Submission to the Senate Legal and Constitutional Legislation Committee on the National Security Information (Criminal Procedure) Bill 2004 (30 June 2004)
1. The Australian Law Reform Commission (ALRC) makes the following submission to the Australian Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004.
The ALRC inquiry into the protection of classified and security sensitive information
2. Terms of Reference for the ALRC inquiry into the protection of classified and security sensitive information were issued by the then Attorney-General of Australia , the Hon Daryl Williams AM QC MP, on 2 April 2003 .
3. The Terms of Reference asked the ALRC to assess the effectiveness of the various existing mechanisms designed to prevent the unnecessary disclosure of classified and security sensitive information in the course of official investigations and criminal or other legal proceedings. The ALRC also was asked to report on whether there are any other approaches, including non-regulatory alternatives, which would improve performance in this area.
4. The Terms of Reference initially asked the ALRC to report by 29 February 2004 . However, this was extended to 31 May 2004 by the current Attorney-General, the Hon Philip Ruddock MP, expressly to accommodate the community consultation process after the ALRC received many requests—including from Government departments and agencies—for additional time to produce submissions.
5. In accordance with usual practice, the ALRC established a broad-based Advisory Committee to assist with the reference, providing advice about directions and priorities, and commenting upon draft documents, proposals and final recommendations. The Advisory Committee included a number of senior federal and state judges; senior prosecutors and defence counsel; the President of the AAT; a former NSW Attorney-General; a former Secretary of the Attorney-General’s Department; the former Inspector-General of Intelligence and Security; the Chair of the Administrative Review Council; a former Director-General of Intelligence; a former senior legal counsel to ASIO; and an emeritus professor of human rights law.
6. As part of its community consultation program, the ALRC produced two consultation documents. A Background Paper (BP 8)[1] was published in July 2003 setting out the scope of the inquiry, and laying the ground for the ALRC’s first round of consultations with, and submissions from, interested parties. In late January 2004, the ALRC published its Discussion Paper Protecting Classified and Security Sensitive Information (DP 67).[2] DP 67 provided further research and discussion about the position in Australia and overseas, set out the ALRC’s preliminary proposals for reform, and acted as the basis for later consultations and submissions.
7. The ALRC received 35 written submissions,[3] and arranged consultations with individuals and organisations identified as experts or key stakeholders. These included various government departments and agencies (including those comprising the ‘Australian intelligence community’), media organisations, legal professional associations, human rights NGOs and civil liberties groups, community organisations, academics and judges.
8. The President of the ALRC also held meetings in Washington DC with senior officers of the FBI and the CIA, senior prosecutors of the US Attorney’s Office (for the Northern District of Virginia), and the Executive Director of the Center for National Security Studies (a human rights NGO). The President also attended a seminar organised by the American Bar Association, which featured prosecutors and defence attorneys appointed to the US Military Commissions established to try ‘unlawful combatants’ detained in Guantanamo Bay , Cuba .
9. The inquiry was completed with the tabling of Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98, 2004)[4] on 23 June 2004. The final report contains 80 recommendations for reform, covering a range of matters of law and practice.
Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98)
10. The ALRC’s challenge in this inquiry was to develop mechanisms capable of reconciling, so far as possible, the tension between disclosure in the interests of fair and effective legal proceedings, and non-disclosure in the interests of national security. It would be an oversimplification, however, to characterise the task as striking a balance between the right of an individual to a fair and open trial with the need of the Government to maintain official secrets. Due consideration and weight also must be given to the broader and compelling public interests in:
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safeguarding national security and strategic interests (including international relations, since much of Australia’s intelligence information is sourced overseas);
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facilitating the successful prosecution of individuals who engage in acts of terrorism or espionage;
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maintaining the fundamental fairness, integrity and independence of our judicial processes; and
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adhering, to the greatest extent possible, to the principles and practices of both ‘open justice’ and open and transparent executive government.
