Bills Digest no. 144 2004–05
National Security Information Legislation Amendment
Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
National Security Information
Legislation Amendment Bill 2005
House:
House of
Representatives
Portfolio: Attorney-General
Commencement: The formal provisions commence on Royal Assent;
the substantive provisions commence 28 days after Royal
Assent
To provide a statutory regime governing the use of national
security information in civil proceedings. Existing legislation
governs the use of national security information in criminal
proceedings.
Similar to the regime for criminal proceedings, the proposed
civil proceedings regime:
-
may prevent the parties to civil proceedings
and their lawyers from having access to national security
information (as defined)
-
means that witnesses whose mere presence might
disclose national security information can be excluded from civil
proceedings
-
means that lawyers for the parties in civil
proceedings and the parties themselves will have to be security
cleared before they can see national security information that may
be relevant to their proceedings, and
-
provides custodial penalties for anyone
convicted of contravening the requirements of the
legislation.
In April 2003, then Attorney-General Daryl Williams asked the
Australian Law Reform Commission (ALRC) to review the handling and
protection of classified and security sensitive information in
legal proceedings. After receiving amended terms of reference, the
Commission was asked to report by 31 May 2004.
A copy of the Commission s report, Keeping Secrets. The
Protection of Classified and Security Sensitive Information
can be found at: http://www.austlii.edu.au/au/other/alrc/publications/reports/98/
The ALRC considered whether existing mechanisms provided
adequate protection for national security information in legal
proceedings. These mechanisms include public interest immunity;
statutory provisions allowing for closed courts and restrictions on
publication; statutory and administrative regulations providing
sanctions against unauthorised disclosure of classified material;
and the standards found in the Commonwealth Protective Security
Manual.(1)
These protections notwithstanding, the ALRC made a number of
recommendations for change including the enactment of a new
National Security Information Procedures Act, which would apply to
criminal, civil and administrative proceedings in all courts and
tribunals. The ALRC s recommendations were designed to take account
of the rights of individuals to fair and open trials; the
Government s need to maintain official secrets; and the
public interest in safeguarding national security; while
facilitating the prosecution of terrorists and spies; maintaining
the fairness, integrity and independence of the judicial system;
and adhering to the principles of open justice and open and
transparent executive government .(2)
While the ALRC s report suggested some differences in approach
to criminal and civil proceedings, its recommendations generally
applied to both with the basic thrust of the recommendations
attempting to move all participants away from the idea that the
public interests in full disclosure and in proper confidentiality
are necessarily completely opposed, and that the only solution must
necessarily favour one at the expense of the other
.(3)
Just before the Commission s report was due to be submitted, the
Government introduced legislation dealing with national security
information in criminal proceedings into Parliament.
Two Bills the National Security Information (Criminal
Proceedings) Bill 2004 and the National Security Information
(Criminal Proceedings) (Consequential Amendments) Bill 2004 were
introduced into the House of Representatives on 27 May 2004. The
Bills were referred to the Senate Legal and Constitutional
Legislation Committee ( the Committee or the 2004 Committee ) for
inquiry and report. The Committee supported the Bills subject to a
number of amendments.(4) However, the Bills lapsed when
the 40th Parliament was prorogued for the October 2004
General Election.
Two new Bills, incorporating some of the Committee s
recommendations were introduced into the 41st Parliament
in November 2004. The new National Security Information (Criminal
Proceedings) Bill was amended in both the House of Representatives
and the Senate. Both Bills received Royal Assent on 14 December
2004. Their substantive provisions commenced on 11 January
2005.
Bills Digests Nos. 59-60 2004-05, covering the
two new Bills introduced in November 2004, provide a thorough
discussion of the Bills and their implications.(5)
The National Security Information (Criminal Proceedings) Act
2004 (the Principal Act) has been amended once since its
passage. The National Security Information (Criminal
Proceedings) Amendment (Application) Act 2005 applies
the Principal Act to federal criminal proceedings occurring after
11 January 2005, even though those proceedings may have commenced
before that date. The present Bill adopts a similar approach (see
below).
In criminal proceedings, national security information might be
an issue in prosecutions for offences such as terrorism offences,
espionage, treason, sabotage and hijacking. And given the wide
definition of national security , such information might also be an
issue in prosecutions for offences under a variety of other
statutes for example under Division 3, Part III of the
Australian Security Intelligence Organisation Act
1979,(6) the Witness Protection Act 1994,
the Australian Crime Commission Act 2002 and the Principal
Act itself.
