Bills Digest No. 59 2004–05
National Security Information (Criminal Proceedings) Bill
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
Contact Officer & Copyright Details
to allow prosecutors and courts to use information the
disclosure of which would be prejudicial to the national interest
(national security information) in criminal proceedings while
preventing broader disclosure of such information including, in
some circumstances, disclosure to the defendant
to allow certain witnesses, whose mere presence might disclose
national security information, to be excluded from criminal
to require that defence lawyers undergo security clearance
before they can view national security information that might be
relevant to a criminal trial.
Similar Bills by the same names were
introduced in the 40th Parliament on 27 May 2004. See
Digest No. 25-26 2004 2005 for information on those Bills.
Those Bills were referred to the Senate Legal and Constitutional
Legislation Committee, which
reported on 30 August 2004.(1) The Committee
supported the Bill subject to thirteen proposed
amendments.(2) The Bills lapsed with the prorogation of
the 40th Parliament.
These new Bills have adopted some of the
recommendations made by the Committee.
This Digest is an updated version of the
previous Digest to take account of the changes made in the new
The recommendations of the Committee are
tabulated against changes to the Bills in the Appendix.
Restriction on the use of information that
might be prejudicial to the national interest in criminal trials
inevitably involves a conflict between several conceptions of the
public interest .
On one hand, there is an obvious public
interest in the defence and integrity of the nation and the
prevention of harm to individuals. In many circumstances, the
pursuit of that public interest involves keeping certain
information from the public, a fact which has long been recognised
by Australian law and convention.(3)
On the other hand, there is a powerful public
interest in the fairness and openness of the judicial system given
the extraordinary power that system holds over individuals,
especially in the criminal law where it can order the deprivation
of a person s liberty. Information is central to fairness and
openness. Under the Australian adversarial system, the traditional
principles of fairness involve, among other things, the right of an
accused person to mount a defence, examine the evidence against
them, be represented by counsel of their choice and be tried by a
jury. The restriction of an accused person s right to access
information, present information before a jury or provide
information by way of instruction to their lawyer has a bearing on
each of these principles.
Fairness does not only concern the rights of
the accused; it also concerns rights of the prosecution to
similarly call witnesses, cross-examine defendant witnesses and
present evidence that proves its case. These rights are required if
the effectiveness of the judicial system in convicting those who
have broken the law is to be maintained. Like the accused, the
prosecution can be stymied by rules restricting the use of
information. In the Commonwealth context, the government may find
itself in a quandary over whether information is best kept secret,
thereby reducing the chances of a successful prosecution, or best
used in court, thereby risking national security. Where the
defendant is accused of crimes relating to national security such
as terrorism or espionage this dilemma may be particularly acute,
as national security risks might be attached to either option.
Openness of the system is valued as a means of
ensuring scrutiny of judicial power, the development of
precedential law and the education of the public on the role of
courts and the law. The means of ensuring openness in court include
public hearings, publication of transcripts and decisions and the
archiving of court documents. Restrictions on the use of
information in open court and provisions for closed hearings
involve some compromise to this principle of open justice.
Developing laws and rules for the management
of national security information in court cases clearly involves
weighing and balancing these competing public interests. The law
already has some mechanisms for dealing with this balance, which
are discussed below.
These Bills affect this balance in two ways.
Firstly, they propose a scheme that will allow the prosecution to
access and use national security information that may not be
available to the defendant, either to use or respond to. In this
way, they attempt to resolve the situation in which protection of
national security may frustrate a prosecution. In doing so, they
privilege the prosecution over the defence, compromising the
equality of arms principle. Secondly, they prioritise national
security interests over open justice by providing that more
information available to, and used by, courts will not be available
to the public.
Currently, the principal mechanism for
preventing the disclosure of national security information in
criminal proceedings is the concept of public interest
immunity. This is a concept recognised by both statute through
s 130 of the Evidence Act 1995 and the common law. The
statutory version of the rule applies only at trial, with the
common law version applying to the pre-trial phase of
Both versions of the rule allow courts to
prevent the introduction of evidence in proceedings if required to
do so by public interest. This involves a careful balancing of the
competing public interests in:
preventing sensitive information from being disclosed, where
disclosure would cause damage to the public interest, and
allowing evidence to be used in court cases, to ensure:
the defendant s right to use evidence to disprove the charges
that evidence is available to prosecutors to prove their
that open justice is maintained.
Section 130 of the Evidence Act specifically
spells out the considerations the court must have in weighing these
competing public interests.
In both the common law and statutory guises, a
court may hold that a public interest immunity applies whether or
not it is claimed by the parties. Unlike forms of privilege , such
as the protection of client lawyer communications for use as
evidence, the public interest immunity cannot be waived. That is,
the decision as to whether or not information is best kept secret
or best used to convict is not necessarily in the hands of the
Commonwealth or the Director of Public Prosecutions. However, the
Commonwealth can make a claim for public interest immunity and, for
practical purposes, a judge will normally rely on evidence provided
by the Commonwealth in determining the extent to which disclosure
of the secret information would be prejudicial to the public
The public interest immunity is a blunt
instrument, requiring that the information is all in or all out
.(5) Once evidence is excluded on public interest
grounds it cannot be used in any form to prove the guilt of the
This became an obstacle in the case of R v
Lappas and Dowling(6) ( Lappas ), which
the Attorney-General has cited as a precipitant for the current
Bill. Lappas involved the prosecution of a Defence
Intelligence Organisation (DIO) officer who allegedly gave
classified documents to a third person with a plan that they should
be sold to a foreign power. In order to succeed on one of the
charges, the prosecution was required to prove that the defendant
intended that the documents in question would be useful to the
foreign power. This was impossible without adducing the content of
the documents as evidence.
The Commonwealth claimed public interest
immunity over the documents. The prosecution proposed, with the
Commonwealth s concurrence, to lead oral evidence that would
describe the whole documents in general terms and provide the court
with empty shells of the documents. (7)These empty
shells would have the substantive text blocked out, but headings
and markings indicating the secret nature of the documents still
Justice Gray of the ACT Supreme Court rejected
this proposal. Firstly, he upheld the Commonwealth s claim of
public interest immunity preventing the adduction of the documents.
Secondly, he held that the defendant could not receive a fair trial
without the opportunity to give evidence concerning those parts of
the documents the Commonwealth would not allow the court to see.
