Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 30 November 2004
Page: 74

Senator GREIG (5:18 PM) —These national security bills seek to clarify and streamline the way in which information affecting Australia's national security is dealt with in the criminal justice system. Of course there are a number of mechanisms which currently exist to protect highly sensitive information in the courtroom, including closed hearings, the editing of documents to be tendered, confidentiality undertakings and the doctrine of public interest immunity. With all of these mechanisms available, it is not entirely clear why a new regime is required. Indeed, the Law Council of Australia has expressed the view that the current regime is adequate. However, there does appear to be independent support for the government's proposition that further clarification might be needed. Mr David Weisbrot, the President of the Australian Law Reform Commission, which conducted a comprehensive inquiry into the handling of national security information within the criminal justice system, concluded:

At the moment, it isn't clear how far our courts can go to accommodate legitimate national security concerns. As a consequence, the government may be forced to drop or reduce criminal charges against an individual or to settle a civil claim—even though the result is unsatisfactory—because ultimately this better serves Australia's strategic interests.

If we accept then the view that legislative clarification would serve to combat this uncertainty, the challenge is obviously to ensure that any legislation strikes an appropriate balance between the need to protect Australia's national security and the need to ensure that those charged with crimes are afforded a fair and open trial. Unfortunately, the government appears to have the balance wrong in this legislation. The Democrats' view of this bill is perhaps best summarised by Mr Bret Walker SC, former President of the Law Council, who made the point:

This bill is not all bad—far from it. A very conscientious attempt has been made to balance some very difficult things. It is just that, in the upshot, I think one of the prevailing views is that trade-offs have gone too far.

We acknowledge that the government faced some complex issues in the drafting of this bill and we welcome some of the improvements that have been made in response to the report of the Senate Legal and Constitutional Legislation Committee; however, the balance in our view is still not right. The bill applies to all stages of proceedings relating to a crime under Commonwealth law or to a matter arising under the Extradition Act. If in the course of such proceedings the prosecutor or defendant believes that they or one of their witnesses will disclose information that relates to national security, they must notify the Attorney-General of that fact. The Attorney-General may then issue a certificate either preventing the disclosure of the information or the calling of a witness or permitting the partial disclosure of the information. If the Attorney-General's certificate relates to pretrial or extradition proceedings, it will operate as conclusive evidence that the disclosure of the information would be prejudicial to national security. The court must then consider whether to allow or disallow the disclosure of the information, taking into account the adverse effect of the defendant's right to a fair trial.

One of the more controversial aspects of the legislation is that the court may make an order permitting the hearing of evidence in the absence of the defendant. Such a hearing may also exclude the defendant's lawyer if he or she has not been granted security clearance at the appropriate level. Although we acknowledge the difficult issues with which the government has had to grapple in drafting this legislation, we Democrats do have some outstanding concerns regarding aspects of it.

We are concerned that the proposed new regime hinges on a definition of national security which is incredibly broad and contentious. The definition includes defence, security, international relations and law enforcement interests, all of which are also defined very broadly. While it is notoriously difficult to come up with a working definition of national security—and we acknowledge the government's exploration of other options—we remain of the view that the definition is problematic. A range of organisations expressed similar views during the Senate Legal and Constitutional Legislation Committee's inquiry into this bill. For example, the Australian Press Council argued:

The sweeping nature of this definition has the potential to include within its scope a broad range of types of information which not only relate to matters of public interest but which are appropriate matters for public debate. Just a few examples would be contracts for government tenders, analysis or forecasts of the Australian economy, proposed trade agreements with foreign governments, planned changes to Australia's telecommunications infrastructure, or reports of mismanagement within Australia's immigration detention centres.

Some of these issues will now be excluded by the government's intention to remove national interests from the definition of national security. The Democrats welcome those amendments. However, even despite the removal of that element from the definition of national security, the definition remains incredibly broad. As the Australian Muslim Civil Rights Advocacy Network has argued:

... almost any matter involving a non-Australian citizen could be covered by the definition of `international relations', namely `political, military and relations with foreign governments and international organisations'.

One of the problems associated with such a broad definition is that the bill places disclosure obligations on the prosecutor and the defendant in relation to information regarding national security. With such a broad definition of national security, it will be difficult for a defendant, in particular, to determine whether a piece of information genuinely relates to national security. This is all the more concerning given that penalties of imprisonment apply for nondisclosure and that an increasing number of defendants are choosing to represent themselves before the courts.

It is important to remember that, although the government may focus on the need for this legislation in the context of security related trials, the legislation is not limited to that context. Indeed, it applies to any proceedings involving an offence against the Commonwealth. It is entirely possible that information relating to national security could emerge in the course of a trial which does not, at first, appear to have any association with issues of national security. Because the definition of national security is so broad, it would be possible for a defendant to unknowingly commit an offence by failing to advise the Attorney-General. The defendant would then be liable to two years imprisonment. The Senate Legal and Constitutional Legislation Committee shared this concern, stating:

... in light of the broad and vague definition of national security, the Bill may place a heavy and unfair burden on the defendant to comply with its requirements.

