Chapter 3 - Issues raised by the Bill
3.1
This chapter examines key issues and concerns raised in
relation to the Bill, including:
-
the purpose and application of the Bill;
-
the effect of the court's power to stay
proceedings in the context of civil proceedings;
-
restrictions on the court's discretion;
-
security clearance requirements; and
3.2
Many similar issues were raised and considered during
the committee's inquiry into the Criminal Proceedings Bill. These will be
considered and noted where appropriate in this chapter. However, as outlined in
the previous chapter, a number of adjustments have been made for the regime for
civil proceedings. Again, this will be considered and noted in this chapter where
relevant.
Purpose and application of the Bill
Purpose of the Bill
3.3
Several submissions queried the need for, and the
purpose of, the Bill.[11] For example, Mr
Peter Webb from the Law Council of Australia (the Law Council) believed that:
Australian courts have a long history of
being able to manage sensitive evidence in all kinds of situations and there is
no reason to believe that security sensitive information could not be handled
by the courts and by the legal representatives of parties to best effect
consistent with the proper administration of justice.[12]
3.4
On the other hand, the Australian Security Intelligence
Organisation (ASIO) was strongly supportive of the Bill,
submitting that:
... the purpose of the Bill is to
prevent the disclosure of national security information in certain civil
proceedings where disclosure is likely to prejudice national security. It is
ASIO's submission that such protection is not currently available in present
mechanisms. It is crucial that national security information is appropriately
protected in both criminal and civil proceedings.[13]
3.5
The ALRC also supported the Bill,
noting that it reflects the recommendations of the ALRC report in relation to
civil proceedings.[14] However, the ALRC
noted that there were some departures 'in detail or tone' between the Bill
and the statutory scheme proposed by the ALRC.[15]
These departures will be considered where relevant in this chapter.
3.6
In response to the committee's questions as to the need
for the regime, the Attorney-General's Department replied that 'it is essential
to provide a regime to enable parties to use security sensitive information in
civil cases without jeopardising Australia's
national security.'[16] The Department
further elaborated on the need for the Bill:
The existing rules of evidence and procedure do not provide
adequate, consistent and predictable protection for information that may affect
national security and that may be adduced or otherwise disclosed during the
course of proceedings. Public interest immunity as provided for in section 130
of the Evidence Act 1995, provides
the Commonwealth with a recognised means to seek protection of security
classified information. However, this provision only applies in some
jurisdictions and relates to the production in evidence of information or other
documents in court. Claims such as production for discovery are not covered by
the Act, and unless otherwise legislated, such claims are covered by common law
principles, which can result in greater uncertainty than the application of a
legislative provision.[17]
3.7
The Department also argued that 'there is no clear
authority for redaction (editing or revising a document) or substitution of the
information with a summary or stipulation of the facts.'[18] The Department concluded that the Bill
would enable 'courts to balance national security considerations against the
ability to use the greatest amount of information possible to be admitted.'[19]
Application of the Bill
3.8
Many submissions noted that the Bill
could potentially apply to a wide range of civil proceedings in which the
protection of national security information may be at issue.[20] The Attorney-General's Department submitted
that national security information could arise in a 'broad range of civil
proceedings such as family law cases, accident compensation, contractual
disputes or appeals to the Federal Court from decisions of the Administrative
Appeals Tribunal.'[21] At the same time,
a representative of the Attorney-General's Department noted that there is only
a small number of cases in which national security information may be involved
– around half-a-dozen per year. The representative further noted that:
Our information is that some of those proceedings are family law
proceedings where one of the parties is an intelligence officer. One of the
other areas involves claims ... of compensation that flow from the actions of
persons who happen to be security intelligence officers.[22]
3.9
However, the Human Rights and Equal Opportunity
Commission (HREOC) was concerned that the Bill could apply to many proceedings
in which remedies for breaches of human rights are in issue. Some of the
examples given by HREOC where information relating to 'national security' might
arise included:
-
proceedings in tort alleging assaults or
unlawful conduct during questioning under a warrant issued pursuant to the Australian Security Intelligence
Organisation Act 1979 (ASIO Act);
-
proceedings seeking orders in the nature of
habeas corpus in relation to a 'detention warrant' issued under the ASIO Act;
-
proceedings relating to a person's entitlement
to a protection visa, or concerning a decision to cancel a person's visa on
character grounds;
-
proceedings concerning a decision to detain and
deport a non-citizen; and
-
proceedings relating to a decision to order the
surrender of a passport on security grounds.[23]
3.10
Mr Patrick Emerton was also particularly concerned that
applications for review of executive decision-making in relation to 'terrorism'
would be adversely affected by the Bill.[24]
He noted that the Bill could apply to an application to a federal court for a
remedy in relation to a questioning or detention warrant issued pursuant to the
ASIO Act; or a decision by the Attorney-General to list (or refuse to de-list)
an organisation as a terrorist organisation under the Criminal Code.[25] Mr Emerton was concerned that the Bill
could advantage the Commonwealth in such proceedings, and indeed felt that the
Bill could make it 'impossible for a person suing the Commonwealth to make out
their case.'[26] He concluded that the
Bill therefore has the potential to undermine some of the safeguards in
anti-terrorism legislation.[27]
3.11
Other submissions also raised concerns about the Bill's
potential to impact adversely on other anti-terrorism legislation. For example,
Amnesty International Australia (Amnesty) was also concerned about the
interaction that the Bill may have with the ASIO
Act. Amnesty agreed that the regime under the Bill could mean that a person
could be unable to effectively challenge a warrant for detention, or to seek an
appropriate remedy after their detention.[28]
3.12
However, a representative of the Attorney-General's
Department responded to this argument as follows:
... these bills in fact do little more than provide a formalised
procedure for claims of public interest immunity based on national security
grounds, I cannot see that the provisions of the bill would impact on the
safeguards that are contained in the other terrorism legislation.[29]
3.13
Both HREOC and Mr
Emerton disagreed with this statement.[30] Indeed, the committee notes that this
statement appears to contradict the Department's argument in relation to the
need for Bill. In particular, both Mr
Emerton and HREOC pointed out a number of
differences between the provisions of the Bill
and the procedure for claiming public interest immunity under the Evidence Act 1995. For example, HREOC
noted that, in claims for public interest immunity, the court retains control
of the procedure.[31] Both noted that,
unlike the Bill, the Evidence Act 1995 does not direct courts as to the weighting to be
given to the risk of prejudice to national security.[32]
3.14
Another issue raised during the committee's inquiry was
the application of the national security information protection regime to
administrative proceedings in tribunals. The ALRC noted that the Bill would not
apply to such proceedings, and recommended that the scheme for protection of national
security information should extend to administrative proceedings in tribunals,
'to ensure that such material is dealt with in a secure and consistent manner.'[33] The ALRC observed that administrative
tribunals can deal with security sensitive information in a range of contexts,
including, for example, in proceedings dealing with passport cancellations and
visa refusals; denials of a security clearance (or a clearance at the requested
level); and denials of requests made under Freedom of Information laws.[34] The ALRC further noted that:
While some of the existing federal tribunals have legislative
provisions and/or practices in place to deal with sensitive information, these
are not always adequate, or consistent with the more general scheme now laid
out in the National Security Information Legislation.[35]
3.15
Mr Craig Lenehan from HREOC expressed cautious support
for the ALRC's suggestion that there should be a consistent scheme which covers
administrative tribunals. In particular, Mr Lenehan observed that there is some
inconsistency across federal tribunals as to how national security information
is received and dealt with. However, Mr Lenehan cautioned that any such
extension should be 'scrutinised closely and should only be implemented in a
manner which follows the road map provided by human rights principles.'[36]
3.16
Others expressed considerable concern about extending
the regime to cover administrative tribunals. For example, Dr
Waleed Kadous
from the Australian Muslim Civil Rights and Advocacy Network (AMCRAN) voiced
his objection to any extension:
I do not think they [these laws] should even apply in civil or
criminal cases, and I do not see why they should be extended to administrative
cases. However, if the law is reformed in such a way that the person who decides
what is a national security issue is someone who is distinct from ASIO, someone
who is distinct from the AFP and certainly someone who is distinct from the
representative arm of government then, yes, I would consider that.[37]
3.17
In response to the committee's questions as to whether the
regime would be extended to administrative tribunals, the Attorney-General's
Department replied:
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 most 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.[38]
3.18
However, the Department also conceded that:
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 NSI [National Security Information] Act regime to tribunal
proceedings.[39]
3.19
The committee also sought clarification as to the
extent of the Bill's coverage of other civil
proceedings. Witnesses noted that the definition of 'civil proceeding' under
clause 15A would cover matters such as interlocutory proceedings, discovery and
exchange of documents.[40] However, the
issue of whether certain types of arbitration or mediation would be covered by
the Bill was less clear.[41]
3.20
A representative of the Attorney-General's Department
responded that court-ordered mediation would be covered, but that other forms of
mediation or arbitration would probably not be covered by the Bill.