Thirdly, he held that evidence relating to the documents to which
the public interest immunity applied was inadmissible by virtue of
s 134 of the Evidence Act 1958. This section provides that
evidence is inadmissible if it cannot be adduced as a consequence
of a s 130 immunity.
The only option left was to stay the
prosecution of that particular charge. Nevertheless, the defendant
was later found guilty on a different charge that did not require
the prosecution to show that the defendant intended that the
documents would be useful to the foreign power. It was therefore
unnecessary to disclose the relevant documents.
In addition to the public interest immunity,
courts have a range of other procedures at their disposal to
prevent disclosure of national security information through court
proceedings. These can include ordering that hearings be closed to
the public ( in camera ), that the names of witnesses or parties be
suppressed from publication or that certain witnesses give evidence
using a mask or voice distorter to protect their
identity.(8) The power to make these orders can be found
in the inherent jurisdiction of courts to determine their own
procedures. In such a case, their use would always be balanced by
the courts regard for the fairness of their procedures, the rights
of the accused and the interests of open justice.
In other circumstances, statutes require that
courts take certain steps to protect information. An example is s
15XT of the Crimes Act 1914 (Cth), which provides that
courts and tribunals must conduct in camera hearings and make
suppression orders necessary to ensure that the real identities of
undercover officers are not disclosed.
In all these cases, however, the accused
person and their legal representatives would almost always be given
access to any information before the court, including the identity
The present Bills propose a system for the
control of the national security information in criminal
proceedings. This would apply in addition to the mechanisms
In short, this process requires the vetting of
evidence and witnesses by the Commonwealth Attorney-General where
the parties to the proceedings know or believe that the evidence or
presence of the witness could disclose sensitive information.
Importantly, the final decisions on whether and how
evidence can be used remains with the court, at least at the trial
stage of the proceedings.
The diagram in Appendix 2 outlines the
essential elements of this process. The details are explained more
completely in the Main Provisions section below.
The issue of security
clearance for defendants lawyers was also raised in the
Lappas case. In that case, the defendant s lawyer refused
to apply for security clearance and the judge stated that he could
not order the lawyer to do so. This frustrated the prosecution, who
were again in a bind over whether information was best kept secret
or best used in the prosecution, which would involve the lawyer
receiving the information. Ultimately, the Commonwealth was
satisfied with a confidentiality undertaking the lawyer provided to
Laws requiring security clearances for defence
lawyers were previously proposed by the Government in the
Australian Security Intelligence Organisation (Terrorism) Bill 2002
[No 2]. In that Bill, only approved lawyers , vetted by the
Minister on security grounds, would be allowed to act in certain
terrorism-related matters. That proposal was opposed by the Senate.
The Australian Security Intelligence Organisation Act 1979
(ASIO Act) now provides that defendant lawyers do not require
security clearance, but that regulations may limit the information
that can be provided to non-cleared lawyers (see s 34VA, ASIO Act
and reg 3B, ASIO Regulations 1980).
In addition, the Government has made changes
to Legal Aid Guidelines requiring that funding be withheld in
certain cases unless lawyers have received security clearance.
In April 2003, the then Attorney-General
Darryl Williams asked the Australian Law Reform Commission (ALRC)
to conduct an inquiry into the protection of classified and
security sensitive information. The Terms of Reference included
the operation of existing mechanisms designed to
prevent the unnecessary disclosure of classified material or
security sensitive material in the course of criminal and or other
official investigations and court or tribunal proceedings of any
In other words, a large focus of the ALRC
inquiry was to be the very issues that these Bills address. The
ALRC prepared a Background Paper, Discussion Paper, took
thirty-five written submissions and undertook consultations with
experts and stakeholders. Originally, it had been asked to report
by 29 February 2004, but this was extended to 31 May 2004.
The original Bills were introduced a mere four
days before this reporting date, which meant that the ALRC had
little time to analyse the Bills. Nonetheless a summary
highlighting the differences between the ALRC recommendations and
these Bills appears on pages 38 41 of the report.
In its submission to the Senate Legal and
Constitutional Affairs Committee the ALRC noted of the original
The ALRC was not consulted during the development
or drafting of these Bills, nor was this parallel process referred
to in consultations, or in the submissions from the
Attorney-General s Department and the Australian intelligence
The ALRC noted that the original Bills:
represent somewhat different ways of achieving the
same aims and outcomes, rather than a direct rejection of the ALRC
s recommended approach or the application of a fundamentally
The Senate Committee heard evidence from the
ALRC and seems to have taken on board ALRC views in the development
of its own recommendations. To the extent that the new Bills have
adopted some of the Committee s recommendations, the ALRC report
has now had some indirect influence on the Bills in their current
Proposed Division 2
determines the types of information affected by the proposed scheme
by defining national security and related terms. National
security is defined as Australia s defence, security, international
relations, law enforcement interests or national interests .
Security has the same meaning as in the Australian
Security Intelligence Organisation Act 1979, that is:
(a) the protection of, and of the people of, the
Commonwealth and the several States and Territories from:
(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
International relations is defined as
political, military and economic relations with foreign governments
and international organisations . Law enforcement
interests are taken to include the avoidance of disruption to
national and international law enforcement efforts, protection of
intelligence technologies and methods, protection of informants and
ensuring that intelligence and law enforcement agencies are not
discouraged from sharing information with other government
agencies. National interests are defined as the economic,
technological or scientific interests important to the stability
and integrity of a nation.
These provisions give the Bill a very wide
scope. In particular, the definitions of international relations
and national interests which include certain political, economic,
technological and scientific interests extend the application of
the Bill well beyond information that could cause prejudice to the
physical defence and security of Australia and its citizens. This
issue is discussed further in the Concluding Comments section.
Proposed Division 3 sets out
the type of proceedings to which the proposed scheme would apply by
defining criminal proceeding and related terms. In short,
the scheme would apply to:
proceedings to prosecute summary or indictable crimes against
Commonwealth law, whether in federal or state courts, including all
the stages of the proceeding (pre-trial, trial and post-trial)
actions for judicial review of an administrative decision by a
Commonwealth officer to prosecute a person for Commonwealth crimes
or otherwise related to a criminal justice process decision
proceedings arising under the Extradition Act 1988,
other parts of a criminal proceeding prescribed by
In other words, this Bill is limited to the
protection of national security information in criminal and
criminal-related proceedings only. It will not affect civil claims,
administrative claims or any other non-criminal actions in courts
or tribunals. By contrast, the ALRC has recommended that a single
scheme be established to cover all court and tribunal
The current Bill also includes a definition of
the term likely to prejudice national security so that it
requires a real, and not merely remote, possibility that the
disclosure will prejudice national security (clause
17). This did not feature in the original Bill. The second
reading speech suggested that this new definition has been included
to mean a real likelihood and not a remote possibility
.(15) However, if anything the new definition
has the opposite effect. Unless otherwise
defined, the expression likely would not normally include mere
possibilities, whether real or remote. In fact, the
Explanatory Memorandum contradicts the Minister, saying
that the new definition avoids the application of a more likely
than not test .(16) The phrase is an important
one as it is forms the test that the Attorney-General and courts
must apply in deciding whether or not evidence should be excluded
from criminal proceedings. This definition widens the scope of the
term and with it the scope of excludable material.