National security information may also arise in civil
proceedings. A number of examples have been provided by the ALRC,
the second reading speech and in submissions to the Senate
Committee considering the current Bill.(7) As the
Australian Law Reform Commission has pointed out, such proceedings
might involve claims:
brought against a government department or agency by, for
example, members of the defence forces, intelligence personnel or
their dependents or estates;
against the Government by private third parties, the evidence
surrounding which involves classified or security sensitive
information that would emerge in the normal course of that
litigation; and
brought by the Government against a private
third party arising, for example, out of damage caused by that
third party to property, the existence or significance of which the
third party was unaware, or which would emerge if evidence that
would normally be disclosed is produced.(8)
The Attorney-General s second reading speech makes specific
reference to accident compensation and family law proceedings. And,
as a submission to the 2005 Committee points out, national security
information may also be raised in proceedings for judicial review
of administrative action. Examples might include applications for
review of decisions by the Attorney-General to list an organisation
as a terrorist organisation or to refuse an application to de-list
such an organisation. National security information may also arise
in an application for a remedy in relation to a detention warrant
issued under Division 3, Part III of the Australian Security
Intelligence Organisation Act.(9)
The scheme governing the use of national security information in
criminal proceedings set out in the Principal Act is broadly
similar to that proposed for civil proceedings. A summary of some
key differences can be found in the Explanatory Memorandum for the
National Security Information Legislation Amendment Bill 2005.
A number of definitions in the Principal Act are important in
any consideration of the current Bill because they also apply to
it. In particular, the definition of national security is central
to the legislative scheme because it is used as the basis for
non-disclosure of information in legal proceedings.(10)
Some key definitions are:
(a) the protection of, and of the people of, the Commonwealth
and the several States and Territories, from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence
(iv) promotion of communal violence
(v) attacks on Australia s defence system;
or
(vi) acts of foreign interference; whether
directed from, or committed within, Australia or not; and
(b) the carrying out of Australia s
responsibilities to any foreign country in relation to a matter
mentioned in any of the subparagraphs of paragraph
(a).(12)
-
international relations means
political, military and economic relations with foreign governments
and international organisations (13)
-
law enforcement interests includes
interests in such matters as avoiding disruption to national and
international efforts relating to law enforcement and criminal
investigation; protecting methods used to collect and analyse
criminal or security intelligence; protecting informants; and
ensuring that intelligence and law enforcement agencies are not
discouraged from sharing information with
government,(14) and
- likely to prejudice national security means that there
is a real not merely a remote possibility that a disclosure of
national security information will prejudice national
security.(15)
The definition of national security was narrowed during the
passage of the Principal Act to remove national interests from its
ambit.(16) Nevertheless, comments in Bills
Digest No. 59 2004-05 about the breadth of the definition
remain apposite. As the Digest remarked, the definition
gives the legislation a very wide scope and extend[s] well beyond
information that could cause prejudice to the physical defence and
security of Australia and its citizens .(17) In
particular, Parliament may wish to note the reference to
international relations and law enforcement interests in the
definition and the broad coverage given to those terms.
Items 1-3 of Schedule 1 rename
the Principal Act and insert references to civil proceedings. The
Principal Act will be re-titled the National Security
Information (Criminal and Civil Proceedings) Act 2004.
The amendments will apply to civil proceedings whether commenced
before or after the legislation commences once the requisite notice
is given [subclauses 6A(1) and 6A(2)].
Importantly, the Bill enables the Attorney-General to issue notices
and certificates in relation to civil proceedings, irrespective of
whether he or she is a party to those proceedings.
A notice issued by the Attorney-General under the proposed
legislation advises a party and the court that the Act applies to
the proceedings. This may have important implications for the
parties, their lawyers and witnesses and may expose them to
criminal sanctions for breach.
If the notice is given after the proceedings have commenced it
will only apply to those parts of the proceedings that take place
after the notice is given [clause 6A(5)].
Notices and appointments are not legislative instruments for the
purposes of the Legislative Instruments Act 2003
[clause 6A(6)]. The consequence is that they need
not be tabled in Parliament and are not disallowable.
The legislation will apply to civil proceedings in which the
Attorney-General is not a party if he or she gives written
notice to the parties that the Act applies [clause
6A(1)].
If the Attorney-General is a party to civil
proceedings, then another Minister must be appointed in writing for
the purposes of the Act, including the issuing of notices and
certificates [subclauses 6A(2), (3) and
(4)].(18)
The provision for an appointed Minister to perform the
Attorney-General s functions is a point of difference between the
Bill and the Principal Act. Provision for the appointment of a
substitute is not necessary in criminal proceedings. Although not
invariably the case, criminal proceedings generally involve the
Director of Public Prosecutions.
Clause 15A defines civil proceeding to mean a
proceeding in any Australian court other than a federal criminal
proceeding.(19) The term includes contempt proceedings
and all stages of civil process (for example, discovery, appeals,
interlocutory proceedings and proceedings prescribed by
regulation).
The application of the proposed legislation to any Australian
court is wider than in the case of criminal proceedings. In the
case of criminal proceedings, the Principal Act is limited to
proceedings for Commonwealth offences in courts exercising federal
jurisdiction and to extradition proceedings.
