Counter terrorism And Beyond The Culture Of Law And Justice After 9 11 1st Edition by Nicola Mcgarrity, Andrew Lynch, George Williams ISBN 9780203849897 0203849892

Part I Introduction

1 The emergence of a ‘culture of control’

Notes

Part II Prevention and pre-emption, evidence and intelligence

2 Counter-terrorism

2.1 Introduction

2.2 Preventing terrorism or pre-empting the future?

2.3 Pre-emption and pre-crime

2.4 Intelligence and evidence

2.5 Accountability

2.6 Conclusion

Notes

3 The counter-terrorism purposes of an Australian preventive detention order

3.1 Introduction

3.2 A brief outline of Australian preventive detention law

3.2.1 A PDO is an executive order

3.2.2 PDOs effect a person’s detention

3.2.3 Two types of PDOs operating at two different times and for two different purposes

3.2.4 The length of detention under a PDO

3.3 Is the Australian criminal law preferable to the current preventive detention regime?

3.4 Can the Australian criminal law accommodate the purposes of a PDO?

3.4.1 Preventive detention serves a different purpose to arrest under the criminal law

3.4.2 Preventive detention has a lower threshold of proof than that required for criminal law arrest

3.5 A way forward?

3.6 Conclusion

Notes

4 The eroding distinction between intelligence and evidence in terrorism investigations

4.1 Introduction

4.2 The ideal types of intelligence and evidence

4.3 The intelligence paradigm as reflected in post-9/11 anti-terrorism laws

4.4 Some implications of the eroding distinction between intelligence and evidence

4.4.1 Police forces struggling with intelligence

4.4.2 Intelligence agencies struggling with evidence

4.4.3 Attempts to keep intelligence secret in terrorism prosecutions

4.5 Evaluation of the eroding distinction between intelligence and evidence

4.6 Conclusion

Notes

Part III Community surveillance and the creation of a culture of suspicion

5 Constitutional criminal procedure and civil rights in the shadow of the ‘war on terror’

5.1 Introduction

5.2 The rhetoric of terrorism in the Supreme Court

5.2.1 Search and seizure

5.2.2 Police interrogation

5.2.3 Immigration detention and civil rights liability

5.3 Cause and effect

5.4 Conclusion–why this matters

Notes

6 Suspicionless searches and the prevention of terrorism

6.1 Introduction

6.2 The New York police department’s container inspection program

6.2.1 Legal framework

6.2.2 MacWade v Kelly

6.3 Suspicionless searches under s 44 of the Terrorism Act 2000

6.3.1 Legal framework

6.3.2 R (Gillan) v Commissioner of police for the metropolis

6.4 Convergence and divergence

6.4.1 Target selection

6.4.1.1 Diverging views about how to stop a terrorist

6.4.1.2 The elephant in the room: ethnic profiling

6.4.2 The fait accompli of balancing

6.4.2.1 The loaded scales

6.4.2.2 Last-chance saloon: effectiveness

6.4.3 The permanence of the temporary132

6.5 Conclusion

Notes

7 A passport to punishment

7.1 Introduction

7.2 The legislative basis for passport cancellations and refusals in Australia

7.3 Clarity of grounds for ASIO assessments under the Passports Act – character testing?

7.4 Review rights: compatible with the ICCPR?

7.4.1 Appealing an ASIO adverse assessment

7.4.2 Hussain and Habib

7.4.3 The Parkin case: testing the parameters of a fair trial

7.5 Institutional issues

7.6 Conclusion: the need for accountability and sensitivity

Notes

Part IV The normalisation of extraordinary measures

8 When extraordinary measures become normal

8.1 Introduction

8.2 Combating terrorism through pre-emption

8.3 The use of extraordinary measures in the ‘ordinary’ criminal law

8.3.1 A brief overview of the case studies

8.3.1.1 Proscription of organised crime groups

8.3.1.2 Expansion of police power to conduct covert searches

8.3.2 Use of Australia’s counter-terrorism laws as a model

8.3.3 Inadequate parliamentary debate

8.4 Conclusions

Notes

9 The anti-terror creep

9.1 Introduction

9.2 The position of the States and the importance of law and order as a political issue

9.3 The Rann government and law and order

9.4 The control order regime in the SOCCA18

9.5 Anti-organised crime measures, the High Court and the Constitution

9.6 Chapter III

9.6.1 The creep of criminal intelligence

9.6.2 (Re)formulating and applying the Kable principle

9.7 Conclusions

9.8 Postscript: Totani v South Australia

Notes

Part V The flow of information in liberal democracies

10 Proxies for the authorities? Using media information in the investigation and prosecution of terrorism offences

10.1 Introduction

10.2 Information control and the importance of sources

10.2.1 Limits on access to information in terrorism and security reporting

10.3 Prosecutions: keeping confidences and contempt of court

10.3.1 Australian common law and statute

10.3.2 The 2009 Australian reform proposals

10.3.3 A critique of the Bill and the inquiry

10.3.3.1 The rebuttable presumption and driving forces: lessons from the United Kingdom

10.3.3.2 The exercise of discretion and the factors to be considered

10.3.3.3 Excluding investigative powers

10.4 Investigations: search, seizure and notices to produce

10.4.1 Australian media information: search warrants and notices to produce documents

10.4.2 The United Kingdom legislative framework

10.4.3 Production order cases in the United Kingdom

10.4.3.1 Bright

10.4.3.2 Malik

10.5 Conclusion

Notes

11 The show must go on

11.1 Introduction

11.2 The case of Dr Mohamed Haneef

11.3 The counter-terrorism legislation

11.3.1 Section 3W of the Crimes Act

11.3.2 Sections 23DA and 23CB of the Crimes Act: the investigation period and dead time

11.3.3 Release of the first record of interview

11.4 The AFP, the CDPP and the Howard government

11.5 The Clarke inquiry

11.6 Haneef, executive government and media scrutiny

11.7 Conclusion: Haneef, a (non-)Australian everyman?

Notes

Part VI Judicial review and the parliamentary process

12 Extra-constitutionalism, Dr Mohamed Haneef and controlling executive power in times of emergency

12.1 Introduction

12.2 The past is a foreign country: they do things differently there23

12.3 A ‘rights-enforcing’ judiciary

12.4 The Haneef case90

12.5 Protecting rights extra-constitutionally

12.6 Conclusions: the ‘new’ democracy

Notes

Index