The preventive state? Prevention and pre-emption in mental health, high risk offender and anti-terror laws

Abstract

Following the terrorist attacks of September 11, 2001, the Australian government embarked on an anti-terror legislative agenda that prioritised the prevention of terrorism. Many of Australia s preventive anti-terror laws were justified as exceptional and isolated measures to meet the exceptional threat posed by transnational terrorism. This thesis is motivated by a desire to better understand prevention in anti- terror law and, in particular, how preventive anti-terror laws should be understood and situated within the Australian legal system.

The driving questions of this thesis are: is the preventive state concept a useful way to read developments in Australian law following September 11? Is prevention in Australian anti-terror law exceptional when compared to prevention in other areas of Australian law? This thesis answers these research questions in a narrow way. It begins by critically examining the preventive state concept, identifying its promise and limitations as a way to read prevention in contemporary lawmaking. The thesis then undertakes three case studies of preventive measures in Australian law: federal anti-terror control orders, post-sentence restraints on high risk offenders in NSW and involuntary detention of persons with mental illness in NSW.

The purpose of the case studies is to test whether control orders are novel when compared to other preventive measures. This is achieved by comparing where each legislative regime falls on a spectrum of anticipatory action in domestic law. The case studies also inform understandings of the preventive state concept by addressing its promise and limitations as a framework to read developments in Australian law.

This thesis concludes that the preventive state concept provides a useful way to read and conceptualise developments in Australian law since September 11. It identifies a number of continuities between the preventive measures studied, arguing that control orders are best understood as part of a pattern of preventive governance rather than as exceptional and isolated measures. However, this thesis also finds that control orders are exceptional in their reach when compared to the other measures studied, typifying pre-emption rather than prevention. These findings have broader implications for understandings of preventive anti-terror laws and the future directions of preventive scholarship in Australia.