Abstract
This chapter aims to discuss and evaluate domestic judges’ activity in matters related to forms of transnational crime, such as terrorism, to offer an innovative way to approach the debate on democratic state’s response to such transnational crimes. The approach adopted in this paper is based on interviews with senior Australian judges during the years 2005–2006, in the years of the so-called global fight against terrorism. The result of these interviews is put into a broader context; in particular with views expressed by judges based in other jurisdictions and involved in cases of terrorism. This approach seeks to explore how judges perceive their role in this context and in comparison to their counterparts abroad at the peak of the fight against global terrorism. Also, the chapter explores how judges are debating these issues in different geographical areas, and whether territoriality in criminal matters remains understood as a fixed legal and judicial environment. And if not, it is noteworthy to map out judicial collaborations and links within their jurisdiction and beyond, to trace down networks, and to observe the different forms of judicial dialogue. This paper aims to pin down how judges picture their role as domestic judge in the new world order.
But judges – particularly supreme court justices – have a special responsibility to protect democracy. (Barak 2005: 236)
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Notes
- 1.
The resident population of Australia is just over 22 million people (ABS 2011a). The number of judges per state and territory is proportional to local population. To offer a couple of an examples, in South Australia there are 13 Supreme Court judges (AIJA 2011) and the local population is over 1.6 million (ABS 2011b); in New South Wales there are 50 judges per over 7 million people (same references). A comprehensive study on Australian judiciary is being undertaken by Professor Mack and Professor Roach Anleu. Preliminary findings can be found here: Mack and Roach Anleu (2008).
- 2.
The High Court of Australia is the ultimate court of appeal for the Australian system, both via the federal court stream and the state and territory stream. The federal court hears cases of federal matters (for instance, corporations, bankruptcy, immigration; so mostly civil matters). Each state and territory has a court hierarchy of its own, with the Supreme Court as the highest within its state or territory. These courts also have appeal divisions.
- 3.
In this chapter, I elect the masculine personal subjective or objective pronoun, given that most judges of the sample panel are male.
- 4.
Even if perhaps this is less so within the EU.
- 5.
In fact, in the field of international law we see the involvement of judges to policy-focused roundtables more and more routinely.
- 6.
In a nutshell, the High Court under Chief Justice Sir Anthony Mason has been regarded as the most liberal bench, and the Mabo 2 case on native titles has been often referred as an example of progressive views that challenged more conservative and mainstream positions. See Pierce (2006).
- 7.
Senior English judges interviewed in 2002–2003 showed levels of resistance towards fighting state power (Marmo 2010); however, the 2005 case A and Others v. Home Department shows a different positioning in the protection of human rights against state power.
- 8.
Which entitled appeal from any Australian court to a British court. See Mason (1987).
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Cases
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Marmo, M. (2012). Democratic States’ Response to Terrorism: A Comparative Reflection on the Perceived Role of the Judiciary in the Protection of Human Rights and Civil Liberties. In: Masferrer, A. (eds) Post 9/11 and the State of Permanent Legal Emergency. Ius Gentium: Comparative Perspectives on Law and Justice, vol 14. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4062-4_11
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