In his essay, Professor Tushnet urges us to identify those conditions which are favourable to effective political controls upon the exercise of emergency powers by government. He criticises as deficient any attempt to formulate the respective roles to be played by the judiciary and the political process in constraining such powers which fails to draw on empirical evidence on this score. In his exhortation to look at the lessons of political experience and to consider the degree of success with which non-judicial mechanisms have protected the liberties of individuals, I suspect Tushnet will meet with broad agreement from those whose work is concerned with assessing the impact of anti-terrorism measures.

A focus on the process and outcomes accompanying legislative initiatives is particularly important in a jurisdiction like that of my own, Australia, since the almost total absence of any laws dealing with terrorism before September 11, 2001Footnote ¹ has ensured that legal scholarship has had to look beyond its traditional preoccupation with judicial decisions. Additionally, the absence of any formal instrument of rights protection – constitutional or statutory – makes AustraliaFootnote ² a pristine parliamentary environment in which to test Tushnet’s theories.Footnote ³

It is first necessary to be clear about terminology. I do not demur from the key definitions with which Tushnet commences his discussion, but should state that I appreciate them as having a fairly flexible application. Living in a jurisdiction (like the United States) with no express constitutional mechanism for the declaration of an ‘emergency’ upon which predetermined ‘emergency powers’ are activated – to say nothing of these enabling derogation from guarantees of human rights protection, necessarily means that I approach these concepts with particular latitude. I do not think that this prevents sober assessment of Tushnet’s arguments nor forecloses useful insights which might be gained from our practice of parliamentary governance. The fact that Tushnet’s essay makes little direct reference to the formal declaration of states of emergency, but appears to consider more broadly the way in which governments respond to crises of indeterminate duration seems to leave the field open for a broad range of experiences.Footnote ⁴

While the ongoing threat of terrorism post-2001 has not been portrayed as an ‘emergency’ in Australia, there can be little doubt that the public and political debate about how best to balance national security with liberty has been heavily imbued with the idea of exceptionalism.Footnote ⁵ Drawing quite selectively on elements of the argument by Canada’s Attorney General, Irwin Cotler,Footnote ⁶ the Commonwealth government has stressed the importance of sacrificing civil liberties in order ‘to protect human rights by protecting human security’.Footnote ⁷ The distortion of this argument has been to the extent that the concept of human security is presented not as a ‘necessary precondition to the exercise of human rights but rather as a primary, almost inviolable, human right in and of itself’.Footnote ⁸ It has become the stock response to any criticism of new laws expanding executive power. Policies defended on the basis that things are so bad that concerns over how we live must cede to simply preserving our existence is the sort of reasoning we would expect to find in a state under siege.

This is, I am sure, consistent with the tenor of debates elsewhere, and seems to me just as amenable to Tushnet’s framework as the explicit recognition of an emergency. Essentially, I understand his question to be asking how we might stop the expansion of the powers of the state and the erosion of individual freedoms caused by appeals to exceptionalism. The scenario supporting such an appeal may take any number of the forms he indicates – military, economic or medical crisis – but this comment proceeds on the footing that the continued threat of terrorist attack facing liberal democracies is the most challenging paradigm within which to consider Tushnet’s question.Footnote ⁹

Some authors have attempted to formulate very precise and impressively optimistic solutions to this problem.Footnote ¹⁰ Tushnet eschews prescription of any particular model, but instead seeks to challenge the assumptions upon which those approaches often rest. He looks more broadly to the general issue of what best constrains exceptionalism and its consequences, particularly as to the protection of human rights – law or politics? The fundamental difficulty with this inquiry is that it is founded on a false dichotomy between these two forces. Tushnet would reject the suggestion that his essay is premised upon the mutual exclusion of judicial and political controls – and, to be clear, he does expressly recognise that both are available in the constrained parliamentary systems he has in mind, and even that some role for legal controls should be reserved.Footnote ¹¹ But nevertheless, when he writes that he thinks it ‘clear that as between equally effective political and legal controls, political controls are preferable’,Footnote ¹² he conveys perfectly his view of these as being in competition with each other.

To approach the problem in this way is, I would submit, highly artificial. It fails to recognise that the very existence of legal controls, regardless of whether they are ever resorted to in a particular situation, necessarily informs and shapes the contours of the political debate. Tushnet’s presentation of the Arar affair tends to support his disjuncture between the two forms of constraint, but his decision to use this episode to demonstrate the weakness of legal mechanisms is, I think, less than satisfactory. For one thing, contrasting the speed with which the Canadian political process produced a result for Arar with his slow and unsuccessful action for compensation in the United States court system seems a trifle unwieldy. Secondly, while the Arar Commission certainly criticised the information which Canadian officials had provided to their American counterparts in regard to Arar, it did not find they had ever discussed, participated or even acquiesced in the American decision to detain him and transport him to Syria.Footnote ¹³ In short, while the faulty intelligence was a serious error and something for which the government admitted accountability by compensating Arar, it hardly seems the best example of an executive consciously adopting a strategy or seeking a legislative enactment which involved a resort to emergency powers. Lastly, and to my general point, while the Royal Canadian Mounted Police raid on the journalist O’Neill appears to be the strongest precipitating event, the initiation of litigation in the United States was hardly likely to have been of no relevance in the government’s decision about a week later to announce the establishment of the Commission.

