Lawyers should not automatically oppose change to common law; risk of terror may justify erosion of common law rights: retired Chief Justice

Former High Court chief justice Gerard Brennan said IT may be essential to make incursions into people’s basic rights in order to fight the risk of terrorism, according to Chris Merritt, legal affairs editor, reported in The Australian (1/9/2007, p.1). Lawyers know little about terrorism: In a speech that had stunned the nation’s legal community, Sir Gerard outlined circumstances when the risk of terror justified laws that eroded common law rights. He told the nation’s lawyers that while they generally knew about crime, they knew little about terrorism. And they should not see it as their role to automatically oppose any law that “trespasses on one of the values of the common law”.

Incursions on rule of law may be “essential”: Sir Gerard, who was one of the most liberal High Court judges before his retirement in 1998, said “incursions on the rule of law may be essential to combat the risk of terror”. But he cautioned that “only a modicum of freedom can be traded for security without affecting the rule of law”. When new incursions were made on individual freedom or common law values are eroded, it was necessary for governments to provide some justification, he said.

Recasting the debate? Sir Gerard’s intervention in the debate over terror laws was made on 29 August at a conference in Brisbane organised by the Law Council of Australia. The council, the peak organisation for the legal profession, had run a sustained campaign against many of the federal Government’s counter-terrorism measures, prompting a series of rebukes from Attorney-General Philip Ruddock. By accepting that some basic rights may need to be sacrificed in the war on terror, Sir Gerard’s intervention was set to recast the debate, said Merritt.

The Australian, 1/9/2007