Since September 11, Australia’s federal Parliament has enacted a range of exceptional measures aimed at preventing terrorism. These measures include control orders, which were not designed or intended for use outside of the terrorism context. What has followed, however, has been the migration of this measure to new contexts in the states and territories, especially in regard to what some have termed the ‘war on bikies’. This has occurred to the point that this measure, once considered extreme, has become accepted as a normal aspect of the criminal justice system, and has in turn given rise to even more stringent legal measures. This article explores the dynamic by which once exceptional measures become normalised and then extended to new extremes. It explores these issues in the context of the role that constitutional values have played in this process.The authors argue
The ‘war on terror’ that arose after the September 11 attacks in the United States triggered an expansion of international1 and domestic legal frameworks directed at the prevention of terrorism. Today, that conflict appears to be waning, but in many respects the expanded frameworks remain intact. This is enabling processes of ‘normalisation’ by which such measures come to be treated as unexceptional, rather than as extreme measures that ought to be strictly limited in their application. In this form, they are more readily adapted to other areas of the legal system. Outside of the anti-terror context, the now-normalised measures can give rise to even more extreme laws that further challenge fundamental values. In this sense the legal responses to the war on terror can continue indefinitely outside of the anti-terror context and have a permanent impact on constitutional values.
We explore this dynamic by focusing on an Australian case study, namely the migration of control orders from the anti-terror context to the body of legislation that has emerged in what might be called a ‘war on bikies’. Control orders are civil orders that empower courts to impose a wide range of restrictions and obligations on an individual, such as curfews, limits on communication, and the like, for the purpose of preventing future criminal acts. A person may be the subject of a control order, and therefore subject to a deprivation of liberty, without any finding that they have transgressed the law. In this way, control orders operate independently of any concept of guilt or innocence.
We begin in Part II by introducing Australia’s response to the global threat of terrorism and the rhetoric of urgency, exceptionalism and war that attended the enactment of a host of anti-terror laws following the 9/11 attacks, including control orders. In Part III, we document the proliferation of control order-like schemes across Australia, tracing their migration from the antiterror context to the fight against serious and organised crime. This process of migration and subsequent normalisation has not gone unnoticed. Writing in 2010, Gabrielle Appleby and John Williams observed the ‘creep’ of anti-terror laws to the law and order context, and one of us writing with Nicola McGarrity said: ‘counter-terrorism laws have become a permanent fixture of the legal landscape. … Over time, what were once seen as extraordinary laws have become accepted as “normal”’.
Not only has the control order device itself migrated across contexts, but it has provided a vehicle for the more subtle migration of certain characteristic features of national security laws. Hence, the expanded use of secret evidence, crimes of association and preventive constraints on liberty have also gone through a similar process of normalisation.
In Part IV, we explore more recent developments that signal the next phase of the migration and normalisation process. In the ongoing political race to be ‘tough on crime’, the adaption of once-extreme measures has given rise to the extension of these measures into new, even more extreme territory. In Part V, we reflect on this process of migration, normalisation and extension and examine the role played by constitutional values in both checking and facilitating such trends.