Bent into Security: Barrister Contribution to a Skewed Order in Two Terrorism Prosecutions in Australia

AuthorWondwossen D. Kassa,Willem de Lint
Publication Date01 Jun 2017
DOIhttp://doi.org/10.1111/jols.12022
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 2, JUNE 2017
ISSN: 0263-323X, pp. 169±99
Bent into Security: Barrister Contribution to a Skewed
Order in Two Terrorism Prosecutions in Australia
Willem de Lint* and Wondwossen D. Kassa*
This article explores two terrorism prosecutions ± Rv. Benbrika and
Ors and Rv. Elomar and Ors ± to probe how Australian lawyers
approach the integration of national security interests into the heart of
public law. A brief background is provided followed by an analysis of
how the Security Legislation Amendment (Terrorism) Act 2002 (Cth),
as amended, and the National Security Information (Criminal and Civil
Proceedings) Act 2004 (Cth) deviate from the legal order to produce a
`skewed blend' between national security and criminal justice. We
examine three ways in which barristers contribute to bending of
process in counter-terrorism trials: accommodation to the pre-
cautionary standard, the resetting of equality of arms expectations,
and brokered agreements that depend on the deferential relationships
within the court. Consequently, the moral asymmetry of terrorism is the
backdrop for the `plausible legality' of `just world' derogations from
liberal politics.
INTRODUCTION
On 2 November 2005, Australian Prime Minister John Howard recalled
Senate to pass the Anti-Terrorism Act. The BBC reported that there was
specific intelligence of a possible attack,
1
and Mr Howard's announcement
came a day after the Australian Security Intelligence Organisation (ASIO)
warned of a threat of home-grown terrorists in its annual general report to
169
*Law School, Flinders University, Flinders Law School, GPO Box 2100,
Adelaide 5001, Australia
Willem.delint@flinders.edu.au Wondwossen.kassa@flinders.edu.au
This work was supported by Australian Research Council Discovery Grant Program
[grant number 120100191].
1 `Australia terror bill introduced', 3 November 2005, at
asia-pacific/4402576.stm>.
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[The copyright line for this article was changed on 22 May 2017 after original online publication]
Parliament.
2
On 3 November, the Anti-Terrorism Act 2005 [No. 2] (Cth),
amending the law relating to terrorist acts, was rushed through Parliament.
Operation Pendennis-Hammerli, which began in 2004, lasted 16 months
3
and
concluded with the arrest of 22 men between November 2005 and March
2006. From 1±8 November 2005, 107 articles appeared in the Herald Sun,
Canberra Times,The Age, and The Australian concerning the need for
terrorism legislation against the latency of a terrorist attack and other on-
going operations.
4
In this article we examine two linked terrorism prosecutions, Rv.
Benbrika & Ors and Rv. Baladjam & Ors (later becomes Rv. Elomar &
Ors), and analyse how the Security Legislation Amendment (Terrorism) Act
2002 (Cth), as amended, and the National Security Information (Criminal
and Civil Proceedings) Act 2004 (Cth) deviate from the legal order by
incorporating a precautionary approach. Derogating from the ideal legal
order, which embraces principles of presumption of innocence, equality of
arms, and adversarial examination, the precautionary approach to counter-
terrorism borrows from the somewhat antithetical norms of security intel-
ligence. Our analysis examines the prosecutions from the barrister point of
view, and develops a framework to examine and evaluate barrister con-
tributions to the application of what we are calling a skewed order of justice
and security. In particular, three mechanisms are examined through which
barristers contribute to the bending of process in counter-terrorism trials
away from legal principles, namely, through accommodation to the pre-
cautionary standard, the resetting of equality of arms expectations, and
brokered agreements that depend on the deferential, as opposed to adver-
sarial, relationships within the court. We find that a skewed order is
sustained by a `plausible legality', given that legal actors operate in a
presumptive `just world' against the moral asymmetry of terrorism. The
article concludes that by being involved in these mechanisms which the
security-oriented legislation dictates, the barristers played a significant role
in the application of the legislation with a skewed blend of legal order and
precaution.
The research draws on an analysis of semi-structured interviews with 14
barristers involved in the two terrorism trials, the judgments (court reports,
170
2 `Australia warned of terror threat', 2 November 2005, at
asia-pacific/4398364.stm>.
3 M. Head, `Contradictory verdicts in Australia's largest terrorism trial: Rudd
government rushes to claim success' World Socialist Web Site, 26 September 2008,
at /2008/09/terr-s26.html>; T. Bowden, `Pre -
dawn raids net terrorism suspects', 8 November 2005, at
7.30/content/2005/s1500743.htm>.
4 K. Bowd et al., `Journalism in Multi-cultural Australia, Case Study Three: Terrorism
rai ds No vem ber 2 005 ' (n. d.) , at htt p:/ /ww w.r epo rti ngd ive rsi ty .or g.a u/
cs_three.pdf>. Although the authors found that three quarters of the articles related
to the proposed legislation, they did not indicate how many were critical of it.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
transcripts), and media reports. The cases were selected from a sub-group of
six cases (those that have resulted in a conviction based on Crown's evidence
in a trial) out of 16 terrorism prosecutions and 38 individuals at our cut-off
date of May 2013.
5
The two prosecutions are chosen purposively. They have
a special place in the skewed order in Australia. They resulted from
Operation Pendennis-Hammerli, a counter-terrorism operation that triggered
a legislative measure intended to reinforce a precautionary standard and are
the first cases in which the new regime is enforced/tested.
6
The interviews
took place between May 2013 and October 2014. The barristers were
contacted by email and arrangements were made to record interviews in
chambers. These were then transcribed and coded. To support one or two key
points, the accounts of barrister experience with the interview data from
prosecutors and judges have been supplemented.
Two caveats are needed. First, this article does not claim that there were no
instances where barristers successfully stood for legality in these prosecu-
tions. For instance, barristers successfully challenged the security protocols
encompassing the conditions of detention in which the accused were held,
their transportation to and from the courtroom,
7
the number of police officers
in the courtroom, and the placement of a perspex screen separating them from
the court.
8
However, instead of assessing these victories
9
against losses, the
article explores the precarious vulnerability of legality, particularly the
presumptive role of barristers in an equality of arms, defence of presumptive
innocence, and exploitation of procedural motions. Second, the finding
relating to the role of the barristers based on the two terrorism prosecutions
171
5 The review released in January 2015 by the Department of the Prime Minster and the
Cabinet reports that by then there had been 35 terrorism-related prosecutions with 26
convictions in Australia since 11 September 2001: DPMC, Review of Australia's
Counter-terrorism Machinery (2015) iv, 14, at
default/ files/pub lication s/190215 _CT_Revi ew_1.pdf> . Lynch, Mc Garrity, a nd
Williams indicate that by the beginning of 2015, 46 people had been charged with
terrorism offences of whom 26 have been convicted. Only 25 of the 46 were tried by
a jury. While eight have been acquitted by the jury of all terrorism charges, some
others have been partly acquitted: A. Lynch, N. McGarrity, and G. Williams, Inside
Australia's Anti-Terrorism Laws and Trials (2015) 92±3.
6 Statements by John Howard and the then Federal Police Commissioner Mick Keelty
and NSW Police Commissioner Ken Maroney asserted the link between the law and
the arrests from Operation Pendennis-Hammerli: Head, op. cit., n. 3; Australian
Federal Police (AFP), `Operation Hammerli/Pendennis Eden', media release, 16
October 2009, a t .afp.gov.au /media-centr e/news/afp/ 2009/october /
operation-hammerli-pendennis-eden>.
7Rv. Benbrika (Ruling No. 20) [2008] VSC 80.
8Rv. Benbrika (Ruling No. 12) [2007] VSC 524.
9 For an appraisal of the court's rulings, see: B. Carlton and J. McCulloch, `R v
Benbrika: The ``War on Terror'', Human Rights and the Pre-emptive Punishment of
Terror Suspects in High-Security' (2008) 20 Current Issues in Criminal Justice 287;
D. Tait, `Glass Cages in the Dock: Presenting the Defendant to the Jury' (2011)
Chicago-Kent Law Rev. 467, at 483±9.
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does not claim representativeness. It suggests lines of inquiry that further
research may fruitfully investigate; it remains to be assessed if our findings
hold true in other terrorism prosecutions.
A SKEWED ORDER
1. Legal order: presumption of innocence, equality of arms, and adversarial
examination
Legality refers to the rule of law and is stipulated in general principles that
denote that laws fail when they do not possess sufficient generality,
promulgation, clarity, constancy, and congruence between official action and
declared rule, or where they create contradictions and require the impossible
or retroactivity.
10
Relatedly, legality also denotes the operation of system of
review or meta-laws by which interpretations of rules or practices are tested,
as, for instance, in a charter of rights or constitution.
11
In an analysis of the
Hart-Fuller debate on positivism and legality, Jeremy Waldron argues that
`perhaps principles of legality are (as John Finnis argues) principles for
keeping legal systems in good shape.'
12
As Waldron notes, there are notable
legal theorists who do not equate observance with the principles of legality
as necessary for a legal system or system of law. The question of whether
they are mandatory for a system of law or rule-based on a liberal doctrine of
political organization would seem more the point of Fuller's argument,
which we will address momentarily.
