Abstract
The move towards prevention in domestic anti-terror law and policy was initially justified as an exceptional response to the exceptional threat of transnational terrorism following September 11, 2001. However, commonalities are discernable between prevention in anti-terror law and prevention as employed in other areas of Australian law. To begin contextualising and analysing preventive practices in Australia, a framework is required. ‘The preventive state’ provides one way to view the collection of preventive measures employed in Australia. Engaging a governmentality perspective has the potential to make visible prevention and pre-emption in law and governance, and to inform critical treatment of the preventive state itself. Whether and how prevention and pre-emption in anti-terror law differ from and exhibit continuities with other preventive measures has the potential to expose issues of selectivity and proportionality between preventive measures and force consideration of the limits of state action to prevent or pre-empt harm.
Highlights
In the wake of September 11, 2001, the Australian government embraced a domestic anti‐terror policy that prioritised the prevention of terrorism (Department of Prime Minister and Cabinet, 2006, 2010; Ruddock, 2007)
Prevention by liberty restriction is a feature of post‐sentence preventive detention and extended supervision orders in respect to serious sex offenders, such as are available in NSW pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW). This raises the question of whether prevention in anti‐terror law is distinct from prevention in other areas of Australian law, and what we might learn from examining continuities and discontinuities between preventive measures
This paper argues that ‘the preventive state’ provides a useful conceptual framework through which to view the collection of preventive measures in Australian law
Summary
In the wake of September 11, 2001, the Australian government embraced a domestic anti‐terror policy that prioritised the prevention of terrorism (Department of Prime Minister and Cabinet, 2006, 2010; Ruddock, 2007). Prevention by liberty restraint is a feature of many anti‐terror initiatives, most notably control orders and preparatory offences (Divs 101, 104, Criminal Code Act 1995 (Cth) ‘Criminal Code’) These measures deviate from the traditional retrospective and ‘post‐crime’ orientation of the criminal justice system, where the state reacts and responds to harm by prosecuting and punishing criminal acts on the basis of evidence gathered about past events Prevention by liberty restriction is a feature of post‐sentence preventive detention and extended supervision orders in respect to serious sex offenders, such as are available in NSW pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) This raises the question of whether prevention in anti‐terror law is distinct from prevention in other areas of Australian law, and what we might learn from examining continuities and discontinuities between preventive measures. Whether and how preventive measures are new or different in form or operation raises important questions about how we govern and are governed, about selectivity in prevention by liberty restraint, and where the limits lie of state action to prevent harm
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