The Hon Justice Michael Kirby AC CMG**




This morning, on the eleventh hour of the eleventh day of the eleventh month, Justices of the High Court of Australia joined thousands of other Australians and overseas friends at the War Memorial in Canberra. Once again, they marked the Armistice that brought to a close the Great War of 1914-1918.


It was a war substantially fought in Europe, between European powers and their empires. Yet it was fought over ideas as well. It did not prove to be the war to end wars, as those who survived it hoped. Yet, it did give birth to the ideal of international institutions and binding humanitarian law that would encompass all nations and peoples. It also kindled in the hearts of many who had witnessed the suffering, the idea of a united and peaceful Europe.


That idea was to bear fruit after the Second World War. It is an idea whose realisation continues to grow in strength. In recent days, Australians have witnessed from afar two remarkable European events. The first was the signature in Rome of the proposed new European Constitution. The second was the assertion of democratic accountability of the Commission of the European Union to the European Parliament, elected by the people of the member states. The European idea is still evolving. It is now unstoppable and irreversible. Although the word "federation" must not be used, lest it upset the British and some of like persuasion, we Australians, who witnessed the earlier federal union on our own continent, know and understand what we see. It is a development different from ours but sufficiently similar so that we recognise its essential character.


I am proud to give this lecture, at such a moment and in Australia's National University. I applaud the initiative of the University to establish the National Europe Centre. It is an instance of the special contribution of the University to Australia. Looking out to the world. Strengthening our links with it. Helping us in Australia to understand our own future by appreciating the world's future. In that future, Europe, the cradle of Western civilisation, continues to play a pivotal role. It is made larger because Europeans can never forget the suffering and the necessities, every year, that Remembrance Day teaches.




This lecture is named after Robert Schuman. Although born in Luxembourg in June 1886, his career was served in France where, after the Second World War, he helped to found the European Coal and Steel Community that was the progenitor of European economic and political unity. He hoped that those moves would ultimately lead to the establishment of a "United States of Europe".


Robert Schuman served in the French National Assembly after 1919. In September 1940 he was arrested by the secret police of the occupying power. In 1942 he escaped and worked with the resistance until France was liberated in 1944. He was a founder of the French Popular Republican Movement (MRP). Between 1946 and 1956 he served as Minister of Finance, Foreign Minister, Minister of Justice and Premier. It was whilst Foreign Minister that he conceived the Schuman Plan to forge a Franco-German rapprochement. His commitment to his dream was realised in 1952 when the Coal and Steel Community established the nucleus of the six nation European Economic community that was to grow into the present European Union.


Between 1958 and 1963, Schuman served as President of the Assembly which was the consultative organ of the European Common Market. He died in 1963. His life is yet another indication of the power of dreams in politics; and the role that individuals can play in a complex world to bring about great changes, whether for good and evil. In Schuman's case, the cause of European unity, cooperation between peoples and the rebirth of an entire continent are beneficial legacies. As an Australian beneficiary of the civilisation and many of the values of Europe, I feel privileged to speak in this series that honours Robert Schuman's works.




The judicial branch of the institutions of European unity, created after Schuman's idea, is the European Court of Justice, established in Luxembourg, Schuman's birth town. That court plays a vital role in the economic and administrative decisions of the European Union. The influence of that Court's work is increasing. It will continue to do so under the new European Constitution. Its impact upon the judicial decisions of the United Kingdom is clearly recorded in that country and, in part through British case law, in judicial decisions of Australia[1].


However, it is not of that court that I propose to speak in these remarks. A review of that court's work must be left to another lecture. Instead, I want to speak of the work of the other great court of Europe whose jurisdiction extends even beyond the Union to which Schuman contributed so notably. I refer to the European Court of Human Rights based in Strasbourg.


Most Septembers, I have the privilege to attend a meeting of judges of final national and international courts held at the Yale Law School in the United States. A regular participant is Judge Luzius Wildhaber, President of the European Court of Human Rights. The jurisdiction of his Court now extends from the Atlantic Coast of Ireland to the Pacific Coast of Russia. It is a huge responsibility.


The European Court of Human Rights is created by the European Convention on Human Rights and Fundamental Freedoms ("the Convention"). It has tackled cases of the greatest complexity and sensitivity - including for the protection of the rights of sexual minorities, a matter of keen interest to me[2]. A great deal could be said in praise of the principled decisions of the European Court of Human Rights since its establishment and the leadership which that court has given to our understanding of human rights not only in Europe but throughout a wider world. However, given the times we live in, the challenge of those times and the memories kindled by this day, I propose to consider some of the decisions of the European Court of Human Rights in cases brought to it by persons accused of terrorist offences.


I do this because, after the events of 11 September 2001 in the United States and October 2002 in Bali and in Madrid, Breslan and Jakarta during 2004, terrorism, and the legal response to it, are inevitably, and properly, on our minds. As I shall show, the European Court of Human Rights has responded to complaints about anti-terrorist legislation and individual human rights with great insight and wisdom. Its decisions carry lessons for the entire world. They are lessons apt to the times we live in.




Anti-terrorist laws in Europe: The adoption of terrorism laws in Europe, indeed elsewhere, is not a phenomenon of the present age. Laws specifically targeted at the risks of violence perpetrated by enemies, including foreign enemies, are not new. In 1939, for example, the United Kingdom Parliament enacted the Prevention of Violence (Temporary Provisions) Act of that year to deal with a campaign of the Irish Republican Army in the context of a new European war[3]. That law was eventually allowed to expire, an event described as "an act of faith without contemporary parallel"[4].


There followed in Britain a number of laws responding to escalating violence in Northern Ireland. These laws included the Northern Ireland (Emergency Provisions) Acts 1973-98 (UK), the Criminal Justice (Terrorism and Conspiracy) Act 1998 (UK) and the Prevention of Terrorism (Temporary Provisions) Acts (UK), in continuous use between 1974 and 2001. The counter-terrorism laws of the United Kingdom were reviewed by a judicial inquiry under Lord Lloyd and Sir Michael Kerr that reported in 1996[5]. The response to that report was the Terrorism Act 2000 (UK) which came into force in February 2001.


In many countries, it was the events of 11 September 2001 that triggered the passage of enactments designed to put the authorities into a better legal position to deal with terrorist events and, hopefully, to prevent them happening. In the United Kingdom, Parliament enacted the Anti-terrorism, Crime and Security Act 2001 (UK). Police powers were enlarged by the Criminal Justice and Police Act 2001 (UK) and later laws.