Another important change in the current Bill
is the addition of subclause 19(2) which ensures
that courts retain the power to stay criminal proceedings on
fairness grounds, notwithstanding that similar grounds were
considered in the statutory process for the exclusion of evidence
and witnesses. This adopts a recommendation of the Senate
Clause 21 provides that
either party may apply to the court to hold a pre-trial conference
of the parties to consider national security information issues
that may arise in the trial. Once an application is made both the
court and the other party are obliged to participate.
Clause 22 gives effect to pre-trial conferences by
providing that the court may make any such orders necessary to give
effect to arrangements agreed between the parties. Clause
22 also allows the court to make orders to give effect to
arrangements agreed between the parties at other stages in the
The ALRC recommended a process to resolve
issues relating to national security information at the earliest
possible stage in criminal proceedings.(18) In the
Lappas case, Justice Gray regretted that the claim for
public interest immunity should be raised by the Commonwealth at a
late stage in the proceeding, where concerns raised at the
committal stage would have given the court and the parties more
flexibility to deal with the issue.(19) Clauses
21 and 22 go some way to providing a
pre-trial mechanism, reliant on consensus being reached between the
parties. The ALRC proposals go further, providing a hearing as soon
as the possibility is raised that national security information
would be used as evidence, in which the court could impose
a resolution on the parties.(20)
Clause 23 deals with the
protection and storage of information disclosed in criminal
proceedings. It allows regulations to be made to set storage rules
and allows courts to make their own orders consistent with those
regulations. The rules for the protection and storage of national
security information have implications for principles of open
justice. The notion that documents that bear on justice system
outcomes can be kept secret compromises the principle that citizens
should be free to study and scrutinise that system. The ALRC
recommends that courts should amend their own rules to provide for
the handling and storage of national security
Clauses 24 requires that
prosecutors and defendants notify the Attorney-General if they know
or believe that:
they will disclose information in the proceedings that relates
to national security or whose disclosure may affect national
a person whom they intend to call as a witness will disclose
information, either in giving evidence or merely by his or her
presence, that relates to or affects national security.
The new Bill includes an additional sub-clause
requiring the notifying party to also notify the other parties and
the court that notice has been given to the Attorney-General
Clause 25 provides that
notice to the Attorney-General may be required when the defendant
or prosecutor knows or believes that, in the course of proceedings,
a witness has been asked a question the answer to which may involve
information relating to or affecting national security. However, in
this scenario, before notice is sent to the Attorney-General, the
witness must write the answer down and give it to the court who
must then shown it to the prosecutor. It is then up to the
prosecutor to decide whether or not it requires notice to be given
to the Attorney-General. It is not clear why this determination
should be made by the prosecutor, rather than, for example, the
party who had called the witness, the party who had asked the
question or the judge. Criminal lawyers may have concerns that this
privileged position could be abused by prosecutors for tactical
purposes, for example to interrupt the flow of their opponent s
Under both clauses, once notice is sent to the
Attorney-General the proceedings are adjourned until a response has
been received. In the intervening time, it is an offence punishable
by two years imprisonment to disclose the information or to call a
witness who is subject to the notification (under clauses
40 and 41).
Similarly, breach of clauses
24 or 25 by failing to notify the
Attorney-General is also an offence punishable by two years
imprisonment, (under clause 42).
Clause 26 provides that the
Attorney-General can issue a non-disclosure certificate in
the following circumstances:
if he or she has been notified under clause 24 or 25 that a
party or other person may disclose information in a criminal
on his or her own initiative, if for any reason he or
she believes that a party or witness in a criminal proceeding will
disclose national security information, and
he or she considers that the disclosure is likely to prejudice
Where the relevant information is in the form
of a document, a non-disclosure certificate may be used to prohibit
use of the document (except in permitted circumstances) or to
provide a redacted version that may 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 relevant information is not in the form
of a document (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 statement of
facts that may be disclosed.
A new sub-clause 26(5) has
been provided in the current version of the Bill. This provides
that a non-disclosure certificate ceases to have effect once the
court has made an order in relation to the use of information and
that order is no longer subject to appeal.(22)
Certificates can also be revoked at any time by the
Clause 28 allows the
Attorney-General to issue a witness exclusion certificate to
prevent either party calling a witness whose mere presence would
disclose information prejudicial to national security. As with the
non-disclosure certificate, a witness exclusion certificate can be
made when the Attorney-General is notified under clause
24, or on his or her own initiative. As with
non-disclosure certificates, these certificates will cease to have
effect from the time the court has made an order in relation to
whether or not the witness may appear and that order is no longer
subject to appeal.
Unless a court has overturned a certificate,
the Bill proposes that it be an offence to disclose information or
call a witness in defiance of the certificate (clauses 43
and 44), with a penalty of two years imprisonment.
Further, clause 27 provides
that a non-disclosure certificate is conclusive evidence that the
disclosure of the information would be likely to prejudice national
security in the pre-trial phase of criminal proceedings. The same
goes for pre-proceeding phases of extradition matters.
Clause 27 also provides that
where a certificate has been issued, the court must hold a closed
hearing to determine whether it will maintain, modify or remove the
ban on disclosure or calling of witnesses. If the certificate is
received before the trial, the closed hearing must also occur
before the trial. (In the original Bill, the hearing was to take
place as soon as the trial begins in these circumstances. The new
formulation gives courts more control over the timing of the closed
hearing. This change adopts the Senate Committee s Recommendation
9.(23)) If the receipt is received after the trial has
already begun the court must adjourn for the closed hearing.
