ABSTRACT
Changes in the legislative landscape of liberal democracies such as the United Kingdom, the United States and Australia since the 9/11 attacks on New York and Washington have seen national security and criminal justice integrated to an unprecedented extent. This integration has rested on the premise that terrorism represents an exceptional threat and accordingly warrants legislation tailored to what has been termed a ‘new paradigm in prevention’.1 This chapter considers the way in which prevention is promoted and operationalised in the context of Australia’s domestic counter-terrorism legislation. It argues that what is referred to as prevention by some commentators is more accurately described as ‘pre-emption’. Pre-emption embodied in domestic legislation reflects the same logic as the mili-
tary concept of pre-emption set out by the former United States President, George W Bush, and implemented most notoriously in the invasion of Iraq. In the wake of the 9/11 attacks, Bush argued that ‘if we wait for threats to fully materialise, we will have waited too long … we must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge’.2 In the domestic context, pre-emption is provided for by legislation and operationalised through police and security agency activity directed at monitoring, detaining, disrupting and, in some cases, charging and prosecuting those groups and individuals considered a threat, even where that threat has not yet become a reality. The pre-emption framework embodies a shift from a ‘post-crime’ society to a ‘pre-crime society’.3 We argue that the term prevention when associated with counter-terrorism legislation and policing is misleading for three reasons. First, because it distorts the meaning of the term prevention as it is widely understood in crime-prevention literature. Second, because it assumes that the counter-terrorism legislation and measures are effective in minimising the risk of mass casualty attacks. And third, because it assumes that the legislation and measures align with stated agendas tied to prevention, rather than a range of hidden agendas linked to politics and organisational interests. The hybrid national security and criminal justice framework that arises in the pre-
emptive counter-terrorism arena has led to a number of tensions and contradictions in the legal response to terrorism. One key tension is between traditional law
enforcement activities aimed at securing convictions on the basis of evidence presented in open court, and covert police and security agency operations aimed at monitoring and/or disrupting activities. This chapter considers the significant issues that arise in the context of hybrid security intelligence and criminal justice frameworks, including the increased complexity of trials, the ability or otherwise to predict risk accurately, the politicisation of policing and the compromised accountability of law enforcement and security agencies.