This proliferation of legislation has led to fragmentation of the criminal law in the United Kingdom. It has resulted in a derogation by the United Kingdom under Article 15 of the European Convention on Human Rights and the adoption of intrusive surveillance measures. One commentator, who acknowledged fully the need for special and extra powers in the current exigencies, concluded[6]:



"[T]he alternative to the war model is still an extensive security State, with increasing focus on surveillance and financial scrutiny and approaches indicative of risk management and prevention rather than prosecution. There is no final victory in the war against terrorism. Equally, in an asymmetric conflict, the terrorist cannot destroy western polities, but they may be able to provoke western polities to destroy their own spirits".



Anti-terrorist laws in Australia: In Australia since 2001 several anti-terrorism laws have been enacted[7]. In fact, seventeen items of legislation restricting civil freedoms have been adopted by the Federal Parliament[8]. In addition, State legislation has been adopted in Australia to complement national laws[9]. There is a tendency in this area to give legislation stirring names in the hope of rendering exceptions to civil liberties more palatable and opposition to such laws more difficult. In Australia, we have not gone so far as calling such legislation a Patriot Act[10]. But the media have noticed the Orwellian character of some of the statutory titles, such as the New South Wales Freedom of Information (Terrorism and Criminal Intelligence) Act 2003 (NSW) whose object is to restrict and not to enhance access to official information on security grounds[11].


In such an environment the last line of defence for human rights, fundamental freedoms and individual liberty tends to be the courts[12]. In a contemporary democracy, in the matter of anti-terrorist legislation, the usual protections and balances may not always be available, either in the legislative process or by executive enforcement. Nations that are minor players in the global "war on terrorism" come under occasional international pressure for counter-part laws which they cannot resist. Necessarily, the courts have only a limited role. Their duty is to give effect to any laws that are constitutionally valid. They must do so according to the language of the legislation and in order to achieve its presumed purpose[13]. However, courts are not without lawful and proper means, in some respects, to ensure against an excess of legislative or executive action.


In many countries, such as the United States of America, where a challenge is brought, courts can evaluate legislative provisions against the standards of a national constitution and Bill of Rights. Even in countries like Australia, that do not have an entrenched charter of rights, courts are not bereft of legal means to uphold fundamental civil rights. In appropriate cases, they may apply settled principles of statutory interpretation that require that laws that deprive individuals of longstanding and basic rights must be clear and without ambiguity[14]. As well, there is an increasing realisation within the courts of Commonwealth countries that national laws should ordinarily be construed so as to conform to the developing international law of human rights[15]. It is in this respect, including in Australia, that it has become usual for the courts to look to the decisions of the world's most important human rights court - the European Court of Human Rights at Strasbourg. So what has that court said on the subject?


The Irish Cases: Before the onset of the most recent coordinated terrorist attacks in Western countries, specific groups in a number of European countries (the United Kingdom, Ireland, West Germany, Italy and Spain) presented challenges to the legal order that had to be considered by domestic courts in Europe and, subsequently, by the European Commission of Human Rights and the European Court of Human Rights at Strasbourg.


The decisions of these bodies have sought to steer a principled course between affording to terrorist suspects, as to other human beings, the protections stated in the European Convention whilst acknowledging the necessity, on occasion, for national laws to adopt exceptions that take into account the special challenge that terrorists pose to democratic societies and their institutions[16].


Several early cases in the European system related to the anti-terrorism legislation of the United Kingdom and the Republic of Ireland. Some of these decisions concerned the extent to which contracting States could lawfully derogate from the rights expressed in the Convention so as to permit them to adopt measures considered necessary to combat what they described as the challenge of terrorism[17]. Article 15 of the European Convention permits such derogations in specified cases. But derogations are not at large. A country cannot derogate by adopting measures that are inconsistent with other obligations under international law[18]. No derogations may be made from rights contained in the Convention Articles[19].


In Lawless v Republic of Ireland [No 3][20], the European Court of Human Rights was concerned with the case in which an Irish citizen had been detained without trial by Irish authorities for five months in 1957 on the basis of his alleged activities as a member of the Irish Republican Army ("IRA"). The derogation and subsequent measures for detention of the prisoner were upheld by the European Court. The Court concluded that the Irish government was justified in declaring a public emergency and acting as it did[21].


Between 1957 and 1975, the United Kingdom government likewise gave notice of derogation on six occasions pertaining to the use of extra-judicial powers to deprive suspects of liberty for interrogation, for detention and as a preventative measure. Without derogation, such measures would have contravened Article 5 of the Convention which guarantees the rights of liberty and security of the person. On a complaint by Ireland[22], the European Court found various impermissible breaches among the United Kingdom measures: most especially in respect of the failure to preserve access to judicial review for persons in detention[23]. Some of the contraventions were held to be within a permissible derogation. However, in respect of instances of inhuman treatment and torture, which was found, derogation was not permitted by the Convention. To this extent, the complaint by Ireland was upheld[24].


In later cases concerning detention of IRA suspects, the European Court noted that "the growth of terrorism in modern society" necessitated "a proper balance between the defence of institutions of democracy in the common interest and the protection of individual rights". The Court took notice of "the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism"[25]. Nevertheless, it upheld complaints of detainees who asserted that their detention by British authorities for four days and six hours fell "outside the strict constraints as to time permitted by [the Convention] [26]. Later, the United Kingdom increased the legal period of detention to seven days which was said to be necessary to maintain the "fight against terrorism". The United Kingdom lodged a formal derogation. Again the detainees complained to the Court in Strasbourg. However, a majority of the European Court held that, given the security circumstances then prevailing in Northern Ireland, it was not appropriate to substitute a judicial opinion for the measures deemed appropriate or expedient by the national government[27]. The law was upheld as sufficiently conforming to the Convention, within a lawful derogation.


Further challenges under the Convention concerned the question of who bore the onus of establishing justification of the reasonableness of the measures adopted by a national government to combat terrorism. In an earlier decision, Brogan v United Kingdom[28], the European Court had effectively held that the onus was on the complainant to demonstrate unreasonableness. However, subsequently, in Fox and Ors v United Kingdom[29], the European Court concluded that "the respondent government has to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence". By a majority[30] of four judges to three, the Court held in the latter case that the United Kingdom had not discharged that onus. It was therefore in breach of Article 5(1) of the Convention. Compensation was ordered.


The German Cases: In late 1977 a series of terrorist incidents came to a head in Germany. Although Andreas Bader and Ulrike Meinhof had been arrested in 1972 by FGR police (and Ms Meinhof had committed suicide in her cell in 1976) a series of kidnappings and bombings took place between 1975 and 1976, allegedly carried out by members of the Baader Meinhof Group (or Red Army faction).


