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Wednesday, 8 December 2004
Page: 19

Mr McCLELLAND (10:13 AM) —The opposition supports the National Security Information (Criminal Proceedings) Bill 2004 and the related bill. The bill establishes a regime for the handling of national security information in federal criminal proceedings. I should say at the outset that the opposition is of the view that the procedures adopted in the development of this legislation were the way to deal with complex and controversial issues. In particular, we do congratulate the Australian Law Reform Commission. It has a particularly high standard of work always but in dealing with this controversial issue it provided interested parties with an opportunity to have their say as to the potential effect of the legislation and this was ultimately reflected in the ALRC's discussion paper entitled `Protecting classified and security sensitive information'. I note that I had previously been somewhat critical of the government for originally introducing this legislation following the interim report but prior to the final report of the Australian Law Reform Commission, but I might say that, as a result of deliberations by the Senate Legal and Constitutional Legislation Committee and discussions with the government, I think the substance of the bill at the end of the day does reflect the major recommendations of the Australian Law Reform Commission in its report entitled Keeping secrets: the protection of classified and security sensitive information.

The stated aim of the legislation is to enable security sensitive information—that is, information relating to or the disclosure of which may affect national security—to be introduced during a federal criminal proceeding and, on the other hand, to enable justice to be delivered in that proceeding. I note that the Law Council of Australia, while they have been critical and I am sure at the end of the day will still have concerns about the final product, at the outset in their submission to the Australian Law Reform Commission did recognise that reform was required in this area. In their submission they stated that a bill outlining a process for dealing with security sensitive information in criminal proceedings was desirable to ensure:

The clear expression of the possible orders that may be made to ensure the appropriate balance between the public interests and the interests of justice ... The Council sees as desirable the Commission's proposals that emphasise the wide powers courts and tribunals have to ensure the appropriate balance in the individual case.

As I go through the legislation I will underline on a number of occasions that the ultimate discretion of the trial court remains. It has been quarantined, if you like, from the effect of this legislation. The legislation is directed at how security sensitive information is dealt with ultimately in the trial.

As I mentioned, the Senate Legal and Constitutional Committee also did some excellent work in respect of this matter. They made 13 recommendations and, while the proposals ultimately voted on in the Senate, and as will be amended through the government's proposals in this House, do not reflect word for word the recommendations of the Senate Legal and Constitutional Committee, again I think at the end of the day the measures that have been adopted in the bill do reflect the substance of concerns before that committee.

I know the Attorney-General in his second reading speech and in the explanatory memorandum to the bill goes through the procedures in some detail, but I think, for those who are interested, it is worthwhile setting out in at least rough form the operation of the bill. While the issue itself, I might say, is of some controversy, the bill in many ways is quite straightforward. How it operates is that, when a prosecutor receives a brief of evidence, they will make a decision as to whether it is likely that, in the course of preparing and presenting their case, they will be dealing with security sensitive information. The bill also recognises that that realisation may occur during the course of proceedings, at which time, both at the outset or subsequently, they have an obligation to notify the Attorney-General. The obligation to similarly notify the Attorney-General also extends to the defence counsel, appropriately.

The three categories of information that can be relevant in the national security context are: information contained in a document; evidence potentially given by a witness; or even the presence of a witness as a result of some knowledge, background or experience that they have had or are known to have had. After notification, the Attorney-General makes a decision as to whether national security sensitive information is contained in the material and the certificate issued may again, speaking in the broad, prevent the disclosure of the information, allow the information to be presented in a redacted or reduced form—if you like, blue-pencilling the relevant parts—or enable the information to be produced in a summarised form. There are obviously details in the legislation as to how that should occur and what supporting documentation needs to be provided to the court and the parties.

