Comments

This paper appears under the title ‘War on Terror’ as a chapter in Robert Manne (ed), 'Dear Mr. Rudd: Ideas for a Better Australia' (March 2008, Black Inc Books, pp. 127 – 143). This paper can also be referenced as [2008] UNSWLRS 1.

Abstract

According to Dr Johnson, ‘when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.’ Wondering whether you might be attacked by terrorists seems to have similar, if not always wonderful, effects. Certainly it concentrates, or at least galvanises, the minds of governments. Ours is no exception. From a standing start in 2001, when we had no national laws specifically dealing with terrorism, we have now enacted over forty-five.

There are laws defining, often in very broad terms, what will count as terrorist crimes, organisations, membership, advocacy, financing. Even without another attack, counter-terrorist activity will not stop there or soon. And when, not if, such an attack occurs, the pace will no doubt quicken again, particularly if the attack is spectacular or novel in any way, all the more so if it happens here. The pressure to be seen to ‘do something’ about unpredictable and deliberate acts of murderous destructiveness will never be resisted by democratic governments. Some will see this as a responsibility of their office (and if it isn’t, it is hard to see what is), others as an opportunity for exploitation, but every government will do something. The question is whether it is the right thing.

In debates around responses to terrorism, four terms constantly recur: terrorism itself, war, balance, and the rule of law. This article is organised around those terms. My concern is with things, not words; but what we think about things is closely connected to what we call them.

Disciplines

Public Law and Legal Theory

Date of this Version

March 2008