11. The central recommendation of ALRC 98 is the introduction of a National Security Information Procedures Act to govern the use of classified and security sensitive information in all stages of proceedings in all courts and tribunals in Australia (except where expressly displaced by other legislation). The essential purposes behind the dynamic process set out in the National Security Information Procedures Act are to:
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identify and bring forward as early in the proceedings as practicable—and preferably before the trial—the issues associated with the admission, use and protection of any classified and security sensitive information;
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provide the court with a wide range of possible methods of maximising the amount of evidence available for use in the proceedings—ensuring that fairness is afforded to all parties (including the Crown) and public access is not unduly restricted; and
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leave the Government with the ultimate option to withhold highly sensitive information where it considers that (following the court’s final rulings on these issues) the risks associated with disclosure outweigh all other considerations—including that of gaining a criminal conviction at trial or successfully defending a civil action.
12. However, the court or tribunal retains the final power to determine how the matter before it will go ahead, in the light of the Government’s decision about whether or not to produce certain evidence. For example, the court might adjourn proceedings if counsel requires time to obtain a security clearance, or stay proceedings if insufficient admissible evidence remains.
13. The ALRC’s recommended scheme would provide the court with a range of options to tailor orders to suit the exigencies of the particular case, including (but not limited to):
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admitting the sensitive material after it has been edited or ‘redacted’ (that is, with the sensitive parts obscured);
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replacing the sensitive material with alternative, less sensitive forms of evidence;
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using closed-circuit TV, computer monitors, headphones and other technical means to hide the identity of sensitive witnesses or the content of sensitive evidence (in otherwise open proceedings);
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limiting the range of people given access to the sensitive material (for example, limiting access only to those with an appropriate security clearance);
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closing all or part of the proceedings to the public; and
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hearing part of the proceedings in the absence of one of the parties and its legal representatives—although never in criminal prosecutions, and only in other cases in exceptional circumstances and subject to certain safeguards (of course, leaving aside those matters in which it is now permissible, and uncontroversial, to proceed ex parte).
National Security Information (Criminal Proceedings) Bill 2004
14. On 27 May 2004, the Australian Government introduced into Parliament the National Security Information (Criminal Procedures) Bill 2004, accompanied by the National Security Information (Criminal Procedures) (Consequential Amendments) Bill 2004.
15. The matters covered by the Bills fall within the Terms of Reference for the ALRC inquiry, and were covered by the ALRC in its two consultation documents and final Report. However, the Bills deal only with certain aspects of federal criminal proceedings[5] and do not canvass the much broader range of issues that the Government asked the ALRC to consider.
16. The Bills largely incorporate the framework and terminology developed by the ALRC, as well as a number of principles and processes that are consistent with those expressed in the Discussion Paper (DP 67) and the final Report (ALRC 98). Significantly, the Bills accord with one of the central recommendations in ALRC 98 (Recommendation 11–1), that the Commonwealth enact a ‘National Security Information Procedures Act to deal specifically and solely with the protection of classified and security sensitive information’ in legal proceedings (and not, for example, accomplish this by amendment of the Evidence Act or by leaving the courts to develop rules of practice). However, there are some points of departure in detail or in tone between the Bills and the statutory scheme proposed in ALRC 98.
17. The ALRC was not consulted during the development or drafting of these Bills, nor was this parallel process referred to in consultations, or in the submissions from the Attorney-General’s Department and the Australian intelligence community. Thus, some of the variations between the ALRC’s recommended approach and that adopted in the Bills represent somewhat different ways of achieving the same aims and outcomes, rather than a direct rejection of the ALRC’s recommended approach or the application of a fundamentally different philosophy.
Security clearances
18. Under cl 34 of the National Security Information (Criminal Proceedings) Bill 2004, counsel who do not hold a security clearance cannot gain access to information that relates to, or the disclsoure of which may affect, national security. The security clearance process would be triggered by the Attorney-General’s Department (the same agency that would provide the security clearance), inhibiting a court’s discretion to determine the procedures that will apply in a particular case.