For our purposes, the presumption of innocence, equality of arms, and an
adversarial examination of the case in a public or open court are crucial to
rule of law legality in criminal trials. In the ideal context, criminal justice
under political liberalism derives its legitimacy from (at least the appearance
of) a visible contest between individual liberty and state authority predicated
on the presumption of innocence on the part of the accused and with the onus
on the state to prove guilt beyond a reasonable doubt. In addition to playing
out in the sub-systems of criminal justice, the ideal of contest depends on an
equality of arms that is achieved by the work of actors within civil society
and various administrative and executive branches of government who seek
to maximize their influence over outcomes. It also requires, in common law
systems like Australia's, publicity. A principle of legality may also be
apprehended as requiring a cross-examination of evidence by the accused in
172
10 L.L. Fuller, The Morality of Law (1977).
11 Such principles, as Bassiouni notes, prevent judicial law making: M.C. Bassiouni,
`Functional Approach to General Principles of International Law' (1989) 11
Michigan J. of International Law 768.
12 J. Waldron, `Positivism and Legality: Hart's Equivocal Response to Fuller' (2008)
83 New York University Law Rev. 1135, at 1140.
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open court.
13
It is no exaggeration to say that the openness of the criminal
court is a measure of a political community's observance of the tenets of
liberal democracy. Secret proceedings and undertakings will tend to detract
from the legitimacy of the public law system.
In addition to a rule of law legality and a meta-rules process, there is a
third view in which legality is whatever rules are agreed on or reasonably
anticipated by duly authorized officers of the court. In their study of the
criminally accused, Ericson and Baranek found that, as agents of the court,
barristers (and defence lawyers generally) `establish and use their own tariff
to reach an outcome that both satisfies their sense of justice and is justifiable
organizationally.'
14
They argued that the recipe rules of the court (the
presumptive informal rates of exchange) trump formal legal `ideals'. Recipe
legality thus denotes the normative, brokered exchange value of legality.
Recipe legality is informed by the social and political context in which
courts manifest as buildings, and people and lawyers and judges draw on
common views or prejudices about lived experience, everyday reality or the
`real world'. Under the pressure of the precautionary presumption, the
bargai ning on e xchang e tarif fs has arg uably f urther d isadva ntage d
barristers.
15
2. Precaution: anti-thesis of the legal order?
Following the events of 9/11 Australia introduced a precautionary approach
through successive anti-terrorism legislative measures. Sub-section 101.6(1)
of the Criminal Code of Australia make it an offence punishable by life
imprisonment for a person to do `any act in preparation for, or planning, a
terrorist act'. Sub-section 101.6(2) of the Criminal Code stipulates that a
person commits an offence even if the terrorist act does not occur, or the
person's act is not done in relation to a specific terrorist act or is done in
relation to one or more terrorist acts (emphasis added).
The Anti-Terrorism Act 2005 [No. 2] (Cth), amending s. 100.1(2) of the
Criminal Code, changed the wording of all terrorist offences from `the'
terrorist act to `a' terrorist act. The parliamentary record indicates that the
purpose of the amendment was to ensure that there could be no mistaking the
resident parliamentary intention. The Shadow-Attorney General supported
the amendment and expressed the view that the Opposition's understanding
was in accord with that of the government: the word `the' in Security
Legislation Amendment (Terrorism) Act 2002 (Cth) was used not to require
173
13 Fuller, op. cit., n. 10.
14 R.V. Ericson and P.M. Baranek, Ordering of Justice ± A Study of Accused Persons
as Dependents in the Criminal Process (1982).
15 Packer likens the institutional conflict between due process and crime control in
terms of competing values and priorities between due process and crime control or
public protection: H.L. Packer, The Limits of the Criminal Sanction (1968).
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
a degree of specificity with respect to the definition of `terrorist act' ± at a
particular time and place ± but, rather, merely to refer back to previous sub-
sections of the Act.
16
Prior to the enactment of the National Security Information (NSI)
(Criminal and Civil Proceedings) Act 2004 (Cth), the common law doctrine
of public interest immunity (PII) was the main mechanism by which the
Commonwealth could seek to protect NSI from disclosure during court
proceedings. PII allows a court to exclude evidence that, if admitted, would
be injurious to the public interest, but there were several problems with this
mechanism for protecting NSI.
17
The NSI Act, NSI Regulations, and NSI
Requiremen ts sought to ove rcome these di fficulties b y providing a
comprehensive regulatory framew ork for the disclosure, storage, an d
handling of all NSI involved in federal criminal proceedings or civil
proceedings, whether in documentary or oral form.
18
Section 24 of the NSI imposes an obligation on the prosecution and the
defence to notify the Attorney General and the Court when they know or
believe that they will disclose national security information. Following the
notification, the Attorney General will decide whether or not to issue a
non-disclosure certificate. In the event that a non-disclosure order is issued,
the court will conduct a closed hearing to decide whether to maintain,
modify or remove the limitation on disclosure. In the event that the court
considers that the attendance of the defendant or legal representative of the
defendant would be likely to prejudice national security, the NSI Act
empowers it to exclude them from the hearing in which the prosecutor or
other authorities give details of the information not to be disclosed or the
reasons for non-disclosure.
19
It is the judge who will decide whether to
174
16 A. Lynch, `Legislating with Urgency ± the Enactment of the Anti-terrorism Act [No
1] 2005' (2006) 30 Melbourne Law Rev.747. The then Attorney-General said that
`sometimes you face a situation where what you had intended is not read the same
way by those who are called upon to adjudicate separately in their role as judicial
officers' (id., pp. 757±8). He noted that the amendment would guarantee that the
provisions are applied `as they were originally intended . .. [that] in a prosecutionfor
a terrorist offence, it is not necessary to identify a particular terrorist act' (id., p.
754). However, according to Whealy J (in Rv. Lodhi (2005) 199 FLR 236, 246),
even in the absence of the amendment, `an offence will have been committed by a
person acting in a preliminary way in preparation for a terrorist act even where no
decision has been made finally as to the ultimate target.' Thus, in view of the
overwhelming support of the fact that the amendment did not change the pre-
existing law, it was described as `minor' and `technical': Lynch, id., p. 761.
17
For the shortcomings of the common law PII, see: Australian Government Attorney-
General's Department, National Security Information (Criminal and Civil Proceedings)
Act 2004: Practitioners' Guide (2008) 6, at
Cou nter ter ror ism law /Do cum ent s/P rac tit ion ers% 20G uid e%2 0to %20 the %20 NSI
%20Act.pdf>.
18 id.
19 NSI Act, sub-section 29(3).
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accept a redacted form of information that can still be used against the
defendant. Sub-section 31(8) of the NSI Act provides authority for the
adducement and testing of evidence in `non-disclosure certificate hearings'
and requires the court to give `greatest weight' to the interests of national
security over other factors including the `substantial adverse effect on the
defendant's right to receive a fair hearing, including in particular on the
conduct of his or her defence.'
The predictive extrapolation of `an act' and the relative inability of the
defence to deploy disclosure for counter-extrapolations may be understood
as twin prongs of a precautionary order.
20
The burden of proof is shifted into
the ambit of the defendant, who must provide an account of activities that
have fallen within a risk signature.
21
Precaution places the precursor criminal
conduct at a much `earlier point' than has traditionally been the case. It may
require proactive risk avoidance where plausible risks are deemed to exist,
even if such avoidance may be costly.
22
In the precautionary or pre-crime
logic,
23
authorities `anticipate and forestall that which has not yet occurred
and may never do so.'
24
As Zedner observes, the precautionary approach,
treats individuals `as guilty ahead of any wrongdoing.'
25
It does so by
negating `autonomy' and denying `individuals the chance to remain innocent
by slamming shut the ``window of moral opportunity'' to choose to do
right.'
26
Whereas the conventional model requires a standard of retrospective
certainty ± that is, an act has taken place and the evidence attaches guilt to an
individual or individuals ± under the influence of the precautionary turn,
prospective prevention requires that the adjudication of evidence matches the
allowable uncertainty and weakness of prediction, so that if there is a risk of
serious or irreparable harm, lack of certainty will not support inaction.
27
As noted above, in addition to the legal extrapolation of intent, the
precautionary order's other prong is an information protocol that restricts the
publicity of the trial and, as such, the ability of barristers to get behind the
motivations of defendants. Intelligence protocols thus slip deeper into the
175
20 R. Peeters, `The price of prevention: the preventative turn in crime policy and its
consequences for the role of the state' (2015) 17 Punishment and Society 163. Peeters
argues that prevention `threatens to become a bypass for the innocence principle in
criminal law' (p. 177); `It is boundless, elusive and expansive' (pp. 167±8).
21 J.B. Wiener and J. Stern, `Precaution Against Terrorism' (2006) 9 Duke Law Rev.
393.
22 C.R. Sunstein,`The Catastrophic Harm Precautionary Principle' (2007), at
ssrn.com/abstract=2532598>.
23 The term precaution and pre-crime share similar meaning, where the emphasis is on
mobilizing the resources to intervene against people who match a crime signature.
24 L. Zedner, `Pre-crime and post-criminology?' (2007) 11 Theoretical Criminology
261, at 262.
25 L. Zedner, `Pre-crime and pre-punishment: a health warning' (2010) 81 Criminal
Justice Matters 24, at 24, emphasis added.
26 id., citing Smilansky.
27 id.; Wiener and Stern, op. cit., n. 21.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
court. As Roach notes, counter-terrorism is `a secretive intelligence-driven
process' that is `utterly incompatible with . . . the presumption of innocence
and proof of guilt.'
28
Evidence for counter-terrorism is often `incomplete,
even sketchy', involving `hints of planning by secretive, shadowy groups
whose true intentions, capacities, members, locations and weaponry are
unknown.'
29
Sources and methods of information interception may remain
opaque, non-contestable information or criminal intelligence may be entered
into evidence and verified by closed tribunal or ministerial fiat.
30
In pre-
caution there is a normalization of derogations from publicity, equal contest,
and the presumption of innocence, a set of derogations that are consistent
with the institutional interests of security intelligence.
In ordering by precaution and risk aversion, these practices are cast as
merely prudent: cautious support for the ante cedent value of viable
governability (`doing something').
