Publication Details

This conference paper was originally published as Rix, M, Counter Terrorism and Access to Justice: Public Policy Divided?, in Proceedings of The Social Implications of Covert Policing Workshop, National Europe Centre, Australian National University, 2009.


This paper will consider the manner in which Australia’s counter-terrorism strategy has been operationalised, highlighting the implications of its strategy for access to justice. Access to justice, encompassing the ability of individuals, including persons suspected of terrorism offences and non-suspects, effectively to exercise their human and legal rights, can be an important curb on state power. But, in another equally important sense, providing individuals with access to justice also protects national security by helping to ensure that the law enforcement and security agencies focus their efforts on genuine terror suspects rather than wasting their resources on investigating and prosecuting genuine non-suspects. Accordingly, access to justice in the context of counter-terrorism, and more broadly, involves such things as suspects’ (and, non-suspects’) enforceable rights: to be represented by competent, independent and affordable legal counsel (thus including the availability of adequate legal aid); to the presumption of innocence; to a fair trial; not to be convicted of a terrorism offence through the use by police, intelligence and prosecuting authorities of evidence that would be inadmissible in ‘normal’ criminal proceedings; not to be subject to indefinite detention particularly so-called pre-charge detention; and, so on. The paper will assess the performance over the course of the war on terror of the Australian Government using the access to justice benchmark. It will examine how public policy in the area of counter-terrorism, particularly as it affects a legally-aided person’s choice of legal representative, has been shaped by such influences as the counter-terrorism models and precedents provided by ‘leading’ Western states like the United States and Great Britain and how these ‘extraneous’ factors have interacted with ‘indigenous’ political, social and security pressures to shape Australia’s counter-terrorism strategy especially as it has affected access to justice.