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

Abstract

This article explores two terrorism prosecutions – R v. Benbrika and Ors and R v. 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 precautionary 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.

Performing counter-terrorism: Police newsmaking and the dramaturgy of security

“…To address these challenges, my project uses two strategies: interviews with defence lawyers involved in terrorism cases and the use of the Access to Information Act (ATIA) to access declassified records. Defence lawyers are unique gatekeepers into the entire spectrum of activities that are included in the criminalization process (de Lint and Kassa, 2017;Norris, 2020). Having conducted 21 interviews with lawyers involved in prominent terrorism cases, this article deals with media and communications related topics that offer a window into how police engage in newsmaking practices.…”