31
Thus, for a large governing minority,
doing something has come to be tied to institutional norms that enact the
precautionary or preventative state.
32
Consistent with this prioritization of
the `necessity of decision', there has followed a `perceived need to have in
situ ordering practices that are pre-emptive rather than after-the-fact.'
33
Leading up to and following 9/11, precaution has been joined up to crime
control and the necessity of national security priorities at times of existential
threat.
34
In this and other ways, a state of exception becomes the `new
normal'.
35
176
28 K. Roach, `The Eroding Distinction between Intelligence and Evidence in Terrorism
Investigation' in Counterterrorism and Beyond, ed. N. McGarrity (2010).
29 Wiener and Stern, op. cit., n. 21.
30 J. Monaghan and K. Walby, `Making up ``Terror Identities'': security intelligence,
Canada's Integrated Threat Assessment Centre and social movement suppression'
(2012) 22 Policing and Society 133; Weiner and Stern, id.
31 D. Garland, The Culture of Control: Crime and Social Order in Contemporary
Society (2001).
32 D. Lyon, Surveillance society: Monitoring everyday life (2001); D. Garland, `The
Culture of High Crime Societies' (2000) 40 Brit. J. of Criminology 347.
33 B. Hebenton and T. Seddon, `From Dangerousness to Precaution: Managing Sexual
and Violent Offenders in an Insecure and Uncertain Age' (2009) 49 Brit. J. of
Criminology 343, at 343.
34 K. Arnold, `Domestic War: Locke's Concept of Prerogative and Implications for
U.S. ``Wars'' Today' (2007) 39 Polity 1; Wiener and Stern, op. cit., n. 21; Sunstein,
op. cit., n. 22; Roach, op. cit., n. 28. Before its application to criminal law the
precautionary principle was used in customary international law and regulatory
policy, particularly environmental policy, where it has received some scathing
critique (see D. Free stone and E. Hey, `Orig ins and Development of t he
Precautionary Principle in The Precautionary Principle and International Law:
the Challenge of Implementation, eds. D. Freestone and E. Hey (1996) 3).
35 A. Burke, `The end of terrorism studies' (2008) 1 Critical Studies on Terrorism 37;
O. Gross, `What ``emergency'' regime?' (2006) 13 Constellations 74; R.V. Ericson,
Crime in an insecure world (2007).
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3. Blended order or skewed blend?
Accepting that there is a need for some deviation from the ideal, Roach has
suggested that what is needed is a blended order.
36
In the clash between a
security regime and a (criminal) justice regime in counter-terrorism cases, he
seeks a compromise by which principles of legality may retain some
robustness. In a blended order there is thus a co-existence of secrecy and
fairness (the need to keep legitimate secrets and the need to treat the accused
fairly), and publicity and efficiency (the need to respect the presumption of
open courts and the need for efficient process in prosecutions). He argues
that in terrorism prosecutions, what is needed at the front end is a culture
change by security intelligence. These actors must collect intelligence
through evidentiary standards and a more permissive regime of permissions
to share that intelligence and by developing better source- and witness-
protection programmes. At the back end, he suggests clarifying disclosure
and production standards in relation to intelligence and the scope of
evidentiary privileges, providing the means to make secret material subject
to adversarial challenge by a security-cleared special advocate; providing the
means for the defence to inspect secret material (by undertaking non-
disclosure); and allowing only concrete harms to support non-disclosure (not
claims of undefined national security).
Anti-terrorism and associated national security information disclosure
legislation already enacts measures to support a skewed blend in which the
presumptive onus, contest, and publicity have shifted away from the
`mythical' absolute of Packer's due process
37
and the aspirational middle
ground of Roach's blended order. This is so because, where the state is
heavily invested from top to bottom in counter-terrorism prosecutions as
vindication of policy decisions, legal institutions are pressured to adapt
practices and find permissive discourses or rationales.
38
The legal order is situated institutionally in shifting political and social
milieux. Given the current political and social context, officers of the court
have had to adapt to the regime of intelligence in discretionary precaution.
Law's truth in legality is distinguished from the security intelligence truth in
an asymmetrical moral economy of friends and enemies. Stanley Cohen
39
argues that actors use various devices to permit the reconciliation of
divergent institutional and moral choices, or the incorporation of undesirable
177
36 Roach, op. cit., n. 28, p. 316.
37 McBarnett has argued that due process is not contrasted to but already working,
through judges rules and other de vices, for crime control: D. J. McBarnet,
Conviction: The Law, the State and the Construction of Justice (1979).
38 B.R. Roth, `Bending the law, breaking it, or developing it? The United States and the
humanitarian use of force in the post-cold war era' in United States Hegemony and
the Foundations of International Law, eds. M. Byers and G. Nolte (2003) 232.
39 S. Cohen, States of Denial: Knowing about Atrocities and Suffering (2001) 8.
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situations into a world-view. Drawing on Sykes and Matza,
40
he concep-
tualizes that actors make themselves believe that there is no event that needs
to be accounted for and thus practice literal denial. In addition, they use
implicatory denial, by which they discount the psychological, political or
moral implications that follow from their actions by offering justifications,
evasions or rationalizations; and interpretative denial, by which the facts are
given different meanings or spun in favour of an innocuous interpretation.
Through interpretive denial, events may be cast as isolated incidents, tem-
porary aberrations, exceptions, errors in which there are no clear authorities,
or wrongly categorized.
The institutional context or world-view impacts legal actor denial in at
least two ways. First, there is an interpretive denial that the incorporation of
security intelligence values, including the assumption of an `asymmetrical
moral economy' between `us and them' can fatally or fundamentally alter
political liberalism.
41
There is a creative redefinition of legal terms and
interpretations on the back of a `necessity' that allows `officials to publicly
defend the integrity of domestic and international legal conventions while
pursuing policies that directly contravene their very principles.'
42
Although
this gambit is empirically weak,
43
it is widespread, according to Winter, as
an appealing moral narrative that inverts the presumptive power dynamic of
the confron tation betw een state act ors and non- state enemi es, `and
transposes that confrontation onto a neo-colonial template of civilized vs.
uncivilized forms of warfare.'
44
Second, the template of a moral asymmetry is supported by the `just
world' hypothesis. According to the psychological studies developed by
Lerner and associates, the most plausible explanation for the blaming of
innocent victims for their own misfortune is belief in a just world.
45
By this
it is meant that actors will cover derogations from fair play by maintaining
that it is part of a world system that for the most part apportions outcomes
justly.
46
Reference to a presumptive just world and the reassertion of
178
40 G.M. Sykes and D. Matza, `Techniques of Neutralization: A Theory of Delinquency'
(1957) 22 Am. Sociological Rev. 664.
41 Y. Winter, `The asymmetric war discourse and its moral economies: a critique'
(2011) 3 International Theory 488.
42 id., p. 490.
43 Compare R.A. Pape, `The strategic logic of suicide terrorism' (2003) 97 Am.
Political Sci. Rev. 343; J. Muller and M. Stewart, Chasing Ghosts: Policing of
Terrorism (2016).
44 Winter, op. cit., n. 41, p. 490.
45 M.J. Lerner and C.H. Simmons, `Observer's reaction to the ``innocent victim'':
Compassion or rejection?' (1966) 4 J. of Personality and Social Psychology 203;
M.J. Lerner and D.T. Miller, `Just world research and the attribution process:
Looking back and ahead' (1978) 85 Psychological Bull. 1030; M.J. Lerner, The
Belief in a Just World: A Fundamental Delusion (1980).
46 M. Requa, `Considering Just-world Thinking in Counter-terrorism cases: Mis-
carriage of Justice in Northern Ireland' (2014) 27 Harvard Human Rights J. 7, at 7.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
hegemony in the context of global asymmetric warfare permits what Rajah
refers to as derogations from political liberalism.
47
As Rajah documents
through her assessment of Indonesia's vandalism laws, `the edifice of rule of
law states' is vulnerable to dismantling by authoritarians as, in the context of
the presumptive just world in the conditions of asymmetry, the `legal
complex', including its resident professional associations and leading practi-
tioners, are made `quiescent and pliable.'
48
In this moral asymmetry and the
derogations from political liberalism in the presumptive just world there is
much space for implicatory and interpretive, if not literal, denial.
Sanders argues that the post-9/11 period has ushered in a form of inter-
pretive denial in a new doctrine which she terms plausible legality.
49
This
doctrine of circumlocution minimizes, explains or hides from conscious
consideration that human rights abuses are derogations from the rule of law.
Plausible legality combines an acceptance of the institutionalization of
exceptional devices associated with the suspension of the rule of law with an
awareness of the reputational and legal risks that obtain where the deroga-
tions are identified with specific legal actors: `It attempts to legalise the
exception without publicly suspending the existing order. It aspires to
reconcile the normally irreconcilable ± to permit the impermissible without
fully admitting the move.'
50
Plausible legality assists defence barristers as it
involves them in bending the emerging norms to accord with a government's
often largely implicit references to urgency and necessity.
Roach's blended order, it would appear, depends on institutional forces
and an independence of actors that, given the above, has already been
superseded. In much current literature, criminal justice and (national)
security actions are already blended or `fused' in a retreat from the separa-
tion between domestic law enforcement and security intelligence or political
policing, a move which has dramatically compromised the institutional bases
of legality.
51
They permit normalization of derogations from political
liberalism in an emerging political geography of authority and exception that
strains and stretches the meaning of public law and its basis in visibility,
contestability, public ownership, and accountability.
52
179
47 J. Rajah, `Punishing Bodies, Securing the Nation: How Rule of Law Can Legitimate
the Urbane Authoritarian State' (2011) 36 Law & Social Inquiry 945.
48 id., p. 948.