However, the representative also noted that other legislation provides for 'offences
of disclosing national security information other than in the course of your
duties.'[42] Similarly, Professor
Weisbrot from the ALRC noted that there is
other legislation that provides offences for improperly disclosing classified
or security sensitive information, and so in some circumstances 'there would be
sanctions against divulging that material to a third party for the purposes of
dispute resolution.'[43]
3.21
In answers to questions on notice on this issue, HREOC stated
that, having considered the issue further, it believed that 'undesirable ambiguity
may arise from the definition of "civil proceedings".'[44] It noted in particular that the term
'court' in clause 15A could be quite uncertain and could 'potentially lead to
wasteful litigation and delays'. HREOC suggested that extending the provisions
of the Bill to tribunals, as outlined above, would be one way to avoid this
difficulty.[45]
The committee's view
3.22
The committee supports the argument that it is
necessary to provide a consistent and appropriate scheme for protection of
national security information in civil proceedings. In particular, the committee
recognises that extension of the national security information protection
regime to civil proceedings is desirable to ensure consistency of protection
across criminal and civil proceedings. However, the committee's support in this
context is qualified by its recommendations for amendments to the Bill,
which are made later in this report.
3.23
The committee acknowledges the concerns about the Bill's
potential impact on the safeguards in anti-terrorism legislation. However, the committee
considers that its recommendations elsewhere in this report may help address
some of these concerns. The committee also encourages ongoing monitoring by the
Attorney-General's Department, and by parliament, of the operation of the
regime proposed by the Bill.
3.24
The committee
also notes that there may be some uncertainty as to the Bill's
application in some areas, such as arbitration and mediation related to civil
proceedings. The committee also acknowledges suggestions that the regime
provided for in the Act should be further extended to proceedings in
administrative tribunals. In particular, the committee supports suggestions
that a consistent, uniform scheme should apply across all Australian courts and
tribunals. However, the committee notes that the Attorney-General's Department
will monitor the operation of the regime and may revisit these issues if
necessary.
Power to stay proceedings
3.25
Several submissions commented on the provisions of the Bill
which would preserve the court's power to stay proceedings under proposed subsections
19(3) and (4)). In particular, some were concerned that a stay of proceedings
would have different consequences in civil proceedings compared to criminal
proceedings.[46] For example, the Law
Council noted that it had strongly supported the stay provisions in the context
of the criminal proceedings legislation.[47]
However, in civil proceedings where the Commonwealth is a defendant, Mr
Peter Webb
from the Law Council noted that:
... an unfortunate perception could be created: that a stay of
proceedings compelled by difficulties relating to the admission of security
sensitive information and ministerial certificates has enabled the government
to evade a civil liability for which it might otherwise have been found
responsible.[48]
3.26
The Law Council was unable to suggest any alternative
mechanisms to remove this perception of unfairness.[49] The Law Council also conceded that the
stay provisions could 'cut both ways'. That is, if the Federal Government were
a plaintiff in a civil proceeding, the government could be 'equally frustrated
in attempts to pursue civil remedies.'[50]
3.27
Professor Weisbrot
from the ALRC also acknowledged that a stay could 'operate differentially' in
certain civil proceedings:
... in the bulk of civil cases that I can envisage, either delay
or stay would favour the government's interests because the government would
normally—but not always—be the defendant in those proceedings.[51]
3.28
Professor Weisbrot
continued:
We did not have a solution for that other than to say that, if
the proceedings were more court centred —if they were proceeding in that way
rather than on the basis of prescriptive certificates—the court would be able
to fashion some sort of balance to try to make sure that the proceedings could
go ahead if possible.[52]
3.29
Similarly, Mr Emerton
was concerned that the court's power to stay proceedings establishes a victory
for the defendant as the default position:
... 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. But it is
far from clear that such an outcome is always consistent with the interests of
justice.[53]
3.30
For Mr
Emerton, this default position was
particularly concerning in the context of certain proceedings, such as a
challenge to unlawful detention under an ASIO warrant, where a stay would
result in the person remaining in detention.[54]
Mr Emerton
also argued a stay could potentially advantage the Commonwealth in many
circumstances.[55] However, he also
acknowledged that a stay could work against the Commonwealth in matters where
the Commonwealth is a plaintiff.[56]
3.31
HREOC was similarly concerned that the court's power to
stay proceedings would generally work against the interests of a person seeking
to use civil proceedings to obtain effective remedies for actual or future violations
of their human rights:
... in civil proceedings, the court's power to stay, discontinue,
dismiss or strike out the relevant proceedings (where unfairness results from
the fact that confidential information cannot be revealed) will work against
parties seeking to use the courts to obtain effective remedies for violations
of fundamental rights.[57]
3.32
While HREOC did not have any recommendations for
amendments to the stay provisions of the Bill, it
did propose a number of amendments to other provisions of the Bill
(which are considered later in this chapter). HREOC believed that these other amendments
would provide further safeguards against injustice in situations where remedies
for human rights violations are at issue.[58]
3.33
A representative from the Attorney-General's Department
acknowledged that, in developing the provisions of the Bill
relating to the court's power to stay proceedings, they had difficulty finding
guidance from cases in the area. However, the Department noted that:
It is certainly not our intention to alter in any way the common
law. We recognise that the position of litigants in a civil case is very
different from that of a defendant in a criminal case. The court has to
consider the impact on the proceedings as a whole rather than seeing its role
as protecting the interests of one party—namely, a criminal defendant.[59]
3.34
The representative further noted that the cases
indicate 'it is very rare for a court in a civil case to grant a stay... it would
be extremely unusual... the court would look carefully at the impact of a
decision to stay proceedings.'[60]
3.35
Similarly, the ALRC submitted that the stay provisions
in the Bill are consistent with the ALRC's
recommendation on the matter, which did not distinguish between criminal and
civil proceedings. Further, the ALRC emphasised that:
The ALRC considers that the particular consequences of the stay
of any given proceedings would be given due consideration and weight by the
court exercising its discretion, whether they be criminal or civil proceedings.[61]
3.36
Professor Weisbrot
from the ALRC further observed that 'it would take a fairly powerful set of
circumstances for a court to say there was no chance of having a trial at all
in civil proceedings, although it could happen.'[62]
The committee's view
3.37
The committee notes that, in its inquiry in relation to
the Criminal Proceedings Bill, it recommended that the courts retain the power
to stay proceedings if the defendant could not be assured of a fair trial.[63] However, the committee acknowledges
that a stay of proceedings could have a very different impact in the context of
civil proceedings. The committee also recognises that it is very rare for a
court to order a stay in civil proceedings.
3.38
Nevertheless, the committee considers that the court
should retain the power to stay civil proceedings as a last resort, and notes
the ALRC's observation that the particular consequences of the stay of any
given proceedings would be given due consideration and weight by the court
exercising its discretion. The committee also considers that its
recommendations later in this report will give the court a greater discretion
over other matters during civil proceedings, and may therefore help avoid the
need for a stay of proceedings.