The effect of clauses 27, 43 and
44 is that the Attorney-General s certificate bans the
disclosure of the information until the court has conducted its
closed hearing. This could preclude the use of the information in
several important pre-trial steps in that might occur before the
closed hearing, including application for bail, committal hearing
and pre-trial disclosure. The significance of this prohibition is
increased by clause 35 which provides that a
subsequent court order overturning the Attorney-General s
certificate is not grounds for re-conducting parts of the
proceeding conducted before the order. However, compared to the
last version of the Bill, this problem has been alleviated by
allowing courts more control over the timing of the closed
Under clause 31, the court
may make its own order regarding non-disclosure or witness
exclusion ( a s 31 order ) after conducting a closed hearing (as
required by clauses 27 and 28).
Clause 29 provides that the
closed hearing may only be open to the following:
the presiding magistrate, judge or judges
the defendant and his or her counsel
the Attorney-General and his or her counsel (if the
Attorney-General exercises his or her right to intervene in the
hearing under clause 30), and
any witnesses allowed by the court.
The original Bill allowed defendants and their
lawyers to be excluded from the closed hearing if the court
determined that their presence was likely to prejudice national
security. Taking into account the recommendations of the Senate
Committee, the current Bill has given defendants slightly more
access to the closed hearing. Firstly, defendants lawyers may only
be excluded when they do not have appropriate security clearance.
This clearly improves protection of defendants rights, although any
defence lawyer acting without the ability to seek instruction from
their client remains at a substantial disadvantage. Secondly, the
defendant and his or her lawyer must be given an opportunity to
make submissions responding to any argument made by the prosecutor
or Attorney-General in favour of excluding evidence or a witness
from the trial. However, as nothing in the Bill requires the
defendant to have access to the information on which the argument
was based, this right might prove illusory as defendants would be
able to construct merely abstract opposing arguments. These issues
are considered further in the Comments section.
The court is required to make a record of the
hearing which may only be made available to a court considering an
Under clause 31, the court
may make a non-disclosure or witness exclusion order along similar
lines as the Attorney-General s certificates. Importantly, the
court may alternatively order that the relevant information may be
disclosed or the relevant witness may be called, effectively
overturning the Attorney-General s certificate.
In a non-disclosure order, the court may
provide that disclosure of documents is allowed on a redacted
basis, by summary or by statement of facts . However, the court may
not allow disclosure of oral testimony on a redacted or statement
of facts basis. The court must order that oral or other
non-documentary evidence may be disclosed in full or not disclosed
Sub-clause 31(7) outlines the
factors that a court must consider in making a s 31 order. These
whether the disclosure of the information or presence of the
witness would constitute a risk of prejudice to national security,
having regard to the Attorney-General s certificate
whether an order to prevent disclosure or calling of a witness
would have a substantially adverse effect on the defendant s right
to a fair hearing, including in particular on the conduct of
his or her defence (the italicised phrase was not included in
the original Bill), and
any other matters it considers relevant.
In essence, the court is required to balance the
competing interests of national security and justice to the
individual defendant. This involves a similar calculus as that
required under the public interest immunity test, although with
less detailed considerations than those applying under s 130 of the
Evidence Act. However, subclause 31(8) provides
that the court must give greatest weight to the risk of prejudice
to national security. In other words, courts are to be
expected to err on the side of reducing risks to national security
over the rights of the accused. The ALRC has rejected this
approach in favour of 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
.(24) The Senate Committee recommended that the
equivalent subclause of the previous Bill be removed or
amended.(25) It remains in exactly the same form as in
the previous Bill.
Once a court has made a non-disclosure or
witness exclusion order, the following would apply:
intentional contravention of the order would be an offence
punishable by two years imprisonment (clause
an adjournment may occur on the request of either party so that
they may consider and make an appeal against the order
(clause 36), and
if a court orders that a redacted document or statement of facts
be drawn, it becomes adducible as evidence of the full contents of
the document, to the extent that it is admissible under the normal
rules of evidence (subclause 31(3)).
One significant change appearing in the new
Bill is a requirement for the court to provide written reasons for
its s 31 order (clause 32). This adopts the Senate
Committee s Recommendation 5.(27)
Under the process outlined in clause 32 the
court must provide a written statement of reasons for making its s
31 order to the person who is the subject of the order, the parties
and their counsel and the Attorney-General if he or she has
intervened in the closed hearing. However, before making these
reasons available to the above, the court must provide the
prosecutor (and the Attorney-General if he or she has intervened)
with a proposed statement of reasons. The prosecutor or
Attorney-General may then request that the court vary its
statement, if they believe that the statement contains information
likely to prejudice national security. The court must make a
decision on that request. If the court does not agree to the
requested variation, the prosecutor or Attorney-General may appeal
that decision to a higher court (clause 38). While
the appeal is pending, the court may not provide the written
statement (clause 33).
Where such an appeal is made, the Bill is
unclear on the role of the other party in the appeal. Presumably,
the higher court will need to read the proposed statement before
deciding whether to uphold the lower court s decision not to vary
the statement. According to normal principles of procedure, the
other party would be entitled to see the proposed statement in
order to make submissions to the appellate court. That would
clearly undermine the very purpose of clause 33.
The alternative, that the defendant not see the proposed statement,
would disadvantage the appellate court as they would only receive
substantive submissions from one party.
Clause 37 would allow either
party or, if he or she has intervened, the Attorney-General, to
appeal a s 31 order to a higher court.
Clause 39 provides that
certain legal representatives of defendants in federal criminal
proceedings must obtain security clearances if they are to have
access to national security information. The requirement to obtain
a security clearance is activated if the Secretary of the
Attorney-General s Department provides written notice to the
defendant s lawyer or a person assisting the lawyer. The Secretary
must decide which level of clearance is appropriate. If the lawyer
does not apply for a security clearance the court must advise the
defendant of the consequences of engaging a lawyer without a
clearance and recommend that he or she instruct another lawyer.
Clause 46 provides that it be
an offence to disclose information likely to prejudice national
security to a defendant s lawyer, or person assisting that lawyer,
unless that lawyer or person has a security clearance or the
Secretary has specifically approved the disclosure. The main effect
of this would be to prohibit defendants from providing certain
instructions to their uncleared counsel. It may also effectively
limit the ability of prosecutors to provide certain information by
way of pre-trial disclosure.
The offence has a broad scope, applying to all
disclosures likely to prejudice national security . The offence
could apply regardless of whether or not the information is
classified, is subject to a certificate of the Attorney-General or
is disclosed with any intent to cause prejudice to national
security. It is broadened further by the wide definition of
national security described above. The broad application of the
offence would require defendants to tread very carefully in
providing instructions to an uncleared lawyer.