49 R. Sanders, `(Im)plausible legality: the rationalisation of human rights abuses in the
American ``Global War on Terror''' (2011) 15 International J. of Human Rights
605.
50 id., p. 613.
51 J.P. Brodeur, `High Policing and Low Policing: remarks about the policing of
political ac tivities' ( 1983) 30 Socia l Problems 50 7; D. Bigo, `Glo balized
(in)security: the field and the Ban-Opticon' in Illiberal Practices of Liberal
Regimes: The (In)Security Games, eds. D. Bigo and A. Tsoukala (2006) 5.
52 Compare R. Chesney, `State Secrets and the Limits of National Security Litigation'
(2007) 75 George Washington Law Rev. 1249.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
THE SKEWED ORDER IN PRACTICE
Preparatory offences, that do not require specifying a target or plan of attack,
consistent with the skewed order, are central features of Australian terrorism
trials.
53
As of January 2015, of the 26 people convicted with terrorism-
related offences, 17 were convicted for preparatory offences under Division
101 of the Criminal Code.
54
Moreover, experience with Australia's terrorism
prosecutions shows that courts are prepared to hand down lengthy sentences
of imprisonment to those convicted of preparatory terrorism offences even
where, `the enterprise was interrupted at a relatively early stage of its
implementation'.
55
In Lodhi v. R[2006] NSWCCA 121, para. 66, Spigelman
CJ described the criminal responsibility in these offences:
Preparatory acts are not often made into criminal offences. The particular
nature of terrorism has resulted in a special, and in many ways unique,
legislative regime. It was, in my opinion, the clear intention of Parliament to
create offences where an offender has not decided precisely what he or she
intends to do. A policy judgment has been made that the prevention of
terrorism requires criminal responsibility to arise at an earlier stage than is
usually the case for other kinds of criminal conduct, e.g. well before an
agreement has been reached for a conspiracy charge. (emphasis added)
Two such prosecutions arise from Operation Pendennis-Hammerli. In
these cases, one in Victoria (Rv. Benbrika & Ors) the other in New South
Wales (Regina v. Baladjam & Ors
56
later becomes Rv. Elomar), 16 men
were prepared for trials. In Benbrika, seven men were convicted on various
terrorism-related offences after eight months. All seven were convicted for
intentionally being a member of a terrorist organization, knowing that it was
a terrorist organization (s. 102.3(1)); Benbrika for intentionally directing
activities of a terrorist organization, knowing that it was a terrorist organiza-
tion (s. 102.2(1)) and possession of a thing connected with preparation for a
terrorist act, knowing of that connection (s. 101.4(1)); Joud, Ahmed Raad,
and Sayadi for intentionally providing resources to a terrorist organization,
knowing that it was a terrorist organization (s. 102.7(1)); Joud, Ahmed Raad,
180
53 N. McGarrity, `Let the Punishment Match the Offence: Determining Sentences for
Australian Terrorists' (2013) 2 International J. for Crime and Justice 18.
54 Lynch et al., op. cit., n. 5, p. 31.
55 Khaled Cheikho, Abdul Rakib Hasan, Mohammad Ali Elomar, Moustafa Cheikho,
and Mohammad Omar Jamal, who were found guilty of conspiring to do acts in
preparation for, or planning, a terrorist act, received sentences of between 23 and 27
years: Rv. Elomar [2010] NSWSC 10, per Whealy J, paras. 57±58.
56 Nine men were charged together at the pre-trial stage of the criminal proceeding in R
v. Baladjam & Ors [2008] NSWSC 714. Sharrouf was found unfit to stand trial and
ordered to be treated in a prison hospital to be later tried separately. Three others,
Baladjam, Touma, and Mulahalilovic pleaded guilty at different times in the course
of the proceeding and were convicted without trial by jury. It was only five of the
nine (Elomar, Hasan, Jamal, Khaled Cheikho, and Moustafa Cheikho) who were
tried and convicted by the jury in Elomar, id.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
and Ezzit Raad for attempting intentionally to make funds available to a
terrorist organization, knowing that it was a terrorist organization (ss. 11.1(1)
and 102.6(1)); Joud for possession of a thing connected with preparation for
a terrorist act, knowing of that connection (s. 101.4(1)).
57
In Elomar, five
men were convicted after 181 days of trial and 110 days of pre-trial pro-
ceedings resulting in over 60 NSW Supreme Court judgments.
58
All five
men were convicted for conspiring to do an act in preparation for a terrorist
act (under ss. 11.5(1) and 101.6(1)).
59
The conclusion of Pendennis-Hammerli, until recently the largest counter-
terrorism operation ever conducted on Australian soil,
60
in the onset of these
prosecutions was set against a stoked-up public anxiety. On the day of the
arrests and subsequently, leaks to the media included unproven shocking
claims, as barrister Barns noted, that Melbourne landmarks such as the
Westgate Bridge, Flinders Street railway station, and the Melbourne Cricket
Ground were on the men's target list.
61
1. Presumption of innocence and `do something'
Barristers involved in these prosecutions noted that the intercepted phrase
`do something' was at the centre of the cases. Not required to specify a target
or plan of attack, the Benbrika prosecution needed only to point to a
statement from an accused that he wanted to `do something.'
I think there were three or four occasions where they said `do something', but
it was the context and all the other bits and pieces that go with the crown case
that gave these words their sinister meaning I do not think my fellow was
present at a `do something' conversation. (R4)
What [my client] is saying here is not code for violent jihad. When he says
`do something', the words mean what they say. He wants to do something to
help Muslims and to overcome injustice. He is not sure what, where, or when.
He is not cunning. There is no artifice to his speech. He expresses what is in
his mind, sometimes to his expense, and you can hear that in his voice. (B2)
They did have discussions and go out the country and they did say they
should do something. Never what. And there was a young boy came from a
fairly quiet family in Melbourne and he wanted to be part of this group and so
he is recorded at Benbrika's house as saying `I want to do something. I am
prepared to do whatever you want.' And Benbrika is recorded as saying this is
not the time . .. My take on this is that Benbrika is not prepared to do anything.
He loved to be adulated. (R7)
181
57 Rv. Benbrika & Ors [2009] VSC 21 (3 February 2009).
58 AFP, op. cit., n. 6.
59 Elomar, op. cit., n. 55.
60 AFP, op. cit., n. 6.
61 G. Barns, `Terror scaremongering threatens our democracy' The Age, 22 September
2014, at
democracy-20140919-10jcxq.html>.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
Consistent with Zedner's comment above, barristers commented on the almost
impossible task of contesting the character of thought or proving a negative.
Well the problem is preparatory acts. People who are transitory players,
marginal players get caught . .. the legislation does criminalise anticipatory or
preparatory acts. There were bit players who got burned, who if they'd have
been treated in another way would have been powerful influences within the
Islamic community for moderation. (R8)
The defence team in Elomar appeared to accept that the men had been
arrested at a more advanced stage of preparations. Still, there was no
specified or imminent act against which to argue. Barristers were compelled
to follow the interrupted preparation presumption codified in law, but had to
claim at one and the same time that their client had `abandoned' a `pursuit':
Objectively (my client) abandoned the pursuit of the conspiracy well before he
was arrested. No doubt. (R10)
A lot of the material that was presented to us we could say, he's never
watched a beheading video, he's not looked at these discs, they were simply
left in his room; we got a complete copy of his hard drive . . . The sort of
penultimate act was that he was supposed to pick up some acid, but he didn't.
He drove off. But the acid was there to collect. After putting the order in. He
drove off. (R1)
I don't think that everything out there is benign, but there's certainly a basis
for saying that this was bravado; it was a group of disenfranchised people who
were in a club and were never going to act upon it. (R10)
These particular barrister observations make plain the discursive work
between the elements of the charge, the agreed actions of the accused, and
the rhetorical accommodation of fact to law. In the above, one barrister
refers to a `club' and another to a `penultimate act'. Accordingly, the societal
agreement against `doing nothing' is opposed to a presumptive organization
of criminal actors who say they want to `do something'. In the meantime, as
a prosecutor, to `do nothing' when the standard of precaution has arguably
been met would be to fall short of the requirements of the standard. The
pressures and pulls on court officers are toward their common interests,
values, and social networks. Barristers may sympathize if not empathize with
the criminally accused, but they identify with their opposite in the court.
62
One of the barristers put it simply: `Imagine the outcry if nothing was done
and something did happen' (R10, emphasis added).
The right to be presumed innocent until proven guilty is a fundamental
legal value. It is a principle of the common law that no guilt can be presumed
until a charge has been proved beyond a reasonable doubt. Unlike drug
offences and child sexual offences that place an evidentiary burden on the
accused and where a reversal of onus is explicitly provided by law,
63
under
182
62 Ericson and Baranek, op. cit., n. 14.
63 Australian Law Reform Commission, at
laws-reverse-legal-burden>.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
Australian anti-terrorism legislation the presumption of innocence and the
legal burden of proof are `formally in place'.
64
However, in practice the
precautionary standard, as demonstrated above, draws away from this pre-
sumption. For barristers, legality is what will be decided by the judge and is
conditioned by the legislation, by the meaning intended by Parliament, and
not impeachable with a bill or charter of rights (were they in play). On the
day, the gravity of law's truth is tilted toward the precautionary, as situated
in an atmosphere of unfolding emergency and reflected in the confident
words of a prosecutor, who drew implicitly from the context of the court to
fill in the blanks of `do something':
Even if they might use terminology like `do something' they meant `commit a
terrorist act', `blow something up'. And that became very apparent over time to
the point that there was absolutely no doubt at all that's what they were talking
about. The first couple of times you heard it, it might have been equivocal, but
in the context in which it was used over a period of twelve months it made it
very clear that was what they were on about. (R12, emphasis added)
2. Equality of arms and the NSI Act
As noted above, the precautionary standard is a powerful obstacle to
barristers' ability to preserve the protection of presumptive innocence.
