Introduction
The terrorist attacks of September 11, 2001, in the United States sent shockwaves around the globe, igniting what would come to be known as the “War on Terror.” This conflict prompted an unprecedented shift in legal frameworks aimed at preventing terrorism, with nations rallying under mandates like the United Nations Security Council Resolution 1373 (2001). Australia in particular responded with a series of sweeping anti-terrorism laws that introduced measures such as control orders, preventative detention, and enhanced surveillance. Initially framed as extraordinary responses to an unprecedented threat, these legal tools have remained largely intact over two decades later. As the urgency of the war on terror fades from public consciousness, these measures have undergone a process of “normalisation,” transforming from exceptional responses into standard instruments of governance, now largely free from the scrutiny and temporal limits that were once deemed necessary.
In Australia, this normalisation has not only entrenched anti-terrorism laws but has also facilitated their adaptation to unrelated legal domains, spanning from organised crime to public health emergencies. This expansion has led to increasingly extreme measures that challenge the core constitutional values of liberty, privacy, due process and the rule of law – principles that are foundational to Australia’s democratic system. Through detailed case studies, including Thomas v Mowbray (2007), the application of preventative detention, and the repurposing of anti-terror tools during the COVID-19 pandemic, we can explore how the legal responses to the war on terror have become a permanent fixture in Australian governance, with profound and potentially irreversible implications for the nation’s constitutional framework.
The Expansion of Legal Frameworks Post-9/11
In the aftermath of the September 11 attacks, Australia, like many nations around the globe, witnessed a profound transformation in its legal landscape, particularly concerning anti-terrorism legislation. The urgency of national security, driven by both domestic imperatives and international pressures, catalysed the swift passage of over 40 pieces of legislation by the Commonwealth Parliament between 2001 and 2005. This legislative surge marked a significant shift in the balance between civil liberties and state security, raising important questions about the long-term implications of such measures.
One of the cornerstone pieces of legislation during this period was the Security Legislation Amendment (Terrorism) Act 2002. This Act not only broadened the definition of terrorism but also introduced a suite of new offences that reflected an increasingly aggressive stance against perceived threats. The expansion of the legal framework to encompass a wider array of activities under the umbrella of terrorism signaled a pivotal moment in Australia’s approach to national security. Furthermore, the Anti-Terrorism Act (No. 2) 2005 introduced control orders and preventative detention orders (PDOs), significantly enhancing the powers of the Australian Security Intelligence Organisation (ASIO). These measures allowed for the detention of individuals without charge, imposed restrictions on their movements, and permitted warrantless searches – actions that represented a radical departure from traditional legal norms and civil liberties.
On the international stage, the United Nations Security Council Resolution 1373 played a crucial role in shaping Australia’s domestic laws. This resolution mandated that states criminalise terrorist financing, bolster border controls, and enhance cooperative efforts in counter-terrorism. The alignment of Australia’s legislative framework with these international standards further underscored the global consensus on the necessity of robust counter-terrorism measures in the wake of a new and unpredictable threat landscape.
The Howard government, in its response to the heightened threat of terrorism, closely aligned itself with the United States, framing these legislative measures as essential to combating an existential threat. The rhetoric employed during this period often invoked the notion of a “new kind of war,” one that necessitated extraordinary powers and swift action. However, this justification was accompanied by an implicit promise: that such powers would be temporary, wielded only in the face of immediate crises and relinquished once the threat had abated.
Regrettably, the promise of temporality surrounding these expansive powers has not been realised. Instead, the legislative framework has been subject to renewal, refinement, and expansion, effectively normalising these extraordinary measures within the legal landscape of Australia. The initial intention to utilise these powers as a temporary response has evolved into a situation where they are entrenched in the fabric of the nation’s legal and political discourse.
The implications of this shift are profound. The normalisation of such powers raises critical concerns regarding the erosion of civil liberties, the potential for abuse, and the chilling effect on dissent and free expression. As these laws become increasingly embedded in the legal system, the challenge lies in balancing the imperative of national security with the fundamental rights and freedoms that underpin a democratic society.