19. The ALRC’s scheme would leave courts with a measure of discretion (in the light of whatever objections the Crown may raise) to grant lawyers participating in proceedings without a security clearance access to classified material—albeit subject to such conditions and undertakings that the court considers necessary (see ALRC 98, [6.95]–[6.109], [11.131]–[11.133] and Recommendations 11–24 and 11–25).
20. The ALRC noted that in many (perhaps most) cases, the court will conclude that access to the classified or security sensitive material must be restricted to those lawyers who hold (or obtain) an appropriate security clearance, and in all cases also will require strict undertakings from lawyers about how they deal with the information.
21. The ALRC 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. The central involvement of the court would guard against any unfairness, including any suggestion that the Government or the prosecutors were improperly seeking to interfere in the ability of the other party to retain their counsel of choice.
22. Although this is not dealt with in the Government’s Bills, it should be noted that the ALRC concluded that it would be unconstitutional (under Chapter III) to require judges and juries to undergo security clearances, even if classified information is an issue in legal proceedings.
Closed hearings
23. A number of clauses in the National Security Information (Criminal Proceedings) Bill 2004 direct that, under certain circumstances, a hearing must be held in closed session.[6] The ALRC 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 (see ALRC 98, [9.52]–[9.67], [11.186]–[11.188] and Recommendations 11–18 and 11–19).
24. The National Security Information (Criminal Proceedings) Bill 2004 would require a record of the closed proceedings to be kept, but permits this to be available only to the court hearing an appeal on the decision made during that session (and not, for example, to the parties).[7] No court is given the power to release that record if, on subsequent review, it appears that this would cause no prejudice to national security.
25. The ALRC’s parallel recommendation provides that:
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the court may determine to what extent (if at all) a transcript of a closed proceeding should be sealed or distributed to the public, the parties or their legal representatives (ALRC 98, [9.74]–[9.86], [11.191]–[11.192] and Recommendation 11–22);
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to the greatest extent reasonably possible—consistent with the determination of the need to protect classified or sensitive national security infromation used in 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 (ALRC 98, [9.74]–[9.86], [11.191]–[11.192] and Recommendation 11–22); and
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on the application of any party to the proceedings or of the Attorney-General of Australia intervening of any other person, or on its own motion, the court may order that any sealed transcipt of any proceedings (or any part of them) may be unsealed or published on a wider basis than it had previously ordered (ALRC 98, [9.87]–[9.90], [11.161]–[11.163] and Recommendation 11–23).
Triggering the special procedures
26. Under cl 6 of the National Security Information (Criminal Proceedings) Bill 2004, the special procedures contained in the Bill are triggered only if and when the prosecutor gives the accused and the court notice in writing to that effect.
27. The ALRC’s recommendations—which are intended to cover civil and administrative proceedings, as well as criminal—provide that the special procedures are triggered by the notice that must be given by any party, as soon as it learns that sensitive national security information is likely to arise in the proceedings (whether at trial or in any interlocutory proceeding), or by the court or tribunal on its own motion (see ALRC 98, [11.86]–[11.98] and Recommendation 11–6).
Ministerial certificates
28. Under the National Security Information (Criminal Proceedings) Bill 2004, the court is required to hold a hearing at the beginning of the trial to determine whether it will accept an Attorney-General’s certificate in relation to non-disclosure of information (cll 24–25) or exclusion of a witness (cl 26).[8] Under the ALRC’s recommendations, emphasis is placed on the court convening a special directions hearing at the earliest possible time, and preferably before the trial begins (see ALRC 98, [11.86]–[11.98] and Recommendation 11–6).