The ALRC report considered the constitutional implications of
extending a National Security Information Procedures Act to all
Australian courts. It concluded:
eight heads of power together with any inherent
power that the Australian Government may have to legislate for the
defence, security and integrity of the Commonwealth would seem to
cover all likely legal proceedings in which classified or sensitive
national security information would arise. However, whereas the
Australian Government inarguably has the power to legislate to
govern the procedure to be adopted in federal courts, reliance on
these disparate heads of power to extend the proposed regime to all
Australian courts might mean that there is some room to argue in
marginal cases that the proposed regime does not apply. If it did
not in some exceptional case, the existing common law and
legislative powers would remain and could be relied on, if
appropriate.(20)
The Principal Act enables national security information to be
disclosed for permitted purposes . With the expansion of the
legislation to cover civil proceedings, the definition of permitted
purposes is widened. For instance, permitted disclosures will
include disclosures where a party to civil proceedings or their
lawyer has been security cleared and discloses the information in
the proceeding or in the course of their duties in relation to the
proceedings [paragraphs 16(aa) and (ac)].
Item 13 amends section 19 of the Principal Act.
As things stand, section 19 enables a court hearing federal
criminal proceedings to stay those proceedings if an order made
under section 31 of the Act would have a substantial adverse effect
on a defendant s right to receive a fair hearing . This provision
safeguards a court s power to control its own proceedings.
Item 13 inserts a similar provision in relation to
civil proceedings.
Items 14-21 are consequential amendments that
identify the criminal proceeding provisions in the Act.
Item 22 inserts new Part 3A
Protection of information whose disclosure in civil proceedings is
likely to prejudice etc. national security .
Before a substantive hearing in civil proceedings begins, a
party can ask the court for a pre-trial conference to consider
national security information issues that may arise.
If the Commonwealth Attorney-General is not a party to the
proceedings, notice must be given to him or her. The
Attorney-General may attend the conference. If the Attorney-General
is a party to the proceedings, notice must be given to the Minister
appointed to represent him or her.(21)
The court must hold the conference as soon as practicable after
the application is made (clause 38A).
Clause 38B enables the Commonwealth and the
parties to agree to an arrangement about the disclosure of national
security information in the proceeding. The court is then given a
discretion whether to make an appropriate order to give effect to
such an arrangement.
Clause 38C provides that regulations may be
made prescribing how information that is disclosed to a court in a
civil proceeding must be stored, handled or destroyed. Courts can
make orders about such matters so long as they are not inconsistent
with the regulations.
Clause 38D provides that a party to civil
proceedings must notify the Attorney-General as soon as practicable
if they believe that:
-
they will disclose information during the
proceedings that relates to or affects national security, or
-
a person whom they intend to call as a witness
will disclose information by way of evidence or their mere presence
that relates to or affects national security.
Notice must be in the prescribed form. Once notice is given, the
proceedings must be adjourned.
The party must also give written advice to the court, the other
parties to the proceeding and any affected witness that notice has
been given to the Attorney-General. This advice must also contain a
description of the information.
Under clause 38E if a witness in a civil
proceeding is asked a question and a party to the proceeding
believes that the answer will disclose information that is related
to or may effect national security, then the party must advise the
court. In such a case, the court must require the witness to
provide it with a written answer to the question, adjourn the
proceedings and give the written answer to the Attorney-General.
Proceedings will be adjourned until the Attorney-General responds
either by issuing a certificate or a making a decision not to issue
a certificate.
The Bill creates a number of related offences both in terms of
failure to comply with the requirement to notify the
Attorney-General and in terms of certain post-notification
conduct.
Clause 46C provides that if national security
is likely to be prejudiced by disclosure in proceedings, it will be
an offence for a party to:
-
fail to notify the Attorney-General of an
expected disclosure in civil proceedings that relates to national
security
-
fail to comply with the requirements for notice
in subclause 38D(3)
-
fail to advise other parties and the court that
notice has been given to the Attorney-General, or
-
fail to advise the court that a witness may
disclose national security information.
The maximum penalty is 2 years imprisonment.(22) As
has been pointed out, these (and similar provisions) place onerous
obligations on parties, require compliance in the context of a wide
definition of national security and mandate assessments of when it
is likely to be prejudiced.
In the period after the Attorney-General has been
notified under proposed sections 38D or 38E and before the
Attorney has issued a certificate or decided not to issue a
certificate, it is an offence:
-
for a party or another person to disclose
information likely to prejudice national security if the disclosure
does not occur in permitted circumstances , or
-
for a witness to disclose written information
likely to prejudice national security to a court if the disclosure
does not occur in permitted circumstances (clause
46A).
These offences are also punishable by a custodial sentence of up
to 2 years.
