Secrecy, National Security and the Vindication of Constitutional Law
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Secrecy, National Security and the Vindication of Constitutional Law

Edited by David Cole, Federico Fabbrini and Arianna Vedaschi

Virtually every nation has had to confront tensions between the rule-of-law demands for transparency and accountability and the need for confidentiality with respect to terrorism and national security. This book provides a global and comparative overview of the implications of governmental secrecy in a variety of contexts. Expert contributors from around the world discuss the dilemmas posed by the necessity for – and evils of – secrecy, and assess constitutional mechanisms for checking the abuse of secrecy by national and international institutions in the field of counter-terrorism.
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Chapter 10: Secrecy and control orders: the role and vulnerability of constitutional values in the United Kingdom and Australia

Andrew Lynch, Tamara Tulich and Rebecca Welsh


This chapter compares the role that constitutional values according individuals the right to a fair process when the state seeks to restrict their liberty have played in the development of terrorism control order schemes in the United Kingdom (UK) and Australia. The respective schemes are similar and both illustrate constitutional values under considerable tension. However, there are salient differences in the ways those values have managed to provide some resistance to incursions on liberty. These different reactions stem from broader jurisdictional distinctions, including the manner in which those values are articulated in law, that affect the capacity of constitutional values to ameliorate, if not eliminate, measures that are hostile to them. The systemic features in question expose the vulnerability of constitutional values, normalizing government incursions into areas beyond national security. The difference in the way that constitutional values have been used to limit state excess in the two jurisdictions is stark. In the UK, procedural rights are expressly protected by both the European Convention on Human Rights (‘ECHR’) and the Human Rights Act 1998 (UK) (‘HRA’). Consequently, ‘control orders’ – which impose a range of diverse restrictions, including substantial periods of home detention, upon suspected terrorists, often on the basis of secret evidence not disclosed to the ‘controlee’ – have been subject to significant challenge in the UK’s domestic court system and the European Court of Human Rights (‘ECtHR’). Significantly bolstered by the decisions of the latter, UK courts have diminished the executive’s ability to rely on secret evidence

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