Another significant impediment to successful defence relates to deviation
from the principle of equality of arms. Defence lawyers may be disarmed by
the character of information and evidence in counter-terrorism cases. We
found evidentiary information to act in two ways. First, the sheer quantity of
potentially exculpatory material places a burden on the defence to review all
of the possibly relevant material that is disclosed. Second, non-disclosure
(due in most part to privilege on the claim of national security) ensures that
there will be only a selective, partial view of the entire information tranche.
(a) `Have a drink from this fire-hose'
The evidentiary standard in precautionary terrorism prosecutions permits the
use of intelligence of `evidential significance'.
65
Because what may look like
183
64 J. McCulloch, `Human Rights and Terror Laws' (2015) 128 precedent 26, at 29. The
legislative history of the Security Legislation Amendment (Terrorism) Bill (No 2)
(2002) (Cth) confirms this. The first draft placed the onus of proof on the defendant in
relation to some aspects of the preparatory offences, similar to child sexual offences
and drug offences. This was changed and burden of proof placed on the prosecution's
shoulders following submissions to the Senate Legal and Constitutional Legislation
Committee. Senate Legal and Constitutional Legislation Committee, Parliament of
Australia, conside ration of Legislation R eferred to the Committ ee: Security
Legislation Amendment (Terrorism Bill 2000) (No. 2) ss. 3.84±3.85, 3.91, 3.100 in
B. McSherry, `Terrorism Offences in the Criminal Code: Broadening the Boundaries
of Australian Criminal Laws' (2004) 27 University of New South Wales Law J. 354.
65 Roach, op. cit., n. 28.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
preparation is criminalized in preparatory offences, evidentiary collection
begins at the time authorities deem that a profile is matched up to subjects.
The power to target and collect information is wider than the requirement of
`reasonable suspicion'. Former DPP Christopher Craigie notes: `the prepara-
tory nature of the new terrorism offences allows the Australian investigative
authorities to intervene early where the cases will be circumstantial.'
66
He
adds that early intervention by the investigative agencies `increases the
quantum of evidence'.
67
McCulloch and Pickering observe that `terrorism
prosecutions under pre-crime regimes are typically commenced on the basis
of vast amounts of ``circumstantial evidence''.'
68
Operation Pendennis intercepted 127,000 telephone calls
69
and up to 3.35
terabytes of electronic data amounting to about 9 million pages of paper.
70
In
Benbrika, the prosecution relied to a large degree on 481 conversations that
were covertly recorded by use of telephone intercepts (TI) and listening
devices (LD).
71
In addition to the surveillance evidence, viva voce evidence
from police and civilian witnesses, testimony from an undercover police
operative (`SIO 39'), and expert evidence, a large quantity of `extremist'
literature and videos seized under warrant was also tendered.
72
In Elomar,
there were more than 2,100 witness statements, from which 300 witnesses
gave evidence, and over 2,000 physical exhibits were viewed, of which close
to 1,000 were tendered by the Crown into evidence. The paper brief was in
excess of 150 A4 lever arch folders.
73
As reflected in the following com-
ments fro m barrist er respon dents, th e quanti ty of infor mation wa s
overwhelming:
184
66 C. Craigie, `Management of lengthy and complex counter terrorism trials: an
Australian prosecutor's perspective' (2011), at
management-leng thy-and-complex -counter-terror ism-trials-aust ralian-prosecuto rs-
perspective>.
67 id.
68 J. McCulloch and S. Pickering, `Pre-crime and Counter-terrorism: Imagining Future
Crime in the War on Terror' (2009) 49 Brit. J. of Criminology 628, at 634.
69 Craigie, op. cit., n. 66.
70 AFP, op. cit., n. 6.
71 Benbrika & Ors v. The Queen [2010], para. 7. The police and legal costs of a stayed
second prosecution of Benbrika and three of his followers on conspiracy to commit a
terrorist act charges was at least $20 million: see K. Moor, `Abdul Benbrika and
other terrorists wanted to kill but can't be prosecuted' Herald Sun, 20 September
2011, at
ki ll -u s- bu t- a- co ur t- h as -d ec id ed -t he y- ca nt - be -p ro se cu te d/ st or y- f ni 0f fn k-
1226142188593>.
72 Benbrika & Ors, id., paras. 9±13.
73 AFP, op. cit., n. 6. In terms of cost, Regina (C'Wealth) v. Elomar & Ors was one of
the most expensive publicly financed federal criminal trials in Victorian history, the
funds available for the accused's defence being unprecedented, including $7.2
million given to Victoria Legal Aid's Commonwealth defence budget. According to
the respondents, this level of support was not expected in future trials.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
I started the trial with a brand new laptop computer which was the same as
what everyone else had and I remember having something in the order of 16
and 17 GB of material on the computer around about the end of the committal
. .. By the end of the trial proper, I think there was something in the order of 34
GB of material on the computer. (R4)
We were given the entirety of every one's computer making it burdensome
for us to deal with. They probably would not say that but tactically the CDPP's
disclosure has this tactic of either bearing us or telling us that this case is not
so great that we are not bothered with it and you can have it all. But the
disclosure was really burdensome for us to deal with and saw through. (R2)
While lawyering in other criminal cases is normally practised under the
assumption that one lawyer can assess 90 pages of documents an hour,
74
this
norm would not allow a lawyer to do anything meaningful for his client in
counter-terrorism prosecutions. R8 states:
We got thousands of hours of material that hasn't been transcribed, so it's
having the capacity or resources to listen to it. It simply can't be done. There
were thousands of hours. And we could not listen to it. There may have been
crucial conversations either incriminating or very important to the defence.
(And the client can't remember?). They don't. It's years ago. You simply don't
have the capacity to do it. You're dealing with a very unequal playing field.
It's tilted in one direction at a very high incline. (emphasis added)
Counterterrori sm has required unpr ecedented coopera tion and col-
laboration between the police and the prosecution. Normally Crown prose-
cutors do not take part in criminal investigation owing to `a clear separation
between the functions of investigators and those of prosecutors'.
75
In
counterterrorism prosecutions there has been considerable modification of
that model, paving the way for prosecutors and investigators to work
together beginning from the investigation stage. Police work with prose-
cutors on information that is subject of months of refining. Contrasting
counter-terrorism prosecutions with other criminal prosecutions, Craigie
observes that in the former `a strong practice of pre-brief advice and co-
operation has grown up as an essential part of preparing for a complex
prosecution process.'
76
The prosecution's extra early involvement and cooperation with law
enforcement and security agencies is at the expense of equality of arms.
While the former has followed the case from the beginning, flagging
signposts and lines of attack, the defence is provided with buckets of
information post facto and must play catch up. Explaining the benefits of the
prosecution's collaboration with the police beginning from the investigation
stage, Craigie indicates `early involvement provided our prosecutors with the
opportunity to have a much fuller understanding of the evidence, both its
185
74
M. Dunn , `$7m ``t erro r'' aid bil l' Her ald Su n, 15 Ma y 2007 , at p://
www.heraldsun.com.au/news/victoria/m-terror-aid-bill/story-e6frf7kx-1111113536952>.
75 Craigie, op. cit., n. 66.
76 id.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
strengths and weaknesses.'
77
And on the other side, barristers expressed the
general inability to evaluate the information:
It's impossible for defence teams to evaluate a larger body of material. It's
impossible, I might say for the Victorian police. I made all sorts of claims
because I did listen to a lot of tapes in X case that the crown had not led
evidence which was probative of his innocence and his complete rejection of
terrorism which was critical. I played a number of those tapes to the jury. A
whole folder of material which I played . . . that material would never have
been put before the jury if I had not listened to this material, and if X had not
had recollections of having had discussions with people that he could point me
to. Now that's a vast undertaking. I spent 6 and a half bloody days a week
listening to the material, trying to work in court, listening to the material on
weekends. My poor instructors were doing the same. That's a very difficult
thing to do. (R8, emphasis added)
The case against the defendants was based on an interpretation of a few
selected statements out of an extraordinary quantity of intercepted com-
munications. The defence depended upon enormous resources to offer an
alternative reading or contextualization of that account. As per the statement
above, potentially probative material was brought to light only where these
resources were matched by fortuitous instances of recall from the accused.
As a result, getting the relevant information requires dogged perseverance
and extraordinary effort. Pointing to this, R2 noted, `maybe there is a needle
in the haystack, which is the defence, is somewhere.'
A basic tenet of justice relating to the right to counsel is the principle of
equality of arms,
78
which requires that procedural conditions be similarly
provided to all parties at trial and sentencing. Deviation from this require-
ment is allowed only where `based on law' and `justified on objective and
reasonable grounds', it does not involve `actual disadvantage or other
unfairness to the defendant'.
79
However, having a counsel does not guaran-
tee equality of arms. Commenting on United Kingdom terrorism prosecu-
tions, Walker identifies a lack of defence resources and expertise to match
those of the police.
80
Australian prosecutions see at least as much pressure
on the equality of arms.
186
77 id.
78 UN Office on Drugs and Crime, Handbook on Criminal Justice Responses to
Terrorism (2009).
79 General Comment 32, para. 13; Report of the United Nations High Commissioner
for Human Rights on the protection of human rights and fundamental freedoms
while countering terrorism (A/HRC/22/26), para. 36; Communication No. 1347/
2005, Dudko v. Australia, para. 7.4.