Clause 38F provides that the Attorney-General
can issue a civil non-disclosure certificate:
-
if he or she has been notified under
clause 38D or 38E that a party or other person
will disclose information in a civil proceeding, or
-
on his or her own initiative if he or she, for
any reason , expects that national security information will be
disclosed by a party or another person in a civil proceeding,
and
-
he or she considers that the disclosure is
likely to prejudice national security.
A civil non-disclosure certificate must describe the national
security information but need not be issued with any accompanying
material. It may be given to potential disclosers a term defined in
subclause 38F(9).
If the information is in the form of a document, a civil
non-disclosure certificate may be used to prohibit use of the
document (except in permitted circumstances) or to provide a
redacted (edited) version that can be used. The redacted version
may be a copy of the document with text deleted with or without a
summary of the information that has been deleted or a statement of
facts that the information in the document would, or would be
likely, to prove.
If the information is not in documentary form (for example, oral
testimony), the certificate may prohibit the disclosure of the
information, with or without provision of a written summary of the
information or a statement of facts that may be disclosed.
Another certificate that may be issued by the Attorney-General
is a civil witness exclusion certificate. Under
clause 38H, the Attorney-General can issue a
witness exclusion certificate:
-
if he or she is notified under clause
38D that a party to civil proceedings believes that a
person they intend to call as a witness will disclose information
by their mere presence , or
-
on his or her own initiative if for any reason
, the Attorney-General expects that a person likely to be called as
a witness will disclose information by their mere presence ,
and
-
he or she considers that the disclosure is
likely to prejudice national security.
A civil witness exclusion certificate means that the party must
not call the person as a witness. A copy of the certificate may be
given to the relevant party or their lawyer and must be given to
the court. If the Attorney-General decides not to issue a civil
witness exclusion certificate, the Attorney-General must advise the
relevant party and the court.
It is an offence to disclose information contrary to a civil
non-disclosure certificate or a call a witness contrary to a civil
witness exclusion certificate. The maximum penalty is 2 years
imprisonment (clauses 46D and 46E).
None of the following is a legislative instrument for the
purposes of the Legislative Instruments Act: non-disclosure
certificates, witness exclusion certificates and the written advice
that must be provided to potential disclosers and the court
[subclauses 38F(8) and
38H(10)].(23)
A certificate issued by the Attorney-General is an interim
measure banning disclosure. It operates until a court makes its own
order either overturning the certificate and allowing the
disclosure or accepting the certificate and thus requiring
information to be withheld or the witness to be excluded. As
indicated above, while the Attorney-General s certificate is in
force, it is an offence to disclose information or call a witness
contrary to the requirements of the certificate.
Under clause 38G:
-
if a certificate is issued before the
substantive hearing in a proceeding begins the court must hold a
hearing to consider making an order under clause
38L
-
if a certificate is issued after the
substantive hearing in a proceeding begins the court must adjourn
the proceedings to consider making an order under clause
38L.
Such hearings are closed hearings.
As indicated above, after conducting a closed hearing, a court
makes its own order about non-disclosure or witness exclusion.
The requirements for closed hearings are set out in
clause 38I. Only the following people can be
present at a closed hearing:
-
the magistrate or judge(s)
-
court officials
-
parties to the proceeding and their
lawyers
-
the Attorney-General (if he or she intervenes)
and his or her lawyer, and
-
any witnesses allowed by the court.
However, if they have not been appropriately security
cleared, the parties, their lawyers and court officials can be
excluded from any part of the proceedings in which the
Attorney-General or their lawyer provides details of why
information should not be disclosed or witness excluded and the
court considers the disclosure is likely to prejudice national
security.
If the Attorney-General or their lawyer argues that information
should not be disclosed or that a witness should not be called to
give evidence, then the other parties to the proceedings and their
lawyers must be able to make submissions to the court. However, as
Bills Digest No. 59 2004-05 pointed out in the context of
criminal proceedings:
As nothing in the Bill requires the defendant to
have access to the information on which the argument was based,
this might prove illusory as defendants would be able to construct
merely abstract opposing arguments.(24)
Subclauses 38I(5)-(9) and clause 38J deal with
records of closed hearings.
A court conducting a closed hearing must make a record of the
hearing. This record:
-
must be made available to an appeal court,
and
-
must be made available to the Attorney-General
and their legal representative if the Attorney-General has
intervened in the proceedings.
The record must also be made available to an unrepresented
litigant with appropriate security clearance or, if a party is
represented, to their lawyer if appropriately security cleared.
However, in these cases, the record that is provided may
have been varied so that it does not disclose national security
information. The Attorney-General or their lawyer can ask the court
to vary the record in this way. The court s decision in response to
this request can be appealed and the Attorney-General can ask the
court to delay access to the record or varied record to allow the
Attorney to make a decision about an appeal. In the meantime, the
court must grant the request that access be delayed.