Altogether, without security clearance,
clause 46 would severely frustrate the task of
representing an accused person in a matter where national security
information is a significant issue. The preference for security
cleared lawyers is further enhanced by the new provision that only
uncleared lawyers may be excluded from closed
hearings.(28) For practical purposes, the Bill makes it
almost compulsory for lawyers representing the accused in sensitive
cases, and their staff, to obtain security clearances.
Part 5 outlines the offences
proposed by the Bill. These have all been addressed above in
relation to the substantive provisions they enforce.
Clause 47 requires the
Attorney-General to report annually to Parliament on the number of
certificates he or she has issued in the preceding year and the
criminal proceedings to which they applied.
There are no substantive changes between the
previous version of this Bill and the present one.
This schedule proposes changes to the
Administrative Decisions (Judicial Review) Act (AD(JR)
Act) to ensure that the Attorney-General s decisions to give
certificates under clauses 26 and 28 of the primary Bill are not
reviewable under that Act.
Item 1 provides that the
Attorney-General s decision to give a certificate is a related
criminal justice process decision under s 9A of the AD(JR) Act.
Under this section, a defendant in a criminal matter may not seek
review of such decisions under the Act.
Item 2 provides that the
Attorney-General s decision to give a certificate is added to
Schedule 2 of the AD(JR) Act. The effect of this is that a person
who has been given a certificate would have no right under the
AD(JR) Act to request reasons for the decision.
Item 1 provides that the
Attorney-General s decision to give a certificate is a related
criminal justice process decision under s 39 of the Judiciary
Act. The effect of this would be to prevent applications for
judicial review of these decisions to the Federal Court. It would
not prevent such applications to the High Court, which are
guaranteed under the Constitution.
The main effect of these Bills is to prevent
the disclosure of national security information in criminal
proceedings. It is not so much to prevent disclosure of such
information to the public, but to prevent disclosure to other
participants in the proceedings, including defendants and jurors.
Courts already have mechanisms to prevent the disclosure of
sensitive information to the public, through use of the public
interest immunity and procedural mechanisms such as in camera
hearings and suppression orders. These mechanisms might be
considered inadequate because they either prevent the prosecution
from using information in their case or require disclosure to the
defendant and jurors. By allowing prosecutors to use and courts to
consider information that might not be available to defendants and
jurors, these Bills go to that supposed inadequacy.
It was noted at the outset that the control of
information which might prejudice national security in criminal
proceedings involves complex balancing of the public interest in
keeping such information secret against the public interests in
judicial fairness and open justice. Here, the central issues in the
balance appear to be the supposed inadequacy of the current
mechanisms for protecting national security information and the
rights of the accused. Any proposal to allow information to be kept
from defendants or jurors will have severe implications for the
right of those accused to fair trials.
A key feature of these Bills is that they
would allow courts to devise redacted documents and statements of
facts that may be adduced as evidence of the contents of those
documents. This is a significant change to the current law
regarding the use of documents as evidence.(29) It could
significantly undermine the fairness of criminal trials by relying
on inevitably subjective, but incontestable, decisions about what
information can stay in a document and what can be left out. The
problem was explained by Gray J in Lappas when responding
to the prosecution s request to adduce redacted documents:
Such an interpretation involves value judgements
as to what the deponent considers should be revealed. Presumably,
there could be no cross-examination on whether the interpretation
accurately reflected the contents for that would expose the
contents. Nor could a person seeking to challenge that
interpretation give their own oral evidence of the contents for
that also would expose those contents. The whole process is
redolent with unfairness.(30)
The use of statements of facts is particularly
problematic. These would involve the court making highly subjective
judgements as to what facts the information in the document would,
or would be likely, to prove (paragraph 31(2)(f)).
Firstly, this subjective function normally belongs to juries in
federal criminal proceedings, not judges. Under this Bill, juries
may be required to take at face value decisions made by judges as
to what facts are proved by the contents of a document.
Secondly, and radically, it also involves a significant
compromise to the normally high burden of proof in criminal
proceedings, which requires that the prosecution prove its
case beyond reasonable doubt (cl 13.2, Criminal Code
Act 1995). Under paragraph 31(2)(f) the judge
may determine the contents of the statement on the basis of facts
which would, or would be likely to be proven by the
document. Likely to is a test that falls short of beyond reasonable
doubt . Although the jury will still be required to make a finding
of guilt beyond reasonable doubt, it may make this finding on the
basis of facts presented to it that may only be likely to have been
proven by documentary information the jury has not seen.
The closed hearing rules compound these
problems. These rules allow that a defendant and his or her
(uncleared) lawyer may be excluded from the hearing at which the
judge determines whether and how a document should be redacted or a
statement of facts drawn. Accordingly, not only does the defendant
lose their right to present their case to the jury on how the
documents should be interpreted, they may also lose their right to
argue this case to the judge or even see the documents which are to
be used in their prosecution. This problem is somewhat mitigated by
changes to the Bill s present form which allow security cleared
lawyers to remain in the closed hearing and guarantee the defence
an opportunity to make arguments in favour of inclusion. But these
changes are very limited in practice. Firstly, the ability of
cleared lawyers to effectively represent their clients will be
severely curtailed if they are not free to discuss the substance of
the hearing and obtain relevant instructions from their client.
Secondly, it could be argued that the right to make submissions as
to why a document should not be excluded or redacted is illusory if
the defendant cannot see the document in question.
The combined effect of redaction/statements of
facts and closed hearings compromises several common law,
international and constitutional requirements of a fair trial.
First, it has already been noted that the
statement of facts process reduces the common law standard of proof
in criminal trials.(31)
Second, dealing with substantive issues of
fact in closed hearings to which the accused and his or her counsel
may be excluded may violate Article 14 of the International
Covenant on Civil and Political Rights (ICCPR). Among other
things, this requires that an accused person have the right to be
tried in his presence, and to defend himself in person or through
legal assistance of his own choosing .(32) It is also an
important principle of the common law that defendants have a right
to be present at their trial, unless their behaviour disrupts the
court or they waive that right.(33)
Third, allowing the prosecution to have access
to the court in closed hearings while the defence does not
compromises the principle of equality of arms .(34) This
principle requires that neither party enjoy a procedural advantage
over the other. In the case of closed hearings, this can have an
important substantive effect. The ALRC notes that there is a real
concern that secret proceedings tend to encourage the use of
unreliable evidence, including double and triple hearsay
.(35) In the adversarial system, judges rely on
submissions by the parties lawyers in making their determinations.