For a clearer case study demonstrating the benefits to rights protection when political and legal controls interact, the recent experience in the United Kingdom is instructive. Despite an early indication that the courts would not undermine political judgement exercised in the efforts to prevent terrorism,Footnote ¹⁴ in A v. Secretary of State for the Home Department (the Belmarsh case)Footnote ¹⁵ the House of Lords, in accordance with section 4 of the Human Rights Act 1998 (UK), declared indefinite detention of non-nationals assessed as a risk to national security to be incompatible with obligations under the European Convention on Human Rights.Footnote ¹⁶ But this did not simply mean that legal controls had trumped the political ones, since the point of such a declaration is, of course, that the ball is back in the political court. The Blair government chose to respond to the case not, as it is permitted to do, by maintaining the legislation regardless, but instead by replacing the existing policy with a scheme for the issuing of control orders under a new statute, the Prevention of Terrorism Act 2005 (UK). The passage of that legislation in March 2005 was a battle of wills between the House of Commons and the Lords, resulting in the longest ever sitting day (over thirty hours) in the history of the latter chamber. Opponents of the Bill sought to amend it by the insertion of a sunset clause, as well as a number of other safeguards. Deadlock between the two houses was only broken by the government agreeing to review operation of the scheme later in the year.

While some elements of the response to the decision in the Belmarsh case are unsatisfactory,Footnote ¹⁷ it is difficult to look at the episode as a whole and then untangle the judicial and political contributions into a neat binary classification enabling us to discern which had been most effective in protecting rights. This is due, of course, to the fact that under most modern Bills of Rights, particularly those which are statutory rather than constitutionally entrenched, rights protection is explicitly recognised as a shared undertaking. To talk of one set of controls effectively in isolation from the other, as Tushnet attempts to do in this essay, ignores the importance of dialogue theory in appreciating how different institutions in a non-US style system can respond to each other on rights matters.Footnote ¹⁸ It also fails to credit political actors with much, or even any, interest in how legal controls might eventually be brought to bear upon their decisions.Footnote ¹⁹

But this cannot reflect reality. As Bonner has demonstrated through his consideration of the enactment of three emergency laws by the United Kingdom Parliament – the Prevention of Terrorism (Temporary Provisions) Act 1939, the Prevention of Terrorism (Temporary Provisions) Act 1974 and the Prevention of Terrorism Act 2005 – the importance of civil liberties at the time of conceiving, drafting and enacting those statutes has demonstrably grown in step with the availability of judicial review – first in Strasbourg and then through the domestic mechanism provided by the Human Rights Act – against an instrument of rights protection.Footnote ²⁰ By contrast, Tushnet’s discussion of the passage of just the first of these laws suggests that the political process worked reasonably well in curbing executive overreach. This rosy picture of the 1939 Act is distinctly at odds with analysis by Lomas of the Cabinet documents from the time.Footnote ²¹ While he found that the Bill was altered in some respects by the government in apprehension of parliamentary opposition, he rightly distinguished those from concerns ‘on individual liberty grounds as such’.Footnote ²² Lomas highlighted the insufficiency of parliamentary process as a safeguard by concluding:

The existence now of legal controls via the Human Rights Act remedies that situation by providing a stronger incentive for the executive to consider the impact of its emergency or exceptional legislation upon individual liberties more fully. It seems that the Belmarsh decision was necessary to demonstrate to the government the consequences of failing to do so.Footnote ²⁴ Essentially, the existence of clearly accessible judicial restraints upon government must enhance the operation of political controls to the same end. A clear manifestation of this is the formal requirement under the Act that the relevant minister must declare before Parliament that ‘in his view the provisions of the Bill are compatible with the Convention rights’.Footnote ²⁵ The development of the Joint Committee on Human Rights and its impact upon parliamentary business is another example of how ‘control’ of government benefits from a holistic framework. Tushnet acknowledges the contribution of the Joint Committee when considering the positive impact which ‘rights-vetting institutions’ may have upon the law’s regard for civil liberties, but he does not appear to think that the strength and standing of those agencies is necessarily dependent upon the existence of some significant process for judicial review at which concerns over human rights will also be addressed.Footnote ²⁶ The protection of rights is better secured by interlocking safeguards at both ends of the process.