A section 38L order can:
-
prohibit a person from disclosing the
information except in permitted circumstances but enable them to
disclose a copy of the document with the information deleted or a
copy of the document with the information deleted and a summary of
the information or a statement of facts [subclause
38L(2)]
-
prohibit a person from disclosing the
information except in permitted circumstances or calling the
witness [subclauses 38L(4) and paragraph
38L(6)(a)]
-
provide that a person may disclose the
information in the proceeding or call the witness
[subclause 38L(5) and paragraph 38L(6)(b)].
Matters that the court must consider when deciding what order to
make are set out in new subclause 38L(7) and in
section 3 of the Principal Act. Under subclause
38L(7) these matters are:
-
whether there would be a risk of prejudice
to national security if the information were disclosed or the
witness called
-
whether the order would have a substantial
adverse effect on the substantive proceeding,
and
-
any other relevant matter.
Section 3 of the Principal Act sets out the objects of the
legislation. These objects are to prevent the disclosure of
information likely to prejudice national security, except to the
extent that preventing the disclosure would seriously interfere
with the administration of justice. When a court exercises powers
or performs functions under the Act it must have regard to the
objects of the legislation [subsection 3(2) of the Principal
Act].
Of the matters listed above, a court must give the greatest
weight to national security [subclause 38L(8)]. In
contrast the ALRC report, Keeping Secrets, recommended a
scheme which acknowledges the possible prejudice to national
security ought to be given great weight, but formally would leave
the court with more discretion to ensure that the interests of
justice are served in the case before it .(25)
Clause 38M requires that a written statement of
reasons for a section 38L order must be given to:
-
the person who is the subject of the
order
-
the parties and their legal
representatives
-
the Attorney-General and his or her legal
representative if the Attorney-General has intervened under section
38K.
If section 38K applies then a copy of the statement of reasons
must first be given to the Attorney-General. The Attorney-General
can ask the court to vary the statement if he or she considers that
it will disclose information likely to prejudice national security.
As is the case with records of hearings, the Attorney-General can
ask a court to delay giving its statement of reasons to allow time
for a decision to be made about appealing the decision
(clause 38N). The court must grant the request for
a delay.
The Bill provides that:
-
orders do not come into force until they cease
to be subject to appeal and they remain in force until revoked by a
court (clause 38O)
-
it is an offence to intentionally contravene a
court order. The maximum penalty is 2 years imprisonment
(clause 46F)
-
if a section 38L order is made, the parties to
proceedings can apply for an adjournment while they consider
whether to appeal against the order or withdraw the proceedings. An
adjournment can also be applied for to make an appeal or withdrawal
(clause 38P)
-
if a court orders a redacted document or a
statement of facts to be prepared, it is adducible as evidence of
the full contents of the document, to the extent that it is
admissible under the rules of evidence [subclause
38L(3)].
Clauses 38Q-38S set out who can appeal against
various court decisions and orders.
In a civil proceeding, the Secretary of the Attorney-General s
Department may notify a party, their lawyer or a person assisting
their lawyer that national security information may be at issue in
the proceeding. A person who receives such a notice can apply to
the Secretary for a security clearance. The Secretary also
determines the level of clearance required. During the clearance
process the matter must be adjourned on the request of a party or
their lawyer who wants to apply for an assessment
[subclauses 39A(1), (2) and (3)].
If a party or their legal representative does not apply for a
security clearance within 14 days of being so notified or is not
given a security clearance, then the Secretary may advise the
court. The court may then advise the party or their lawyer of the
consequences of not being given an appropriate security clearance
and recommend that the party engages another lawyer
[subclause 39A(6)].
The security clearance provisions represent another point of
departure between the Principal Act and the Bill. Under the
Principal Act, a defendant cannot apply for or obtain a security
clearance.
It should be noted that security clearances are given in
accordance with the Australian Government Protective Security
Manual. This document is not a classified document but its
availability is restricted to government departments, agencies and
contractors working to government.(26)
Clauses 46A 46G contains offence provisions
relating to civil proceedings. Most of the offence provisions are
dealt with above. However, clause 46G is described
here.
Clause 46G provides that is an offence to
disclose information for the purposes of civil proceedings to a
party or their lawyer if that disclosure is likely to prejudice
national security. There are exceptions to this prohibition when
giving evidence in the proceedings, in permitted circumstances
,(27) to a security-cleared party or their
security-cleared lawyer or with the approval of the Secretary of
the Attorney-General s Department. The maximum penalty is 2 years
imprisonment.
Clause 46G is a general offence, which does not
appear to be triggered by the issuing of notices or certificates.
It may inhibit a party who is not security-cleared from discussing
their case with a lawyer who is not security-cleared.