80 C. Walker, `Prosecuting terrorism: the Old Bailey versus Belmarsh' (2009) 79
Amicus Curiae 23.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
(b) A kind of disclosure
The quantity of disclosure may be a significant impediment to a barrister's
capacity to lead a defence. In addition, within the legal framework of
national security information protection, the quality of disclosure may also
provide sometimes insurmountable obstacles. As outlined by Roach, a
major conflict in terrorism trials is between intelligence and evidence,
expressed as the need to keep secrets versus the need to treat the accused
fairly.
81
Under the NSI Act the judge is called upon to defend the interests of the
court in the principle of legality against a government claim of public
interest immunity under national security. Though theoretically the court has
the power to `maintain, modify or remove' the Attorney General's restriction
order on disclosure, as the Eminent Jurists Panel of the ICJ suggests, in light
of its duty `to give greatest weight to the question of ``the risk of prejudice to
national security'' rather than to the needs of the accused',
82
the court has
only a slight chance to decide otherwise than according to the Attorney
General's order. The legislation's specific direction requires the court to
favour the government.
83
Thus, to operate with efficiency, the regime depends upon a fairly
generous attribution of good faith by judges to police and security actors on
their claim that the information that is secured from public scrutiny has been
properly deemed and interpreted as privileged by those agents. As noted by
R8:
What you get from the legal perspective is edited highlights. You don't get the
broader material. So we don't have the resources to understand the context in
which the edited highlights arose. In every case it's the edited highlights that
go before the jury. There's an argument about the extent of them, the compass
of it.
In line with our discussion of resources in the last section, in the earliest
counter-terrorism cases the prosecution was still learning how to tread
between a reliance on the judge to support disclosure of materials or protect
187
81 Roach, op. cit., n. 28, p. 316.
82 International Commission of Jurists, `Report of the Eminent Jurists Panel on
Terrorism, Counter-terrorism and Human Rights, Assessing Damage Urging Action'
(2009), at
report.pdf> 153.
83 Lynch et al., op. cit., n. 5, p. 119. Lodhi's argument both at trial and appeal that,
while s. 31(8) seems to give discretion to the court, it is effectively an order as to
how a case is to be decided, was not accepted: Rv. Faheem Khalid Lodhi (NSWSC
21 February 2006) per Whealy J, para. 108; Australian Government Attorney-
General 's Depart ment, Na tional Se curity In formati on (Crimi nal and Ci vil
Proceedi ngs) Act 200 4 (2008), a t /www.ag .gov.au/ National Securit y/
Count erter rori smlaw /Doc ument s/Pra ctit ioner s%20G uide %20to %20th e%20 NSI
%20Act.pdf> 25.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
them under PII. R8 remarked that they knew for certain that the regime in
earlier prosecutions was less tight than in later ones, and that the next set of
prosecutions would be further tightened up:
84
In X, the arguments about disclosure of PII were undertaken by special
counsel in the Attorney General's office. I spent quite a lot of time with him
and subsequently for the control order for the case. The politicisation of that
whole issue was very great. Their practice became one of obfuscation and of
trying to restrict information so that the capacity to go behind the document,
establish context, establish the full narrative was very slight. (R8, emphasis
added)
Similarly R2 commented that during his client's trial, they:
did not encounter a single thing that actually had any bearing on national
security in the sense of foreign information or foreign relationship. It was
simply used to shield a lot of documents and it was just part of the hysteria and
the enthusiasm for secrecy.
In R3's opinion (based on the particular case he dealt with), if `there are sorts
of reasons that are given in lots of affidavits we cannot see, then in my view
material is not being disclosed which should be.' Questioning this trust
foundation, they noted that natural justice elucidates:
One story is good until another is told. The judge does not have that sceptical
voice except in his own head. His [sic] judgment would be assisted by the
possible argument from the other side having access to the material. Judges
will not know all the possible arguments that could have been raised by
defence lawyers against the Cth's PII claim had the material been accessed.
They can only make intelligent judgment of the possible arguments from the
defence.
Although R4 acknowledges that they were inundated with information, the
barrister states that they `would be constantly asking . .. is that all?' to which
the response was, `No there is a bit more; and we get a bit more and a bit
more ± there was a lot of that.' This left them and R1 with the belief that
there was still an unknown quantity of undisclosed information to which
access was not provided:
A lot of the material that was presented to us we could say, he's never watched
a beheading video, he's not looked at these discs, they were simply left in his
room; we got a complete copy of his hard drive, so, not really, no. But there
was obviously other conversations which were monitored. There was the
prayer hall. There was intelligence. There were informants. Quite clearly and
we never got access to that material. (R1, emphasis added)
R7 reflects on the secrecy's potential impact on the fairness of the trial:
188
84 On the other hand, bail was granted in some terrorism prosecutions. In Aruran
Vinayagamoorthy and two others, while acknowledging the seriousness of the
offences, Justice Bongiorno reasoned that the defendants `are entitled to the full
benefit of presumption of innocence': Lynch et al., op. cit., n. 5, pp. 101±2.
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We have had arguments about whether or not the individual can in fact have a
fair trial because he is denied so much information that he can never get a fair
trial. The courts can decide that having the pretence of a fair trial would be an
offence against the process itself and so they would prevent the prosecution
from proceeding against the individual. We've got that remedy. How much
further we have in terms of being able to investigate these matters is extremely
limited because of all of the secrecy provisions that they've got. We've created
a monster and we don't have any power of control over the monster.
To add to the pressure on the judge, as outlined earlier in the article, the
prosecution came before the judiciary during what was presented as an
ongoing threat. Leaked media stories were raising the profile of security
threats as if to suggest that the accused comprised the tip of the iceberg or
were networked into a larger conspiracy from which the accused needed to
be cut off:
During the pre-trial there were secret affida vits about releasing other
information. The judge was provided information as to an ongoing threat,
obviously, to protect the release of information. He was certainly getting
information about the level of threat ongoing in the trial. There were pre-trial
arguments which we never saw but quite clearly it was: `we can't release
information because of an ongoing threat.' . . . For example, where were the
other listening devices? Who was being monitored at particular times? The
judge was getting additional information with regard to an ongoing threat
through secret affidavits in terms of the subpoena arguments. (R10)
We had the Attorney-General's involvement, who was not concerned about
the fairness of the trial. Depends therefore on the judge who does not have
much knowledge of it. He was frightened inevitably by Chakra stories of
terrorism, they read The Australian, they read the Murdoch press and they are
anxious. (R8)
Consequently, the full or complete roster of targets from a network being
intercepted from which the prosecution has developed information against
the accused is privileged on the basis of the government's reference to an
ongoing threat. Historically, such an argument might have compelled the
judge to tell prosecutors that they could not make the court deviate from the
principle of disclosure that far. In the context of the institutional pressure
from security intelligence, the pressure of a stoked-up public anxiety, and the
apparent will of Parliament, barristers had little room to manoeuvre. In the
meantime, the derogation from political liberalism could be denied or its
legality justified as plausible.
3. Adversarial process and limiting agreements or instructions
(a) Deferent agreements over adjudication
We noted above the tension between the need to keep secrets and fair
treatment of the accused. Also in conflict is the presumption of openness
against efficient process. As Justice Whealy observes, the NSI Act `is quite a
complicated piece of legislation .. . [I]t gives the appearance of having been
189
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drafted by persons who have little knowledge of the function and processes
of a criminal trial.'
85
He found the intrusion of AG and compulsory
adjournments `are manifestly calculated to fragment and delay criminal
process ± an outcome usually and correctly regarded as wrong in principle
and as policy.'
86
Furthermore, apart from referring to information relating to
national security in general terms,
87
`there is no single definition of
``national security information'' in the NSI Act' that the judge may consult
to refine a position.
88
The general reference to national security is so broad
that Lynch, Williams, and McGarrity note that `it is difficult to think of any
information that might be relied upon in a terrorism trial ± that would not
enliven the obligation to notify the Attorney-General.'
89
There are other factors that discourage barristers from going for adjudica-
tion and contest. In the event that the court decides to exclude them when it
hears the General Attorney's or the prosecution's argument for non-
disclosure, they will be in the dark as to the other side's argument and, as
Lynch et al. rightly note, the ability to launch a meaningful argument against
non-disclosure orders in suc h cases is minimal.
90
Even where their
submissions, by chance, happen to be relevant to challenge the argument
advanced in support of non-disclosure, the duty of the court to favour the
government means their hope of successfully contesting the non-disclosure
argument is insignificant. As reported by Walker:
in general terms, there is a widely held view among practitioners that the
potential difficulties for the fair and efficient running of a criminal trial posed
by a full-blooded application of the NSI Act are obvious, but have so far been
avoided. Indeed, a view encountered from different quarters is to the effect
that the awful prospect of the NSI Act operating to its full extent in a contested
way has had the effect of producing in nearly every such case agreements in
place of contested adjudications.
91
190
85 A. Whealy, `Terrorism and the Right to a Fair Trial: Can the Law Stop Terrorism? A
Comparative A nalysis' (201 0), at www.biicl.or g/files/50 38_terrorism _
and_the_right_to_a_fair_trial__2_.pdf > 18. Whealy also noted that the `legislation
poses a very significant challenge to the efficient running of a criminal trial' and that
`[d]elay and disturbance to the trial process is perhaps the most significant potential
problem created by the legislation' (p. 23).
86 id.
87 The NSI Act in general refers to two different ca tegories of information:
`information which relates to national security or the disclosure of which may
affect national security, and information, the disclosure of which is likely to
prejudice national security' (id., p. 10).
88 id.
89 Lynch et al., op. cit., n. 5, p. 114.
90 id. pp. 115±16.
