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

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Cited authorities 3

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Author	Wondwossen D. Kassa,Willem de Lint
Date	01 June 2017
Published date	01 June 2017
DOI	http://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,

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.

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

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.

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.

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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.

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.

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,

the number of police officers

in the courtroom, and the placement of a perspex screen separating them from

the court.

However, instead of assessing these victories

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.

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.

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.'

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.

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.'

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.

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.

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.

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.

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.

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.

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.

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.

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.

In the precautionary or pre-crime

logic,

authorities `anticipate and forestall that which has not yet occurred

and may never do so.'

As Zedner observes, the precautionary approach,

treats individuals `as guilty ahead of any wrongdoing.'

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.'

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.

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.

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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.'

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.'

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.

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').

Thus, for a large governing minority,

doing something has come to be tied to institutional norms that enact the

precautionary or preventative state.

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.'

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.

In this and other ways, a state of exception becomes the `new

normal'.

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.

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

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.

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

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,

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.

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.'

Although

this gambit is empirically weak,

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.'

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.

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.

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.

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hegemony in the context of global asymmetric warfare permits what Rajah

refers to as derogations from political liberalism.

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.'

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.

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.'

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.

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.

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.

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.

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'.

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

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)).

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.

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)).

The conclusion of Pendennis-Hammerli, until recently the largest counter-

terrorism operation ever conducted on Australian soil,

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.

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.

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,

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'.

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'.

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.'

adds that early intervention by the investigative agencies `increases the

quantum of evidence'.

McCulloch and Pickering observe that `terrorism

prosecutions under pre-crime regimes are typically commenced on the basis

of vast amounts of ``circumstantial evidence''.'

Operation Pendennis intercepted 127,000 telephone calls

and up to 3.35

terabytes of electronic data amounting to about 9 million pages of paper.

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).

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.

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.

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,

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'.

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.'

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

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.'

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,

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'.

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.

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.

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',

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.

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:

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.

ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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

ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

drafted by persons who have little knowledge of the function and processes

of a criminal trial.'

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.'

Furthermore, apart from referring to information relating to

national security in general terms,

`there is no single definition of

``national security information'' in the NSI Act' that the judge may consult

to refine a position.

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.'

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.

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.

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.

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.

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.

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

ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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.'

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.'

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.

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.

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.

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.

ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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.

ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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.

ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
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Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

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

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Over 100 Countries

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users