Upon receiving the certificate, the court has an obligation to conduct a closed hearing. That is obviously a controversial issue, but we have to bear in mind that, while there is certainly a public interest in open justice and transparency before all tribunals, here we are counterbalancing national security considerations. The court's power in that closed hearing is complete power, if you like, over the Attorney-General's certificate. So, while the certificate obviously is an executive act, at the end of the day it is considered by the judiciary and, in the closed hearing, the court may agree with the certificate, they may order that the certificate be modified or, indeed, they may set it aside if they do not agree that security sensitive information will be revealed in the proceedings. Appropriately, again, all parties have a right of appeal from those orders made in closed hearings. So that is a very rough sketch of the essential operation or scheme of the legislation.

Regarding those provisions recommended by the Senate Legal and Constitutional Committee which have been taken up by the government in their redraft of the bill and the amendments that have been moved in the Senate and will be moved today, it is useful to go through those, I believe, just to reassure those who have had some concern about this legislation that their concerns, if not having been addressed, have certainly been considered. I will go through the reasoning for those various proposals.

Firstly, there has been an easing in the provisions relating to the exclusion of a defendant and his or her legal representative from the closed hearing. As originally drafted, the defendant or indeed a non security-cleared counsel could be excluded from the proceedings if it was believed that their presence would prejudice national security. The legislation as currently drafted indicates that the defendant or a non security-cleared counsel may be excluded from only part of the proceedings, and that exclusion can occur only if the court decides that their presence would be likely—and I emphasise that word `likely'—to prejudice national security. That is quite a significant benchmark that must be satisfied before the court excludes the defendant or non security-cleared counsel. I emphasise `non security-cleared counsel' because the bill makes clear that counsel who are cleared to the appropriate security level cannot be excluded from those proceedings. That again, while it is a controversial issue, is quite pivotal to the effective operation of the legislation.

I should indicate that, while those who obviously and passionately support the concept of open justice have expressed some abhorrence at a defendant not being present for all matters dealing with their prosecution, the reality is that their potential exclusion—again, when the court is satisfied that their presence is likely to prejudice national security—is actually consistent with Australia's international obligations. That situation can often arise in respect of the provision of security sensitive information. For instance, the Law Reform Commission in their report noted that article 4 of the agreement between the government of Australia and the government of the United States of America concerning security measures for the protection of classified information provide that the information should only be given to those persons who are justified in receiving it and who are appropriately cleared to the required security level.

At the end of the day, in this legislation we are balancing these concepts of open justice, transparency of the judicial process and the public interest of Australia with accessing and indeed being in a position to provide intelligence in times when we have to recognise that intelligence can be vitally important to the security of Australians in Australia and of course abroad. They are the competing public policy issues. I think the bill as finally worded through amendments will strike an appropriate balance.

There has been some confusion as a result of people basing their objections to this issue of security clearance on an earlier draft of the bill. In particular, there has been concern that section 39 of the bill in some way makes it obligatory for a lawyer to obtain a security clearance if they receive a notice from the Secretary of the Attorney-General's Department that a security sensitive issue is likely to arise in the course of the proceedings. The Law Council of Australia in particular expressed great concern about that being the case—that, in other words, the presence of counsel or the ability of a defendant to instruct counsel was on that construction of the legislation seen to be subject to veto by the Secretary of the Attorney-General's Department.

In fact, section 39 is facilitative. The Secretary of the Attorney-General's Department issues a notification advising counsel that in their opinion security sensitive information is likely to arise, and then procedures are available for that counsel to elect to obtain a security clearance to the appropriate level. That is not obligatory, however; counsel is not obliged to obtain that security clearance. If they do not obtain that security clearance, as I indicated earlier, their right to appear in the proceedings—in the closed hearing, at least—may be restricted, at least in some part, and their access to transcripts may also be restricted.

Again, that goes back to the balancing argument I put before, but it is not a situation where the executive vets which counsel can appear in the proceedings. The defendant has a right to instruct counsel of their choice and that counsel has a right to appear. If that counsel does not obtain security clearance then certain consequences may follow. In particular, they may not be in a position to present as full and as detailed a defence as they otherwise would have if they had secured a clearance—but again I emphasise that that clearance is not obligatory for the defence counsel.