91 B. Walker, Independent National Security Legislation Monitor: Annual Report 16
December 2 011 (2012), a t www.dpmc. gov.au/si tes/defau lt/files/ files/
INSLM_Annual_Report_20111216.pdf> 61.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
Consideration of the onerous application of the Act compelled defence
counsel to enter into agreements that resulted in the elimination of several
witnesses by arrangements between the parties. In R3's view:
[w]hen materials subject to PII [public interest immunity] are not accessed by
the defence lawyers it weakens their ability to argue against confidentiality of
the material for lack of adequate information and thus the system is biased in
favour of the party that makes the claim.
Whilst acknowledging the independence of the judges, R3 indicated that it is
`inevitable that judges generally as a matter of fact pay a high degree of
deference to expressions of opinion particularly by people such as the
Director General of Security or those speaking on his behalf.' Furthermore:
Though there is a judge to check if ASIO's claim for confidentiality is valid,
which is better than the agency judging its own claim and argument, judges
start by a degree of deference to the Inspector General's view on the matter.
(R3)
As one of the barristers puts it, they `depend upon the integrity of the people
who are supposedly the brains of the monster.' (And we have no means of
verifying their integrity?) `That's correct.' (R7)
Deference both to the codified criminal law and to judges' rulings is a
paramount requisite of barristers as agents of the court.
92
Criminal barristers
cannot pull the practitioner body away from recipe rules and court-enforced
norms of conduct, even where it might be argued externally that the
principles of legality are being made merely plausible by those norms.
93
As
is clear from the quotes above, deference to security agency summaries or
statements of fact is a requisite for defence lawyers in terrorism prosecu-
tions, particularly as the judge has already ruled on how to treat that
testimony and evidence. To persist with the question of legality is to chal-
lenge the integrity of the judge and his or her role under the separation of
powers. Criminal lawyers may take issue with some parts of counter-
terrorism legislation publicly, but cannot rebuke it in front of the bench.
Barrister deference to arrangements in an overriding responsibility to the
court may be contextualized further. As noted by Smith, Australian lawyers
are not free to defend the interests of their clients by every lawful means.
94
191
92 In the Sydney trial of Baladjam and Ors, the nine accused refused to stand before the
NSW Supreme Court and enter their `not guilty' pleas on the basis that one does not
stand before Mohammad to pay homage to him. Justice Whealy did not insist, saying
that judges `were made of more robust material . . . but a jury may take a different
view': L. Lamont, `Terrorism accused refused to stand' Sydney Morning Herald, 1
June 2007.
93 Ericson and Baranek, op. cit., n. 14; McBarnett, op. cit., n. 37.
94 A. Smith, `Defending the Unpopular Down-Under' (2006) 30 Melbourne Law Rev.
495, at 530. In contrast to their Australian counterpart, American lawyers, when the
various responsibilities are in conflict, must exercise:
. . . sensitive professional and moral judgment guided by . . . the lawyer's
obligation zealously to protect and pursue a client's legitimate interests, within the
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In Australia, `[t]he administration of justice is best served by reserving the
practice of law to those who owe their paramount duty to the administration
of justice.'
95
As Smith summarizes, `when lawyers see themselves primarily
as officers of the court, rather than their clients' advocates, they may too
easily forgo their client's interest in order not to rock the boat.'
96
That is not to say that barristers may not hold a dissident view outside of
the court or privately. Some of the interviewed barristers have offered their
expertise to law societies, bar associations, and legislative review com-
mittees in policy briefings critical of the legislation. It is contended here that
it is their formal accounting or resolving of the tension that is nonetheless
most significant. In the meantime, private misgivings unavailable even to
anonymized publication will not have great effect. One prosecutor argued
that the interest of the accused would be better served where lawyers
contested the prosecution instead of entering into agreements. When asked if
there was anything that they would have done had they been a defence
counsel in Benbrika's case, R9 replied:
Filing all sorts of arguing, like getting on the front foot and preventing the
prosecution from preparing properly. I would have argued the charges and law
I would have been agitating to get it on. I would have engaged in house to
house combat, I would have challenged every warrant.
However, the barristers were not free to adopt such an approach. For
example, in New South Wales, though the defence initially indicated their
intention to challenge `all the surveillance evidence ± and therefore the
Crown would be required to call every surveillance officer', the trial judge
`encouraged defence counsel to obtain proper instructions concerning this
issue' and actively facilitated in the interest of efficiency.
97
In Baladjam, the
judge gave a lengthy opinion about the law and how he intended to apply it,
noting that:
I propose to leave it to the parties, however, to discuss and agree . . . I would
expect the parties to agree to a sensible compromise. I will intervene if that is
not possible, but that intervention should be left until the appropriate time, if it
be necessary.
98
Barristers diminished the impact of security interests and the counter-
terrorism legislation specifically on the narrow question of their ability to
defend their client, despite acknowledging broadly that elements of the
legislation, including its impact on disclosure and the standard of proving
192
bounds of the law, while maintaining a professional, courteous and civil attitude
toward all persons involved in the legal system.
(American Bar Association, Model Rules of Professional Conduct (2006) Preamble,
para. 9.)
95 Rule 1, Australian Model Bar Rules, in Smith, id., p. 531.
96 id., p. 550.
97 Craigie, op. cit., n. 66, p. 13.
98 Rv. Baladjam and Ors [No 19] (2008), para. 135.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
criminal elements, lowered the bar for the prosecution. At the same time,
barristers and solicitors acted on the acknowledgement that a robust defence
of their clients through vigorous pre-trial motions would grind proceedings
to a halt, place the regime in jeopardy, and was therefore a bridge too far.
Agreements and undertakings were almost always a subtraction from strong
legality principles and were brokered in no small part as a gesture of
goodwill. Where there was doubt with respect to the support and furtherance
of legality principles, barristers noted that it was the judge, not they, who
was responsible for the outcome and their ultimate defence. It was found that
barristers justified agreements and undertakings by means of four interlinked
rationalizations: that the system and its actors had integrity and are fair-
minded (R2, R9); that the accused caught up in the prosecution who not their
clients are `not saints' and probably guilty (R2, R8, R10); that although the
new regime is daunting to legality, they were able to overcome the obstacles
on behalf of their clients (R2, R11); that legality is ultimately a matter for the
judge or jury or the public at large (R2, R8, R9, R10).
(b) Incapacitating instructions
As outlined above, the adversarial process depends both on equality of arms
and the capacity to wage strong `combat'. As we also outlined, the social,
cultural, and political context of the court and the long-standing interests and
attachments of professional legal actors encourage the establishment of
brokered tariffs in recipe rules. In terrorism cases as in criminal cases
generally there are incentives both to push the legal principles, where
possible, and otherwise to broker agreements that fall short of the ideal.
Since jury trials are amongst the more unpredictable procedures, actors also
look toward agreements or arrangements to avoid the risks and costs of
unfavourable outcomes along the way.
99
In addition, as elaborated above,
working with the full measure of the NSI Act can lead to enormously long
trials unless agreements are made.
100
In addition to formal and informal NSI Act-driven agreements, we found
that undertakings included informal agreements to take a common approach
that excluded implicating co-accused as prime movers of the alleged
conspiracy. To back these arrangements, judges relied on summaries or
synopses of the relevant contextual information. Unable to monitor, they
relied on trust that prosecutors, law enforcement and intelligence agents
were providing a good-faith execution of their mandate. Yet, and as above,
this deference to security was conditioned by reference to an unfolding and
immediate threat.
Barristers noted that there was explicit instruction from solicitors not to
`do anything that would jeopardise anybody else' (R2). The point was
193
99 Ericson and Baranek, op. cit., n. 14.
100 Whealy, op. cit., n. 85, p. 18.
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underlined for barristers by the `sacking' of one of them. `If you implicate
another at [their expense] or benefit your client, you'll be sacked. And it
occurred.' (Sacked from the case?) `Yeah, instructions withdrawn' (R10).
The impact of these instructions for barristers representing clients whose
roles they perceived as minimal was to handcuff them against suggesting that
their client might have been manipulated into pre-crime actions by others.
R10 notes, `the instructions didn't allow us to say strongly, for example in
our case, that we were duped, we were used':
X I always reg arded as a da ngerous p erson, who w as a zealot , a
fundamentalist, and potentially someone who could inspire young men to
commit terrorist acts. So I had very little sympathy for X. If I'd have been able
to say more in front of the jury, I said a fair bit, I'd have said more, but there's
a certain constraint. (R8)
Indeed, the constraint led to strong claims among some barristers that the
case could not be run as they would have wished:
I can say that the dynamic with the group made it very difficult to run the case
that I perceived was in his best interest. (R10)
My perspective is each defence counsel is going to be as narrow as the
client, although I had to have an appreciation of where the evidence [was]
against the rest of them because it signifies where my bloke fitted in on the
Crown's case. (R4)
At the same time, barristers and solicitors said that there was no group
discussion to develop a consistent story-line across the cases: `there was
definitely no group discussion. Everyone went their own way' (R10). It can
be argued that the honouring of this agreement worked at loggerheads with
providing an adequate accounting of events in front of the jury. One barrister
put it this way: `When everyone is saying what I'm doing is nothing, what
I'm doing is nothing, when clearly there was something occurring . ..' (R10).
BENT INTO THE REGIME?
Great cases, like hard cases, make bad law. For great cases are called great not
by reason of their real importance in shaping the law of the future, but because
of some accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests exercise a kind
of hydraulic pressure which makes what previously was clear seem doubtful,
and before which even well settled principles of law will bend.
101
If through deferent arrangements barristers accommodated themselves into
an emergent securitized justice regime, what accounts for these accom-
modations? As noted, legal practitioners develop a set of neutralizations to
194
101 Holmes J, dissenting, in Northern Securities Co. v. United States (1904) 193 US 197,
paras. 400±401).
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
maintain a belief in the system of justice, and that such deviations are slight
or permissible in the context of a just world.
