(Laureate Fellowship – Professor George Williams)

Information about the Project

In June 2009, Professor George Williams (Anthony Mason Professor of Law and Foundation Director, Gilbert + Tobin Centre of Law) was awarded an Australian Research Council (ARC) Laureate Fellowship for his project entitled ‘Anti-Terror Laws and the Democratic Challenge’.

The ‘Anti-Terror Laws and the Democratic Challenge’ project represents the next phase in public law research on the anti-terror laws enacted after 11 September 2001. Anti-terror laws can no longer be cast as a transient, exceptional legal response to the events of 11 September 2001 and later attacks in, for example, Bali, London and Madrid. Whether or not the laws are justified as a matter of legal policy – a subject of great contention – they are, in one form or another, clearly here to stay.

The overarching aim of this project is to answer the question of how democratic nations (especially Australia, Canada, India, New Zealand, the United Kingdom and the United States) can best reconcile traditional democratic processes, institutions, principles and individual freedoms with the likelihood that anti-terror laws granting war-time powers will remain in place for the foreseeable future. The democratic challenge posed by anti-terror legislation will be addressed through two complementary research objectives.

First, the project will provide detailed, comparative legal analysis of the scope and operation of the anti-terrorism laws in the aforementioned nations. This is a vital aspect of the project because, despite the volume of literature, much about the laws in nations such as Australia and India, and especially the comparisons between them, remains to be examined and understood. This research is also necessary because the anti-terror laws are far from static. It is the comparative focus of this project that distinguishes it from the 2005-2009 project entitled ‘Terrorism and Public Law after September 11’.

Second, the project will answer specific questions of public law theory and institutional design central to the democratic challenge posed by anti-terror laws. These questions include:

• Do the public law systems of the selected nations have human rights mechanisms sufficient to provide an adequate check on such laws? Given their relative effectiveness, what does this say about those mechanisms and the anti-terror laws?
  
  
• Do the public law systems of the selected nations have other public law and institutional mechanisms sufficient to provide an adequate check upon such laws (for examples, through institutions such as parliament and the courts and principles such as the rule of law, the separation of powers, federalism and judicial review)? Given their relative effectiveness, what does this say about those mechanisms and the anti-terror laws, and have the anti-terror laws reshaped those mechanisms?
  
  
• Do the public law systems of the selected nations contain sufficient oversight and review mechanisms to ensure the proper operation of such laws, such as that they operate within legal bounds and that the laws continue to be monitored so that they reflect the changing threat level?
  
  
• To what extent have exceptional aspects of the anti-terror laws become normalised or applied elsewhere? Is there a ‘new normal’ after September 11 such that the exceptional has become acceptable? To what extent are such laws constrained by time limits such as sunset clauses, and to what extent should they be? Where have exceptional features of the laws (for example, new evidence gathering techniques or restrictions on the grant of bail) ‘leaked’ into other areas of law? Or, where have traditional values been reasserted despite the open-ended nature of the threat of terrorism?
  
  
• How have international norms and rules been adapted or not adapted through reception into domestic law? Why has a more coherent and consistent response to the problem of terrorism not yet emerged in democratic countries?
  
  
• Has there been a fundamental, historic shift in democratic public law systems? What will be the long-term impact on democracies of anti-terror laws? Is this impact acceptable from the perspective of public law policy and design, and if not are legal changes required to secure both the protection of the community from terrorism and the future health of democratic systems?

Related Gilbert + Tobin Centre Projects and Resources

Since 2002, members of the Gilbert + Tobin Centre have conducted research on the counter-terrorism laws in Australia and overseas under the auspices of the ‘Terrorism and Law’ project. The current director of this project is Nicola McGarrity.

Available on the Gilbert + Tobin Centre’s website are a range of resources for individuals or organisations researching the legal dimensions of responses to terrorism.

The Terrorism and War Archive is a repository of publications by Centre staff on the topic of counter-terrorism law. It includes: academic journal articles, media interviews and opinion pieces, and submissions made to independent and parliamentary inquiries.

The Terrorism Web Resources provides links to major sites dealing with the topic of counter-terrorism law in Australia and overseas.

Finally, there is a Stocktake of Terrorism Prosecutions in Australia. This page provides a list of all the persons who have been charged with and, in some cases, tried for terrorism offences in Australia. By clicking on the name of a person, you will be directed to another web-page with detailed information about him or her.