Law and National Security crisis in Australia

Abstract

This thesis seeks to understand the factors that drove the Australian Parliament's response to exceptional national security laws proposed in times of 'crisis'. It employs case studies, doctrinal analysis, legal history, and literature relating to emergency laws. It selects two periods of 'crisis' for study - the Cold War and the 'War on Terror' - and examines the passage of the Communist Party Dissolution Act 1950 (Cth), the Security Legislation Amendment (Terrorism) Act 2002 (Cth) and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth). Parliamentarians viewed the related Bills as extraordinary legislative proposals designed for extraordinary or emergency times or situations. These characterisations suggested that the work of legal scholar Oren Gross could, potentially, throw light on Parliament's legislative processes. Gross has written extensively on law in times of crisis. He hypothesises that a number of factors work towards our acceptance of exceptional laws. The first is the assumption of constitutionality - our belief that such laws fall within the bounds of constitutional and legal norms. The second is the assumption of separation. This assumption includes our belief that emergency laws will be temporary, that they will apply to 'others' not to 'us', and that national security is a separate sphere about which we defer to the Executive Government. The thesis explores whether Parliament's response to proposals for national security laws can be explained in terms of Gross's assumptions of constitutionality and separation. It uses Hansard to examine whether and, if so, how Parliament engaged with constitutional and legal norms and whether the transcripts of debate reveal evidence of Gross's assumption of separation. My analysis suggests that Gross's assumptions provide a partial explanation of the factors that drove the Australian Parliament when it was presented with Bills for exceptional national security laws. It also reveals the influence of other factors - for example, the impact that 'ordinary' legal rules have in justifying and normalising proposals for exceptional laws and the importance of the Opposition's position as the 'once-and-future government'.