Restrictions on the court's discretion
3.39
Many submissions were concerned that the Bill
would affect the independence of the courts, particularly by giving the
Attorney-General too much power to intervene in court processes.[64] Indeed, several submissions expressed
the view that the Bill could give rise to the
possibility of abuse of power by the Attorney-General.[65] For example, Dr
Waleed Kadous
from AMCRAN argued that:
The potential for abuse of this power in civil cases is far more
real than in criminal cases. It is rare for the government to be the defendant
in a criminal case but it is hardly rare for it to be the defendant in a civil
case.[66]
3.40
Other submissions suggested that, by giving the
Attorney-General too much power to intervene in and influence civil court
proceedings, the Bill raises issues in relation
to the doctrine of separation of powers.[67]
3.41
Mr Emerton
was particularly concerned that where the Commonwealth is a party in a proceeding:
... there would be the very obvious threat of these powers being
exercised in a biased way to advance the Commonwealth's case. This possibility
is only increased by the fact that the definition of 'permitted disclosure'
together with the fact that the Commonwealth controls the granting of security
clearances mean that the security clearance regime will be no obstacle to the
Commonwealth's preparation of its own case.[68]
3.42
Mr Emerton
further submitted that:
In the final analysis, it does not matter whether such abuse
actually occurs. The Attorney-General is a politician, and a senior member of
the Cabinet. Even if he or she acts at all times with complete propriety, the
mere fact that the Bill would give rise to the possibility of political abuse –
whether by way of interference in proceedings to which the Commonwealth is not
a party, or by use of the regime to advantage the Commonwealth in those matters
to which it is a party – may potentially undermine confidence in, and the
appearance of legitimacy of, the administration of justice in Australia.[69]
3.43
Mr Emerton was also particularly critical of the
triggering mechanism in the Bill, noting that:
It would give to the Attorney-General – one of the most senior
political figures in the country – the power to determine whether or not the Bill's
regime would apply to any given matter. This would open the door to both the
appearance of, and the fact of, political interference in the administration of
justice.[70]
3.44
In its report, the ALRC recommended a more flexible
approach to dealing with security information and left greater discretion with
the courts to determine how proceedings will be run.[71] The ALRC submitted that:
It should be noted that closed hearings, ministerial
certificates and security clearances are not the only methods of dealing with
classified and security sensitive information (including the protection of the
identity of a witness) in court proceedings. The ALRC recommended a flexible
approach—allowing courts to make a broad range of orders to protect such
information.[72]
3.45
Professor Weisbrot
elaborated on this:
... in the ALRC's view, that was a matter, and judges are making
those kinds of difficult balances all the time—for example, on whether
important evidence is more prejudicial than it is probative and one side or the
other is urging strongly that it is an important matter for their case. We
think the courts are already sensitive and skilled at making those kinds of
balances and we did not think it was necessary to provide that further
direction. Similarly, on whether to close proceedings—those are the two that
come to mind readily—the ALRC's recommendations were more along the lines of
allowing the court to make those determinations itself.[73]
3.46
Dr Waleed
Kadous from AMCRAN argued:
...there should always be a trend or a preference for open
accountability and open court proceedings. I do understand that there is
occasionally the need for national security, but at least that process itself
should be independent of the government. Having it in the hands of the
government will make it just too tempting, and the old adage applies: imagine
that these powers were not in your hands but in the hands of your worst
enemy—that is, the opposing political party; imagine how they would soon be
used.[74]
3.47
For this reason, AMCRAN suggested that an independent
third party, such as the Inspector-General of Intelligence and Security (IGIS),
should make certain decisions under the Bill, such
as whether an issue is a matter of 'national security'.[75]
3.48
Indeed, as noted in the previous chapter, a key
difference in relation to the civil proceedings regime is that, where the
Attorney-General is a party to proceedings, the Bill provides for the
Attorney-General to appoint a Minister to perform the Attorney-General's
functions. A number of submissions were concerned that this was not an adequate
mechanism to resolve any potential conflict of interest.[76] For example, the Federation of
Community Legal Centres (Vic) argued that this
mechanism 'fails to recognise the conflicted position any government minister
would be in where another government department is involved in proceedings.'[77] Similarly, AMCRAN submitted that:
It makes little
difference whether the Attorney-General or another Minister hold the reins; in
either case decisions having a major impact on the admissibility of evidence in a civil case are made
by the person. It is obviously partial that this the same person probably
belongs to the same political party or coalition as the Attorney-General.[78]
3.49
The Law Society of South Australia submitted that the
decision-making powers 'would be best taken out of the political arena to
reside with a senior public servant.'[79]
As noted above, AMCRAN proposed that some of the Attorney-General's functions
under the Bill should reside with an independent
third party, such as the IGIS.[80] Dr
Waleed Kadous
of AMCRAN explained:
... the power to issue certificates [should] be moved away from
the representative arm of government to a senior public servant. In particular,
rather than the Attorney-General deciding whether a case has national security
implications, we suggest it should be given to some other office, perhaps to
the Inspector-General of Intelligence and Security...[81]
3.50
AMCRAN proposed that 'the Attorney-General, for
example, could apply to the IGIS for such a certificate, rather than he himself
being the source.'[82] Dr
Kadous explained that:
The Inspector-General of Intelligence and Security obviously has
the security clearances required and is well equipped in the role to balance
the need for security against the rights of Australian citizens. That is his
day-today job. At the very least, this should be the case when the Commonwealth
is one of the litigants in a civil case, instead of the government sitting in
judgment of itself.[83]
3.51
A representative of the Attorney-General's Department
responded to AMCRAN's suggestion:
Certainly there are cases in which public interest immunity
affidavits have been given by senior public servants, but whether they would be
considered to be independent is really a matter of speculation. They would
probably not be. I am not aware of a situation where there is provision for an
independent person to make that assessment. Generally, the courts have said
that the Attorney or a minister is an appropriate person to make a decision
that concerns the public interest in so far as it relates to national security.
The IGIS is probably an alternative. Whether it fits the independence that was
suggested by the submitters is another matter.[84]
3.52
The committee notes that the IGIS is an independent
statutory office set up under its own legislation, the Inspector-General of Intelligence and Security Act 1986. Its
responsibilities include monitoring the activities of intelligence
and security agencies as well conducting inquiries, investigating complaints
and making recommendations to government concerning those agencies. The
committee notes that, in this regard, the IGIS is an important element of the
accountability regime for Australia's
intelligence and security agencies.[85]
The committee's view
3.53
The committee acknowledges the concerns that exist over
the perceived conflict of interest arising out of the Attorney-General's power under
the Bill to intervene in civil proceedings. This
situation differs from that in federal criminal proceedings, where an
independent statutory office holder — the Director of Public Prosecutions — would
be involved in proceedings. The committee also acknowledges concerns of some
witnesses in relation to the appointment of another Minister to perform the
Attorney-General's functions under the Bill
where the Attorney-General or the Commonwealth is a party to a civil
proceeding.
3.54
However, the committee notes that the provisions in
question will in effect authorise the Executive's intervention in civil legal
proceedings in certain specified circumstances. The committee's view is that it
would be inappropriate for such an intervention to be authorised by anyone
other than the Executive (ie, by a Minister). The committee also notes witnesses'
difficulty in identifying an independent alternative to a Minister who might appropriately
exercise this role. While the IGIS was put forward as a possible alternative,
the committee's view is that providing the IGIS with the responsibility to
issue national security information certificates is at odds with the crucial
role of the IGIS in holding Australia's intelligence and security agencies to
account.
3.55
The committee considers that its recommendations later
in this report may help to address these concerns by giving the court greater
discretion over matters in civil proceedings. Moreover, it is noted that the committee
- and parliament as a whole - will also have an active role in monitoring this
issue in the future operation of the legislation.
Specific provisions relating to the
court's discretion
3.56
In the context of interference with the court's
discretion, several specific provisions were raised in submissions, including
provisions relating to:
-
closed hearing requirements;
-
weighing national security against the right to
a fair trial; and
-
access to court records of closed hearings.
3.57
Many submissions were concerned about the provisions of
the Bill requiring the court to hold closed
hearings (subclauses 38G(3) and 38H(7)). Similar concerns were raised in
relation to analogous provisions of the Criminal Proceedings Bill during the committee's
inquiry into that Bill.[86]
3.58
During this inquiry, for example, the Public Interest
Advocacy Centre (PIAC) argued that the closed hearing requirements may offend
principles of open and transparent administration of justice.[87] Mr
Emerton also queried the logic of the closed
hearing regime:
... we could see the court reach a decision after the closed
hearing that certain information is to be excluded or to be admitted only in a
limited way. This would be the court in its capacity as a court of law deciding
that, in its capacity as a tribunal of fact, it is not allowed to consider the
information. Again, one asks what the logic is of this.[88]
3.59
HREOC noted that article 14(1) of the International Covenant on Civil and
Political Rights (ICCPR) specifically requires a public hearing, except in
certain limited circumstances including in the interests of national security.[89] However, HREOC explained that this:
... does not mean that any matter touching upon national security
may be considered in closed court without offending article 14(1). Rather such
encroachments on the right to a public hearing must be limited to what is
strictly necessary in proportion to the perceived threat to national security.[90]
3.60
HREOC believed that, by removing from the court the
discretion to hold a closed hearing, the approach adopted in the Bill
would be unlikely to satisfy this test of proportionality.[91] HREOC further noted that '... where the 'exceptional
circumstances' specified in article 14(1) are relied upon for closing a court,
reasons must be provided for not providing a public trial.' HREOC therefore
recommended that the provisions of the Bill
directing the court to hold closed hearings (that is, subclauses 38G(3) and
38H(7)) be omitted and that the matter of closed hearings be left to the discretion
of the court. HREOC also recommended that the court be expressly obliged to
provide reasons where proceedings are heard in
camera.[92]
3.61
In the same vein, the ALRC noted that, in its report,
it:
... did not propose that a court be directed by statute to hold
any hearing in closed session. The ALRC recommendations in this regard
contemplate that the power to determine how the proceedings will be run should
rest with the court.[93]
3.62
Many submissions raised concerns in relation to
subclauses 38L(7) and (8) of the Bill.[94] Once again, similar concerns were
raised in relation to analogous provisions of the Criminal Proceedings Bill
during the committee's inquiry into that Bill.[95] In this Bill,
subclause 38L(7) requires the court to consider a number of factors when making
orders for dealing with national security information. These include the risk
of prejudice to national security and whether the court's order would have a substantial adverse effect on the
substantive hearing in the proceeding. However, subclause 38L(8) requires the
court to give the greatest weight to the risk of prejudice to national security.
