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 à 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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