Counter terrorism, Anti terrorism 

Increasingly since 9/11, national security questions have arisen in civil litigation, in areas as diverse as immigration, family law and contractual disputes. This chapter considers the situation where security-sensitive information is withheld from a party or the public. The denial of access to such information, in circumstances where it would ordinarily be available, can impact deleteriously on a party’s right to a fair hearing and the principle of open justice. Taking a comparative approach involving Australia, Canada and the United Kingdom, this chapter assesses the extent to which these jurisdictions accommodate the right to a fair hearing where national security is at stake. While our focus is on civil proceedings, with particular reference to proceedings dealing with immigration and so-called ‘control orders’, the chapter also addresses some forms of criminal proceeding. We do not suggest that a robust response to the threat of terrorism inevitably corrodes the enjoyment of human rights and undermines democratic government. Nor do we believe that any encroachment on human rights generally, or the right to a fair hearing specifically, no matter how trivial the encroachment or how pressing the counter-terrorism imperative, is necessarily illegitimate. Instead, we argue that the proportionality principle should be applied more rigorously in this area, because we believe that this would better calibrate the law to take account of the nature and scope of the threat of terrorism while paying due regard to the protection of civil liberties.

 

29 p.; 28 cm