3.63
Several submissions suggested that subclause 38L(8) be
removed altogether.[96] For example, HREOC
expressed its view that:
While acknowledging that possible prejudice to national security
ought to be given great weight, the Commission is of the view that the courts
should retain a more flexible discretion which can be better tailored to the
circumstances of each matter. That will be particularly so in matters ... where
decisions to exclude certain evidence may diminish a party's capacity to seek
remedies for violations of their human rights.[97]
3.64
HREOC and AMCRAN also recommended that the word 'substantial'
be deleted from proposed paragraph 38(L)(7)(b).[98] HREOC further proposed that:
... a new subsection be added to s38(L)(7) requiring the court to
consider 'whether any such order would have an adverse effect on the human or
fundamental rights of a party'.[99]
3.65
Mr Emerton
also supported similar amendments, suggesting that the court should have the
right 'to weigh the protection of national security against the fairness to the
litigants involved and to itself be able to assess all of those factors with no
statutorily imposed weighting in favour of one consideration against another.'[100]
3.66
A representative of the Attorney-General's Department observed
that, in relation to the amendments proposed by HREOC:
Many of the issues that were raised in the submission are issues
that are common to both the Criminal Proceedings Act and the bill. To the
extent that those provisions are similar, it would certainly not be desirable,
I think, to inject different procedures—for example, in relation to giving the
court a greater discretion under 38L(7) and 38L(8).[101]
3.67
Several submissions also raised concerns that the Bill,
particularly subclause 38I(9), would restrict the court's discretion in
relation to access to court records of closed hearings.[102] Again, restrictions on access to
court records were raised during the committee's inquiry into the Criminal Proceedings
Bill.[103]
3.68
For example, the Federation of Community Legal Centres
(Vic) was concerned that the provisions relating
to court records effectively meant that 'the Attorney-General is able to
determine definitively what information parties to civil proceedings are able
to obtain'.[104]
3.69
HREOC was also concerned that access restrictions in
clause 38I may frustrate a person's ability to appeal from a court order under
s38L. HREOC recommended that the Bill be amended
at least to permit access to the record by security cleared parties who have
engaged lawyers. HREOC also recommended that the Bill
be amended to:
-
give the court a wider discretion to determine
the disclosure regime for the record (including the power to allow access by
parties and legal representatives who are not security cleared, subject to such
undertakings and conditions as the court considers appropriate); and
-
expressly require the court to consider the
possible adverse effects on affected parties in applications to vary the record
by the Attorney-General.[105]
The committee's view
3.70
The committee notes that similar concerns in relation to
the level of intervention by the Attorney-General in court proceedings were
raised during the committee's inquiry into the Criminal Proceedings Bill. The committee
made a number of recommendations in relation to that Bill that were intended to
give courts greater discretion in the conduct of their proceedings.[106]
3.71
Some of these recommendations were taken up in
amendments to the Criminal Proceeding Bill, which are now contained in the Act.
In particular, the Act and the Bill reflect the committee's
recommendation that the court retains the power to stay proceedings if a fair
trial cannot be guaranteed (see Recommendation 6). This addresses many of the committee's
concerns, notwithstanding its differential impact in relation to civil
proceedings as discussed earlier in this report. Nevertheless, the committee
remains concerned about some provisions of the Bill
which restrict the court's discretion.
3.72
The committee recognises that other amendments were
made to the Act, and these are also reflected in this Bill.
For example, under section 32 of the Act, the court is required to give reasons
for making orders under the Act. Similarly, clause 38M of the Bill
will require the court to give reasons for making orders under clause 38L.
3.73
The committee also notes that other recommendations
made by this committee were not reflected in the final Act. The committee
therefore considers it appropriate to reiterate some of its previous recommendations
in relation to this Bill, to ensure that the
court has an appropriate level of discretion in the conduct of proceedings.
3.74
In relation to the closed hearing requirements, the committee
reiterates its concern that the court will have no discretion to determine
whether these proceedings should be opened or closed. The committee remains of
the view that the court should retain the discretion in relation to whether or
not to make an order for closed hearings when considering the
Attorney-General's certificate. The committee also considers that the court
should be required to provide a statement of reasons for holding a closed
hearing. The committee notes that it made recommendations to this effect in
relation to the Criminal Proceedings Bill, but they are not reflected in the
Act.
Recommendation 1
3.75 The committee recommends that subclauses 38G(3) and
38H(7) 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.
Recommendation 2
3.76 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.
Recommendation 3
3.77 If Recommendations 1 and 2 are not supported, the committee
recommends that, as a commitment to the right of a defendant to a fair, public hearing,
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.
3.78
As with the Criminal Proceedings Bill, the committee is
concerned about the requirement for the court to give the greatest weight to the
risk of prejudice to national security. In this Bill,
those requirements are contained in subclauses 38L(7) and (8) of the Bill.
The committee therefore again proposes similar recommendations in relation to
this Bill – that is, that the term 'substantial' be removed from paragraph
38L(7)(b) and that subclause 38L(8) should be removed from the Bill.
Recommendation 4
3.79 The committee recommends that the term 'substantial' be
removed from paragraph 38L(7)(b) of the Bill.
Recommendation 5
3.80 The committee recommends that subclause 38L(8) be
removed from the Bill.
3.81
In relation to access to the record of the closed
hearing, the committee also believes that the Bill
should allow the court greater flexibility in determining how evidence taken in-camera
should be made available. In particular, the committee believes that the
defendant and his or her legal representative should only be denied access to
the transcript in the most extraordinary of circumstances. If the court
restricts access to the record, reasons should be provided. Further, if the
Attorney-General applies for the record to be varied, the court should be
required to consider the possible adverse effects on affected parties if a
variation is made to that record.
Recommendation 6
3.82 The committee recommends that subclauses 38I(5) and (9)
of the Bill be amended to allow the courts the discretion to determine to what
extent the court record or parts of it should be made available and any
undertakings required for people to have access to the record.
Recommendation 7
3.83 If the above recommendation is accepted, the 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 court record.
Recommendation 8
3.84 The committee recommends that the Bill be amended to
require the court to consider the possible adverse effects on affected parties
in making a decision under subclause 38I(8) in relation to an application to
vary the record by the Attorney-General.
