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Tuesday, 30 November 2004
Page: 77


Senator BROWN (5:32 PM) —The Greens are highly concerned by this legislation and will not agree to it passing the Senate without extensive modification. We therefore will bring forward a number of amendments to return basic and long-held political, legal and other rights which would be excluded by the legislation. The right to a fair trial in open court and trial by jury, the right to a lawyer of a defendant's own choice, the separation of powers, the independence of the courts and the independence of prosecution decisions are all threatened by this National Security Information (Criminal Proceedings) Bill 2004. The rights that I have listed are fundamental principles of Australia's common law as well as international law, in particular article 14 of the International Covenant on Civil and Political Rights. The right to a trial by jury is recognised in section 80 of the Australian Constitution. Amnesty International, the Law Council of Australia, the Australian Press Council and the Senate Legal and Constitutional Legislation Committee have all expressed serious concerns in opposition to the bill as it stands.

While there has been some modification of the original bill by the government, most of the amendments proposed by the Senate committee have not been implemented. The Greens are proposing amendments that will give effect to important recommendations of the committee, so ensuring, at the very least, increased discretion on the part of the courts that would otherwise be forced by this legislation to exclude evidence from the view of the defendant, the jury and the public on the grounds of national security in certain circumstances.

What qualifies as national security in this bill is defined and determined by the executive—that is, effectively, the Attorney-General of the day. The government claims the bill is necessary because there is a need to prevent information important for national security from entering the public domain in the course of criminal trials. At the same time it says that it is desirable that the fact that such information or evidence cannot be tested in the open court in front of the jury or tested by a defendant and their lawyer should not prevent such evidence being used to prosecute and convict an accused person. In other words, the evidence should be available but not necessarily to the defendant or the defendant's legal representatives. Such an approach to criminal proceedings gave rise to many of the struggles for the current fundamental principles underlying Australian criminal law going right back to the Magna Carta and the repudiation of the Star Chamber.

The government says that the bill seeks to establish a process for strengthening `the procedures for protecting national security information' and to provide a court which has found that `sensitive security related information should not be disclosed with an alternative to simply dismissing the charge'. The government's bill enables the Attorney-General to determine that particular information or witnesses may prejudice national security. Both the prosecutor and the defence are required to notify the Attorney-General and the court `if they know or believe that they, or one of the witnesses they intend to call, will disclose during the proceeding information that may affect our national security'. Upon receiving notification under this bill the Attorney-General may simply issue a certificate preventing disclosure of that information or precluding an individual from being called as a witness.

There will be a closed hearing of the trial court. The court will decide whether the information can be disclosed or whether the witness can be called. As a priority, the court is to consider whether disclosure of the information or the calling of the witness would create a risk of prejudice to national security over that of the right of the accused to a fair trial. The defendant and his legal representative may be excluded from the closed hearing. If the court confirms that the information should not be disclosed then the information may not be disclosed except in permitted circumstances. This order by the court may preclude disclosure of information to the defendant and their legal representative. Disclosure can lead to penalties of up to two years in jail. Amnesty International said that the bill, in its current form, creates a process whereby an accused person may be tried and convicted on the basis of information never seen or heard by the accused or their lawyer. Amnesty International went on to say:

The rules of evidence ... in the criminal justice system have been prescribed in order to minimize the risk of innocent individuals being convicted and punished. Making information secret denies people facing ... serious allegations and potential jail sentences, the right to effectively defend themselves.

Currently, the Australian courts are able to ensure classified or sensitive material is used appropriately by confidentiality undertakings from parties and their legal advisers, by restricting access to documents or parts of documents, by court proceedings closed to the public and by restricting publications of those proceedings. This is recognised by international law and the international covenant, which allows internationally closed trials in some circumstances where national security is an issue.

However, the current definition of `issues of national security' is so broad that it encompasses an area way beyond that which would be envisaged by the International Covenant on Civil and Political Rights. This bill empowers the Attorney-General to determine what matters might be considered prejudicial to national security, with national security defined as `Australia's defence, security, international relations, law enforcement interests or national interests'. Such a definition could encompass an extraordinarily wide set of circumstances, leading to situations in which principles of fair trials are unduly compromised and where the transparency and accountability of the legal process could be at risk. As the Australian Press Council pointed out in evidence to the Senate inquiry into this bill, the definition is of such a wide scope that it could include:

... 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.

Amnesty International is also concerned that this bill requires the court to hold closed session hearings, which may detract from one of the requirements of justice—that it is both done and seen to be done. Depriving the court of the discretion to hold hearings behind closed doors if it believes it to be necessary but instead giving the Attorney-General the power to make that decision without written justification will undermine public confidence in the courts of Australia. It will enable the timing and course of proceedings to be determined by political considerations rather than the requirements of justice as assessed by the courts.

This bill breaks down the separation of powers and the independence of the prosecution from political interference. It gives the Attorney-General the ability to determine which witnesses should be allowed, what evidence can be tendered and if hearings should be closed—all on the nebulous grounds of national security. Again, national security is defined as widely and as loosely as `matters in the national interest'.

The Australian courts' discretion is limited under the bill, with judges required to place national security above fairness to the accused—whatever `national security' may mean. The main concerns of Amnesty International and other human rights and legal groups include—and I sum up here—the right to adequate time and to all evidence available to prepare a defence. This bill allows the Attorney-General to issue a certificate preventing the disclosure of certain sensitive information which may have a bearing on the ability of the accused to defend himself or herself.

There is also the right to call and examine witnesses. This bill provides that the Attorney-General by certificate and the court by court order may limit or prevent the defence's access to witnesses whereby security-sensitive information may be raised. I again go back to that wide definition of what security is, which includes matters like international relations, national interests and law enforcement interests. There is the concern of the right of the accused to be present in all aspects of any trial against him or her, the right to a lawyer of the defendant's choosing, the right to a public hearing and the erosion of the right to a trial by jury. On that last matter, the exclusion of the jury from seeing all the evidence and the testing of that evidence is written into this legislation.

I am sure the public has supported measures brought before this parliament to increase surveillance, police powers and punishment of people who are contemplating, are involved in or have carried out terrorist acts, but this legislation is not about that. It is much wider. It is about truncating a citizen's right to a fair hearing when they are accused of infringing national interests. It is as wide as that. As the representatives of the Press Council—not known for being radical, I might say—point out, the national interest could include matters such as government tenders, forecasts on the Australian economy, proposed trade agreements, changes to telecommunications infrastructure or mismanagement of detention centres. I would add that it may include such matters as protests on environmental issues, Indigenous issues or cultural issues—a whole range of things in which, in the Attorney-General's view, the national interest could potentially be compromised, because the definition of national interest runs very clearly into what the government of the day considers is of interest to itself.

This is dangerous legislation. It is broadly scoped. It is not narrow or confined, for example, to matters of protection from terrorism or criminal activities. Inevitably, we must assess in considering legislation that, given time, unless it is tightened it will be used unfairly against Australian citizens, Australian legal representatives and Australian courts by the government of the day. It is the duty of legislators to define exactly what they mean and to be very clear and specific about it. The government has failed to do that. There is no cogent argument in what the government has brought forward for the wide and sweeping changes to hundreds of years of development of law and justice under British law and development over more than a century in Australian law which are contained in this legislation. I guess, whatever the Senate may do, that this is a forerunner to what we are going to see in the coming three years, as the government cuts across time-honoured civil liberties, rights and jurisprudence with legislation like this—totally unjustified, unwarranted and against the national interest.