In October 1977 a Lufthansa flight was commandeered by members of the Group demanding the release from prison of Mr Baader and an associate. The hijacking was quickly brought to a violent end. The prisoners, including Andreas Baader, were found dead in their cells, allegedly following suicide. The Baader Meinhof Group thereupon proceeded to execute a captive, the President of the German Employers' Association, a man with minor past association with the Nazi Party. A number of suspected members of the Group were rounded up.


The legislation used by the Germany authorities to respond to the foregoing incidents included powers, enacted in 1968, permitting interception of telephones and of the mail of suspects. Proceedings were commenced in the European Court to challenge such German laws against the standards of the European Convention[31]. Again, the European Court took judicial notice of "the development of terrorism in Europe in recent years". It held that it was reasonable for democratic states "to undertake the secret surveillance of subversive elements operating within its jurisdiction"[32]. In such circumstances, telephonic and mail interception was held compatible with the fundamental rights contained in the Convention.


Earlier, a challenge against the fairness of their trial had been brought by Andreas Baader and his colleagues in Baader and Ors v Germany[33]. After the death of the applicants, the proceedings were maintained by their families[34]. They asserted that the prisoners had been subjected to torture and inhuman or degrading treatment or punishment and blamed the death of the prisoners on their conditions. A specific complaint was made about solitary confinement imposed upon the prisoners over an extended period.


The European Commission concluded that "complete sensory isolation coupled with complete social isolation can no doubt ultimately destroy the personality". It was held that this would be inhuman treatment "which cannot be justified by the requirements of security"[35]. Nevertheless, the Commission rejected the complaint that the German suspects had been treated in this way. It also rejected the complaints directed at the conduct of their trials[36].


The Italian Cases: Terrorist actions in Italy also gave rise to proceedings in the European Court concerned with the length of detention of terrorist suspects before conviction or discharge and the conditions in which convicted terrorists could be held.


The kidnapping and murder of the former Italian Prime Minister, Mr Aldo Moro, in 1978 constituted the high water mark of terrorist activities in modern Italy. Responsibility for the death was claimed by the Red Brigade, a political group engaged in numerous terrorist activities after 1972. The Italian legislature increased the powers of police and permitted executive detention orders and other measures. A challenge to such measures was brought in the European Court by Mr Michele Guzzardi. He was held on remand detention between 1973 and 1979. That detention was continued despite Mr Guzzardi's acquittal in 1976 of the terrorist charges. His prolonged incarceration after this acquittal was sustained by an executive order of the Italian Government.


By majority, the European Court upheld the prisoner's complaints. It rejected the attempt of Italy to justify its detention of Mr Guzzardi in a dilapidated prison on an island off the coast of Sardinia[37]. It found that Mr Guzzardi was entitled to compensation in respect of such detention. This entitlement was held to have survived notwithstanding the fact that, on appeal, the conviction of the offences for which he had been initially detained was restored.


Later proceedings unanimously upheld a later complaint by another Italian prisoner concerning the censorship of his correspondence and the conditions of his detention[38]. The Court held that the law under which this conduct had occurred allowed "too much latitude" to the state authorities and was thus contrary to the Convention.


The Spanish Cases: A number of cases have also been brought to the European Court from Spain. A significant part of the anti-terrorism laws enacted in Spain after the death of General Francisco Franco in 1975 were examined by the European Court in Barber´┐Ż and Ors v Spain[39]. That case concerned alleged members of the Catalan Peoples' Army. In October 1980 a Catalan businessman had been murdered. The applicants were detained because the crimes was characterised as terrorist acts. The Spanish law permitted detention of such suspects for up to ten days. A judicial order could require that the detainee be kept incommunicado during judicial investigation and subject to communication interception. Access to a lawyer was denied during the period of the incommunicado holding. Not until three months after they were first detained were the applicants charged with murder, a crime of which they were subsequently convicted and for which they were duly sentenced.


The applicants contended that they had been denied the right to a fair trial guaranteed by Article 6 of the European Convention. Specifically, they complained about the withdrawal of their right of access to a lawyer during the early stages of investigation. The European Court concluded that the proceedings did not satisfy the requirements of a fair and public proceeding as contemplated by the Convention[40]. It found against the Spanish Government.


Later Spanish cases in the European Court have concerned the Basque Separatist Movement (ETA). This body is possibly the most active terrorist group in Western Europe, having been linked to more than eight hundred deaths happening since 1968[41]. Following the events of 11 September 2001, the European Union, in December 2001 and June 2003[42], acceded to Spain's request officially to proscribe ETA as a terrorist organisation. Attempts were also made to ban the political wing of ETA (Batasuna) as a political party. It was dissolved by order of Spain's highest civil court. An appeal by the party to the Constitutional Court of Spain was rejected in January 2004.


In November 2003, Batasuna filed a challenge in the European Court complaining about this exclusion from the democratic process. It asserted that the ban violated the freedom of association expressed in Article 11 of the Convention. The Court has accepted the case but is yet to rule on the issue.


Under the European Court's jurisprudence, the consideration of access of political parties to the electoral process constitutes a fundamental principle in a democracy[43]. Nevertheless, some restrictions may be validly imposed on the broadcast of live interviews with members of the political wing of terrorist organisations[44]. The challenge by Batasuna, when it is heard, will once again require the European Court to tread a difficult path[45].


The European Court has acknowledged that a "margin of appreciation" belonging to the European States when they deal with the problems of terrorism. When the Strasbourg Court decides the Batasuna challenge, many will be watching to see whether the "margin of appreciation" is broadened in this context following the events of 11 September 2001 and the March 2004 terrorist attack on civilians in Madrid. Getting the right balance in such matters is by no means easy.


It is important that national judges, including in Australia, should be aware of this large and growing body of jurisprudence in Europe. As the foregoing cases in the European Court of Human Rights demonstrate, many of the problems concerning legal responses to terrorists and terrorism, that have come before national courts in and outside Europe in recent years, have already been analysed in well reasoned and detailed judicial opinions that are available to help judges who come to similar problems later. It is instructive to see the way in which national courts are responding to the challenge of terrorism and laws adopted to respond to its threats.




An early instance of the unwillingness of national courts to bend basic principles in the face of accusations of terrorism was the decision of the Constitutional Court of South Africa in Mohamed v President of the Republic of South Africa[46].


