] In Australia it still awaits formal recognition in public policy and administrative law.^[41]

The principle of proportionality has also migrated to international treaty-based regimes, including the European Union, the World Trade Organisation, the Council of Europe and the international system of human rights.^[42] In the European Union, for instance, proportionality is enshrined in Community Law through Article 5.3 of the European Union Treaty which stipulates that ‘any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty’. In this context, the proportionality principle gives rights to individuals that no action shall be taken against them that goes further than necessary to achieve the goals of the action – this applies to both Member State actions and to Community actions.^[43] The European Commission subsequently adopted this approach in its White Paper on European Governance, in which the term ‘European Governance’ refers to the rules, processes and behaviour that affect the way in which powers are exercised at the European level, particularly as regards openness, participation, accountability, effectiveness and coherence. These five ‘principles of good governance’ reinforce those of subsidiarity and proportionality and ‘underpin democracy and the rule of law in the Member States, but they apply to all levels of government – global, European, national, regional and local’.^[44]

In the international human rights system, proportionality plays a key role in the application of international instruments such as the European Convention on Human Rights (‘ECHR’) and the International Covenant on Civil and Political Rights (‘ICCPR’). A number of the articles in these instruments contain provisions which expressly invoke proportionality. For example, rights to respect for private and family life, to freedom of thought, conscience and religion, and to freedom of expression, assembly and association, are not absolute, but any interference with them may only be such as is necessary in a democratic society for the protection of public order, health or morals, or the protection of the rights of others.^[45] Also, both conventions stipulate that in times of emergency certain specified rights may be derogated from only ‘to the extent strictly required by the exigencies of the situation’.^[46] This is an express reference to the principle of proportionality, which is subject to review by the Human Rights Committee and represents ‘the most important limitation on permissible derogation measures’.^[47] As Manfred Nowak has noted:

The degree of interference and the scope of the measure (both territorially and temporally) must stand in reasonable relation to what is actually necessary to combat an emergency threatening the life of the nation. The principle of proportionality requires that the necessity of derogation measures be reviewed at regular intervals by independent national organs, in particular, by the legislative and judicial branches.^[48]

The duty to review derogating emergency measures as contained in human rights instruments such as the ECHR and ICCPR is highly significant as it adds another dimension to the principle of proportionality. It basically stipulates that in order to remain proportionate, extraordinary measures introduced to combat an emergency must be reviewed by government even in the absence, or irrespective of, any review undertaken by courts in the context of a judicial challenge. This means that a further procedural aspect is added to the proportionality principle that examines the legitimacy of a public policy measures beyond its inherent nature and content.

B The Proportionality Test in Regulative Public Policy and Administration

The proportionality principle in regulative public policy and administration may be summarised by Lord Diplock’s aphorism ‘why use a steam hammer to crack a nut, if a nutcracker would do?’^[49] In its application the proportionality principle requires a test consisting of three main requirements.^[50] First, any measure of public policy impairing the citizen’s rights and liberties must generally be suitable. Second, the measure must be necessary. Third, it must be appropriate and strictly proportionate. This last step is also known as proportionality in the narrow sense or proportionality stricto senso. The three-step test is generally preceded by a preliminary step, at the so-called legitimacy stage, at which it needs to be established whether the government is constitutionally authorised to take the measure in question. As far as domestic legislation in federal states like Australia and Germany is concerned, it is to be considered, for instance, whether the federal Parliament possesses the competency to legislate in the area under consideration.

The first step of the proportionality test concerns suitability and is devoted to verification that, with respect to the measure in question, the means adopted by the government are rationally related to stated policy objectives. The requirement of suitability is usually very broadly defined and means that the government must only introduce legislative measures that are generally suitable to achieve the intended purpose. In fact, ‘suitability’ might be more precisely defined in negative terms that no completely unsuitable measure may be taken.

The second step, necessity, has more bite. The core of necessity analysis is the deployment of a least-restrictive means test. This requires the government to ensure that the measure does not curtail individual rights any more than is necessary to achieve stated public policy goals. As such, the proportionality principle’s requirement of necessity relates to the scope of the government’s intervention and to the question of whether the legislative measure under consideration is warranted by the exigencies of the situation. It means that the government must refrain from interfering with the citizen’s (possibly constitutionally protected) civil liberties and human rights if it can accomplish the same aim without interference with those rights and freedoms at all, or by resorting to a less drastic measure. If the government’s measure in question fails on suitability or necessity, the act is per se disproportionate.

