Australian Responses to 9/11: New World Legal Hybrids?

Abstract

The central hypothesis of this chapter is that the post 9/11 era has spawned a new hybrid form of terrorism regulation. The Oxford English Dictionary defines hybrid as follows: “Derived from heterogeneous or incongruous sources; having a mixed character; composed of two diverse elements; mongrel” (Oxford English Dictionary, 2nd edn, online version, http://www.oed.com/view/Entry/89809, Accessed 4 Aug 2011). Hybrid for the purpose of our legal analysis is defined as a measure or law containing elements/characteristics of two previously distinct legal entities. The contention is not entirely novel. Control orders in the United Kingdom as hybrids between criminal and civil law, and melding powers of an executive/judicial nature. Equally, in the Australian context, scholars have identified the hybridisation of techniques of power, as well as the blurring of police and military powers, and crime and war. Hybrids are not however exclusive to terrorism law. Legal hybrids are also evident in fields such as drug law and public order, where strict liability, reverse onus clauses and civil standards of proof have been long applied. That said, the scale and extent to which regulatory efforts to counter terrorism in Australia span various modes of governance (criminal versus civil measures; judicial versus administrative power) makes legal hybrids a mode of regulation worthy of examination.