29. The National Security Information (Criminal Proceedings) Bill 2004 cl 29(9) directs the court to give the greatest weight to the possible prejudice to national security when determining whether it will accept the Attorney-General’s certificates. The ALRC’s scheme acknowledges that possible prejudice to national security ought to be given very great weight, but formally would leave the court with more discretion to ensure that the interests of justice are served in the case before it (see ALRC 98, [8.241]–[8.243], [11.164]–[11.167], [11.173]–[11.184] and Recommendations 11–33, 11–34 and 11–36). While the ALRC considered this to be symbolically important, in practice there is likely to be little difference in outcomes. Most critically, the ALRC notes with approval that the Bill also places the court at the centre of the process, with the ability to decide whether to make the order requested by the Attorney-General.
30. 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 (see paragraph 13, above and ALRC 98, [11.123]–[11.127] and Recommendation 11–10.
Court security officers
31. The ALRC also recommended that in any proceeding in which classified and security sensitive information may be used, the court should have the assistance of a specially trained security officer to advise on the technical aspects of managing and protecting such information. This recommendation is modelled on the existing position in the in the United States,[9] which has proved to be very successful and has received strong support from all quarters.[10]
32. Under this recommended scheme, the security officer would:
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ensure that the court and the parties are fully informed about the proper handling of such sensitive information;
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ensure that appropriately secure facilities exist for transporting and/or storing the information when the court is not in session; and
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facilitate the application and vetting process for any person (such as counsel) who requires a security clearance in order to see the material.
33. Security officers (most likely drawn from the ranks of the AFP) would be trained by the Attorney-General’s Department and be available for assignment to a court or tribunal when needed.[11] The ALRC’s initial proposal (which referred only to courts) received strong support (and no opposition) in consultations and submissions, and the Administrative Appeals Tribunal (AAT) supported its extension to tribunals[12]—as is now reflected in the final recommendation. See ALRC 98, [8.81]–[8.93] and Recommendation 11–38.
[1] Australian Law Reform Commission, Protecting Classified and Security Sensitive Information, BP 8 (2003) <www.austlii.edu.au/au/other/alrc/publications/bp/8/bp8.html>.
[2] Australian Law Reform Commission, Protecting Classified and Security Sensitive Information, DP 67 (2004) <www.austlii.edu.au/au/other/alrc/publications/dp/67/>.
[3] A list of those individuals and organisations that made submissions (whether in response to the release of the Terms of the Reference, BP 8, or DP 67) is found in Appendix 1 to the Report.
[4] Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, ALRC 98 (2004) <www.austlii.edu.au/au/other/alrc/publications/reports/98/>.
[5] As well as certain proceedings under the Judiciary Act 1903 (Cth), s 39B and the Extradition Act 1988 (Cth).
[6] See, for example, National Security Information (Criminal Proceedings) Bill 2004, cll 23(4), 25(5) and 26(5).
[7] National Security Information (Criminal Proceedings) Bill 2004, cl 27(4).
[8] See, for example, National Security Information (Criminal Proceedings) Bill 2004, cl 25(3)(a).
[9] See Classified Information Procedures Act ( USA ), s 9, which authorises the Chief Justice of the United States , in consultation with the Attorney General, the Director of the CIA and the Secretary of Defense, to prescribe procedures for the protection of classified information in the custody of the courts. In 1981, the then Chief Justice, Warren Burger, promulgated the rules that govern the appointment and role of court security officers: see ALRC 98 [8.82]–[8.86].
[10] The use of court security officers was viewed favourably by various US intelligence agencies—the FBI and the Department of Justice have provided court security officers—as well as by prosecutors and defence counsel.
[11] The ALRC understands that in the Lappas case, an officer of the Australian Federal Police was assigned to assist the court in connection with the security arrangements put in place to handle the classified and security sensitive material. As the case was, in many ways, unique in Australian legal history, it is understandable that neither that officer, the court nor the participants in the proceedings had any prior direct experience of such cases; nor were there any manuals, guidelines or precedents on which they could rely.
[12] However, the Department of Immigration and Multicultural and Indigenous Affairs submitted that it should not apply to merits review tribunals under the Migration Act 1958.