Perhaps the most controversial aspect of this legislation is contained in clause 27, which enables a court to hear evidence in the absence of the defendant and his or her lawyer if the lawyer has not received the appropriate security clearance. In this respect, the bill differs markedly from the regime proposed by the ARLC. As Professor Weisbrot explained to the committee:

We saw that the most important thing was for the lawyer to be in there and for the person to be properly represented ... our proposals made no recommendations for criminal proceedings to go ahead absent the accused and ideally the person's counsel.

The Law Council specifically referred to the ALRC's recommendation that `the fact that a hearing is taking place should never be kept from the party whose rights are being determined or affected by the hearing'. A fundamental element of our criminal justice system is that a defendant has the right to be present during his or her trial. Given the potential deprivation of liberty which can result from a criminal conviction, it is vital for a defendant to have the opportunity to contest all the information to be heard against her or him. Amnesty International has expressed concern that the operation of this provision will mean that the defendant is not in a position to rebut the evidence or to provide instructions to their legal representative. The Senate committee indicated that it held:

... strongly to the view that defendants, as guaranteed under the International Covenant on Civil and Political Rights ... are entitled to be present at trial and to defend themselves in person or through legal representation.

Another contentious aspect of the bill is the requirement for lawyers to submit to security clearances if they are to have access to national security information. A large range of organisations, including the Law Council, have expressed concerns about this provision, which has implications for both the defendant and his or her lawyer. Firstly, it compromises the right of a defendant to choose their lawyer given that the lawyer of choice may not receive security clearance. This would place the defendant in the position of choosing their lawyer, who will not be given access to all the information, or resorting to another who will be given access. Secondly, the process could slow the trial down—the time needed not only for a security clearance to be undertaken but also for the defendant to instruct a new lawyer if that becomes necessary. Moreover, it is unclear whether there is likely to be any fee associated with the security clearance and, if so, who will pay that fee. It is certainly a possibility that the cost of this process could be added to the defendant's legal charges.

Of course, the requirement to undergo security checks also has significant implications for lawyers. As the New South Wales Council for Civil Liberties has argued, lawyers are officers of the court and are regularly required to give confidentiality undertakings, so the need for security checks is questionable. It went on to argue:

... it is sufficient that the Bill creates an offence for contravening a certificate of the Attorney-General or an order of the court. Any lawyer convicted of such an offence would be subject to the discipline of the court and risks being struck off.

I understand that the proposed security checks are very extensive, covering things such as the lawyer's place of residence, travel and overseas contacts over the previous decade. They may even incorporate a form of personality testing relating to the lawyer's trustworthiness—an interesting concept. On this basis the Law Council has highlighted this concern, saying:

The prospect of the government holding detailed private information about lawyers who regularly defend in contentious cases always creates the appearance, if not the actual risk, of a misuse of that information. Such a prospect exists no matter how secure and how separate the relevant sections within government are from each other.

The conduct of security clearances will be in accordance with the Commonwealth Protective Security Manual, which is not a public document and can be changed at the will of government. While I am informed that lawyers who receive an adverse security assessment would have the opportunity to seek a review of that decision, there is no provision to compensate a lawyer for any loss suffered as a result of such assessment.

The final concern which I want to highlight is the fact that an Attorney-General's certificate granted in relation to pre-trial or extradition proceedings—in other words, the vast majority of Attorney-General's certificates—will operate as conclusive evidence that the information in question is prejudicial to national security. As Australian Lawyers for Human Rights have argued, this amounts to the Attorney-General making a finding of fact without any opportunity for the defendant to be heard. Given that the court may rely on the Attorney-General's certificate in order to exclude the evidence, which may have a significant impact of the fairness of the trial, the defendant should have the opportunity to be heard. The potential unfairness associated with the Attorney-General's certificates is compounded by the fact that an Attorney-General's certificate is not liable to judicial review nor can any action taken by the Attorney-General be investigated by the Ombudsman. As the Ombudsman noted in evidence before the committee:

Essentially, the only method of accountability of action taken by the Attorney-General that is preserved by the bills is the requirement imposed by clause 42 for the Attorney-General to make an annual report to the Parliament.

In closing, there is clearly a range of outstanding issues in relation to the bill, issues which are not only of concern to the Democrats but also have been identified by a diverse range of reputable organisations within the community. We do acknowledge that the government has made a genuine attempt to formulate appropriate legislation but in the end we feel that the balance is wrong. It is our hope that we may be able to address some of these issues through amendment during the committee stage.