The case concerned Khalfan Mohamed who was wanted by the United States on a number of capital charges relating to the terrorist bombing of the United States Embassy in Dar es Salaam, Tanzania, in August 1998. The appellant had been indicted in the United States. A warrant for his arrest was issued by a federal District Court. He had entered South Africa unlawfully as an alien. He was detained there by the authorities, acting in cooperation with United States officials. In his interrogation the detainee was not given the rights provided by South African law for such a case. The South African authorities offered him a choice of deportation to Tanzania or the United States. He preferred the latter; but applied to the courts for an order that the Government of the United States be obliged to undertake that the death penalty would not be sought, imposed or carried out on him. That order was refused at first instance and the appellant was promptly deported. This notwithstanding, an application to the Constitutional Court was pursued on his behalf on the footing that the appellant had been denied the protection of South African constitutional law under which it has been held that capital punishment is contrary to fundamental constitutional guarantees[47].


The Constitutional Court of South Africa held that Mr Mohamed's deportation was unlawful and that extradition, not deportation, was the applicable law. Under South African law, that procedure was required to be negotiated with the requesting state under conditions obliging an assurance that the death penalty would not be imposed following a conviction. In this respect, the court below, and the Government of South Africa, had failed to uphold a commitment implicit in the Constitution of South Africa. It was held that there had been no waiver by the accused in consenting to deportation or extradition.


Because, by the time of the Constitutional Court's orders, Mr Mohamed was under trial in the United States before a federal court, it was outside the effective power of the Constitutional Court by its orders to afford him physical protection. Nevertheless, the decision of the primary judge was formally set aside. A declaration was made that the constitutional rights of the appellant in South Africa had been infringed. The Constitutional Court directed its chief officer, as a matter of urgency, to forward the text of its decision to the relevant United States Federal Court[48]. Following his trial in the United States, the appellant was convicted. However, he was not sentenced to death. Whether this was due in any way to the South African intervention is unknown. However, the South African court did what it could to uphold the accused's fundamental legal rights, notwithstanding the charge of terrorist offences. The government officials in South Africa had been less respectful of those rights.


In July 2004 a somewhat similar application was before the same South African court. An aeroplane had departed South Africa for Zimbabwe en route to Equatorial Guinea. South African officials alerted their counterparts in Harare about certain suspicions they held. The result was that the plane was searched in Harare and a quantity of weapons found. The alleged mercenaries were arrested and brought before the courts of Zimbabwe. They resisted deportation to Equatorial Guinea on the basis that, if convicted, they would be subject to the death penalty. They also complained about the standards of the Guinean courts.


Whilst this application was pending in Zimbabwe, the applicants sought relief in the Constitutional Court of South Africa. They alleged that the South African officials had acted without regard to the applicants' rights under the South African Constitution. They also asserted that, in the exercise of its international relations (and in any representations to be made to Zimbabwe and Equatorial Guinea) the South African Government was bound, by the language of the Constitution, to take into account the requirements of the Constitution obliging the State to defend, uphold and protect the constitutional rights of those within its protection.


The decision of the Constitutional Court in this case was delivered in September 2004. It included a limited finding of the South African Government's duty in the case. In the course of argument, the court was reminded of the famous words of Justice Brandeis in Olmstead v United States[49], cited earlier in Mohamed[50]:



"In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously ... Government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by its example ... If the government becomes a law-breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy".



These last words have a special resonance in South Africa as the Constitutional Court explained in Mohamed[51]:



"... [W]e saw in the past what happens when the State bends the law to its own ends and now, in the new era of constitutionality, we may be tempted to use questionable measures in the war against crime. The lesson becomes particularly important when dealing with those who aim to destroy the system of government through law by means of organised violence. The legitimacy of the constitutional order is undermined rather than reinforced when the State acts unlawfully".



These words had been in May 2001, before the events of 11 September of that year. Yet they remain true today and not only in South Africa.




Probably the best known decision in this class of case is that of the Supreme Court of the United States in Rasu v Bush[52]. That decision was delivered in June 2004. The Court was divided 6:3. The opinion of the Court was written by Justice Stevens. Justice Scalia wrote the opinion of the dissenting judges (Chief Justice Rehnquist, Justice Thomas and himself).


In the Court opinion, Justice Stevens cited the law authorising President George W Bush, after 11 September 2001, to use "all necessary and appropriate force against those nations, organisations or persons he determines planned, authorised, committed or aided the terrorist attacks ... or harbored such organisations or persons"[53]. In reliance upon this resolution, President Bush established a detention facility at the Naval Base at Guantanamo Bay on land in Cuba leased by the United States from the Republic of Cuba. Two Australians (Mamdouh Habib and David Hicks), who were detained in the facility, together with others, filed petitions in United States federal courts for writs of habeas corpus. They sought release from custody, access to counsel, freedom from interrogation and other relief.


The United States District Court dismissed these petitions for want of jurisdiction. It relied on a decision of the United States Supreme Court of 1950[54]. That decision had held that "[a]liens detained outside the sovereign territory of the United States [may not] invoke a petition for a writ of habeas corpus". However, the Supreme Court reversed the federal court decision, granted certiorari and remitted the case to the federal courts where the cases are now proceeding. In effect, Justice Stevens followed what he had earlier written in the Padilla case where he said[55]:



"At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unrestrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber ... for if this nation is to remain true to its ideals symbolised by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny".



The decision of the majority of the Supreme Court in Rasul v Bush is reflective of similar notions. It traces the restraint on Executive power in the United States to legal and constitutional "fundamentals". It does so through the history of the legal system which the United States shares with other common law countries[56]:



"As Lord Mansfield wrote in 1759, even if a territory was 'no part of the realm', there was 'no doubt' as to the court's power to issue writs of habeas corpus if the territory was 'under the subjection of the Crown'"[57].


Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown"[58].



In Rasul v Bush the rule of law was upheld by the American judges. Even in the face of Executive demands for exemption from court scrutiny because of the suggested exigencies of alleged terrorism, the Supreme Court asserted the availability of judicial supervision and the duty of judges to perform their functions, including on the application of non-citizens. To say the least, the case is an extremely important one.


By rejecting the contention that the Executive was not answerable in the courts for the detention off-shore by United States personnel of alleged terrorists, the Supreme Court of the United States gave an answer to the fear that the United States military facility at Guantanamo Bay had become a "legal black-hole". That fear had been expressed not only by civil libertarians, do-gooders and the usual worthy suspects. It had been expressed by some of the most distinguished lawyers of the common law tradition including Lord Steyn[59], Lord of Appeal in Ordinary, Lord Goldsmith QC, Attorney-General for the United Kingdom[60] and Sir Gerard Brennan, past Chief Justice of Australia[61]. Lord Goldsmith remarked on the duty of lawyers to influence and guide the response of states and the international community on terrorism[62]:



"The stakes could not be higher - loss of life and loss of liberty. The UK government is committed to taking all necessary steps to protect its citizens. I am convinced that this can be done compatibly with upholding the fundamental rights of all, including those accused of committing terrorist acts".