My view that this ultimately answers Tushnet’s quest for discovering ‘the conditions under which politics in a parliamentary system can control the executive government’s exercise of emergency powers’ is borne particularly out of experience in the Australian jurisdiction, where the lack of legal controls has meant that the protection of human rights in responding to the terrorist threat has been left prey to the vicissitudes of politics. It is not to the point that Tushnet offers his arguments with the assumption that some capacity for judicial involvement exists, nor that he caveats that the conditions for effective political controls will not ‘always, or even often, occur’.Footnote ²⁷ His essay is fundamentally premised on a sharp divide between the two and makes plain his preference for political mechanisms over constraints arising from the judicial arm of government. The lesson from Australia is that political controls will be severely impoverished by the absence of legal ones.

For the first few years of counter-terrorism law-making, the Howard government did not control the Senate in the Commonwealth Parliament and this did enable the opposition and minor parties to extract some important concessions on the major Bills as they were initially presented.Footnote ²⁸ In particular, the plans to confer upon the Australian Security Intelligence Organisation the power to question, detain and strip-search any persons, including children as young as ten, for indefinitely renewable two-day periods without them being able to contact anyone, including a lawyer, for the first forty-eight hours and being obliged to answer all questions put to them or face a jail term of up to five years, met with substantial objections.Footnote ²⁹ Two parliamentary committees scrutinised the original Bill and produced bipartisan reports urging its amendment.Footnote ³⁰ While that Bill and others were able to be amended to strengthen their respect for civil liberties, the process essentially resembled a parliamentary obstacle course rather than the direct and consistent application of human rights principles.Footnote ³¹ Undoubtedly the deficiency of the debate on this score is due to the lack of a clearly articulated language and culture of rights in Australia, which a formal instrument – primarily a legal control, let’s not forget – would provide for the benefit of the political process.

Since 2005, the Howard government has had a majority in both houses and this has essentially freed it from the prospect of seeing its legislative agenda blocked.Footnote ³² Following the London bombings in July of that year, a raft of quite unforeseen initiatives including enhanced powers of detention, a scheme of control orders and a revamped offence of sedition was announced in September.Footnote ³³ The agreement of State and Territory leaders – all from the party in opposition at the federal level – was secured after a ‘summit’ lasting barely two hours.Footnote ³⁴ The legislation was duly introduced into the Commonwealth Parliament in November – on the heels of the prime minister announcing an ‘imminent terrorist threat’ to the nation which led police to move against persons they had had under surveillance for the last eighteen months.Footnote ³⁵ An initial proposal to give the relevant Senate Committee just a few days to hold an inquiry into this large Bill was altered to allow it three weeks in total to call for and receive submissions, interview witnesses and produce a report. The legislation, essentially intact, was passed into law in the first week of December.

Despite the presence of every single one of the political controls in which Tushnet invests so much confidence – the occasionally conscientious backbenchers, unfavourable findings by parliamentary committees and other bodies, ‘leaking’ civil servants,Footnote ³⁶ an engaged media and energetic contributions to the debate by civil society – the enactment of the Commonwealth’s Anti-Terrorism Act (No 2) 2005 is a perfect illustration of their limited effectiveness without a judicial counterweight to executive dominance.

In 2006, no fewer than three major inquiries reported adverse findings on various aspects of the Commonwealth’s anti-terrorism laws and recommended substantial changes. One of those was the Australian Law Reform Commission (ALRC) inquiry into the modernised sedition offence which was held as a condition for securing the support of a few prominent government backbenchers for that aspect of the legislation.Footnote ³⁷ But what good is that as an example of political control when the government managed to ignore the ALRC report and the parliament’s attention has since turned to other topics? The two other committees – one under the auspices of the Attorney General’s Department but independently constituted and the other the standing Parliamentary Joint Committee on Intelligence and Security – were highly critical of the actual effectiveness, never mind the impact on human rights, of the central terrorism crimes and yet their reports have also prompted no reaction from the government.Footnote ³⁸

Political controls may produce good outcomes on occasion and they are an integral part of our democratic approach to solving public issues including debates over human rights. But they are highly vulnerable to the prevailing winds on the political landscape. Tushnet asks under what conditions those controls would operate more effectively than courts in controlling the excesses of a government invoking emergency powers. But his inquiry is misconceived – an essential condition for the enhancement of political controls is the presence of legal ones, as I have sought to illustrate by my brief foray contrasting recent developments in the United Kingdom and Australia. Although Tushnet has attempted to get to grips with modern parliamentary governance, his inability to distance himself from the United States model leads him to underestimate both the potential strength of ‘weak’ judicial review and also its vital importance in promoting, not rivalling, strong political mechanisms for human rights protection.

Those of us without the benefit of legal recognition of our basic rights know only too well that political controls in such circumstances can also make pretty weak reeds.