The last step is the most complex. It requires an analysis of whether the measure is appropriate and strictly proportionate. The requirement of appropriateness means that legislative action by the government is unacceptable if the burden created thereby is disproportionate to the purpose of the measure. According to the so-called Wesengehaltsgarantie (guarantee of materiality) used in German constitutional and administrative law, for instance, a burden is particularly disproportionate if it affects the ‘essential content’ (‘Wesengehalt’) or the very nature of the right or freedom which is impaired.^[51] This is to ensure that the restriction does not jeopardise the right itself. The requirement of appropriateness also entails that the more the administrative action affects fundamental expressions of human freedom of action, the more careful the reasons serving as its justification be examined against the principal claim to liberty of the citizen.^[52]

IV THE PROPORTIONALITY PRINCIPLE AND IMPLICATIONS FOR THE REFORM OF AUSTRALIA’S NATIONAL SECURITY LEGISLATION

A The Proportionality Principle in Australian Public Law

In Australian public law, the concept of proportionality has so far been applied in rather limited fashion. For example, proportionality has not been accepted as a separate ground for judicial review of administrative action, although the possibility was raised by Deane J in the case of Australian Broadcasting Tribunal v Bond.^[53] In addition, in contrast to Germany and other liberal democracies, Australia does not have a constitutional bill of rights or a federal act of parliament protecting human rights. Nevertheless, over the previous two decades, the High Court of Australia has adopted the use of a proportionality-type test in the area of constitutional guarantees, freedoms and immunities.^[54] The precise content of this proportionality test, however, is yet to be fully developed. The High Court, for instance, has not adopted the logic of the three-step test used, inter alia, in Germany and Canada.^[55] The Court’s use of proportionality in relation to implied rights and the underdeveloped nature of the proportionality test have attracted particular criticism from scholars.^[56]

At the same time, as Gabrielle Appleby has noted, proportionality in its more ubiquitous form – reasonably ‘appropriate and adapted’ for the achievement of a legitimate governmental objective – is not heretical to Australian judicial methodology.^[57] In spite of the ambiguous scope of the proportionality principle in the context of judicial review in Australian public law, Australian authorities have an obligation under international law to consider the proportionality principle when introducing measures that affect the rights of individuals. This obligation stems primarily from the ICCPR – to which Australia became a party in 1980 – but it is also part of other international instruments such as the Convention on the Rights of the Child.^[58]

In the context of counter-terrorism, the obligation is further underlined by a range of Security Council resolutions that call on states to ensure ‘that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law’.^[59] As noted by the UN Commissioner for Human Rights as well as by the UN Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism (in his country report on Australia), when introducing new laws to combat terrorism, the Australian government is obliged to undertake an assessment of whether the proposed measures are necessary and proportionate to the threat it seeks to counter.^[60] This obligation includes an assessment of whether the particular measure adopted is the least restrictive means of achieving a legitimate protective purpose as well as a requirement to explain the importance of any individual right affected and the seriousness of the interference with the right.

The proportionality principle is also applicable in Australian public policy as a general principle of limited and accountable government and good governance. This means that apart from its obligations under international law, the Australian government needs to observe the proportionality principle in its decision-making functions. Rather than an instrument of judicial review only, the concept of proportionality principle also forms a tool for policy development and analysis. In the context of Australian counter-terrorism law and policy, the applicability of the concept of proportionality has been recognised by independent and Parliamentary committees as well as the Inspector-General of Intelligence and Security. The Security Legislation Review Committee (the Sheller Committee), for instance, has stressed the need for proportionality in achieving the intended object of security noting that ‘legislation must be well framed and have sufficient safeguards to stand the test of proportionality and fairness’.^[61] Likewise, the Inspector-General of Intelligence and Security noted that there is ‘a vital public interest in ensuring that any new measures to protect national security which have been implemented, or are presently being contemplated, should not be unduly corrosive of the values, individual liberties and mores on which our society is based’.^[62] Nevertheless, despite stressing the importance of proportionality, none of the committees (or any other governmental institution for that matter) has submitted the Australian government’s domestic response to the threat of terrorism to a comprehensive proportionality test. In fact, to this day, such an analysis remains to be undertaken.