Security clearances
3.85
Many submissions raised concerns in relation to security
clearance requirements.[107] Once
again, very similar concerns, in relation to analogous provisions, were raised
during the committee's inquiry into the Criminal Proceedings Bill.[108] For example, Victoria Legal Aid argued
that:
... there are already sufficient stringent requirements to ensure
that lawyers are competent to operate in sensitive areas of national security,
and are answerable for contraventions of this duty. A requirement for security
clearance for lawyers will seriously affect the provision of adequate and
proper services by an organisation such as VLA.[109]
3.86
The ALRC informed the committee that, in the course of
its inquiry into classified and security sensitive information, it had:
... felt uncomfortable about making a recommendation to the effect
that a court or tribunal could order a lawyer to submit to the security clearance
process. However, the ALRC noted that if important material is not available to
counsel in the proceedings, they run a risk of failing to provide their client
with effective assistance, and consequently should consider seeking a security
clearance or withdrawing from the proceedings. The ALRC suggested that the
proper focus should not be on the dignity or convenience of the lawyer, but
rather on the client receiving the best possible representation in
circumstances in which highly classified information must be protected.[110]
3.87
As with the Criminal Proceedings Bill, some submissions
expressed the view that the requirements relating to security clearances for
lawyers would unfairly restrict a person's choice of lawyer.[111] For example, Dr
Waleed Kadous
from AMCRAN expressed his view that:
... if a client is really interested in presenting the best
possible case, then realistically that person, if their lawyer does not get
security clearance, will have to hire another lawyer and once again go through
the process of briefing that lawyer—at their own expense, possibly, if they
happen to lose the case. In addition, that new lawyer has to go through a
security clearance. The person could be on this roundabout picking lawyer after
lawyer that he trusts but that the government does not want to give security
clearance to. Eventually he has to settle for a lawyer that already has
security clearance, even if he would not like to choose that particular lawyer.[112]
3.88
Several submissions expressed concern about aspects of the
procedures for obtaining security clearances. For example, as with the Criminal
Proceedings Bill, many felt that basing the security clearance process on the Australian
Government Protective Security Manual was inappropriate.[113] One of the key concerns was that the
manual is a policy document issued by the Attorney-General's Department and is
not publicly available. AMCRAN also expressed concern about some of the 'vague'
and 'subjective' terms used in the manual, such as 'reliability, truthfulness,
honesty'.[114] The Federation of
Community Legal Centres (Vic) expressed concern that
the manual is 'subject to variation by the executive government at any time,
free of any legislative, judicial or public oversight.'[115]
3.89
As with the committee's inquiry into the Criminal Proceedings
Bill, it was suggested that the courts should retain discretion over the security clearance process, rather
than the Secretary of the Attorney-General's Department.[116] For example, the Law Council argued
that:
Fundamentally the Law Council believes that a court, and not the
Secretary of the Attorney General's Department, should determine whether a
legal representative and, in the case of this Bill,
the parties and the assistants of a legal representative, require a security
clearance. Failing this, the process undertaken by the Secretary of the
Attorney General's Department should be as fair and as transparent as possible.[117]
3.90
AMCRAN suggested that the security clearance process
should be set out in the legislation. AMCRAN further observed that its objections
to the security clearance procedures are:
... even more relevant in the present Bill
in that a self-represented party to proceedings may seek security-clearance in
order to access the material in question. For some, going to court is already a
harrowing experience, especially those who have no choice but to be
self-represented because of a social- or economical disadvantage. To further
subject them to personality analysis that brings into question their maturity,
honesty and loyalty would no doubt have the additional effects of intimidation
and demoralisation.[118]
3.91
Indeed, unlike the Act's provisions in relation to
criminal proceedings, the Bill provides that a
party (not just the party's representative) may apply for a security clearance.
The ALRC noted that, while it did not make a recommendation about the security
clearance of a party, this provision in the Bill
was consistent with the ALRC's approach to the issue. The ALRC also noted that
this provision will be particularly relevant where a party is unrepresented
(which is a more likely occurrence in civil proceedings).[119]
3.92
During his second reading speech, the Attorney-General
noted these provisions and acknowledged that many parties may represent
themselves in civil proceedings:
In recognition of the additional financial burden involved in
engaging a security cleared legal representative to attend a closed hearing,
the government has agreed that a self-represented litigant involved in a civil
matter under Commonwealth law who is refused a security clearance at the
appropriate level would be eligible to apply for financial assistance under the
non-statutory special circumstances scheme.[120]
3.93
The Attorney-General continued:
If approved, this would provide financial assistance for the
legal costs and related expenses associated with engaging a legal
representative to attend the closed hearing. It is my expectation that such
legal assistance in those circumstances would be available.[121]
3.94
The ALRC noted that the opportunity for unrepresented
parties who are unable to obtain a security clearance to access financial
assistance to obtain a security cleared lawyer is an important component of the
scheme and is consistent with the ALRC's approach.[122] Similarly, the Law Council also
appeared to be supportive of the provision of financial assistance to
self-represented litigants.[123]
3.95
In response to questioning from the committee on this
issue, Mr Lenehan
from HREOC observed that, if a self-represented litigant were refused financial
assistance:
... in some circumstances that is going to mean that the potential
of the court to provide an effective remedy is going to become illusory, so
where violations of human rights are concerned that again is going to raise
article 2 of the ICCPR.[124]
3.96
The committee asked the Attorney-General's Department
how the scheme for financial assistance for self-represented litigants would
operate, and the funds that would be available to the scheme. The
Attorney-General's Department responded that, while there is no separate
appropriation for the scheme, there is an appropriation of $1.4 million for all
schemes of financial assistance (apart from native title schemes). The
Attorney-General's Department also explained that a decision in relation to
financial assistance would be made based on whether the applicant fulfilled the
relevant criteria – that is, 'that the applicant is unrepresented in
proceedings and has been denied the relevant security clearance.' The
Department further clarified that:
Funding is only available for the purpose of engaging a legal
representative with the appropriate security clearance to attend the closed
hearing or appeal. Funding will be approved if the applicant would suffer
financial hardship if assistance were refused.[125]
3.97
The Department also explained that, where there is a
decision to refuse assistance, written reasons will be provided, and an
internal review of that decision may be requested.[126]
Security clearances - associated
issues
Disclosure provisions and offences
3.98
One of the key implications of the security clearance
requirements relates to the Bill's restrictions on the disclosure of national
security information. In particular, once the regime under the Bill has been
invoked by the Attorney-General issuing a certificate, clause 46G creates an
offence for disclosing information to parties, legal representatives and
persons assisting legal representatives, where that disclosure is likely to
prejudice national security. The Bill then sets out 'a complex set of exemptions
that apply to that offence'.[127] Mr
Patrick Emerton and HREOC explained that these exceptions include situations
where:
-
the person disclosing the information is a legal
representative or person assisting a legal representative who has been given a
security clearance considered appropriate by the Secretary of the
Attorney-General's Department and discloses the information in the course of
her or his duties in relation to the proceedings;
-
the person disclosing the information is a party
who has been given a security clearance considered appropriate by the Secretary
of the Attorney-General's Department and discloses the information in the
proceeding or a closed hearing;
-
the person receiving the information is a party,
legal representative or person assisting a legal representative who holds such
a security clearance; or
-
the disclosure is by an employee, officer or
Minister of the Commonwealth, and takes place in the course of his or her
duties in relation to the proceeding.[128]
3.99
HREOC observed that 'this scheme creates a somewhat odd
series of anomalies.'[129] Similarly,
Mr Emerton submitted that 'the effects of this offence are several. Because of
the complexity of the exceptions, not all of them are obvious.'[130] Mr Emerton observed:
... as far as I can tell, the interaction of the two sections
[clause 46G and section 16] result in an outcome where A could talk to B if A
was security cleared or if B was security cleared but A was not, but not if
neither was, but there would be no requirement that both be security
cleared—and I ask what the logic is of this. It seems to me that all the
security regime really achieves is to undermine the integrity and the
independence of lawyers by making them beholden to the Commonwealth and by
making it harder for litigants to be represented by a lawyer of their choice.[131]
3.100
Several submissions felt that these provisions may
interfere with lawyer-client relations and/or impact on a party's ability to
prepare their case.[132] For example, Mr
Emerton argued that 'the general effect of
the offence [in clause 46G] is to inhibit all parties to the proceeding in the
preparation of their cases, by making it an offence for anyone to disclose
certain information to them.'[133] Similarly,
the Federation of Community Legal Centres (Vic)
was concerned that the effect of clause 46G:
... would be to limit the capacity of a lawyer to receive a
comprehensive briefing from his or her client, or to discuss the subject matter
of the proceedings with possible witnesses and others. It would also seem to
restrict a lawyer from informing a client, who is not security cleared, about
the details and even outcome of proceedings.[134]
3.101
Mr Emerton argued that the disclosure provisions may also
unfairly advantage the Commonwealth if they are a party, because it will be
able to disclose the information in question for the purposes of working on its
case, while other parties may well not be able to do so.[135] Mr Emerton explained:
The Commonwealth has a ready supply of security-cleared
personnel, and through its control of the security clearance procedure is able
to generate more of these if required. The Commonwealth is also in a good
position to have the Secretary of the Attorney-General's Department approve
disclosures.[136]
3.102
HREOC observed that the disclosure scheme departs from
the ALRC recommendations that the court should determine the disclosure regime
for such information.[137] Mr Lenehan
from HREOC argued that:
Courts have extensive experience dealing with this sort of
information and, for that matter, confidential information in a private sector
context...Courts have very flexible procedures for dealing with this sort of material.