According to the logic of the system, a judge deciding how a
document should be redacted or statement of facts drawn without
meaningful input from the defendant s lawyers will be at a
significant disadvantage and open to the apprehension of bias.
Fourth, the limitation of the role of the jury
offends a long-standing principle of criminal justice and,
potentially, the Constitution. It has already been seen that the
current Bill proposes that judges be permitted to reach
determinations on the facts that might be gleaned from documents to
which the jury would have no access. This would usurp the function
of juries as triers of facts in serious criminal proceedings, which
has been a fundamental component of the justice system in Australia
at least since the inception of the Constitution, and indeed in
England since the fourteenth century. (36)
It is also a function guaranteed by the
Constitution, whose s. 80 requires that [t]he trial on indictment
of any offence against any law of the Commonwealth shall be by jury
. While the High Court has interpreted the element of indictment of
any offence narrowly effectively allowing Parliament to label any
offence non-indictable in order to circumvent the jury requirement
it has been strict in setting out the requirements of a jury trial
where one is required.(37) It is at least possible that
a scheme allowing judges to vet and redact substantive information
before it reaches a jury offends s. 80. The question is to what
extent a jury can be excluded from aspects of a trial before it is
no longer a trial by jury .
Any restriction on the information that may be
brought before the court as evidence places some limitation on the
right of an accused person to conduct their defence. The same
applies to any restriction on witnesses who may be brought before
the court to give evidence. In order to establish their innocence,
defendants need to present documents and call and examine
witnesses. The right to adduce evidence in one s defence is not
limitless; it is restricted by various privileges and immunities,
including the public interest immunity.
However, the public interest immunity could
not normally be used to exclude a witness on the basis that his or
her mere presence could disclose information against the public
interest. It may be used to prevent a witness answering certain
questions, but it is possible that a witness whose presence may
disclose national security information may also be able to answer
questions that assist the defence without consequence to national
security. In such circumstances, courts have deployed a variety of
methods to protect the identity of the witness, including:
referring to the witness or informant by letter or
number only (for example, Witness X ); orders suppressing the
person s identity; the use of a mask or voice distorter; and
providing protective screens behind which a witness testifies,
hidden from the public but in view of the defendant, jury and
lawyers, who may therefore still observe the witness s
The present Bills go much further. While they
would allow courts to use these methods, they would also allow
courts to exclude witnesses altogether. Parliament may want to
consider whether this is a necessary power, given the options
already open to the court to protect the identity of those giving
evidence. If current methods to protect witness anonymity are not
effective, they could be improved along the lines suggested by the
ALRC before allowing for witness exclusion.(39) The
current Bill proposes no reform to enhance witness anonymity.
The Bill would allow witnesses to be excluded
whether they are called by the prosecution or the defendant. But
the only security benefit of excluding a witness, as opposed to
ensuring their anonymity, is that it allows the identity of the
witness to be kept from the defendant. Given this, there seems no
reason that courts should be empowered to exclude witnesses called
by the defendant, whom the defendant already knows. Such a measure
seems to limit the defendant s right to run a defence without any
significant benefit to national security.
The right to call witnesses is recognised by
the ICCPR which provides that an accused person must have the right
to obtain the attendance and examination of witness on his behalf
under the same conditions as witnesses against him .(40)
Australia may be in breach of this Convention if courts make use of
this Bill to exclude defendants witnesses.
The provisions of the Bill that effectively
require defence counsel to obtain security clearance in certain
cases might be considered an incursion on the right of defendants
to counsel of their own choosing. This is another internationally
recognised right, with Article 14 of the ICCPR requiring that the
accused be entitled to communicate with counsel of his own choosing
and to defend himself through legal assistance of his own choosing
The Law Council of Australia has argued that
the requirement for security clearance does interfere with this
right by providing the executive with the power to vet lawyers. Its
president, Bob Gotterson, QC has said:
What this security clearance proposal means is
that you will not be able to choose your own lawyer if your case
has national security overtones you can only see a lawyer approved
by officials appointed by the government of the day. The potential
for discrimination here is grave every citizen should be able to
choose their own lawyer; and every lawyer should be free to
Lawyers groups have pointed out that existing
court procedures for the vetting of lawyers on character grounds,
together with procedures to enforce confidentiality undertakings,
professional ethics and crimes for the unlawful disclosure of
sensitive information, provide a sufficient basis for maintaining
the secrecy of documents provided to lawyers.(43)
On the other hand, the Attorney-General s
Department has argued that current procedures for the admission of
lawyers are insufficient as they rely heavily on voluntary
disclosures and have little ability for systematic and subsequent
The ALRC reached the conclusion that security
clearance for lawyers may be necessary in certain
circumstances.(45) However, the ALRC recommends that
courts decide when information should be kept from lawyers without
clearance. The Senate Committee made a recommendation along similar
lines.(46) The current Bills take a much broader
approach, proposing that uncleared lawyers be denied access to any
information where disclosure is likely to prejudice national
security (clause 46).
Aside from the policy debate surrounding this
issue, the model for security clearance proposed by this Bill
presents some practical problems which may concern Parliament:
timing: it may take several
months for security clearance to be granted, during which time the
proceedings are adjourned. During this time the accused may be
imprisoned awaiting trial, so the delay has a real and significant
implication for that individual. No provision is made for defence
lawyers to obtain pre-clearance so that accused people can save
time by instructing a lawyer already cleared
discretion on the requirement for
security clearance: the Secretary of the Attorney-General
s Department appears to be given a very wide discretion in deciding
whether or not a lawyer should be required to obtain clearance.
There is no requirement, for example, that the Secretary have
reasonable grounds for believing that the case will involve
information likely to cause prejudice to national security, and
discretion on the level of clearance required:
the Secretary also has a wide discretion in determining the level
of clearance a lawyer may need.
The exercise of these discretions may involve
highly subjective assessments. The legislation provides no process
for merits review of these decisions.