The decision of the United States Supreme Court in Rasul was only one of several cases in 2004 dealing with aspects of the response to terrorism. Such cases are beginning to appear in many jurisdictions.


On 18 March 2004, the English Court of Appeal delivered its decision in Secretary of State for the Home Department v M[63]. The judgment of the English Court was delivered by Lord Chief Justice Woolf. The case was an application by the Home Secretary for leave to appeal against a decision of the Special Immigration Appeals Commission. That body had been established by the United Kingdom Parliament in response to an earlier decision of the European Court of Human Rights[64]. The latter had criticised the procedures that existed under the legislation then in force to respond to terrorism in Northern Ireland.


The Special Commission is, by law, a superior court of record. Its members are appointed by the Lord Chancellor. One must be a judge who holds, or has held, high judicial office. This provision was in place when the events of 11 September 2001 occurred. Under the Anti-Terrorism, Crime and Security Act 2001 (UK), the British Home-Secretary enjoys the power to issue a certificate in respect of a person whose presence in the United Kingdom is deemed a "risk to national security" or who is suspected to be a "terrorist"[65]. The Home-Secretary (Mr David Blunkett) duly granted such a certificate in the case of M, a Libyan national present in the United Kingdom. M was thereupon taken into custody.


Early in March 2004, the Commission, presided over by Justice Collins, allowed M's appeal against the Home Secretary's certificate. The Home-Secretary challenged this action which he saw as unwarranted judicial interference in an essential political and ministerial judgment. He sought leave to appeal to the Court of Appeal. He complained that the Commission had reversed a decision for which he was accountable in Parliament and through the democratic process, to the electorate.


The Court of Appeal rejected the Home-Secretary's application. It affirmed the decision of the Commission. It described the role played by the "special advocate" under the arrangements established by the British Parliament for participation of that advocate in the procedures of the Commission in such a case. The aim of the office of "special advocate" is to make the attainment of justice more achievable in a legal proceeding where certain information cannot be disclosed to the accused or the accused's lawyers because of the suggested interests of national security[66]:



"The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him. Unlike the appellant's own lawyers, the special advocate is under no duty to inform the appellant of secret information. That is why he can be provided with closed material and attend closed hearings. As this appeal illustrates, a special advocate can play an important role in protecting an appellant's interest before the [Commission]. He can seek information. He can ensure that evidence before [the Commission] is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant. He can make submissions to [the Commission] as to why the statutory requirements have not been complied with. In other words, he can look after the interests of the appellant, in so far as it is possible for this to be done, without informing the appellant of the case against him and without taking direct instructions from the appellant".



Ironically, the alleged terrorist, "M", had refused to cooperate with the "special advocate". Clearly, he thought that this was a typical British formality, designed to do no more than to give a veneer or appearance of protection where none would in fact be afforded. At the beginning of the proceedings before the Commission, M stated that he did not wish to take any part in them. However, he affirmed that he was not involved in, nor did he support, acts of terrorism. It was then left to the Commission's own procedures to scrutinise the decision of the Home-Secretary to contrary effect.


In the result, the Commission ruled against the Home-Secretary. The Court of Appeal, like the Commission, conducted part of its hearing in closed session. Only a portion of the Court's reasons were given on the record. The Commission insisted that the suspicion of the Minister had to be a reasonable suspicion. It stated that the Minister had failed to demonstrate error on the part of the Commission. In his concluding remarks, Lord Chief Justice Woolf, for the Court of Appeal, said[67]:



"Having read the transcripts we are impressed by the openness and fairness with which the issues in closed session were dealt with ... We feel the case has additional importance because it does clearly demonstrate that, while the procedures which [the Commission] have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to under-value the SIAC appeal process. ... While the need for society to protect itself against acts of terrorism today is self-evident, it remains of the greatest importance that, in a society which upholds the rule of law, if a person is detained as 'M' was detained, that individual should have access to an independent tribunal or court which can adjudicate upon the whether of whether the detention is lawful or not. If it is not lawful, then he has to be released".





At about the same time as the decision of the United States Supreme Court was handed down, the Supreme Court of Israel, on 2 May 2 2004, delivered its decision upon a challenge brought on behalf of Palestinian complainants concerning the "separation fence" or "security fence" being constructed through Palestinian land[68]. This "fence" has been justified by the Government of Israel and the Israeli Defence Force as essential to repel the terrorist (specifically suicide) attacks against Israeli civilians and military personnel carried out from adjoining Palestinian lands.


In defence of the security wall, the Israeli authorities pointed to the substantial decline in the number of such attacks that has followed the creation of the barrier. It would not have been entirely surprising if the Supreme Court of Israel had refused to become involved in such a case, ruled the matter non-justiciable in a court of law or had said that it had no legal authority to deal with such an issue lying at the heart of the responsibilities of the Executive Government for the defence of the nation.


However, from bitter experience, the Jewish people had learned about the great dangers of legal black-holes. In the Germany of the Nazis, the problem was not a lack of law. Most of the actions of the Nazi State were carried out under detailed laws made by established law-makers[69]. The problems for the Jewish people and other victims of the Third Reich arose from the pockets of official activity that fell outside legal superintendence. These, truly, were "black-holes".


It is evident that the Supreme Court of Israel was determined to avoid such an absence of judicial supervision. The Court did not call into question the basic decision of the Executive to build the fence or wall. However, applying what common law judges would describe as principles of administrative law or of constitutional proportionality, it upheld the complaints of the excessive way in which the wall had been created in several areas. At the conclusion of his reasons, Justice Aharon Barak, President of the Court, said[70]:



"Our task is difficult. We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terror. We are aware of the killing and destruction wrought by the terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that in the short term, this judgment will not make the state's struggle against those rising up against it easier. But we are judges. When we sit in judgment, we are subject to judgment. We act according to our best conscience and understanding. Regarding the state's struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit. There is no security without law. Satisfying the provisions of the law is an aspect of national security. In The Public Committee against Torture in Israel v The Government of Israel, at 845 [I said]:


'We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy - she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties.'


That goes for this case as well. Only a separation fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law, will lead the state to the security so yearned for."



The Israeli Supreme Court accepted the petitions in a number of cases, holding that the injury to the petitioners was disproportionate to the security needs. It ordered relief and costs in favour of those petitioners.