That is our fundamental point: it really should be left with a court rather
than being dependent upon the exercise of a discretion by the executive.[138]
Exclusion of non-security cleared
parties
3.103
Another important implication of the security clearance
provisions is that clause 38I allows the court to exclude parties and legal
representatives without security clearances from parts of closed hearings in
certain circumstances. The Federation of Community Legal Centres (Vic) were
concerned that the security clearance requirements meant that 'the Bill gives
extensive power to the government to control who can participate in legal
proceedings.'[139] Mr Patrick Emerton
felt that these provisions were objectionable because 'they permit a party to a
matter to be excluded from a hearing at which the admission of evidence
potentially crucial to the matter is to be discussed.'[140]
3.104
Similarly, Amnesty believed that:
... the parties should be present in court during the hearing to
hear the full case, to refute or provide information to enable their counsel to
refute evidence and to examine witnesses or advise their counsel in the
examination of witnesses.[141]
3.105
HREOC was likewise concerned that an excluded party
would have difficulties offering assistance to the court by presenting a
contrary argument. HREOC argued that the absence of such an argument 'may well
result in a central evidentiary element of the case being excluded or (in the
case of documents) considerably modified.'[142]
HREOC suggested that clause 38I be amended to:
-
require the court to consider whether the making
of an order excluding a party and/or their legal representative would adversely
affect their right to a fair hearing, including the right to contest all the
argument and evidence adduced by other parties; and
-
in exceptional circumstances where an 'exclusion
order' is made, require the court to consider making orders which will ensure
that a person is able to contest all the argument and evidence adduced by the
Attorney-General or her or his legal representative (including through the use
of redacted evidence or submissions).[143]
3.106
HREOC argued that the latter amendment 'would ensure
that the right to make submissions about non-disclosure or witness exclusion
(preserved by proposed s38I(4)) may be exercised in a meaningful fashion.'[144]
The committee's view
3.107
The committee notes that the security clearance
requirements and associated restrictions were a major concern during the ALRC's
inquiry and this committee's inquiry into the Criminal Proceedings Bill.[145] In relation to the Criminal
Proceedings Bill, the committee made a number of recommendations in relation to
security clearance requirements, some of which were implemented.[146]
3.108
In relation to this Bill,
the committee supports some of HREOC's suggestions for amendments to this Bill. In particular, the court should be required to
consider whether the making of an order excluding a party and/or their legal
representative would adversely affect their right to a fair hearing, including
the right to contest all the argument and evidence adduced by other parties.
3.109
In addition, the court must have a more active role in
determining whether a party or a party's legal representative requires a
security clearance. In particular, the committee accepts HREOC's suggestions
for an amendment to clause 38I to ensure that the court is able to consider the
impact of excluding a party or their legal representative, and whether that
would adversely affect their right to a fair trial.
Recommendation 9
3.110
The committee recommends that clause 38I of the Bill be
amended to require the court to consider whether the making of an order
excluding a party and/or their legal representative would adversely affect
their right to a fair hearing, including the right to contest all the argument
and evidence adduced by other parties.
Other issues
3.111
A number of other issues were raised during the committee's
inquiry, including:
-
the definition of 'national security';
-
compliance with international obligations;
-
the potential for increased delays and costs in
civil proceedings;
-
the appointment of court security officers;
-
restrictions on judicial review;
-
a possible sunset clause; and
-
related provisions of the Migration Act.
Definition of national security
3.112
The definition of 'national security', contained in section
8 of the Act, is central to the proposed legislation. 'National security' is
defined as 'Australia's
defence, security, international relations or law enforcement interests'. These
elements, in turn, are defined in sections 9 to 11 of the Act. For example, 'international
relations' in the Act is defined to mean 'political, military and economic
relations with foreign governments and international organisations'.
3.113
As with the Criminal Proceedings Bill, several
submissions expressed concern that the definition of 'national security' in the
Act is too broad, vague and subjective.[147]
For example, Professor George Williams and Dr
Ben Saul submitted that:
A vast range of information potentially falls within the ambit
of these definitions, particularly Australia's
'international relations interests' ... The Bill imposes strict liability for
failure to notify the Attorney-General, regardless of whether a party
unintentionally, inadvertently or mistakenly failed to notify.[148]
3.114
AMCRAN also commented that:
It is not inconceivable that according to this definition,
almost any matter involving a non-Australian citizen or naturalised Australian
citizen could be a matter relevant to 'national security'.[149]
3.115
PIAC suggested that guidelines should be created upon
which self represented litigants and the legal profession could rely in
preparing for civil proceedings.[150]
3.116
For many submitters, the broad nature of the definition
was of particular concern given that the proposed criminal offences in the Bill
rely on this definition.[151] For example,
Professor George Williams and Dr Ben Saul
submitted that:
Considering the breath and vagueness of the definition of
'national security' under federal law, it is unduly onerous to criminalise the
failure to notify the Attorney-General of national security information arising
in civil proceedings (sections 38D and 46C).[152]
3.117
For example, clause 46C of the Bill
contains an offence for failure to notify the Attorney-General if a party to
civil proceedings knows or believes that they will disclose information that
relates to or may affect national security.[153]
AMCRAN suggested that the offence in clause 46C should be removed altogether,
arguing that:
... given the breadth of the definition of “national security” and
all of its inherent vagueness and biases ... it would be almost impossible for a
person, especially one who is unrepresented, to form an opinion as to whether
or not the information is likely to prejudice national security. To further
impose a two-year prison sentence under these circumstances is entirely unjust.[154]
3.118
In the same vein, Amnesty argued that:
...the definition of “national security” is so broad as to make
it virtually impossible to know if information is going to relate to national
security or affect national security and therefore it is virtually impossible
to know if one is committing an offence.[155]
3.119
Similarly, the Law Society of South Australia expressed
concern that the Bill requires:
... a party and his/her legal advisors to be particularly
prescient as to what the Attorney might consider affects national security,
upon which opinions will be varied.[156]
3.120
The Law Council was particularly concerned that the
offence in clause 46G (for disclosing information in civil proceedings to
persons without security clearances) appeared to be 'absolute' in its application.
That is, if information disclosed 'is likely to prejudice national security',
the state of knowledge about the information on the part of the person unaware
of its security nature appears to be 'immaterial'. [157]
3.121
The Law Council suggested that, among other things, a
defence or exception to the offence should be made available based on the
'reasonableness of the actions of the person disclosing the information.'[158] In response to this suggestion, a
representative of the Attorney-General's Department pointed to the provisions
of Division 5 of the Criminal Code, which 'requires intentional disclosure of
the information and recklessness as to whether or not it is national security
information'.[159]
The committee's view
3.122
The committee notes that similar objections and
concerns were raised in relation to the definition of national security under
Criminal Proceedings Bill.[160] The committee
noted its concern in relation to the definition of national security under the
Criminal Proceedings Bill. The committee acknowledges that the definition was
amended slightly to remove the references to 'national interests'.
3.123
Nevertheless, the committee still considers that the
definition of 'national security' is extremely broad, especially in light of
the fact that criminal offences under the Bill
are based on the definition. However, the committee considers that its
recommendations elsewhere in this report may help address some of these
concerns. The committee also recognises the Attorney-General's Department's
evidence that the offences would require intentional disclosure of the
information and recklessness as to whether or not it is national security
information.
Compliance with international
obligations
3.124
HREOC and Amnesty, among others, were concerned that
the Bill may not comply with Australia's
international obligations, for example, under the ICCPR. HREOC was particularly
concerned with two key obligations under the ICCPR, that is:
-
the right to a fair and public hearing under article
14(1)); and
-
the right to provide an effective remedy for
violations of human rights under article 2(3).[161]
3.125
HREOC's submission outlined a number of provisions of
the Bill which may impact on the right to a fair and public hearing, such as
the closed hearing requirements.[162] In
relation to the obligation to provide effective remedies, HREOC submitted that
the Bill would apply to many proceedings in
which such remedies are in issue, such as proceedings relating to visa or
passport entitlements; or proceedings relating to unlawful detention.[163] HREOC argued that, if the Bill
operates so as to unduly restrict the ability of courts to provide remedies for
potential human rights violations, it may leave Australia
in breach of its obligations under article 2(3) of the ICCPR.[164] HREOC then outlined some of the
specific provisions of the Bill which may be of concern in this context,
including: the restrictions on the court's discretion; closed hearing
requirements; potential to exclude parties and legal representatives from parts
of closed hearings; and restrictions on disclosure of information to parties
and legal representatives.[165]
3.126
HREOC made a number of suggestions for amendments to
the Bill which it felt would address its
concerns in relation to potential breaches of these international obligations.[166] These proposed amendments are
considered elsewhere in this report. In particular, Mr Craig Lenehan from HREOC
observed that:
The commission's key concerns in relation to both those rights
[under the ICCPR] arise from the manner in which the bill applies constraints
upon judicial discretion.[167]
3.127
Mr Lenehan continued:
... such constraints can operate to diminish the court's power to
ensure equality between parties, which is one of the fundamental
characteristics of a fair trial. Similarly, it can limit the court's capacity
to provide effective remedies for violations of human rights. The commission's
approach has therefore been to suggest amendments which would return power to
the courts.[168]
3.128
Amnesty also pointed out the right to a fair hearing
under international law. Amnesty observed that 'an essential component of the
right to a fair hearing is the principle of "equality of arms"'.[169] According to Amnesty, this principle
firmly establishes the need for equality between the parties. Amnesty argued
that:
... this principle would be violated, for example, if a party was
not given access to information necessary for the preparation of their case, if
a party was denied access to expert witnesses, or if a party was excluded from
an appeal hearing where the other party was present. This Bill proposes several
such restrictions that would directly undermine the right to “equality of arms”
and would remove the equality between the parties.[170]
3.129
Amnesty was also concerned that the Bill would have an
impact on international obligations to provide effective remedies. In this
context, Amnesty was particularly concerned about the interaction that the Bill
may have with the ASIO Act.[171]
Amnesty also pointed to a number of other components of the right to a fair and
public hearing under international law, such as the right to prepare, the
impact of delay, and the right to a lawyer of a party's own choice. Amnesty
argued that the Bill may have adverse impacts on
all these components.[172] These issues
are considered in relation to specific provisions elsewhere in this report.
