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.
In order to frame the panel discussion, this paper defines the phenomenon of hyper-legislation and outlines the constitutional problems that it poses. Roach coined the phrase “hyper-legislation” to describe Australia’s legislative response to the 9/11 terrorist attacks. Arguably, the phenomenon extends beyond the national security realm. The Australian legal system is now populated by innumerable and often prolix statutes, many of which confer expansive powers on the executive. This bespeaks a broader shift in the way in which statutes are used: statutes are now often used to create a legal framework within which the executive can act, rather than to communicate legal norms to “the people”. An appreciation of this practice may illuminate the answers to three fundamental constitutional questions: what are the requirements of the rule of law? What is the correct objective and method of statutory interpretation? And, what is the purpose and scope of judicial review of executive action?
This paper will outline the phenomenon of hyper-legislation in an Australian (i.e. federal) context and then consider judicial responses to it. It will do so with particular reference to the principle of legality. That inquiry will consider also the role which the principle may increasingly play to ensure that proper consideration is given in statutes to rights, freedoms and principles when the legislative process – specifically its dominance by the executive – is deficient in this regard. It will be suggested that the principle of legality operates already as prophylactic fundamental rights presumption and that this function becomes increasingly important in the circumstances of hyper-legislation. More controversially, it will be argued that the courts may, quite properly, “pick up the slack” and deploy its considerable interpretive powers to those statutes that emerge from a legislative process which fails to give due and careful consideration to fundamental rights.
Two particular features of hyper-legislation are the broad discretion that laws confer on government officials, and the extent to which they authorise officials to make decisions that restrict fundamental rights. These issues pose a challenge for courts, whose role it is to ensure that discretionary powers are exercised lawfully while respecting the mandate of democratically elected governments to assess risks to national security and to determine government policy accordingly. We assess judicial
practices in reviewing decisions ostensibly taken for national security. Our research reveals that judges rely on a variegated approach to deference that affords different degrees of scrutiny to (1) the existence of a security threat and (2) the appropriateness of government action taken in that context. We then analyse the normative and practical considerations influencing adjudicatory practice in this area and assess this approach in terms of the separation of powers and rights protection.