On 24 July 2004, the world awakened to the news that the Constitutional Court of Indonesia had set aside the conviction imposed on Masykur Abdul Kadir, convicted and sentenced to fifteen years imprisonment for helping Imam Samudra in connection with the bombing in Bali on 13 October 2002. That bombing killed 202 people, including 88 Australians.


The decision of the Indonesian Court was reached by a majority, five Justices to four. The problem arose out of the decision of the prosecutor to proceed against the accused not on conventional charges of homicide or the crimes equivalent to arson, conspiracy, use of explosives etc. Instead, the accused were charged only under a special terrorism law introduced as a regulation six days after the bombings in Bali[71].


The amended Indonesian Constitution contains basic principles protecting human rights and fundamental freedoms. One of these principles, reflected in many statements of human rights[72], is the prohibition on criminal legislation having retroactive effect. Under international law an exception is sometimes allowed to permit trial or punishment "for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised countries"[73]. This expression is drawn directly from the statute of the International Court of Justice[74].


The decision of the Indonesian court was not wholly unexpected amongst lawyers who were following the Bali trials. During the Bali hearings, the problem of retroactive punishment had been canvassed in the Australian media by experts in Indonesian law[75]. Yet, if the Indonesian Constitution explicitly forbids criminal punishment based on laws of retrospective operation, the decision was not legally surprising, subject to any exceptions that may apply.


There would have been many reasons of an emotional and psychological kind for the Indonesian judges to resist the accused Bali bombers' appeal to the prohibition against retrospective punishment. The evidence against the accused, demonstrating their involvement in the bombings was substantial and often uncontested. The behaviour of some of the accused in the presence of grieving relatives was provocative and unrepentant. The pain to the families of victims was intense. The damage to the economy of Bali and Indonesia, caused by the bombings, was large. The affront to the reputation of Indonesia was acute. In this sense, the case was a severe test for judges of the Constitutional Court sworn to uphold the rule of law.


The rule of law is itself one of the fundamental principles which democrats, the world over, defend against terrorists[76]. As Chief Justice Latham once said in an Australian case[77], it is easy for judges of constitutional courts to accord basic rights to popular majorities. The real test comes when they are asked to accord the same rights to unpopular minorities and individuals. The Indonesian case of Masykur Abdul Kadir was such a test.


Other proceedings may now be brought against Mr Kadir. Other convicted accused, who have exhausted their rights of appeal, may have no further remedies. Time will tell. But in the long run, the fundamental struggle against terrorism is strengthened, not weakened, by court decisions that insist upon adherence to the rule of law. This extends to accused who are innocent, or who may be. It also extends to accused who are, or appear to be, guilty. It is in Indonesia's interests, and that of the world, that the courts should enjoy (even in such a case) a reputation for strict adherence to constitutionalism, the rule of law and the protection of human rights and fundamental freedoms. This prolongs the pain of many. But the alternative course is more painful for even more.


In a comment on the Indonesian court's decision, an Australian editorialist said[78]:



"The Constitutional Court's decision should be seen for what it is - part of a proper legal process in which every person has the right to exhaust all avenues on appeal. This is a positive development for Indonesia. The ensuing legal uncertainty and the inevitable stress it will cause ... could and should have been avoided".





Fifty years before 11 September 2001, the Australian Constitution received what was probably its most severe test in peacetime. The enemy then was viewed as a kind of global terrorist and widely hated. This enemy's ideas were subversive. Its methods were threatening and its goals alarming. I refer to the communists. The communists did not fly commercial aircraft into buildings in crowded cities. Nor did they use suicide bombers to threaten civilian populations. But they did indoctrinate their young. They had many fanatical adherents. They divided the world. They were sometimes ruthless and murderous. They developed huge stockpiles of nuclear and biological weapons. They had a global network. They opposed our form of society.


Out of fear, law-makers around the world rushed to introduce legislation to increase powers of surveillance and deprivations of civil rights. In South Africa, the Suppression of Communism Act 1950 (SAf) became, before long, the mainstay of the legal regime that underpinned Apartheid and imprisoned Nelson Mandela and the ANC "terrorists". In Malaya, Singapore and elsewhere, the colonial authorities introduced the Internal Security Acts, which is what the South African Act was also later called. Sadly, many of those laws remain in place today, long after independence, to affect those of dissident opinions.


In the United States, the Smith Act was passed by Congress to permit the criminal prosecution of members of the Communist Party for teaching and advocating the overthrow of the government.[79] The law was challenged in the courts of the United States. The petitioners invoked the First Amendment guarantees of freedom of expression and assembly. However, in 1950, in Dennis v United States[80], the Supreme Court of the United States, by majority, upheld the Smith Act. It held there was a "sufficient danger to warrant the application of the statute ... on the merits"[81].


Dissenting, Justice Black drew a distinction between governmental action against overt acts designed to overthrow the government and punishing what people thought and wrote and said[82]. The latter activities, he held, were beyond the power of Congress. Also dissenting, Justice Douglas acknowledged the "popular appeal" of the legislation[83]. However, he pointed out that the Communist Party was of little consequence and no real threat in America[84]:



"Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or State which the Communists could carry. Communism in the world scene is no bogeyman; but communism as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party".



A few months after Dennis was decided a similar challenge came before the High Court of Australia. In Australia, there was no First Amendment. There was no established jurisprudence on guaranteed freedom of expression and assembly. Most of the judges participating in the case had had no political experience whatsoever. Most of them were commercial lawyers whose professional lives had been spent wearing black robes and a head adornment made of horsehair. An Australian contingent was fighting communist forces in Korea[85]. The Australian government had a popular mandate for its law. Most Australians saw communists as the bogeyman - indeed their doctrine of world revolution and the dictatorship of proletariat was widely viewed as a kind of political terrorism.


Chief Justice Latham, like his counterpart in the United States, upheld the validity of the Australian anti-communist law. He quoted Cromwell's warning: "Being comes before well-being"[86]. He said that his opinion would have been the same if the Australian Parliament had legislated against Nazism or Fascism. However, the rest of the High Court of Australia rejected the law[87]. Justice Dixon pointed out that[88]:



"History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power ... [T]he power to legislate for the protection of an existing form of government ought not to be based on a conception ... adequate only to assist those holding power to resist or suppress obstruction or opposition of attempts to displace them or the form of government they defend".



So far as Justice Dixon was concerned, it was for the courts to ensure that suppression of freedom was only imposed within the latter of the law. The Australian Constitution afforded ample powers to deal with overt acts of subversion. Responding to a hated political idea and to the propagation of that idea was not enough for the validity of the law.