B The Application of the Proportionality Principle in the Context of Reforming Australia’s National Security Legislation

As has been demonstrated, it is appropriate to apply the proportionality principle to an analysis of Australia’s domestic response to the threat of terrorism. But how does the proportionality principle need to be applied specifically? Put simply, it is imperative to examine whether the Australian government has demonstrated that its domestic anti-terrorism measures were necessary to counter the threat posed to the Australian community by terrorism, and that these measures constituted a proportionate response to that threat. As the Sheller Committee has noted, this entails an analysis of whether the Government’s measures were a ‘proportionate means of achieving the intended object of protecting the security of people living in Australia … including protecting them from threats to their lives’.^[63]

Assessing what the intended objective of national security legislation is, or determining whether a specific measure is likely to achieve the intended objective is, of course, no easy task. The main objective of anti-terrorism legislation will generally be an increase in ‘security’ by addressing the threat of terrorist attacks or activities. Thus it is logically necessary for a thorough proportionality analysis to consider or assess the quality and nature of the threat to Australia. In the absence of such analysis, any proportionality assessment is incomplete.^[64]

One may argue that the analysis of the terrorism threat to Australia is, of course, somewhat constrained by the fact that classified intelligence information may be unavailable to legislators. Nonetheless, the absence of classified information does not invalidate an examination of the terrorist threat per se. On the contrary, such analysis is possible without access to secret intelligence-based assessments as the legislative framework to counter terrorism ought not to be devised in response to specific threats but rather developed objectively so as to be capable of withstanding changes to the threat environment over time. Indeed, it is a fundamental principle of good legislative policy to avoid developing reactive laws. It is also important to recognise that even in cases where legislators have access to classified information, such information as well as their analysis may be inaccurate or misleading.^[65] In fact, as far as international terrorism is concerned Australian intelligence agencies appear to rely heavily on information shared by their overseas partners. The reliability and quality of this information may well be inconclusive or uncertain as knowledge in the area of international terrorism generally continues to contain too many gaps to make any final determinations with any degree of certainty. This was acknowledged by ASIO itself with the agency stating that ‘even with additional resources, there can be no guarantees that intelligence always will be available that will allow us to prevent those who would do us harm from achieving their objectives’.^[66]

Once the intended objective of the respective legislative measure is sufficiently established, one needs to examine whether the measure is suitable, necessary and strictly appropriate. At this stage, the proportionality analysis will need to include an assessment of whether the legislative measure contains clearly defined key terms to ensure clarity and certainty, whether it provides limits on the scope of criminal liability, and whether it avoids arbitrary or inconsistent application. It will also be necessary to examine whether it complies with Australia’s international human rights obligations and rule of law principles, whether it contains mechanisms for independent, regular and comprehensive review of both content and operation, and whether it includes safeguards to protect against overuse or misuse of executive power, such as judicial oversight of the exercise of executive power. In light of the absence of any formal human rights protection at the federal level, the second step (‘necessity’) and the third step (‘strict proportionality’) pose some difficulties. However, relevant jurisprudence of international courts and tribunals, such as the Human Rights Committee on the ICCPR, provide useful guidance. The extensive case law of the European Court of Human Rights is particularly instructive as it is commonly referred to in the context of interpreting obligations under the ICCPR.

V CONCLUSION

Australia has some of the most draconian anti-terrorism laws in the Western world. Although there has not been any terrorist attack here, Parliament has enacted more than 40 pieces of ‘security legislation’ since 9/11. In contrast to the US, the UK and Canada, Australia’s domestic intelligence agency, ASIO, was given unprecedented powers to detain persons not suspected of any offence for up to seven days without charge or trial. The Australian Federal Police was given new stop-and-search powers and may apply for control and preventative detention orders. Australia’s criminal law and procedure has seen radical changes, too. These include, among other things, the introduction of an overly broad definition of ‘terrorist act’, the reversal of the presumption in favour of bail in terrorism-related cases, and executive powers to proscribe (and criminalise) organisations considered to be ‘terrorist’.