3.130
In response to the committee's questions as to whether
the ALRC had any opinion on whether the regime may breach Australia's
international obligations, Professor Weisbrot
of the ALRC was less concerned, stating that:
... black-and-white reading of the covenant tends not to be how
the world works in practice. We do allow proceedings to be closed in a number
of circumstances, such as in the Children's Court and so on. So those rights
are balanced against what is reasonably justifiable in a democratic society. In
the particular circumstances of dealing with highly sensitive national security
information, I think that those are some of the trade-offs you have to make.[173]
3.131
Professor Weisbrot continued:
Given that we are putting things into the court process and
giving the court the decision about ultimately whether things are conducted in
closed hearings and how evidence is presented and whether it should be
presented and ultimately whether fairness to the parties means fully proceeding
or issuing a stay, I think those protections are well guarded.[174]
3.132
However, Professor Weisbrot appeared to indicate that
there could be some concerns under international law if the regime were not
extended to administrative tribunals, as discussed earlier in this report.[175]
The committee's view
3.133
The committee notes the concerns in relation to the
potential impact of the Bill on Australia's
obligations under international law. However, the committee considers that its
recommendations elsewhere in this report may help alleviate these concerns.
Delay and costs
3.134
Several submissions were concerned about the Bill's
potential to result in increased delays and costs in civil proceedings, due to
the numerous provisions for adjournment, the security clearance requirements
and the lack of time limits in the Bill.[176]
For example, Amnesty argued that:
... there is a multiplicity of opportunities for delay in the
proceedings. This will have significant impact on the parties as it will make
the proceedings more expensive and will ultimately limit their access to
justice.[177]
3.135
For AMCRAN, the length of time it may take for a lawyer
to get a security clearance was of particular concern.[178] Mr Emerton also pointed out that the
Bill does not establish a time period in which the Attorney-General must come
to a decision in relation to any notice given by the parties or the court of a
potential disclosure of information relevant to national security.[179]
3.136
Amnesty and HREOC pointed out that the creation of
delay may also be problematic in the context of Australia's
obligations under international law. Amnesty argued that 'the parties have a
right to a remedy in civil proceedings and this right may be adversely affected
by the continued delay of the proceedings made possible under this Bill.'[180] Similarly, Mr Craig Lenehan from
HREOC observed that:
In cases where a person has not been able to access a court in
sufficient time to prevent the violation in question taking place, the European
Court [of Human Rights] has said that that
constitutes a violation of the right to an effective remedy.[181]
3.137
Mr Lenehan
from HREOC supported the suggestion that time limits could be imposed, either
on the Attorney-General to make a decision on the issuing of a certificate
within a given time, or to allow the court to impose a time limit on the Attorney-General.
However, Mr Lenehan expressed a preference for a court supervised process,
where:
The court would, at a very early stage, be empowered under an
amended version of this [A]ct to inquire of the Attorney whether he or she
ought to invoke it and would give them a time frame for doing so. That would
then ensure fairness for the detained party in that any delay on the part of
the Attorney could not be used to derail the proceedings...[182]
3.138
Mr Lenehan
also observed that it would be possible to seek a court order (a writ of
mandamus) to compel the Attorney-General to make a decision under the Act.
However, he noted that this would in itself be time consuming.[183]
3.139
As noted earlier, the potential for delay could be of
particular concern in relation to certain urgent proceedings. For example,
AMCRAN and Mr Patrick
Emerton both raised the situation of a
person wanting to challenge the lawfulness of a warrant for detention under the
ASIO Act, where the detention itself only lasts for seven days.[184] AMCRAN commented that challenging
such detention would be:
... almost impossible in a time frame of seven days. For starters,
the lawyer has to be security cleared if he is to be there in the first place,
as I understand it. If the person did not have a lawyer present they would have
to get a lawyer. The lawyer that they chose may not have security clearance. A
closed hearing would then have to be conducted. It is unrealistic that someone
could, within the seven day time frame, raise a court case and have it heard
while they are being detained. It is basically automatic that they will be
detained for seven days if that is what the prescribing authority allows.[185]
3.140
Similarly, Mr Emerton observed:
In a time-critical administrative law action such as a suit to
challenge the legality of detention by ASIO, the way that this particular
regime of certificates creates automatic adjournments and gives the
Attorney-General or the delegated minister so much power to intervene and
control the way the action evolves at that stage strikes me as really worrying.[186]
3.141
The ALRC also acknowledged that the Bill could
potentially result in delays and additional costs. However, Professor Weisbrot
also pointed out that:
One of the central pieces of logic in the legislation, which is
also reflected in the ARLC's recommendations, is that where classified [or]
security sensitive material is likely to be an issue in a proceeding it be
notified early and brought right up to the start of the proceeding or
preferably pretrial. Hopefully some of those matters could be dealt with more
quickly in that way.[187]
3.142
Professor Weisbrot
also noted that, in its report, the ALRC had suggested a range of measures that
the courts could use to try to ensure that trials proceed as quickly and
efficiently as possible, including redaction; and having sensitive witnesses
appear behind screens or in some other concealed form. Professor
Weisbrot also observed that 'nevertheless,
there will inevitably be some delay. Delay is a feature of our court
proceedings generally.'[188]
3.143
The Law Council submitted that the Attorney General's
Department and other relevant agencies should be properly resourced so that the
processes in the Bill do not lead to increased court
hearing times and lengthy delays in the judicial system.[189]
3.144
As to delays in relation to security clearance
procedures, Professor Weisbrot from the ALRC noted that it had received
assurances from the Attorney-General's Department that it would try to
'fast-track' security clearances where they were required in relation to
criminal or civil proceedings. Professor
Weisbrot further observed the experience in
the United States (US) indicated that, while the ordinary time frame for a security
clearance was substantial, when it came to court proceedings, clearances were
processed quickly in a more limited timeframe.[190]
3.145
In response to the committee's questions on this issue,
a representative of the Attorney-General's Department noted that the Attorney
General's role in the closed hearing was described as 'an intervener' in the Bill.
An intervener in proceedings can have the costs of those proceedings awarded
against them to the benefit of the litigants in the original proceedings.[191] In the same vein, the Law Society of
South Australia noted that, while the Bill may increase the costs of
litigation:
To some extent this can be ameliorated by cost orders against
the Commonwealth where it seeks to intervene or where it is a party. [192]
3.146
The Explanatory Memorandum also notes that some
attempts have been made in the provisions of the Bill to reduce delays in
relation to civil proceedings. For example, the procedures where a witness may
disclose security sensitive information in giving evidence are different to the
procedures in criminal proceedings. According to the Explanatory Memorandum, 'this
departure from the procedure for criminal proceedings will seek to reduce
delays and adjournments during the civil proceedings.'[193]
3.147
In response to the committee's questions as to whether
litigants (such as in the area of family law) could use the Bill
to deliberately increase delays and costs in proceedings, the
Attorney-General's Department responded that 'parties to proceedings cannot
themselves invoke the application of the legislation. This is a matter for the
Attorney-General to decide.' The Attorney-General's Department also submitted
that:
The Government will monitor the practical operation of this new
regime in criminal and civil proceedings. The Government will consider any
amendments to the regime which it considers appropriate to ensure the
efficiency of the process, whilst protecting Australia's
national security.[194]
The committee's view
3.148
The committee notes the criticisms that the Bill
has the potential to result in increased delays and costs. The issue of delay
was also raised in relation to the Criminal Proceedings Bill. The committee
encourages the Attorney-General's Department to monitor the operation of the Bill
in practice, and to consider provisions imposing time limits in the future if necessary.
