Counter-terrorism and information: The NSI Act, fair trials and open, accountable government

This paper investigates Australia’s National Security Information (Criminal and Civil

Proceedings) Act 2004 (Cth) (NSI Act) focusing on its provisions for protecting

national security information. The investigation highlights the broad and encompassing

definitions of ‘national security’ and ‘information’ used in the Act and considers the

measures it prescribes for the protection of so-called ‘security sensitive’ information in

Federal civil and criminal proceedings. The paper then examines the implications of the

definitions and measures for a suspect’s prospects of receiving a fair trial in terrorism

cases. Here, the paper highlights the serious restrictions the Act places on a legallyaided

person’s right to engage a legal representative of their own choosing. These

restrictions are then compared with those obtaining in some comparable jurisdictions.

As important as the NSI Act’s definitions and measures are for the way in which they

limit a terrorism suspect’s chances of a fair trial, their significance extends well beyond

this very serious issue to even deeper concerns. These relate to the secrecy and lack of

transparency surrounding the conduct of terrorism cases, the opaqueness of the

processes for classifying and protecting information, and the potential for tendentious

or improper use of information by the political executive and national security agencies

enabled by the dearth of avenues for external, independent scrutiny. At the core of these

concerns, then, are issues of the accountability and integrity of the government and of

the agencies under its direction. Using the experience of Mohamed Haneef as a case

study, the final section of the paper investigates the important role that defence counsel,

the media, and other independent parties can play in facilitating public scrutiny of the

conduct of terrorism investigations and trials and in exposing the improper use

sometimes made of protected information by the political executive in attempting to

influence the conduct of these cases.