Many of these amendments have attracted severe criticism by scholars, practitioners, Supreme Court judges and professional organisations like the Law Council of Australia.^[67] They have also raised concern internationally. The UN Special Rapporteur on Human Rights and Counter-Terrorism, for instance, took the view that the Australian definition of ‘terrorist act’ overstepped the UN Security Council’s broad characterisation of the term.^[68] What most of the criticisms have in common is a concern that fundamental features of Australia’s criminal justice system are being dismantled in the name of combating terrorism. And further, that these extraordinary laws, rather than being effective, have in fact negative long term consequences: they become normalised through application in other contexts such as in the case of criminalising membership in bikie gangs.

Nine years after 9/11 it is time for a comprehensive overhaul of the legislative arrangements introduced during the Howard years. Regrettably, the Labor government’s approach to reforming national security legislation has been rather timid and minimalist nature.^[69] In particular, its National Security Amendment Bill 2010 (Cth) contains significant flaws and shortcomings.^[70] Most importantly, however, the Bill and public statements by the Attorney-General suggest that the Government’s approach to legislative reform in the area of national security lacks concept and vision. Employing the paradigm of ‘balance’ to address the (alleged) tension between ‘security’ and ‘liberty’ leads to a highly problematic reduction of the complexity and scope of the issues at hand. It results in flawed public policy that has negative long-term consequences.^[71] The proportionality principle, on the other hand, provides a useful analytical procedure to reconcile the interests of maintaining national security and protecting human rights and civil liberties. It should form the basis for a much-needed reform of Australia’s national security legislation.

^[∗] Dipl. Iur. (Hamburg); LLM (UQ); PhD (ANU); Senior Research Fellow, Faculty of Law, The University of New South Wales.

^[1] Clarke Inquiry into the case of Dr Mohamed Haneef (2008) <http://www.haneefcaseinquiry.gov.au> .

^[2] Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter-Terrorism Legislation (4 December 2006) <http://www.aph.gov.au/house/committee/pjcis/securityleg/report.htm> .

^[3] Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Terrorist Organisation Listing Provisions of the Criminal Code Act 1995 (20 September 2007) <http://www.aph.gov.au/house/committee/pjcis/proscription/report.htm> .

^[4] Australian Law Reform Commission, Final Report – Fighting Words: A Review of Sedition Laws in Australia, ALRC Report 104 (tabled 13 September 2006) <http://www.alrc.gov.au/inquiries/title/summary_alrc104.html> .

^[5] Australian Government, National Security Legislation – A Discussion Paper on Proposed Amendments (July 2009) ii.

^[6] Ibid.

^[7] Ibid, iii, iv, 87, 88, 105, 107, 109, 111.

^[8] Kevin Rudd, ‘First National Security Statement to the Parliament’ (4 December 2008) <http://www.pm.gov.au/node/5424> .

^[9] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 March 2010, 2920 (Robert McClelland).

^[10] For media commentary using the ‘balance’ metaphor, see eg Jeffrey Rosen, ‘The Difficult Balance Between Liberty and Security’, New York Times (New York) 6 October 2002; Paul Rosenzweig, ‘Balancing Liberty and Security’ <http://www.heritage.org/press/commentary/ed051403a.cfm> (at 14 May 2003); For academic commentary see, eg, Eric A Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (Oxford University Press, 2007); Paul J A De Hert, ‘Balancing Security and Liberty within the European Human Rights Framework: A Critical Reading of the Court’s Case Law in the Light of Surveillance and Criminal Law Enforcement Strategies after 9/11’ (2005) 1 Utrecht Law Review 68; David Cole, ‘The Poverty of Posner’s Pragmatism: Balancing Away Liberty After 9/11’ (2007) 59 Stanford Law Review 1735.

^[11] Ben Golder and George Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8 Journal of Comparative Policy Analysis 43. For criticism of the balancing approach, see, eg, Simon Bronitt, ‘Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform’ in Pene Mathew and Miriam Gani (eds), Fresh Perspectives on the ‘War on Terror’ (ANU E-press, 2008) 65; Simon Bronitt, ‘Constitutional Rhetoric v Criminal Justice Realities: Unbalanced Responses to Terrorism?’ (2003) 14 Public Law Review 76.