Chapter III of the Constitution vests the
judicial power of the Commonwealth in federal courts. It is this
chapter which ensures the separation of judicial from legislative
and executive power. In a series of cases, the High Court has held
Chapter III of the Constitution entrenches aspects of trial
processes.(47) According to the logic of some of these
cases, setting legislative requirements for courts might involve
requiring them to act in a non-judicial way, which would conflict
with Chapter III.(48) In other cases it has been argued
that, where Parliament enacts legislation which makes certain
requirements for the functioning and procedure of court cases, it
may be usurping the judicial power which constitutionally resides
in the courts.(49) Justice Deane put the argument as
Common sense and the provisions of Ch III, based
as they are on the assumption of traditional judicial procedures,
remedies and methodology (see below), compel the conclusion that,
in insisting that the judicial power of the Commonwealth be vested
only in the courts designated by Ch III, the Constitution's intent
and meaning were that that judicial power would be exercised by
those courts acting as courts with all that that notion essentially
requires. Accordingly, the Parliament cannot, consistently with Ch
III of the Constitution, usurp the judicial power of the
Commonwealth by itself purporting to exercise judicial power in the
form of legislation. Nor can it infringe the vesting of that
judicial power in the judicature by requiring that it be exercised
in a manner which is inconsistent with the essential requirements
of a court or with the nature of judicial power. It would, for
example, be beyond legislative competence to vest jurisdiction to
deal with a particular class of matter in a Ch III court and to
provide that, in the exercise of that jurisdiction, the judge or
judges constituting the court should disregard both the law and the
essential function of a court of law and do whatever they
considered to be desirable in the public
Using these arguments, the High Court has held
that the Constitution does provide some, albeit limited, protection
of due process.(51) For example, judges in the majority
in Leeth were prepared to accept that an attempt to cause
a court to act in a manner contrary to natural justice would impose
a non-judicial requirement inconsistent with the exercise of
judicial power .(52)
The current Bills propose a scheme which
provides several prescriptions for the functioning of court
procedures. Some aspects of these adversely affect the rights of
the accused, as discussed above. On the other hand, the scheme
allows the court to retain discretion on several issues, including,
most importantly, whether or not information should be excluded
from a trial or used on a conditional (redacted) basis.
It is possible that elements of the scheme
conflict with Chapter III of the Constitution, especially those
relating to the right to communicate with one s lawyer and to
pre-trial procedures. It is also possible, and more likely, that
certain outcomes of the scheme could be found unconstitutional, for
example, where a lower court judge exercises his or her discretion
to exclude a defendant from the closed hearing.
The current version of the primary Bill
attempts to address these potential constitutional problems through
clause 19 (see above, Main Provisions). This
clause reaffirms the power of courts to control federal criminal
proceeding and, importantly, provides that clause 31 does not
prevent a court from staying an entire trial on the grounds that a
fair trial cannot be conducted. In doing so, it probably protects
the entire Bill from being unconstitutional. However, it does not
prevent the Constitution constraining the way courts implement the
Bill. In practice, any order allowing the exclusion, summarisation
or redaction of documents or exclusion of defendants or witnesses
might be unfair and/or unconstitutional. The Lappas case
demonstrates this. As Gray J noted of the prosecution s suggestion
to redact the relevant documents a process this Bill seems intended
to allow the whole process is redolent with unfairness
.(53) Using subclause 19(2), it is possible that Gray J
would have reached exactly the same position under the Bill as
without it. If courts determine that their discretions under the
Bill are circumscribed by countervailing constitutional principles,
it would undermine significant elements of the Bill and its
Parliament may want to consider the scope of
the Bills proposed scheme. It was noted earlier that the definition
of national security includes certain political, economic,
technological and scientific interests. These seem to go well
beyond those interests that involve protection against threats to
Australia s territorial integrity or direct threats of physical
harm to its citizens or military personnel. Given the effects of
the Bills on the rights of the accused, it might be considered more
appropriate to limit their effect to information affecting these
types of interests.
Another approach might be to limit the
circumstances in which the Bills will apply to these interests
against a yardstick of potential harm to, for example, territorial
integrity or citizens. To some extent, this is done in the
definition of national interest which only covers those economic,
technological or scientific interests important to the stability
and integrity of a nation , although important is still broader
than alternatives such as essential or necessary to ensure , and
stability and integrity are very vague terms. The definition of
international relations does not even have this proviso. Parliament
might consider whether the protection of all information relating
to political, military and economic relations with foreign
governments and international organisations justifies significant
limitations on the rights of accused, or only those which might
affect Australia s physical security.
The new definition of likely to prejudice
national security effectively broadens the scope of the Bill even
further (clause 17). In essence it includes
unlikely but a real possibility in the definition of likely .
The ALRC recommends that a statutory scheme
for the protection of information in court cases should apply to
the following categories of information:
classified national security information
security sensitive information that is, national security
information as defined in the Commonwealth Protective Services
Manual (PSM) which has not, or not yet, been classified, and
other national security information which might, if disclosed,
prejudice Australia s defence or security.(54)
The PSM definition, for items in the second
category, is very similar to the definition provided for national
security in this Bill:
national security information
official information whose compromise could affect the security
of a nation (for example, its defence or its international
relations). National security information could be about security
from espionage, sabotage, politically motivate violence, promotion
of communal violence, attacks on Australia s defence systems or
acts of foreign interference; defence plans and operations;
international relations; and national interest (economic,
scientific or technological matters vital to Australia s stability
and integrity).(55) [Emphasis added].
However, the emphasised phrase marks an
important difference between this definition and the one contained
in the Bill, because it does limit the types of information covered
to those affecting security.
The ALRC s third category is intended to
ensure that information can not escape the scope of the scheme on a
technical, definitional issue .(56) Even then, this
catch-all element is limited to information whose disclosure might
prejudice Australia s defence or security .
It should be noted that narrowing the range of
information that will receive the protection of the Bill would not
necessarily affect the secrecy of the information not included.
Such information would still be protected generally by existing
laws for the protection of official secrets and in court
proceedings by the public interest immunity.
Response in the current
The Committee recommends
that Subclauses 23(4), 25(5) and 26(5) of the Bill, which require
the court to hold closed hearings, be removed so that the court
retains its discretion to determine whether its proceedings are
open or closed.
adopted in current Bill.
The Committee recommends
that the Bill be amended to include a provision requiring the court
to provide a written statement of reasons outlining the reasons for
holding proceedings in-camera.
clauses 32 and 33.
Recommendations 1 and 2 are not supported, the Committee recommends
that, as a commitment to the right of a defendant to a fair, public
trial, the Bill should be amended to include a provision requiring
the Attorney-General to publish a statement of reasons for any
decision to hold a closed hearing.
adopted in current Bill.
Committee recommends that Subclause 27(4) of the Bill be amended to
allow the courts the discretion to determine to what extent a court
transcript or parts of it should be sealed or distributed more
widely and any undertakings required for people to have access to
adopted in the current Bill.
