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Balancing Executive (Government) Powers with Security Dr Greg Pemberton Centre for Policing, Intelligence and Counter Terrorism Macquarie University.

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Presentation on theme: "Balancing Executive (Government) Powers with Security Dr Greg Pemberton Centre for Policing, Intelligence and Counter Terrorism Macquarie University."— Presentation transcript:

1 Balancing Executive (Government) Powers with Security Dr Greg Pemberton Centre for Policing, Intelligence and Counter Terrorism Macquarie University

2 Is there in future to be internationally no via media (middle way) between the recognition of a successful rebel and the death or other punishment of an unsuccessful rebel? If all States were at all times decently governed, presumably anyone who attempted by force to overthrow an existing government should be a hostile humani generis; but when the government is itself a terrorist government, I think a person who endeavours to overthrow it by the only means available is not necessarily to be so regarded.’ UK Delegation to Terrorism Conference Geneva 1937

3 '[t]he tension between civil liberty and national security is very considerable'. 'Indeed the tension is more marked than it has ever been, granted the emphasis now given.’ Sir Anthony Mason former Chief Justice, High Court of Australia

4 Thomas Hobbes v John Locke & J.S. Mill

5 Commonwealth Constitution Sections 51, 68, 69, 119, 120 V Sections 80, 92, 116

6 it is "essentially false" to say that "the right to the free expression of opinion, and especially that form of it which is known as the 'liberty of the press', are fundamental doctrines of the law of England... and... that our courts recognize the right of every man to say and write what he pleases, especially on social, political, or religious topics without fear of legal penalties". But the fragility of the common law "right" to the free expression of opinion is in part due to the absence of a constitutional entrenchment of the form of government which the public discussion of political and economic matters is required to sustain. A.V. Dicey An Introduction to the Study of the Law of the Constitution, (1959)

7 Crimes Act, Unlawful Associations Investigation Bureau 1930s Sedition in Crimes Act 1942 National Security Regulations Security Service Rejection of Law to protect political expression Creation of ASIO Anti-Communist Party Dissolution Bill

8 ”The prevention and punishment of intentional excitement of disaffection against the Sovereign and the Government is a form of protective law for this purpose which is to be found as a normal element in most, if not all, organized societies. I agree that the Commonwealth Parliament has no power to pass a law to suppress or punish political criticism, but excitement to disaffection against a Government goes beyond political criticism.” Chief Justice Latham 1949

9 "In point of constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist The those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend.’ Justice Dixon 1951

10 Hilton bombing Army Call Out ASIO Act 1992 Nationwide Newspapers Pty Ltd v Wills Australian Capital Television Pty Ltd v The Commonwealth 2001-Present 9/11 War on Terrorism Australian Anti-Terrorism Legislation


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