Normalisation: From Exceptional to Unexceptional
The process of normalisation occurs when emergency measures shed their exceptional status and become routine. In Australia, this phenomenon is vividly illustrated through legislative persistence, judicial endorsement, and societal acceptance. A pivotal case study in this context is Thomas v Mowbray (2007), which tested the constitutionality of control orders under Division 104 of the Criminal Code Act 1995. Jack Thomas, an Australian citizen suspected of training with al-Qaeda, became the first individual subjected to a control order in 2006. This order restricted his movements and associations despite insufficient evidence for a criminal conviction. Thomas challenged the order, arguing that it violated the separation of powers by delegating punitive functions to the judiciary without due process. In a 5-2 decision, the High Court upheld the measure, ruling that control orders were a legitimate exercise of the Commonwealth’s defence power and not an unconstitutional overreach. This landmark decision effectively normalised control orders, transforming them from an emergency tool into a judicially sanctioned mechanism, despite their reliance on suspicion rather than proof.
Preventative detention orders provide another lens through which to examine the process of normalisation. Introduced under the Anti-Terrorism Act (No. 2) 2005, PDOs allow federal police to detain individuals for up to 48 hours (or 14 days under complementary state laws) to prevent an imminent terrorist act or preserve evidence after an attack. Although their use has been rare – documented only three times between 2005 and 2018, including during the 2014 Sydney Lindt Café siege – their retention in law, coupled with periodic renewals (such as the 2018 extension of PDO provisions), signals their acceptance as a permanent fixture in the legal framework. Public and political discourse has largely shifted from questioning their necessity to debating their scope, reflecting a cultural normalisation that desensitises society to their radical implications.
This process extends beyond specific measures to broader surveillance regimes. The Telecommunications (Interception and Access) Act 1979 was amended in 2015 to mandate two-year data retention by telecommunications providers, framed as essential for terrorism investigations. Over time, however, its application has broadened to encompass routine criminal inquiries, with over 293,000 metadata access requests by law enforcement in 2019-2020 alone. This shift – from a targeted anti-terror tool to an everyday policing asset – exemplifies how normalisation erases the boundaries between emergency and ordinary governance.
Adaptation Beyond the Anti-Terror Context
The normalisation of anti-terrorism measures has enabled their adaptation to diverse legal contexts, often resulting in more extreme outcomes. One clear example is the transposition of control orders and association offences into organised crime legislation. The Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 introduced anti-association laws modelled on anti-terror precedents, targeting bikie gangs and criminal networks. In South Australia, the Serious and Organised Crime (Control) Act 2008 empowered the Attorney-General to declare organisations unlawful based on secret evidence, a mechanism reminiscent of ASIO’s intelligence-driven approach. The 2013 case of Assistant Commissioner Condon v Pompano Pty Ltd tested this regime when a bikie group challenged its declaration. The High Court upheld the law, accepting the use of undisclosed information despite its impact on fair trial rights, further embedding anti-terror principles in non-terror contexts.
A more dramatic adaptation emerged during the COVID-19 pandemic, when anti-terror tools influenced public health enforcement. In Victoria, the Public Health and Wellbeing Act 2008 was amended in 2020 to grant authorities sweeping powers to detain individuals, restrict movement, and enforce quarantine – measures that echoed PDOs and control orders. During Melbourne’s 2020 lockdown, police detained high-risk individuals, such as repeat quarantine violators, without immediate judicial review, while drone surveillance monitored public compliance. These actions, justified as necessary for public safety, mirrored the preventative logic of anti-terror laws, demonstrating how normalised frameworks can be repurposed under new pretexts. The public’s broad acceptance of such measures – evidenced by minimal resistance to Victoria’s 112-day lockdown – underscores how acclimatisation to anti-terror powers has paved the way for their expansion.