As above, as agents of the court, barristers use recipe rules to trump
legality: they develop equivalencies to match their sense of justice with
organizational standards, are keen to show deference to so-called real-world
court operation, and are regarded in their professionalism and collegiality
against that deference.
102
Practices and procedures that would not be
favourable to one side if not for the peculiar context of deference that attends
cases that are at once political and criminal in character are recast for the
context (taking note of public pressure and legislative intent). For instance,
R2 was of the view that X did not have the intention or capacity to commit a
terrorist act but accepts X's conviction with reference to the external
political context:
I am not surprised by the verdict at all. It is difficult to expect the jury to
accept X does not intend to do what he told his followers that he would like to
do . . . Our defence was a fairly accurate analysis of the man, it is a lot to ask
from the jury to expect that they accept our defence particularly at that time
not too long after Bali and London bombings. (R2)
In addition to viewing the accommodations as part of normative recipe
court process, respondents denied that there was a great gulf between de
facto and de jure to contend. Literal denial is evident where several
barristers were of the view that the accused, other than their clients, were
de facto guilty of some serious terrorism offences and therefore `got what
they deserved'.
There's no doubt that X is a much more dangerous character than my client,
but he gets out before my client. (R10)
The barristers in Benbrika thought that the accused in Elomar were far along
toward completing a terrorist act, whilst the barristers in the latter looked
over to the former as a case where the most serious criminal activity was
taking place:
I think the people who went to the military base in NSW, they did intend to
cause havoc, to have guns, and cause real harm to the people there. They are
quite different from Benbrika. And I think that the people who were associated
with Benbrika's group in a fairly fringe way were quite violent people. (R7)
In the first instance of literal denial, there is in reality a grave threat to
legality, given that the barrister agrees that the prosecutions have captured
`something', even if that `something' may not have been traditionally
criminal, particularly concerning their client. In the example above, the
barrister has selectively incorporated the prosecution's short-form summary
description of the Sydney `cell', itself dependent for its furtherance of
violence on the leadership of Benbrika.
195
102 Ericson and Baranek, op. cit., n. 14, p. 234.
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Thirdly, barristers deploy implicatory denial. They do not see themselves
as implicated because any succumbing to security that is occurring is being
done by other bodies, namely, the judiciary and the legislature. In accounting
for the resolution of their cases, barristers repeated that the actors involved
and the prosecution were fair, that there was a case of serious crime to be
prosecuted, that they had to make compromises to themselves, act in good
faith as agents of the court, and that ultimately it was up to the judge to
ensure that legality was protected. This makes further justifications or
rationalizations, including literal or interpretative denial largely unnecessary.
When asked if the national security restrictions hampered their ability to
represent [their client] properly, R2 responded, `no, it just made cumbersome
protracted proceedings.' When asked if they were reasonably satisfied that
they were able to defend their client, R11 responded that whilst the laws are
outrageous, and there were questions that the trial does not answer, `within
that framework I thought I was able to represent my client to the best of my
ability.' Despite arrangements arising from the NSI Act that diminish the
right of the accused to have access to information having bearing on his case,
R2 stated: `I do not think the trials were unfair because of the withholding
information that I know about. We believe that we have got all the infor-
mation that we think we need.' After indicating his objection to the law and
the prosecution as being a pretty blunt instrument for dealing with
Benbrika's group, R2 describes the conviction as appropriate: `I think the
verdict was fine.' Although R11 indicates that, given the gravity of the
alleged crime and the complexity of the investigation, more senior officials
should have been called and cross-examined rather than shielded, he opines
that `given I had to work with certain parameters I could not complain about
the trial.' When asked about the possible doubts about the guilt of an
accused, R2 stated:
Maybe some in the AFP, but not in the public face when they presented the
case to us. [The prosecutor] may say that you may be right that X did not
intend to commit the act but the risk is so high that we are right to prosecute
this man and I say yes you are right. (R2)
Fourthly, barristers reported that the prosecution, judge, and proceedings
were consistent with the just world, even if that is informed by the necessity
to reset justice in the asymmetrical context. In this regard, they reported that
the convictions were the outcome of fair judgments and prosecutions. T1
responded that if not fair, the arrangements would not have been accepted by
the defence and approved by the court. When asked the same question R6
replied: `[i]f it was made by agreement with the defence that means it was
not prejudicial to their clients' case.' If equality of arms in counter-terrorism
cases requires enormous resources on the part of the defence, our barristers
agreed that they benefited from a proactive effort on the part of Common-
wealth and the Victorian and New South Wales governments to supplement
legal aid:
196
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
They spent so much money on this. They spent millions and millions and
millions of dollars on this trial. And even legal aid couldn't have covered it,
the amount of time we put on it. There was injection from the federal
government to pay for this trial. (R5)
Ample evidence has been seen among barrister opinion that, given that
the accused `were up to something', the resulting convictions are measured
within the presumptive just world, one in which actors are making necessary
accommodations to an asymmetrical moral economy and its call for some
derogations from political liberalism. It may even be suggested that the
dissonance of views is explained with implicit reference to the necessity of
asymmetry in the rejigging of legality post-9/11. Considering how barristers
bridged the divide between their view of their case, client, and the outcome
of a trial at which the clients of almost all of the barristers interviewed were
completing or had completed long sentences of incarceration, literal and
implicatory denial are buttressed by just-world thinking.
If resistance was available, where was it being expressed? As has been
noted, dissent may be found in various forums outside of the court. In front
of the court, however, all three views of legality (rule of law legality, meta-
rules process, and recipe legality) appear to be skewed against the barrister.
The barrister is required to serve as a court officer and this places him or her
under significant constraint. Part of that constraint is in adopting of recipe
rules to the lived environment of the court in a condition of high security in
an on-going emergency. At the same time, while barristers may believe that
anti-terrorism legislation is inconsistent with principles governing other
kinds of criminal proceedings, in the absence of a robust meta-rules process,
they can only challenge prosecutions upon a deviation from the applicable
law, an unlikely occurrence given the precautionary design of the law. As
noted by Ericson, this is legality even if it incorporates what he refers to as
counter-law;
103
they are compelled by rule of law legality to accept the
verdict. And with regard to those meta-rules, counter-terrorism legislation is
upheld because there is no overarching human rights legislation in Australia,
in which rights could be entrenched. Consequently, barristers were willing to
speak against the imposition of the legislation broadly, and they mostly do
not believe that their clients were planning or would have participated in any
act of terrorism, excluding the precautionary and unspecified `thought
crime', but given the ambit of the precautionary order at law they were
unwilling to admit that justice was not done with respect to their clients'
rights.
197
103 Ericson, op. cit., n. 35.
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CONCLUSION
It may be argued that barristers and solicitors representing those accused in
terrorism prosecutions are at the heart of the `practitioner pack' as it defends
legality. They have a vested interest in doggedly claiming the legality prin-
ciples in the interests of criminal accused, including the presumption of
innocence, the publicity and openness of the court, the right of the accused to
see all information that is used as evidence, the right to silence, and the right
to a fair contest in front of an impartial jury. As per the UN Human Rights
Committee,
104
lawyers should be able to advise and to represent persons
charged with a criminal offence in accordance with generally recognized
professional eth ics without restri ctions, influence , pressure or undue
influence from any other quarter.
This article has explored the role of barristers, based on their own
account, in compromising criminal justice values for national security
interests in two counter-terrorism trials. In these case studies, barristers and
solicitors were confronted with routine decisions in which the supremacy of
legality or the rule of law was quarantined by what is arguably the corrosive
power of national security interests. Barristers made some inroads with
favourable rulings that assisted the chance of discovery of exculpatory
patterns from the disclosed narrative. However, despite individually heroic
efforts and the one-time decision of the government of the day to provide
top-notch legal resources to the accused, barristers were operating at a dis-
advantage, given the quantity of information that needed analysing, the lack
of certainty that all relevant information was being disclosed through the NSI
Act, and thus the incapacity to test alternative exculpatory narratives.
Justice is skewed in practice or procedure as criminal barristers confront
the precautionary ethic in tangible legislation, the information disadvantage
in combat with the prosecutor, and the deviations from open and ambiguous
contest that are sought when arrangements and agreements are brokered.
Legality is bent through deferent arrangements, undertakings or agreements
by which fair play and duty to the court, among other factors, influenced
barristers to make arguments that do not contest the big-ticket questions of
`organization' and `conspiracy' at the same time that they outlaw the
strategy of shifting responsibility elsewhere, including to the co-accused. As
the existential prerogative of security is nurtured and released in a context of
precaution, authorized institutional actors, including barristers, adapt and
contribute their compliance as rule of law legality is skewed or bent.
Barristers have adopted coping strategies that help them to avoid the
appearance of complicitness or complacency in the roll-out of the emergent
skewed order. The standard of proof in the Anti-Terrorism Act [No. 1] 2005
198
104 UN Human Rights Committee, `General Comment No. 32, Article 14: Right to
equality before courts and tribunals and to a fair trial' (2007) UN Doc. CCPR/C/GC/
32.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
compels acceptance of discrete, inchoate acts corresponding to a `prepara-
tory' standard. While many of the interviewed barristers describe these as
`thought crime', they accept its justiciability. Just-world thinking encourages
their acceptance of the prosecution as meritorious, in particular in relation to
accused other than their clients, despite their view of the accused they know
best as inept, uninterested or incapable of planning or committing the com-
plicated acts the prosecution alleges. Furthermore, they view the outcome of
the trials as fair and just despite the skewedness of the legislation and its
application. Alternatively, despite their crucial role in the enforcement of the
secur ity- orie nted co unte r-ter rori sm leg islat ion, b arri sters e ngag e in
implicatory denial, attributing the skewedness of the legal order to other
actors ± the court and the legislature.
199
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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