^[12] Prime Minister John Howard quoted in ‘PM announces tough anti-terror measures’, Sydney Morning Herald (Sydney), 8 September 2005; see also Human Rights and Equal Opportunity Commission, Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD (23 May 2003) [22]; <http://www.hreoc.gov.au/human_rights/terrorism_sub/asio_asis_dsd.html> .

^[13] Commonwealth of Australia, Parliamentary Debates, Senate, 24 June 2002, 2446 (Chris Ellison).

^[14] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 29 March 2006, 7 (Philip Ruddock).

^[15] Commonwealth of Australia, Parliamentary Debates, Senate, 26 June 2002, 2624 (John Faulkner).

^[16] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 12 December 2002, 10431 (Simon Crean). Crean also noted that ‘[w]e have supported tough new powers to fight terrorism, but we also want protection for our citizens. It means getting the balance right. I use the words “getting the balance right” because when the previous antiterrorism bills came before this House the government and the Prime Minister argued that our amendments were unworkable and unacceptable. We hear that language again tonight. Three months later, when the Prime Minister went before the National Press Club, he said that the antiterrorism bill had got the balance right’, 10430.

^[17] See above n 7 and accompanying text.

^[18] See, eg, David A Charters, ‘Conclusions: Security and Liberty in Balance – Countering Terrorism in the Democratic Context’, in David A Charters (ed), The Deadly Sin of Terrorism: Its Effect on Democracy and Civil Liberty in Six Countries (Greenwood Press, 1994) 211; Peter Chalk, ‘The Response to Terrorism as a Threat to Liberal Democracy’ (1998) 44 Australian Journal of Politics & History 388. In the 1980s, Grant Wardlaw, for instance, has argued that ‘the duty of the government is to balance the extent of the response with the seriousness of the problem and the rights of its citizens’; see Grant Wardlaw, Political Terrorism: Theory, Tactics and Counter-measures (Cambridge University Press, 2^nd ed, 1989) 126.

^[19] For a detailed critique of the balance rhetoric, see, eg, Christopher Michaelsen, ‘Balancing Civil Liberties against National Security? A Critique of Counterterrorism Rhetoric’ [2006] UNSWLawJl 1; (2006) 29 University of New South Wales Law Journal 1.

^[20] Lucia Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 510.

^[21] See also Ronald Dworkin, ‘The Threat of Patriotism’, (2002) 49(3) New York Review of Books 44. <http://www.nybooks.com/articles/15145> .

^[22] Ronald Dworkin, ‘Rights as Trumps’, in Jeremy Waldron (ed), Theories of Rights (Oxford University Press, 1984) 153.

^[23] See, eg, Christopher Michaelsen, ‘Security against Terrorism: Individual Right or State Purpose?’ (2005) 16 Public Law Review 78.

^[24] See also Laura Donohue, ‘Security and Freedom on the Fulcrum’ (2005) 17 Terrorism and Political Violence 69.

^[25] Michaelsen, above n 19, 15-18.

^[26] See also Jeremy Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political Philosophy 191.

^[27] Mattias Kumm, ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice’ (2004) 2 International Journal of Constitutional Law 574.

^[28] Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 75.

^[29] Nicholas Emiliou, The Principle Of Proportionality In European Law: A Comparative Study (Kluwer Law International, 1996) 142.

^[30] See also Andrew Blick, ‘Democratic Audit: Good Governance, Human Rights, War against Terror’ (2005) 58 Parliamentary Affairs 408.

^[31] Judith Gardam, Proportionality, Necessity and Force in International Law (Cambridge University Press, 2004); Judith Gardam, ‘Proportionality and Force in International Law’ (1993) 87 American Journal of International Law 391.

^[32] See, eg, Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books, 1977); Nicholas Rengger, ‘On the Just War Tradition in the Twenty-first Century’ (2002) 78 International Affairs 353.