Given the chance to vote on a proposal to change the Australian Constitution to confer powers with respect to communists and communism, the people of Australia on 22 September 1951 refused. When the issues were explained, they rejected the proposed enlargement of federal powers. I believe that history accepts the wisdom of the response in Australia and the error of the over-reaction in the United States[89].


Keeping proportion. Adhering to the ways of democracy. Upholding constitutionalism and the rule of law. Even under assault and even for the feared and hated, defending the legal rights of suspects. These are the ways to maintain the support and confidence of the people over the long haul. Legislators and judges should not forget these lessons[90].


This, I believe, is also the instruction of the European Court of Human Rights concerning the response that the courts should give to terrorists and to anti-terrorism laws. Resolution. Clear rules. But proportion, balance and defence of the fundamental values of suspects. Many national courts have demonstrated that such rules are crucial to the preservation of democracy under the challenges of the present time. No court has spoken with greater clarity and wisdom on the subject than the European Court of Human Rights.


Judges of national courts do not need to reinvent the wheel on responses to terrorism within the law. Of course, they must give effect to their own valid national laws if they are clear, whatever they may think of their wisdom and prudence[91]. But in considering issues of constitutional validity and in resolving differences over the text of such a law, judges can draw, with great advantage, on the wisdom, prudence, balance and great experience of the European Court. Truly in this and in so many other challenges of our time, it is a court for the modern age. It continues to give intellectual leadership where wisdom and proportionality matter most.


For this, we in Australia, in and outside the law, should be grateful. I do not doubt that this institution of Europe will expand in its influence, including in Australia. The dream that Robert Schuman nurtured lives after him. Its contribution to the good of humanity can be boundless if we continue to dream and aspire to a better world where peace and security, respect for human rights and the expansion of economic equity become the true foundations for all people living on our vulnerable planet.




(*) Parts of this lecture draw upon earlier writings including one published in (2001) 21 Australian Bar Review 253.


(**) Justice of the High Court of Australia. The author acknowledges the assistance of Mr Alex de Costa, former Legal Research Officer to the High Court of Australia, for some research used in the preparation of this lecture. .


[1] See eg The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 576 [87], 582-582 [108], 583-584 [110]; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 567 [134]-[135]; Leask v The Commonwealth (1996) 187 CLR 579 at 594-595, 600, 615, 624; Waterford v The Commonwealth (1987) 163 CLR 54 at 60, 71, 79-80, 95; Baker v Campbell (1983) 153 CLR 52 at 71, 93, 105, 118-119, 126; Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV (1977) 138 CLR 534 at 555.


[2] See eg Dudgeon v United Kingdom (1981) 4 EHRR 149; Norris v Ireland (1988) 13 EHRR 186; Modinos v Cyprus (1993) 16 EHRR 485.


[3] C Walker, "50th Anniversary Article: Terrorism and Criminal Justice - Past, Present and Future" [2004] Criminal Law Review 311. See also Civil Authorities (Special Powers) Acts [No 1] 1922 (UK).


[4] Walker, above n 3, 311.


[5] Inquiry into the Legislation on Terrorism (Cm, 3420, London 1996).


[6] Walker, above n 3, 327.


[7] The Australian Security Intelligence Organisation Act 1979 (Aust) was amended by the ASIO Legislation Amendment Act 2003 (Aust). Amongst powers afforded to the Australian security Intelligence Organisation (ASIO) is one of detention under conditions that forbid any public disclosure of the detention for up to 28 days (s 34 VAA) and a two year prohibition on publishing "operational information". ASIO's powers of detention have been enlarged and the entitlements of the media and suspects' lawyers curtailed: see M Head, "Another Threat to Democratic Rights" (2004) 29 Alternative Law Journal 127. The constitutional validity of the new laws has not been tested: cf A v Hayden (1984) 156 CLR 532.


[8] The most important are Anti-Terrorism Act 2004 (Aust) and the amendments to the amended Australian Security Intelligence Organisation Act 1979 (Aust).


[9] News Release of the Federal Attorney-General (D Williams), "Reference of Terrorism Powers" (March 27, 2003). See Head, above n 7, 130. See also D Kerr, "Australia's Legislative Response to Terrorism" (2004) 29 Alternative Law Journal 131.


[10] S Reza, "Unpatriotic Acts: An Introduction" 48 New York Law School Law Review 3 (2004).


[11] Sydney Morning Herald, April 13, 2004, 12.


[12] S Bronitt, "Constitutional rhetoric v Criminal Justice realities: Unbalanced responses to Terrorism?" (2003) 14 Public Law Review 69. .


[13] Bropho v Western Australia (1990) 171 CLR 1 at 20; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737 at 768 [171].


[14] Jumbunna Coal Mining Association NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; and Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [29]; Daniels Corporation Intl Pty Ltd v Australian Consumer Commission (2003) 212 CLR 543 at 553 [11], 575-576 [85]-[86].


[15] See eg Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42; Baker v Canada [1999] 2 SCR 860-861; Tavita v Minister of Immigration [1994] NZLR 257 at 266; Vishaka v Rajasthan [1997] 3 LRC 361 (SC India); cf Al-Kateb v Godwin (2004) 78 ALJR 1099 at 1110-1115 [50]-[73]; cf at 1127-1135 [149]-[190].


[16] C Warbrick, "The European Convention on Human Rights and the Prevention of Terrorism" (1983) 32 International Comparative Law Quarterly 82 at 118.


[17] See J Wattellier, "Comparative Legal Responses to Terrorism: Lessons from Europe" 27 Hastings International and Comparative Law Review 397 at 405-408 (2004).


[18] Art 15(1) of the Convention.


[19] Art 2 (Right to Life); Art 3 (Prohibition on Inhuman Treatment and Torture); Art 4(1) (Prohibition on Slavery and Servitude); Art 7 (Retroactive laws).


[20] (1961) 1 EHHR 15.


[21] (1961) 1 EHHR 15 at 32.


[22] Ireland v United Kingdom (1978) 2 EHRR 25.


[23] (1978) 2 EHRR at 87-90.


[24] (1978) 2 EHRR at 107.


[25] Brogan & Ors v United Kingdom (1988) 11 EHRR 117 at [48], [61].


[26] (1988) 11 EHRR 117 at [62]. The reference was to Art 5(3) of the Convention.


[27] Brannigan v United Kingdom (1993) 17 EHRR 539 at 574-575.


[28] Fox, Campbell & Hartley v United Kingdom (1988) 11 EHRR 117.


[29] (1990) 13 EHHR 157


[30] (1990) 13 EHHR 157 at 210-211.