This adaptability is not limited to emergencies. In 2019, the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act drew on anti-terror surveillance principles to criminalise social media platforms’ failure to remove violent content, imposing penalties of up to 10% of annual turnover. While aimed at preventing radicalisation, its scope – covering any violent act – extends far beyond terrorism, illustrating how normalised tools can spawn broader, more intrusive laws.
The Permanent Impact on Constitutional Values
The landmark decision in Thomas v Mowbray serves as a pivotal point in this discourse. This case fundamentally weakened the rule of law by legitimising executive-initiated restrictions that circumvent traditional evidentiary standards. In doing so, it blurred the critical line between judicial oversight and punitive action, raising alarm bells about the implications for civil liberties. Justice Michael Kirby’s dissenting opinion stands out as a prophetic warning against a “slippery slope” toward unchecked executive power. His concerns have materialised in subsequent developments, where the precedents set by this case have fostered an environment in which governmental authority can expand unchecked.
The application of preventative detention, most notably illustrated during the Lindt Café siege, epitomises this erosion of due process. By prioritising pre-emptive action over the fundamental principle of proof, this approach undermines the core tenets of justice. The detention of individuals based solely on intelligence assessments – without formal charges or judicial oversight – has set a precarious precedent. Such measures represent a stark departure from the venerable principles of habeas corpus, which protect individuals from arbitrary detention. The implications of this shift are far-reaching, as they allow for state actions that evade judicial accountability, thereby jeopardising the rights of citizens.
Moreover, the extraordinary measures taken during the COVID-19 pandemic, particularly in Victoria, have further stretched the boundaries of privacy and liberty to their limits. The introduction of warrantless entries and mass surveillance has become a routine aspect of governmental response, normalising practices that would have previously raised significant ethical and legal concerns. The systemic retention of personal data has transformed Australia into a surveillance state, where citizens’ digital lives are perpetually monitored. This reality starkly contrasts with the original anti-terror intent, revealing a troubling trajectory toward an erosion of privacy that demands urgent scrutiny.
Judicial deference has amplified these threats to individual rights and liberties. In the case of Pompano, the High Court’s acceptance of secret evidence further undermined the right to a fair trial. This trend, traceable back to anti-terror cases like Thomas, illustrates a concerning willingness of the judiciary to acquiesce to executive overreach. Such judicial deference creates a feedback loop, wherein normalised laws pave the way for increasingly extreme measures, each upheld as a logical extension of its predecessor. The cumulative effect of these developments is a permanent recalibration of the state-citizen relationship, wherein security considerations increasingly overshadow the rights of individuals.
As we reflect on these critical issues, it becomes evident that the foundational principles of the rule of law, separation of powers, and individual rights are at risk. The lessons drawn from Thomas v Mowbray, the implementation of preventative detention, and the adaptations made during the COVID-19 pandemic should serve as a clarion call for vigilance and advocacy. It is imperative that we, as a society, engage in robust discussions about the trajectory of our constitutional values and the necessity of safeguarding them against encroachments that threaten the very fabric of our democracy.
Conclusion
Australia’s legal response to the war on terror, once framed as a temporary bulwark against an extraordinary threat, has evolved into a permanent fixture of governance. Through normalisation – evidenced in Thomas v Mowbray, preventative detention, and surveillance regimes – these measures have lost their exceptional status, becoming unremarkable tools of state power. Their adaptation to organised crime, public health, and beyond, as seen in Victoria’s COVID-19 response and bikie laws, has spawned even more extreme measures, each challenging the constitutional values of liberty, privacy, and due process.
This trajectory serves as a stark warning: emergency powers, once normalised, rarely recede. For Australia, the task is urgent – to scrutinise these frameworks, repeal what is unnecessary, and restore the primacy of democratic principles. Without such action, the war on terror’s legal legacy will endure not as a relic of a past conflict, but as a living force reshaping the nation’s constitutional soul.