^[33] In the context of self-defence proportionality means that any measures taken in response to an armed attack must neither be retaliatory nor punitive in nature but rather aimed at halting and repelling an attack. See, eg, Stanimir Alexandrov, Self-Defence against the Use of Force in International Law (Kluwer Law International, 1996). For a discussion of proportionality in the context of the ‘War on Terror’, see, eg, Judith Gardam, ‘A Role for Proportionality in the War on Terror’ (2005) 74 Nordic Journal of International Law 3.

^[34] See, eg, Sean Murphy, Humanitarian Intervention: the United Nations in an Evolving World Order (University of Pennsylvania Press, 1996).

^[35] For example, contemporary international humanitarian law stipulates that an attack cannot be launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.

^[36] Alice Ristroph, Proportionality as a Principle of Limited Government (2005) Utah Legal Studies Paper No. 05-19 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=851624> . On proportionality as a principle of good governance, see, eg, Linda Senden, Soft Law in European Community Law (Hart Publishing, 2004) 86.

^[37] Robert Thomas, Legitimate Expectations and Proportionality in Administrative Law (Hart Publishing, 2000) 77.

^[38] See, eg, Helmut Goerlich, ‘Fundamental Constitutional Rights: Content, Meaning and General Doctrines’, in Ulrich Karpen (ed), The Constitution of the Federal Republic of Germany (Nomos, 1988) 45; Stone, Sweet and Mathews, above n 28, 98.

^[39] Stone Sweet and Mathews, above n 28, 99.

^[40] Ibid, 112-38; Erik Erling, Ron Kugan and Jakob Schnaider, ‘The Principle of Proportionality: A Comparison between Canada and the European Community Law’ (Paper presented at the Faculty of Law, University of Lund, 24 February 2006) 4.

^[41] Nevertheless, High Court judges have debated the merits of proportionality; see eg Murray Gleeson, ‘Address at the Australian Bar Association Conference: Global Influences on the Australian Judiciary’ (8 July 2002) <http://www.hcourt.gov.au/speeches/cj/cj_global.htm> .

^[42] For proportionality analysis in the WTO, see eg Stone, Sweet and Mathews, above n 28, 153-60.

^[43] See eg Erling, Kugan and Schnaider, above n 40, 14-20. While the principle is enshrined in the text of the treaty, it first affected European Community law in the Internationale Handelsgesellschaft case which stands for the proposition that a public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure; Case 11/70 Internationale Handelsgesellschaft [1970] EUECJ R-11/70; [1970] ECR 1125.

^[44] Commission of the European Communities, European Governance – A White Paper, COM (2001) 428, 25 July 2001, <http://eurlex.europa.eu/LexUriServ/site/en/com/2001/com2001_0428en01.pdf> .

^[45] See, eg, Evelyn Ellis, The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999); Marc-André Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in Ronald St J Macdonald, Franz Matscher and Herbert Petzold (eds), The European System for the Protection of Human Rights (Kluwer Law International, 1993) 125.

^[46] Article 4(1) of the ICCPR, Article 15(1) of the ECHR.

^[47] Manfred Nowak, Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, 1993) 84.

^[48] Ibid.

^[49] R v Goldschmidt [1983] 1 WLR 151, 155 (Diplock J).

^[50] See generally Sabine Michalowski and Lorna Woods, German Constitutional Law: The Protection of Civil Liberties (Ashgate Publishing Company, 1999) 69; Christoph Engel, The Constitutional Court - Applying the Proportionality Principle - as a Subsidiary Authority for the Assessment of Political Outcomes’, Max Planck Institute Collective Goods Preprint No. 2001/10; <http://ssrn.com/abstract=296367> .

^[51] Michalowski and Woods, above n 50, 84-5.

^[52] See also German Federal Constitutional Court, BVerfGE 17, 306 (1963) and Article 19 (2) of the Basic Law.

^[53] Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367. In Workchoices a majority of the High Court affirmed a line of jurisprudence rejecting the general use of proportionality in characterisation of Commonwealth laws[2006] HCA 52; , (2006) 229 CLR 1, [142] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

^[54] Gabrielle J Appleby, ‘Proportionality and Federalism: Can Australia Learn from the European Community, the US and Canada?’ (2007) 26(1) University of Tasmania Law Review, 8. The High Court first seriously engaged with proportionality as a constitutional concept in devising the test for validity of Commonwealth laws under s 51(xxix) which sought to give effect to an international treaty obligation. It then expressly took that concept from that context and built it into the test it fashioned around breach of s 92 of the Constitution in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360. In particular, the author might want to look at Castlemaine Tooheys Ltd v SA (1990) 169 CLR 436, 473. The author thanks the anonymous referee for making this important point.