While Justice Gaudron, I think, in Nolan and Young did acknowledge the vital importance of having open courts, we need to balance the interests of justice for the defendant with the interests of the Australian community. It literally could be the case that, if there were not appropriate measures in place for dealing with security sensitive information, if it were going to prejudice information—for instance, information obtained from a foreign government—or potentially affect an ongoing source of intelligence from those governments, then it may well be that the prosecution would elect not to proceed with the prosecution of an individual. That of course would be contrary to the public's right to justice. We need to ensure that we have a situation where all are equal before the law and our criminal laws are enforced.

I should also note that there are other jurisdictions where security sensitive information is dealt with in closed hearing procedures, including the Administrative Appeals Tribunal, the Refugee Review Tribunal, the Migration Review Tribunal and even the New South Wales Administrative Decisions Tribunal. So there are precedents for that. I should also say that while there is a closed hearing dealing with the Attorney-General's certificate, the court must give reasons for any decision it makes in those closed hearings and those reasons, of course, as I have indicated previously, will be the subject of appeal.

I should indicate that there has also been a concern as to what effect any orders made in the closed hearing may have on the conduct of the defendant's case. Again, in this regard, I understand an opposition amendment will be modified in a provision to be moved by the government. While national security is paramount in the closed hearing, nonetheless, the court is required to consider whether any such order would have a substantial adverse effect on the defendant's right to receive a fair hearing, and in particular the conduct of his or her defence. Our amendment, as picked up by the government, essentially will define `substantial adverse effect' as meaning an effect that is adverse and not insubstantial, insignificant or trivial. In other words, it has to be of some moment.

I should also indicate, as I did at the outset, that this deals with the closed hearing procedure. At the trial, the court retains the ultimate discretion as to whether justice can be done. In particular, we express our appreciation to the Law Council of Australia. As a result of that consultation, we moved an amendment in the Senate which has actually been picked up by the government and is now included in the bill. I note clause 19(2) makes it clear that that power to stay proceedings is not restricted by any order that may be made in the closed hearing. Indeed, it may well be that any order to stay the hearing at trial may result from any order that has been made in the closed hearing. So that amendment is significant and appropriate.

The right to a fair hearing is guaranteed under Australia's Constitution, as interpreted by the High Court and set out in the Dietrich case. Indeed, in Polyukhovich, the High Court confirmed that the power of a court to stay proceedings to avoid injustice is `an essential attribute of a superior court' that `exists for the purpose of ensuring that proceedings serve the ends of justice and are not themselves productive of or an instrument of injustice'. So the bill preserves that power of the trial court to ensure that justice is delivered.

I should also indicate that the bill picked up recommendations of the Senate committee that a closed hearing process should commence if notice is given before a trial and should be commenced prior to the trial to give the defendant time to prepare their case in light of any orders that may be made at the closed hearing. I should indicate that the bill also picks up recommendations regarding the admissibility of modified, redacted or summarised evidence. The trial court still has the ultimate say as to whether, at the end of the day, that evidence is, in any event, admissible in the proceedings.

As I have indicated, the court is required to give reasons for any order it makes in the closed hearing. As a result of an amendment moved by the opposition—again, I think it will be modified in amendments to be moved by the government—that transcript will also have to be provided to defence counsel who have appropriate security clearance. Again, that provision of transcript is essential if we believe that there is to be consideration of an appeal. It is very difficult to consider and advise a party on their rights if you do not have a record of the proceedings. We note that our amendment, as picked up by the government, indeed goes back to a recommendation of the Law Reform Commission which said: `To the greatest extent reasonably possible, consistent with the determination of the need to protect classified or sensitive national security information used in the proceedings, the court or tribunal should ensure that all parties receive a copy of the transcript that allows them to pursue any avenue of appeal that may be open to them.' I should say again that, while the Secretary of the Attorney-General's Department does make a determination of the level to which a security clearance is required, the decision to make the transcript available is a decision that is actually made by the court itself, and that decision is in turn subject to appeal.

