The Intersection of Administrative Law with the Anti-Terrorism Bill

Administrative law is animated by two complementary purposes: first, to protect participatory rights in public decision-making, and second, to ensure accountability for public decision-making. The Anti-Terrorism Bill, with its sweeping and vague goals related to combatting terrorism, raises important and complex questions regarding the scope of participatory rights and accountability in the national security decision-making context. This chapter explores the way in which the Anti-Terrorist Bill intersects with each of these purposes. Using the Charity Registration (Security Information) Act as a case study, Sossin demonstrates that procedural guarantees can and will be sacrificed in contexts of national security. Ministerial certificates indicating that a person or group is engaged in terrorist activities, may be based on secret evidence, and may be signed and applied in circumstances where the affected parties never have a chance to know or respond to the allegations made against them. While limited review is provided for some of these extraordinary ministerial powers (for example, Ministerial certificates are referred to Federal Court Judges to determine whether the Minister had a reasonable basis for signing them), Courts are likely to defer to the judgment of executive decision-makers exercising broad discretion in the context of national security. While the jurisprudence of administrative suggests both participatory rights and accountability measures may be sacrificed to promote national security, Sossin argues that they should not be so lightly set aside. Both procedural fairness and meaningful forms of public review lead to more accurate, more just and more legitimate decision-making, which in turn may well result in enhancing both national security and respect for the rule of law