Committee recommends that the Bill be amended to include a
provision requiring a court to provide a statement of reasons for
any restriction placed on the distribution of all or part of a
adopted in the current Bill.
Committee recommends that Clause 27 of the Bill be amended to
provide that defendants and their legal representatives can only be
excluded from hearings in limited specified circumstances, and
courts will retain the power to stay proceedings if the defendant
cannot be assured of a fair trial.
to some extent. Clause 29 (previously 27) now provides that
security cleared counsel cannot be excluded from closed hearings
and defendants must have the opportunity to make submissions before
evidence or witnesses are excluded. Clause 19 provides that courts
retain the power to stay proceedings.
Committee recommends that the Bill be amended to include a
provision that requires the court, when making an order allowing
information to be disclosed as being subject to the
Attorney-General's non-disclosure certificate, to be satisfied that
the amended document and/or substitution documentation to be
adduced as evidence would provide the defendant with substantially
the same ability to make his or her defence as would disclosure of
the source document.
adopted in the current Bill. However, paragraph 31(7)(b) now
provides that substantial adverse effect on the conduct of the
defence must be factor for particular consideration by the court in
deciding to exclude evidence or witnesses or draw a statement or
The Committee recommends
that the Bill be amended to include a provision that requires the
court, when making an order to exclude a witness from the
proceedings, to be satisfied that the exclusion of the witness
would not impair the ability of the defendant to make his or her
adopted in the current Bill. However see discussion of
Committee recommends that the Bill be amended to allow the court to
make decisions about the use of information before the commencement
of the trial.
subclauses 27(3) and 28(5).
Committee recommends that the court assume a more active role in
determining whether a defendant's legal representative requires a
security clearance before he or she can access information. The
Committee recommends that the Bill adopt the recommendation by the
ALRC that 'the court may order that specified material not be
disclosed to a lawyer unless he or she holds a security clearance
at a specified level'.
adopted in the current Bill.
The Committee recommends
that Subclause 29(6) be amended to allow the court the discretion
to make decisions in relation to the admissibility of evidence
containing classified or sensitive national security information at
such time as the court considers appropriate.
deletion of previous subclause 29(6).
The Committee recommends
that the term 'substantial' be removed from paragraph 29(8)(b) of
adopted in the current Bill.
The Committee recommends
that Subclause 29(9) of the Bill be removed from the Bill, or at
the least, amended to reflect the response received from the
adopted in the current Bill.
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, Senate
Legal and Constitutional Committee, Canberra, August 2004.
(Hereafter, Senate Committee.)
ibid, p. vii-viii.
For example, through the public interest immunity rule in the
law of evidence, discussed below.
Australian Law Reform Commission, Keeping Secrets: The
Protection of Classified and Security Sensitive Information, Report
98, Sydney, May 2004, p. 317. (Hereafter, ALRC.)
ibid, p. 324.
 ACTSC 115. (Hereafter, Lappas.)
ibid., paras 2 and 8.
ALRC, op. cit., p. 274.
ibid., p. 182.
ibid., Terms of Reference
Australian Law Reform Commission, ALRC Submission on the
National Security Information (Criminal Proceedings) Bill 2004 ,
Submission to Senate Legal and Constitutional Committee, Sydney, 30
June 2004, p. 4.
Section 4, Australian Security Intelligence Organisation Act
ALRC, op.cit., p. 41.
Senator Ian Campbell, Second reading: National Security
Information (Criminal Proceedings) Bill 2004 , Senate, Debates, 17
November 2004, p. 9.
Explanatory Memorandum: National Security Information (Criminal
Proceedings) Bill 2004, Philip Ruddock, Attorney-General, Canberra,
2004, p. 7.
Senate Committee, op. cit., p. 25.
ALRC, op.cit., p. 41.
Lappas, op.cit., para 18.
ALRC, op. cit., 500 (Recommendation 11-9).
ibid., 508, 11 37.
A new clause 20 provides that an order is
considered no longer subject to appeal after an appeal has been
determined or the period for making an appeal has lapsed.
Senate Committee, op. cit., viii.
ALRC, op. cit., 41.
Senate Committee, op. cit., p. 43.
Redacted or summarised documents may not currently be adduced as
evidence of the contents of the document as a result of s. 48,
Senate Committee, op.cit., p. 21-22.
See above p. 13.
See above, Background.
Lappas, op.cit., para 14.
There has been some debate as to whether the criminal standard
of proof (beyond reasonable doubt) is entrenched by the
Constitution, although the approach taken by the High Court appears
to suggest it is not. See George Williams, Human Rights under the
Australian Constitution, Oxford University Press, Melbourne 1999,
Article 14.2(d), International Covenant on Civil and Political
Rights  Australian Treaty Series 23 (Entry into force for
Australia ,13 November 1980). (Hereafter, ICCPR.)
See R v Abrahams, (1895) 21 VLR 343, p. 346 quoted in ALRC,
See ALRC, op.cit., p. 236.
ALRC, op.cit., p. 379.
Williams, op.cit, 107, discussing the judgement of Deane J in
Kingswell v The Queen.
See Williams, op.cit., pp. 103-110.
ALRC, op. cit., p. 275.
ibid., pp. 275-284.
ICCPR, op.cit., Article 14(3)(e).
ibid., Article 14.3 (b) and (d).
Bob Gotterson, QC, Lawyers reject unnecessary security clearance
laws , 27 May 2004, media release, Canberra. http://www.lawcouncil.asn.au/read/2004/2396653433
See discussion in ALRC, op.cit., pp. 181-201.
In ALRC, op.cit., p. 189.
ibid, pp. 200-201.
Senate Committee, p. 40.
See generally Williams, op.cit., p. 215.
Leeth v Commonwealth (1992) 174 CLR 455.
For example, the approach taken by Deane and Gaudron JJ in
Polyukhovich v Commonwealth (1991) 172 CLR 501.
ibid., per Deane J, p. 607.
See Williams, op. cit., pp. 220-225 and Dietrich v The Queen
(1992) 177 CLR 292, p. 362 (per Gaudron J).
Leeth, op. cit, (per Mason, CJ, Dawson and McHugh JJ), p
Lappas, op.cit., para. 14.
ALRC, op. cit., p. 438.
Attorney-General s Department, Commonwealth Protective Security
Manua 2000, Canberra, 2000, Glossary.
ALRC, op. cit., p. 439.
Senate Committee, op. cit., p. vii-viii.
29 November 2004
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.
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2004.
Back to top