Appointment of security officers
3.149
The ALRC recommended that, in any proceeding in which
classified and security sensitive information may be used, a specially trained
security officer should be made available to the court to assist in the
management and protection of security information.[195] The ALRC noted that this proposal was
modelled on an existing scheme in the US.
According to the ALRC, the US
scheme 'has proved to be very successful and has received strong support from
all quarters.'[196] Professor David
Weisbrot elaborated on this:
... one of the reasons that the proceedings operate reasonably
well in the federal courts there is that they have trained court security
officers who are able to explain to counsel for both sides exactly what their
obligations are and how not to make mistakes...[197]
3.150
Under the ALRC's proposed scheme, the security officer
would:
ensure that the court and the parties are fully informed about
the proper handling of such sensitive information; ensure that appropriately
secure facilities exist for transporting and/or storing the information when
the court is not in session; and
facilitate the application and vetting process for any person
(such as counsel) who requires a security clearance in order to see the
material.[198]
3.151
The ALRC suggested that such security officers would be
trained by the Attorney-General's Department and be available for assignment to
a court as needed. The ALRC also noted that this proposal received strong
support in submissions and consultations made during its inquiry.[199]
3.152
Mr Peter Webb from the Law Council expressed qualified
support for this proposal:
...if the role of that sort of person were confined to process
issues—for example, giving advice about how to handle information and so
on—that may well be useful. If in fact the role went further than that, I think
we would have serious misgivings about a role that extended beyond simply the
giving of advice about process and handling.[200]
3.153
In response to the committee's questions on this proposal,
a representative from the Attorney-General's Department stated that:
It is certainly envisaged that the Protective Security
Coordination Centre [PSCC] would be available to provide ongoing advice to
courts, legal representatives and litigants on the measures that should be
taken to protect this information and that some training would be available if
the courts were to seek to have staff specially trained by the PSCC...[201]
The committee's view
3.154
The committee supports the ALRC's proposals in relation
to the provision of court security officers to assist the court in relation to
the proposed regime. The committee also recognises the Attorney-General's
Department's suggestion that the Protective Security Coordination Centre may
have a role to play in training existing court officers.
Restrictions on judicial review
3.155
Some submissions raised concerns with the provisions in
Part 2 of the Bill, which amend the ADJR Act to limit
jurisdiction for judicial review of a decision by the Attorney-General to grant
a certificate under the Bill.[202] Victoria Legal Aid observed that:
In effect the Bill increases the
government's powers and reduces mechanisms to monitor the exercise of those
powers. Such restrictions are in clear contravention of the principle of
natural justice.[203]
3.156
Similarly, the Federation of Community Legal Centres
(Vic) was concerned that:
By exempting the Attorney-General's decision from judicial
review, the Bill gives the government extensive powers without providing any
mechanism to monitor the exercise of those powers.[204]
3.157
PIAC also opposed these provisions because, in their
opinion, the Bill would already give the executive too much control over the
decision making of judicial officers.[205]
The committee's view
3.158
The committee notes concerns that the Bill
will exempt the Attorney-General's decision in relation to a certificate from
review under the ADJR Act. However, the committee recognises that this is
consistent with the position for the criminal proceedings regime.
Sunset clause
3.159
The Australian Press Council suggested that a sunset
clause be inserted into the Bill so that the legislation lapses in 2007. The
Australian Press Council felt that the regime could then be renewed for three
year terms if necessary, and after full parliamentary debate.[206] Dr Waleed Kadous from AMCRAN also
expressed support for a sunset clause, arguing that the Bill's impact on the
'judicial system is not yet clear' and that:
... because of the changing nature of the international security
environment things can move very quickly, and I think a review in three years
time to evaluate the impact of this legislation would be prudent.[207]
3.160
In response to the committee's questioning on the
issue, HREOC observed that a sunset clause would address some of their concerns,
and would assist in keeping the legislation within the limits of 'proportionality'
for the purposes of the ICCPR. However, HREOC also noted that:
... while such a clause may be desirable for those reasons, it
will not in itself be decisive in determining whether any proportionality
requirements are met. That is a matter which will depend upon the substantive
provisions of the Bill, the purpose they are
said to serve and the relevant circumstances. The Commission is therefore
primarily concerned that the Bill be amended to
incorporate the safeguards recommended by the Commission.[208]
3.161
As noted earlier, the Attorney-General's Department submitted
that, in any case, the operation of the legislation would continue be
monitored.[209]
The committee's view
3.162
The committee notes suggestions for a sunset clause to
be inserted into the Bill. However, the committee
also recognises that it remains unknown how key provisions in the Bill
– especially the stay provisions – will actually operate in practice and impact
on parties in civil proceedings. The committee's view is that, subject to the
recommendations made elsewhere in this report, the regime contained in the Act
and proposed by this Bill ought to operate for a relatively short period after
which the regime's operation and impact can be reviewed and evaluated. Any such
a report would be more comprehensive than the reports to Parliament currently
required under section 47 of the Act. The committee does not see the need for
the legislation as a whole to be subject to a sunset clause.
Recommendation 10
3.163 The committee
recommends that the Bill be amended to insert a requirement that, as soon as
practicable after the end of 18 months from the date of the
Bill's commencement, the Minister must cause
to be laid
before each House of Parliament a comprehensive report on the operation of the Act (including the
provisions of the Bill).
Provisions of the Migration Act
3.164
HREOC also raised concerns in relation to the existing provisions
of the Migration Act 1958 (Migration
Act). It observed that the provisions of the Migration Act go a step further
than the Bill and permit a court to rely on 'secret evidence' that is not
disclosed to a party for the purposes of a substantive hearing regarding visa
cancellation decisions.[210] Mr Lenehan
from HREOC explained further that the Migration Act:
... goes even further than that and allows the minister to test the
waters, if you like, by disclosing the material in question to the court and
then asking the court whether it is prepared to make orders for the
non-disclosure of the information. In the event that the court does not make
those orders, then the information can be withdrawn and not used in the
substantive proceedings.[211]
3.165
HREOC noted that these provisions had been criticised
in the ALRC report, and argued that this approach should only be permitted in
the most extraordinary circumstances.[212]
In response to the committee's questions in relation to this issue, a
representative of the Attorney-General's Department stated:
... in deciding whether or not to apply the [National Security
Information] [A]ct to the proceedings, great regard would be given to the
adequacy of other mechanisms to protect the information...for example, in many
cases the application of public interest immunity would be considered
sufficient ... in a case where these provisions of the Migration Act applied, it
is possible that those provisions would be considered to be adequate to protect
the information in that particular case.[213]
3.166
However, the representative also conceded that there is
nothing in the Bill which expressly requires the
Attorney-General to consider mechanisms in other legislation.[214]
The committee's view
3.167
The committee notes concerns in relation to the provisions
of the Migration Act, but considers that they are outside the scope of this Bill.
Conclusion
3.168
As with the Criminal Proceedings Bill, the committee
recognises that this Bill attempts to reconcile
two important objectives that in some cases may conflict—promoting and
upholding the right to a fair trial and maintaining national security by
protecting sensitive information during civil proceedings. The committee has once
again made a number of recommendations intended to ensure that there are
adequate safeguards in the proposed legislation to balance these two
objectives.
3.169
On balance, the committee is of the view that the Bill
should be passed, subject to the committee's recommendations. The committee
notes that its recommendations will allow the courts a greater level of
discretion in decision-making under the proposed regime. However, the committee
also encourages the Attorney-General's Department to monitor the operation of
the national security information protection regime provided for under the Act
and this Bill in order to ensure that an
appropriate balance is maintained. The committee considers that parliament
should also take an active role in monitoring the future operation of the legislation.
3.170
The committee is mindful of possible arguments that inconsistency
may arise if amendments are made to the civil proceedings regime in this Bill
in isolation from the provisions of the Act which apply to criminal
proceedings. In its view, these arguments do not carry weight. It is axiomatic
that different procedures do apply and operate in criminal and civil
proceedings. It is stressed that the committee holds the views expressed in its
earlier report concerning the National Security Information (Criminal
Proceedings) Bill 2004. However, it acknowledges that the recommendations in
that report concerning criminal proceedings were not adopted by Government and,
moreover, that the committee's responsibility is to address the Bill
before it.
Recommendation 11
3.171 The committee recommends that, subject to the above
recommendations, the Senate pass the Bill.
Senator Marise Payne
Chair
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