Item 28 repeals section 47 of the Principal Act
and replaces it with a provision requiring an annual report to be
tabled in Parliament that:
-
states the number of non-disclosure and witness
exclusion certificates issued both in criminal and civil
proceedings, and
-
identifies the criminal and civil
proceedings to which the certificates relate.
Part 2 of Schedule 1 contains
amendments to the Administrative Decisions (Judicial Review)
Act 1977 (ADJR Act) and the Judiciary Act 1903.
Amendments to the ADJR Act:
-
prevent ADJR Act review of Ministerial
decisions to issue notices under section 6A or to issue
certificates while a relevant civil proceeding or an appeal is
taking place
(item 30)
-
will mean that a person seeking ADJR review of
decisions to issue notices or certificates will not be able to
obtain reasons for those decisions (item
31).
Concluding Comments
The right to a fair and public hearing in civil and criminal
matters by an independent judiciary lies at the core of Australia s
judicial system. It is protected by Chapter III of the Commonwealth
Constitution. It is also recognised by international
law.(28) Article 14(1) of the International Covenant on
Civil and Political Rights provides:
In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a right to a fair and public hearing
by a competent, independent and impartial tribunal established by
law. The Press and the public may be excluded from all or part of a
trial for reasons of morals, public order (ordre public)
or national security in a democratic society, or when the interest
of the private lives of the parties so require, or to the extent
strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice; but any judgment rendered in a criminal case or in a suit
at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial
disputes or the guardianship of children.
Like the Principal Act, the Bill contains a number of provisions
which may impact on judicial independence, judicial process and on
transparent and fair civil proceedings.
The potential impact of the legislation on evidence and
witnesses in civil proceedings could be substantial given the broad
definition of national security in the Principal Act. This
expression extends to Australia s defence, security, international
relations or law enforcement interests . Parliament may wish to
note that international relations and law enforcement interests are
themselves defined very expansively. International relations
includes Australia s economic relations with foreign governments
and international organisations as well as political and military
relationships. Law enforcement interests include ensuring that
intelligence and law enforcement agencies are not discouraged from
sharing information with government.
The Bill requires a court to close civil proceedings in order to
consider a civil non-disclosure or witness exclusion certificate
issued by the Attorney-General. In accordance with its view that
closure of courts should be a last resort (29) the ALRC
report, Keeping Secrets, recommended that the decision
whether or not to close a hearing should be a matter for the court,
not the Executive. The ALRC approach was endorsed by the 2004
Committee.
The Bill restricts a court s discretion to decide whether it
will accept a civil non-disclosure or witness exclusion
certificate. When weighing up the listed factors, the Bill requires
a court to place greatest weight on national security . Apart from
this explicit requirement, the words of the section also tip the
scales in favour of national security on the one hand, the
threshold for national security considerations is a risk of
prejudice .(30) On the other hand, the threshold
for other matters is much higher for example, whether the order
would have a substantial adverse effect on the substantive
hearing or whether preventing disclosure would seriously
interfere with the administration of justice .
Because the Federal Government may be a party in civil
proceedings, the use of certificates and provisions relating to the
granting of court orders, may create a perception in particular
cases that the legislation could be used to evade civil
liability.(31) In its submission to the Senate Committee
considering the Bill, the Law Council of Australia remarks:
It could not unreasonably be suggested that, in
a dispute between the Federal Government and, say, a contractor for
the supply of military hardware, in which considerable damages
might be sought by one or each party against the other and security
sensitive information might well be germane to the resolution of
the litigation, that the use of Ministerial certificates might
frustrate the proceedings or be perceived as providing an unfair
advantage to one of the parties, most probably the Federal
Government.(32)
While item 13 of the Schedule
preserves the court s power to order a stay of proceedings, it has
been suggested that such an order is more likely to have adverse
consequences for parties [in civil proceedings] than the stay of
criminal proceedings .(33) This issue is discussed in
more detail below.
The security clearance provisions in the Bill raise a number of
issues including the role of the Executive Government vis vis the
courts, the potential for uncleared unrepresented litigants to be
excluded from parts of their own proceedings and the potential for
litigants to be denied access to the lawyer of their choice if that
lawyer is unable to obtain an appropriate security clearance.
The function of deciding whether a party or their lawyer needs a
security clearance is given to the Secretary of the
Attorney-General s Department. The Secretary of the Department is
also the person who decides what level of security clearance is
needed and it is his or her department that carries out the
security clearance. The court is given no role in deciding whether
a security clearance is necessary. Both the ALRC report and the
2004 Committee recommended giving a court a more active role in
determining whether a lawyer requires a security clearance. The
ALRC also recommended that a court retain a discretion to decide
that, subject to conditions, lawyers should be given access to
national security information even though they are not security
cleared.
