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Issue 24: Feb 2008
Book Review - Law and Liberty and the War on Terror Print E-mail

book_law_and_liberty.jpgEdited by Andrew Lynch, Edwina MacDonald and George Williams

Publisher: The Federation Press1

Reviewer: Stephen Keim SC

It is the first week of December 2007. I open with anticipation a collection of essays discussing anti-terrorism legislation in the context of traditional civil rights and rule of law values2.  This latest project of Professor George Williams’ Public Law Centre at University of New South Wales has landed, this day, from the publisher to be reviewed. I open the book and notice that the first essay is by one Philip Ruddock.

Oh, the woes of publishing! The best laid plans and all that jazz. The ink is hardly dry. But, post November 24, P. Ruddock is sooooooo yesterday’s Attorney-General.3

Don’t misunderstand me. The passing of P. Ruddock, along with J. Howard and P. Costello does not diminish, for one moment, the importance of informed discussion of the plethora of anti-terrorism legislation that has emerged from Australia’s Parliaments over the last five years. There is no guarantee, yet, that a Rudd government will either turn back the clock or restrain from launching its own potentially more draconian laws in the name of its own war on terror.

Even the Ruddock essay, entitled Law as a Preventative Weapon Against Terrorism, is a salient reminder of the terms on which the old regime conducted the debate. He is big on phrases like “getting the balance right” and “there is no point in having a Constitution and its protections if no one is alive to live under it”. No matter how down and dirty Philip Ruddock got, he was still filing applications claiming the high ground.

If you look closely, however, the reality of his position shines through. The former Attorney-General concludes making a point on preventative detention with the words: “Even Sir Gerard Brennan and Sir William Deane … acknowledged as much”. He defines himself so far at the other end of a spectrum from two respected and conservative former High Court judges that, if they concede a point, it must be universally acknowledged. Not too many lawyers would choose to thus define themselves.

There are other defenders in the text of the status quo comprised by the existing legislative structure. The (still) Secretary of the Attorney-General’s Department, Robert Cornall AO, since famous for lodging a complaint to the Judicial Commission of New South Wales against Justice Adams of the New South Wales Supreme Court for doing what that judge took an oath or affirmation of office to do: making rulings in cases before him and giving reasons for those decisions is the author of such an essay entitled The Effectiveness of Criminal Laws on Terrorism4.  Interestingly, Mr. Cornall, in his essay, quotes liberally, to support his defence of the legislation, from rulings in other cases where, presumably, the result for the prosecution must have been more favourable than in the case which led to his complaint against Justice Adams. He seems unlikely to quote Justice Adams’ ruling in the same context.  At least, Mr. Ruddock, when he had backed the wrong legal horse, always had the chutzpah to claim that it showed that “the system was working”.

It would be churlish for this reviewer to linger on those essays which failed to find favour when so much of the discussion in Law and Liberty is of extremely high quality and full of interest.

Sarah Joseph in Torture: the Fallacy of the Ticking Bomb and Neil James, executive director of the Australia Defence Association and original author of the Australian Defence Force’s interrogation manual, in an essay entitled Torture: What is it, Will it work, Can it be Justified?, separately, take apart and demolish the arguments of writers such as Mirko Bagaric5 and Alan Dershovitz6,  who argue for a return to an era of legally sanctioned torture.

Sarah Joseph considers the definition of torture in international conventions and its absolute prohibition in international law. She puts forward the non-consequentialist argument against relaxing the absolute prohibition on torture, namely, that it is a complete affront to and negation of the human dignity of both the victim and the perpetrator. She also examines the consequentialist arguments in favour of legalising torture. She points out that proponents like Bagaric often understate the long term effect of torture on both victims and perpetrators and the community. She also points out that the so-called ticking bomb justification of allowing torture in certain restricted circumstances is based on certainties (the victim has the knowledge of where the ticking bomb is and how to dismantle it and will respond with honest information, etc.) which almost never occur in practice.

Neil James brings to the discussion his own and others’ long experience as professional interrogators. From this personally informed perspective, he further debunks the presumed certainties of the ticking bomb justification. By detailing the reality of legally sanctioned and regulated torture as it operated in 17th century England, he manages to transcend the niceties of academic argument as practised by Bagaric, Clarke and Dershovitz. His closing paragraph strikes home:

“The arguments against torture by warrant are not just legal and moral. They are also practical in that professional interrogators know that torture is both unlikely to work and unnecessary as a purported form of intelligence gathering.”

Generally, the articles in Law and Liberty are well argued; interesting; and deal with important subjects. In addition to the two articles on torture already discussed, I particularly enjoyed Katherine Gelber’s When are Restrictions on Speech Justified in the War on Terror? and the concluding article by editor, Andrew Lynch, Achieving Security, Respecting Rights and Maintaining the Rule of Law.7  Andrew Lynch points out that frameworks for justifying legislation such as the simplistic balancing of lost rights for security or the equally simplistic claim that, since the right to life is paramount, it may be protected by stripping away other rights represent false dichotomies. As Lynch says: “… it should be acknowledged that a commitment to a range of human rights helps, rather than hinders, the objective of security”.8

The Public Law Centre at University of New South Wales and the Federation Press have succeeded in producing an important contribution to the debate on appropriate law and order responses to some of the more prominent law and order challenges of our time. As Sir Gerard Brennan said, in concluding his Foreword to the collection:

“The chapters in this book cannot be dismissed as mere academic analyses. They have to do with the lives and aspirations of all Australians. They ask whether Australia is, and whether it will be, a united, secure, free and confident nation”.

Stephen Keim SC

Footnotes

  1. The recommended retail price is $49.95. The book may be acquired direct from the publisher at $45. See the relevant page in the publisher’s web site at http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862876743 .
  2. For an interesting incident that occurred at the seminar which provided the origins of the collection of essays, see http://sydney.indymedia.org.au/node/51343 .
  3. The book was only released on 5 December 2007.
  4. For a report of the complaint against Justice Adams, see http://www.theage.com.au/articles/2007/12/25/1198345010234.html. The ruling led to the collapse of the charges against recently graduated Sydney medical student, Izhar ul-Haque.
  5. See Mirko Bagaric and Julie Clarke, Not enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable, (2005) 39 University of San Francisco Law Review 581; Mirko Bargaric and Julie Clarke, The Torture Debate: Tortured Responses (A Reply to our Critics), (2006) 40 San Francisco Law Review 703.  Bargaric also pops up in the Op-Ed pages of national dailies when the Op-Ed editors are hard pressed by Miranda Devine; Christopher Pearson and Piers Akerman all selfishly taking their holidays together.  See for example http://www.theage.com.au/news/Opinion/A-case-for-torture/2005/05/16/1116095904947.html and http://www.theaustralian.news.com.au/story/0,25197,23013964-7583,00.html. For an excellent analysis of Bagaric’s broader interests, see the article by Tony Morris QC at http://www.news.com.au/couriermail/story/0,23739,22353492-27197,00.html.
  6. See Alan Dershovitz, Why Terrorism Works (2003) ch 4 Should the Ticking Time Bomb Terrorist be Tortured? and Alan Dershovitz, Tortured Reasoning in Sanford Levinson ed, Torture: A Collection (2004) 257.
  7. The one typographical error I found was in this chapter where Kafeel Ahmed’s name was given as “Kabeel Ahmed”.
  8. At page 224.

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