Australian anti-terrorism law as hyper-legislation

This paper will exhibit aspects of Australia’s anti-terrorism law as instances of the phenomenon of hyper-legislation. Although much of this law takes the form of criminal law – that is, the establishment of general legal norms prohibiting conduct on pain of punishment – careful attention to the details of the legislation, and to its interaction with legislative regimes conferring powers upon intelligence and law-enforcement agencies, suggests that its true character is the conferral of extensive and highly discretionary power upon those agencies. The paper will further argue that prosecutorial practices bear out this conjecture. The paper will go on to analyse tensions that this legislation reveals in our legal understanding of the power to criminalise conduct, and the power of the executive to manage matters of national security and international relations. Finally, the implications of this tension for our understanding of the rule of law will be addressed.