^[55] In part, this may be explained by the absence of a constitutional bill of rights or any other instrument explicitly protecting human rights in Australia. In the United Kingdom, for instance, it was precisely the Human Rights Act 1998 — legislation that incorporated the United Kingdom’s obligations under the European Convention of Human Rights into British law — that saw the introduction of the continental proportionality test into British law.

^[56] See, eg, Brian Fitzgerald, ‘Proportionality and Australian Constitutionalism’ (1993) 12 University of Tasmania Law Review 261; Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ [1997] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1.

^[57] Appleby, above n 54, 2.

^[58] Christopher Michaelsen, ‘International Human Rights on Trial: The United Kingdom’s and Australia’s Legal Response to 9/11’ [2003] SydLawRw 13; (2003) 25 Sydney Law Review 275.

^[59] See, eg, UN Security Council Resolution 1456, UN SCOR, 4688^th Meeting, UN Doc S/RES/1456 (20 January 2003), [6].

^[60] Joint statement by the Director of the OSCE-ODIHR, the UN High Commissioner for Human Rights and the Secretary-General of the Council of Europe, 29 November 2001; UN Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism (Martin Scheinin), Australia: Study on Human Rights Compliance while Countering Terrorism (14 December 2006) A/HRC/4/26/Add.3.

^[61] Report of the Security Legislation Review Committee (2006), 3 (hereinafter ‘Sheller Report’).

^[62] Inspector General for Intelligence and Security, Annual Report 2004-2005, 2.

^[63] Sheller Report, 3.

^[64] It is, of course, still possible to apply a proportionality test to laws in cases where the government denies access to information about the threat or when the government’s portrayal of the threat at face value. Quite often, even when one accepts the government line, it would be possible to find the proposed solutions for responding to it are not proportionate. This has the benefit of meeting, and possibly defeating, the government on its own terms and denying it the upper hand due to information it possesses that the community does not. The author acknowledges the anonymous referee for making this excellent point.

^[65] Intelligence assessments about WMD in Iraq are a case in point. See also Dennis Gormley, ‘The Limits of Intelligence: Iraq’s Lessons’ (2005) 46 Survival 7.

^[66] ASIO, Report to Parliament 2005-06, 3.

^[67] Peter McClellan, Terrorism and the Law, 9; <http://www.judcom.nsw.gov.au/publications/selected_papers/terror.pdf/view> Law Council of Australia, ‘Submission to the Senate Legal and Constitutional Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 [No.2] and Related Bills’, April 2002; Law Council of Australia, ‘Submission to the Senate Legal and Constitutional Committee, Anti-Terrorism Bill 2004’, April 2004; Law Council of Australia, ‘Submission to the Senate Legal and Constitutional Committee, Anti-Terrorism Bill (No. 2) 2004’, July 2004.

^[68] Scheinin, above n 60, 7.

^[69] The Independent National Security Legislation Monitor Bill 2010 (Cth) is a case in point. While establishing an oversight mechanism, the Government ignored various recommendations to strengthen the independence and jurisdictional powers of the Monitor; see, eg, Andrew Lynch and Nicola McGarrity, ‘A “Watch Dog” of Australia’s Counter-Terrorism Laws – The Coming of the National Security Legislation Monitor” (2010) Flinders Journal of Law Reform (forthcoming).

^[70] For a detailed analysis, see, eg, Gilbert + Tobin Centre of Public Law, ‘Submission to the Senate Legal and Constitutional Committee, National Security Amendment Bill 2010 (Cth)’ April 2010.

^[71] See eg Andrew Lynch, ‘Terrorists and Bikies: The Constitutional Licence for Laws of Control’, (2009) 34 Alternative Law Journal 237; Nicholas Cowderey, ‘A Threat to the Rule of Law: the New South Wales Crimes (Criminal Organisations Control) Act 2009,’ (2009) 21 Current Issues in Criminal Justice 321.