[31] Klass v Federal Republic of Germany (1978) 2 EHRR 214.


[32] 1978) 2 EHRR 214 at 232.


[33] (1978) 14 DR 64.


[34] See M Baker, "The Western European Legal Response to Terrorism" 13 Brooklyn Journal of International Law 1 at 22 (1987).


[35] (1978) 14 DR 64 at 109.


[36] (1978) 14 DR 64 at 112-115.


[37] Guzzardi v Italy (1980) 3 EHRR 333 at 363.


[38] Diana v Italy [1996] ECHR 13.


[39] (1988) 11 EHRR 360.


[40] (1988) 11 EHRR 360 at 392.


[41] K Dobson, "The Spanish Government's Ban of a Political Party: A Violation of Human Rights?" 9:2 New England Journal of International and Comparative Law 637 at 639 (2003).


[42] See Council Regulation 2580/01 of 28 December 2001 on Specific Restrictive Measures Directed Against Persons and Entities with a View to Combating Terrorism, Article 2(3), 2001 O.J. (L 344) 2, available at . See also "EU Blacklists Basque Party", BBC News, 5 June 2003, available at .


[43] See, for example, United Communist Party v Turkey (1998) 26 EHRR 121 at 125-127.


[44] Purcell v Ireland (1991) 70 DR 262.


[45] K Dobson, "The Spanish Government's Ban of a Political Party: A Violation of Human Rights?" 9:2 New England Journal of International and Comparative Law 637 at 639-641 (2003).


[46] 2001 (3) SA 893.


[47] S v Makwanyane 1995 (3) SA 391; (1995) (2) SACR 1; 1995 (6) BCLR 665.


[48] 2001 (3) SA 893 at 923 [73].


[49] 277 US 438 at 485 (1928).


[50] 2000 (3) SA 893 at 921 [68].


[51] 2001 (3) SA 893 at 921 [68].


[52] 542 US 1 (2004); 72 USLW 4596 (2004).


[53] Authorisation for the Use of Military Force, Public Law 107-40 1-2, US Stat 224.


[54] Johnson v Eisentrager 339 US 763 (1950).


[55] Padilla v Rumsfeld 124 SCt 2711 at 2735 (2004). In this case Stevens J was dissenting but on the availability of habeas corpus in the circumstances.


[56] 542 US 1 at 14 (2004); 124 SCt 2686 at 2697 (2004).


[57] King v Cowle (1759) 2 Burr 834 at 854-855; 97 ER 587 at 598-599 (KB).


[58] Ex parte Mwenya [1960] 1 QB 241 at 303 (CA) per Lord Evershed MR.


[59] J Steyn, "Guantanamo Bay: The Legal Black Hole" (2004) 53 ICLQ 1.


[60] Lord Goldsmith, "Terrorism and Individual Liberty: The Response of the State" (2003) International Bar News 8 (edited version of an address at the ABA conference 2003 at San Francisco).


[61] F G Brennan, "Australia and the Rule of Law" [2003] Australian International Law Journal 1 at 2-8.


[62] Goldsmith, ibid, 11.


[63] [2004] EWCA Civ 324.


[64] Chahal v United Kingdom (1996) 23 ECHR 413. See Lord Lester of Herne Hill and D Pannick, Human Rights Law and Practice (2nd ed, 2004), 182 [4.5.33]-[4.5.35].


[65] s 21(1) of the Act.


[66] [2004] EWCA Civ 324 at [13].


[67] [2004] EWCA Civ 324 at [34].


[68] Subsequently, the International Court of Justice, on a reference from the General Assembly of the United Nations, held that the construction of the wall or "fence" on Palestinian land was contrary to international law. See International Court of Justice, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, unreported, 9 July 2004. In the result, the General Assembly of the United Nations voted to condemn the building of the wall. Only five states voted against the resolution, including the United States, Israel and Australia. (A/ES-10L18/Rev.1 27th Session of the General Assembly, 20 July 2004).


[69] Such as the Law for the Restoration of the Professional Civil Service 1933 (Germ) and the Law for the Protection of German Blood and Honour 1935 (Germ). See discussion Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 415-417 [162]-[164]. Note the hortatory titles of these German laws: a practice that has spread.


[70] Beit Sourik Village Council v The Government of Israel, unreported decision of the Supreme Court of Israel sitting as the Israeli High Court of Justice [HCJ 2056/04], 2 May 2004. (Barak P, Mazza VP and Cheshin J concurring), pp 44-45 [86].


[71] Sydney Morning Herald, 24 July 2004, 1.


[72] See eg International Covenant on Civil and Political Rights, Art 15; European Convention on the Protection of Human Rights and Fundamental Freedoms, Art 7(1). The sub-article is not derogable. See Art 15(2).


[73] European Convention on Human Rights, Art 7(2).


[74] Art 38.


[75] Notably in an extensive Lateline programme on the Australian Broadcasting Corporation network in mid-2004.


[76] In this respect, in Australia, Mr Duncan Kerr MP in Opposition supported the assertion by Mr Tony Abbott MP, in Government, that the defence of Western civilisation will fail unless leaders are prepared to uphold its values with the same passion as those who attack them. One of the identified "values" was the rule of law. See D Kerr, "Australia's legislative response to Terrorism" (2004) 29 Alternative Law Journal 131 at 134.


[77] Adelaide Company of Jehovah's Witness Inc v The Commonwealth (1943) 67 CLR 116 at 124.


[78] Sydney Morning Herald, July 27, 2004, 10.


[79] 54 Stat 671; 18 USC (1946 ed) paragraph 11


[80] 341 US 494 (1950).


[81] Ibid at 511, per Vinson CJ for the Court.


[82] Ibid, 579.


[83] Ibid, 581.


[84] Ibid, 588.


[85] M D Kirby, "H V Evatt, the Anti-Communist Referendum and Liberty in Australia" (1992) 12 Australian Bar Review 93 at 95.


[86] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 141.


[87] Ibid, 143.


[88] Ibid, at 187-188


[89] M H McHugh, "The Strengths of the Weakest Arm", unpublished paper, address to the Australian Bar Association Conference, Florence, July 2, 2004, 10. See Al-Kateb v Godwin (2004) 78 ALJR 1099 at 1128 [149].


[90] Contrast Muir v The Queen (2004) 78 ALJR 780; Al-Kateb v Godwin (2004) 78 ALJR 1099; Behrooz v secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 78 ALJR 1056; Re Colonel Aird; Ex parte Alpert (2004) 78 ALJR 1451 and other recent cases.


[91] Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737.