If the Bill is passed, the result may be that unrepresented
litigants who are not appropriately security cleared will be denied
the opportunity to participate fully in their own civil
proceedings. However, unlike the Principal Act, which does not
enable defendants in criminal cases to obtain a security clearance,
the Bill has the advantage of permitting the parties in civil
proceedings to seek and obtain security clearances. The Explanatory
Memorandum explains that, unlike defendants accused of serious
criminal offences, parties to civil proceedings come from all walks
of life and many may already have or qualify for security
clearances .(34)
Lastly, despite the importance of security clearances, neither
the Principal Act nor the Bill requires the Executive to advise a
court that a security clearance has not been sought or has not been
granted. Nor is the court, once notified, required to advise an
affected party of the consequences of employing a non-security
cleared lawyer. In a submission to the 2004 Committee considering
this Bill, the ALRC suggested that the Bill should make such advice
a requirement rather than a matter of
discretion.(35)
Like the Principal Act, the Bill contains a variety of offences
relating to the disclosure of national security information and
contravention of the requirements of certificates and court orders.
These offences attract a maximum penalty of two years
imprisonment.
For instance, it will be an offence not to notify the
Attorney-General that information will be disclosed in a civil
proceeding that relates to or may affect national
security or that a witness will be called who will disclose
national security information either in evidence or by their
mere presence (clause 46C). Given the
very broad definition of national security contained in the
legislation, the fact that, for example, the information need only
relate to national security and the difficulties that parties may
have in making these assessments, Parliament may wish to consider
whether these offence and penalty provisions are appropriate.
The doctrine of the separation of powers is designed to uphold
the rule of law by protecting against the exercise of arbitrary
power, maintaining the independence and impartiality of the
judiciary, and contributing to public confidence in the
administration of justice.(36) It is constitutionally
entrenched and has two limbs. The first is that the judicial power
of the Commonwealth can only be exercised by a Chapter III
court.(37) The second is that a Chapter III court can
only exercise judicial power or power incidental to the exercise of
that power.(38)
The Bill gives considerable power to the Executive Government to
intervene in the conduct of court proceedings. In particular, the
Attorney-General can ask a court to vary its records and its
statement of reasons for issuing orders. Questions may arise
whether such requests could involve a Chapter III court behaving in
a way that is incompatible with the exercise of federal judicial
power or even amount to an impermissible exercise of judicial power
by the Executive Government.(39) Other provisions may
also raise such questions. For instance, although the Executive
Government may itself be a party to proceedings, it is the
Executive that decides whether a party can have access to evidence
through the security clearance process. Additionally, the Bill
enables litigants and their lawyers to be excluded from parts of
civil proceedings, contains some constraints on the powers of
courts to control their own proceedings and may impact on a
litigant s right to the lawyer of their choice.
On the other hand, the Bill contains measures that may address
any constitutional difficulties. For instance, a party can be
security cleared and a court makes the final decision about whether
information can be excluded or used in summary or edited form. And
importantly, the Bill gives a court the power to stay proceedings
that would not be fair. A similar power is given to a court hearing
federal criminal matters and may help to prevent constitutional
problems arising under the Principal Act. But is the effect of
staying proceedings in civil proceedings different from
staying proceedings in criminal matters? As a submission
to the present Senate Committee inquiry by legal academic, Patrick
Emerton, points out in a criminal trial the prosecution
must prove its case beyond reasonable doubt. Failure to do so means
that a not guilty verdict is returned and the accused person goes
free. In this situation, it can be argued that a stay of
proceedings serves the interests of justice. However, whether the
interests of justice are served by a stay of civil proceedings is
less certain:
For the defendant in a civil suit, a stay is as
good as a win, and so by making a stay the last resort in the
interests of justice, the Bill establishes as the default position
a victory for the defendant.(40)
The ALRC report, Keeping Secrets, recommended that its
proposed National Security Information Procedures Act apply to
criminal, civil and administrative proceedings in all
Australian courts and tribunals.
A criminal proceedings statute has been enacted. The Bill
proposes a regime for civil proceedings. What of administrative
proceedings? This question was asked by members of the Senate
Committee inquiring into the current Bill. The answer from the
Attorney-General s Department is as follows:
There are existing regimes which are in place to
cover the use of security sensitive information during proceedings
in those Commonwealth tribunals where such issues are likely to
arise. These provisions have been specifically tailored to deal
with the types of national security information likely to arise in
those proceedings: for example sections 36 and 39A of the
Administrative Appeals Tribunal Act 1975. At a future date
and in light of experiences with the operation of these regimes,
the Government may revisit the issue of extending the application
of the NSW Act regime to tribunal proceedings.(41)
-
Australian Law Reform Commission,
Keeping Secrets. The Protection of Classified and Security
Sensitive Information, Report 98, May 2004, p. 33.
-
ibid, pp. 10 11.
