Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in the United Kingdom and Australia

Cole, D, Fabbrini, F and Vedaschi, A, 'Secrecy, National Security and the Vindication of Constitutional Law' (Book) (Edward Elgar) (2013)

Posted: 6 Aug 2018

See all articles by Andrew Lynch

Andrew Lynch

University of New South Wales

Tamara Tulich

The University of Western Australia Law School

Rebecca Ananian-Welsh

The University of Queensland - T.C. Beirne School of Law

Date Written: January 1, 2013

Abstract

This chapter offers a comparative assessment of the role that constitutional values according individuals the right to a fair process when the state seeks to restrict their liberty have played in the subsequent development of the terrorism control order schemes enacted in the United Kingdom and Australia in 2005. Although the two schemes share an essential commonality and both illustrate constitutional values under considerable tension, it is now possible to see how those values have managed to provide some resistance and also how they have been compromised. The reasons for these different reactions stem from broader jurisdictional features that affect the capacity of constitutional values to ameliorate, if not vanquish, legal measures that are hostile to them. Those systemic features can also expose the vulnerability of constitutional values, leading them to accommodate the normalisation of government incursions in areas outside national security.

In considering the different ways in which controlees may be denied full access to information used to support the order over them, we contrast the slow but steady development of clear statements of principle protecting the individual in the United Kingdom with the rights of his or her counterpart under the Australian legislation, which are reliant on vague and more fragile constitutional implications and common law principles. Our comparison of the way that these two jurisdictions have navigated the tension between constitutional values and national security concerns takes place against the rise in preventive models of justice and the associated reliance on intelligence as evidence. How secret evidence is dealt with in control order proceedings is just one aspect of the preventive paradigm that challenges fundamental constitutional values – and how we think about the best means of securing their protection.

Keywords: control orders, fair trial, special advocates, separation of powers

Suggested Citation

Lynch, Andrew and Tulich, Tamara and Ananian-Welsh, Rebecca, Secrecy and Control Orders: The Role and Vulnerability of Constitutional Values in the United Kingdom and Australia (January 1, 2013). Cole, D, Fabbrini, F and Vedaschi, A, 'Secrecy, National Security and the Vindication of Constitutional Law' (Book) (Edward Elgar) (2013). Available at SSRN: https://ssrn.com/abstract=3213095

Andrew Lynch

University of New South Wales ( email )

Kensington
High St
Sydney NSW 2052
Australia

Tamara Tulich

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

Rebecca Ananian-Welsh (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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