The other matters of controversy that have been dealt with in the bill include concerns expressed in the committee processes about the definition of `likely to prejudice national security'. In that context, the new definition now states `there is a real and not merely a remote possibility that the disclosure will prejudice national security'. We believe that definition is appropriate. It avoids applying a more likely than not test. The definition, as I have indicated, says `a real and not merely a remote possibility'.

I should also indicate that the government has agreed with submissions put before it, primarily from the Australian Press Council, that the concept of national security as originally framed in the legislation was too broad. In that context, I understand the government has removed from the definition the term `national interest'. That concept itself being broad, nonetheless, we agree that the existing definition of national security as contained in the bill is sufficiently broad to protect Australia's security sensitive material. We note that the effective operation or the future protection of security sensitive information is very difficult to define in what circumstances it may be necessary, so a broad definition but not a ridiculously broad definition is appropriate.

In conclusion, we believe the legislation strikes an appropriate balance. On the one hand, it secures open justice, ensuring that counsel who appear for any Australian citizen are able to do so without fear or favour and without being vetted or restricted in their capacity to defend a client by any decision of the executive. They are obviously vitally important public interest goals that we all value in Australia. On the other hand, there is also a significant public interest goal that our authorities receive and continue to receive intelligence from overseas, and indeed that they can use intelligence that is obtained in Australia without prejudicing that intelligence—which indeed in some circumstances can have quite catastrophic effects by not only cutting off a source of intelligence but possibly literally being fatal to an agent or an informant who provides that intelligence. In these heightened times of security, while lawyers obviously want to and should vigorously advocate for the right to open justice and the right of appearance and so forth that I have outlined, they should also recognise that it is in the public interest that we receive and can appropriately manage and deal with security sensitive information. Those who call for an absolute and unfettered right of access to all material ignore that very reality.

I note the legislation is also consistent with legislation that has been introduced in the United Kingdom and Canada, as indicated in the Australian Law Reform Commission report. We believe that the quarantining of the powers of the trial court from the effect of this legislation is entirely consistent with article 14 of the International Covenant on Civil and Political Rights, which guarantees the right of a citizen to a fair trial. We say that because the discretion of the trial court to stay its proceedings in order to prevent injustice by determining the admissibility of evidence remains—its powers to ensure that justice is served remain despite this legislation which deals with how the security sensitive information is framed. At the end of the day, as I have indicated, we believe that the legislation is justified and, as a result of the detailed process of consultation, consideration and report, that it does strike the appropriate balance to which I have referred.

Finally, we note that, in their report, the Australian Law Reform Commission expressed some concern that there is not a broader regime applicable to dealing with security sensitive information and reporting of less than desirable or even criminal events that may occur in the course of their performing their public service. For instance, the Law Reform Commission noted that currently the Public Service Act prohibits victimisation of or discrimination against Australian Public Service employees who have reported breaches of the APS code of conduct to their agency head, the Merit Protection Commissioner or the Public Service Commissioner. The Law Reform Commission recommended that a new scheme be introduced to overcome a number of deficiencies with the existing scheme. One of the deficiencies they noted was that the current scheme only covers APS employees, leaving out around half of the Commonwealth Public Service. It does not provide protection for disclosure to the Ombudsman or the Inspector-General of Intelligence and Security and it does not provide protection for classified or security sensitive information.

Obviously that is a broad topic, but it is one which, in light of the specific comments by the Australian Law Reform Commission, we think we should draw to the attention of the House and indeed the government for future work. It is an area that we committed ourselves to having a look at should we have been elected to government. To re-enliven that issue, which has every prospect of becoming significant, I move the second reading amendment circulated in my name:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the bill a second reading, the House calls upon the Government, consistent with the recommendations of the Australian Law Reform Commission, to

(1) implement a new Federal protected disclosure regime; and

(2) include in the regime appropriate protection for persons working with security sensitive information and national security.”

The DEPUTY SPEAKER (Mr Quick)—Is the amendment seconded?

Mr Albanese —I second the amendment and reserve my right to speak.