-
Australian Law Reform Commission,
ALRC Submission on the National Security Information
Legislation Amendment Bill 2005, 1 April 2005, p. 4
at:
-
Senate Legal and Constitutional
Legislation Committee, Provisions of the National Security
Information (Criminal Proceedings) Bill 2004 and the National
Security Information (Criminal Proceedings) (Consequential
Amendments) Bill 2004, August 2004 at:
-
Jacob Varghese, National Security
Information (Criminal Proceedings) Bill 2004, Bills
Digests No. 59 60 2004-05 at:
-
For instance, in relation to the
prosecution of a police officer or person exercising authority
under a warrant for an offence of contravening safeguards (section
34NB, Australian Security Intelligence Organisation Act); or in the
prosecution of a non-disclosure offence under section 34VAA of the
Act.
-
On
16 March 2005, the
Senate referred the Bill to
its Legal and Constitutional Legislation Committee ( the
2005 Committee ) for inquiry and report. The
Committee is due to report by 11 May 2005.
Information about the inquiry can be found on the Committee s
website:
-
ALRC (2005), op. cit, pp. 2 3.
-
See Patrick Emerton, Submission to the
Inquiry into the Provisions of the National Security Information
Legislation Amendment Bill 2005.
-
See National Security Information
(Criminal Proceedings) Bill 2004, Supplementary Explanatory
Memorandum, p. 1.
-
Section 8, National Security
Information (Criminal Proceedings) Act 2004.
-
Section 8, National Security
Information (Criminal Proceedings) Act 2004, which
incorporates a definition of security from the Australian
Security Intelligence Organisation Act 1979.
-
Section 10, National Security
Information (Criminal Proceedings) Act 2004.
-
Section 11, National Security
Information (Criminal Proceedings) Act 2004.
-
Section 17, National Security
Information (Criminal Proceedings) Act 2004.
-
The definition of national security was
Australia s defence, security, international relations, law
enforcement interests and national interests.
-
Varghese, op. cit, p. 7.
-
If there is an appointed Minister,
references to the Attorney-General are, in general, read as
references to the appointed Minister [paragraph 6A(2)(e)].
-
While a commonsense approach would
militate against such an interpretation, does the definition of
civil proceeding as meaning any proceeding in a court of the
Commonwealth, a State or a Territory, other than a federal
criminal proceeding suggest that State and Territory criminal
proceedings come within its ambit?
-
ALRC (2004), op. cit, p. 436. The eight
heads of power cited by the ALRC were powers over defence, external
affairs, posts and telecommunications, aliens, immigration and
emigration, the influx of criminals, railways in relation to the
naval and military purposes of the Commonwealth, and the express
incidental power.
-
See clause 6A.
-
A court may substitute a pecuniary
penalty or a pecuniary and a custodial penalty. It is not
required to impose a custodial penalty in these
circumstances. See subsection 4B(2), Crimes Act 1914
(Cwlth).
-
In contrast, while the Principal Act
provides that non-disclosure certificates and witness exclusion
certificates are not legislative instruments it does not
make similar provision for the written advice that must be provided
under subsections 26(7) and 28(10).
-
Varghese, op. cit, p. 12.
-
ALRC (2004), op. cit, p. 41.
-
See Attorney-General s Department
website:
-
The definition of permitted
circumstances means that Commonwealth officers who disclose
information likely to prejudice national security in the course of
their duties are exempt from the penalty.
-
In the context
of national security information and criminal proceedings,
there is a detailed discussion of the rights of an accused person,
Chapter III of the Constitution and the broad scope of the scheme
in Bills
Digest No. 59 2004-05.
Readers are referred to the Concluding Comments section of that
Digest.
-
ALRC (2004), op. cit, p. 353.
-
As Bills Digest No. 59 2004-05
pointed out, the expression risk of prejudice is defined to mean a
real, and not merely remote, possibility , avoiding the
application of a stricter, more likely than not test.
-
Law Council of Australia, Inquiry into
the National Security Information Legislation Amendment Bill 2005.
The Law Council acknowledges that the legislation requires the
Attorney-General to step aside in favour of another appointed
Minister if the litigation involves the Attorney-General. The
submission can be found at:
-
ibid, p. 3.
-
ALRC (2005) op. cit, p. 5.
-
Explanatory Memorandum, p. 1.
-
ALRC (2005), op. cit.
-
Anthony Mason, A new perspective on
separation of powers , Canberra Bulletin of Public
Administration, No. 82, December 1996, pp. 1 9 at p. 6.
-
New South Wales v.
Commonwealth (Wheat Case) (1915) 20 CLR 54.
-
R v. Kirby; Ex parte Boilermakers
Society of Australia (1956) 94 CLR 254.
-
For a discussion, see Emerton, op.
cit.
-
ibid, pp. 24 5.
-
Attorney-General s Department,
Questions taken on Notice, National Security Information
Legislation Amendment Bill 2005, Public hearing 13 April 2005, p.
2.
Jennifer Norberry
29 April 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
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