Counter-Terrorism Offences: A Comparison of the Australian and US Approaches

Abstract

Since September 11, 2001, there have been substantive differences in the approaches taken by Australia and the United States with respect to the legislation of new terrorism-related offences. These new offences are informed by their respective legislative approaches to terrorism prior to 9/11. While this had been an on-going issue for the US, Australia had little direct experience with terrorism prior to this incident. This new perceived threat of terrorism has challenged the efficacy of traditional criminal law principles where, rather than bringing perpetrators to justice, the trend is towards preventing the occurrence of harm altogether. Thus, while Australia sought to

implement a comprehensive counter-terrorism legislative framework, the US broadened existing

measures and, in doing so, sent law and power in new directions. While these differences are

subject to jurisdictional constraints, they also emerge owing to practical implications arising from

the separation of powers under the respective constitutions. Where the Australian approach can

be characterised as hyper-legislation, the US response is highlighted by a tendency to rely on

executive power which is less burdened by rights concerns whereas a greater legislative response

would be restrained by their constitutionally entrenched bill of rights. These differences are

illustrated through the use of a war paradigm, particularly through the notion of a ‘war on terror’.

While both the US and Australia have unique national security concerns, the pervasive US

approach to combating terrorism is highlighted by the notion of American exceptionalism.