Review of the National Security Information (Criminal and Civil Proceedings) Act 2004
Mr Grant Donaldson
Independent National Security Legislation Monitor
3-5 National Cct
BARTON ACT 2600
Australia
INSLM@inslm.gov.au
Dear Madam/Sir
Review into the operation and effectiveness of the National Security Information (Criminal and Civil Proceedings) Act 2004
This submission addresses issues relating to the National Security Information (Criminal and Civil Proceedings) Act (‘NSI Act’) and recommends that the common law is more appropriate in determining whether information should be disclosed in criminal and civil proceedings.
‘[W]histleblowing and a free press are vital to facilitating public accountability for powerful institutions.’[1] The NSI Act contributes to a culture of secrecy surrounding government action, which has a chilling effect on free speech and reduces government accountability. The case of R v Collaery involved an ASIS whistle-blower and his lawyer sharing secret information, which related to serious government misconduct.[2] Bernard Collaery and Witness K faced criminal charges for what could be described as a moral or ethical duty to disclose.
Furthermore, in R v Collaery, some documents were not disclosed to the defendant but were related to his criminal charges, due to the operation of the NSI Act. This creates issues with fair trial, due process and the administration of justice. The application of the NSI Act in this case prioritised the secrecy of national security information over the administration of justice.
This submission will be split into two parts:
1. Issues with the NSI Act.
2. Recommendations to address these issues.
I Issues with the NSI ACT
The key issues with the NSI Act are that (a) it has adverse impacts on due process for civil and criminal proceedings, (b) it results in an enormous expansion of executive power (and executive influence over proceedings), and (c) it creates inconsistency in the law.
A Due Process
This Act allows for non-disclosure of national security information in criminal and civil proceedings in some instances, which adversely affects due process and the administration of justice in those proceedings. This is primarily due to the fact that the Act does not adequately balance the requirements of national security with the administration of justice.
1 Closed Court
Under the NSI Act, orders can be made requiring closed court proceedings, which disrupts the long-established system of an open court and open justice.[3]
In R v Collaery (No 7), the media, the public and even the jury were excluded from some parts of this trial, and as acknowledged by the judge, having to open and close the court repeatedly will affect the jury’s perception of the defendant.[4] This also occurs in Roberts-Smith v Fairfax Media Publications Pty Limited (No 34),[5] where the court was required to be closed for part of the proceedings, and previous arrangements of posting some parts of the proceedings on YouTube (with sensitive parts removed) had to be stopped as it undermined the effectiveness of the order made under s 38B of the NSI Act.
Further, under section 29(3) of the NSI Act, the defendant and their legal representatives can be excluded from hearings. This is particularly concerning, as defendants have a right to know the charges and evidence against them. This ties into the minimum guarantee of having ‘adequate time and facilities to prepare a defence’ (emphasis added) set out by the Attorney-General’s Department.[6]
2 Non-Disclosure of Documents
The NSI Act provides for the non-disclosure of ‘national security information’ both to the parties involved (such as the defendant) and to the media and public. Although this power exists at common law (public interest immunity), it exists to a much greater extent in the NSI Act by virtue of its provisions. The court is required to give greater weight to the Attorney-General’s certificate (issued under ss 26(1) and 38F(1)) , and the non-disclosure of national security information (as opposed to disclosure to ensure the administration of justice).
This occurs in criminal proceedings, where the Crown has access to certain information and documents which are not available to the defendant. The potential consequences of this are clear – as the conviction of the defendant can result in jail time. It is imperative that defendants are given every opportunity to defend themselves. This occurs in R v Collaery (No 9),[7] where the defendant is prevented access to certain documents, but that evidence may be used against them by the prosecution.[8] Senator Bolkus commented on this situation during the Senate hearing for the original Bill, stating that the Act could ‘lead to a situation where someone could have a trial, not know the witnesses, not know the critical evidence, not be present and be found guilty’.[9] This is clearly repugnant to the constitutionally supported principle of a fair trial and due process (Ch III of the Constitution), as well as the right to a fair trial set out in Article 14 of the ICCPR.[10]
For civil proceedings, a similar situation can arise where only one party has access to documents. Although the effects of this are not as serious as criminal proceedings (conviction and imprisonment), it can certainly impact the outcome of the proceedings. As noted in Roberts-Smith v Fairfax Media Publications Pty Limited (No 6),[11] one party could potentially gain a forensic benefit if documents are not produced, which may impact the outcome of the case. In this case, use of the common law approach (public interest immunity) effectively balanced the two competing interests, and as a result, the relevant information was disclosed. However, if the NSI Act had applied in this case, this may not have been the outcome.
B Expansion of Executive Power
The NSI Act requires that the courts give more weight to the secrecy of national security information rather than the administration of justice and a fair trial. As such, the executive has more power to interfere with due process, as more closed court proceedings and non-disclosure of documents will occur as a result of this imbalance. This is further exacerbated by the fact that there is an over-classification in what amounts to “national security information” due to its liberal definition.
1 Preference of Protecting National Security Information Over Administration of Justice
The object of the NSI Act under s 3 is as follows:
‘The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice’ (emphasis added).
The Act is weighted in the favour of the national security interest (over the administration of justice), as the prevention of disclosure must ‘seriously interfere’ with the latter before disclosure will be required. This requires the court to balance these two interests but gives more weight and further regard to national security.
The object of the Act is further amplified by s 31(8), which requires the court to give the greatest weight to whether there would be a risk of prejudice to national security, with regard to the Attorney-General’s certificate (s 31(7)(a)) for criminal proceedings. For civil proceedings, ss 38L(8) and 38L(7)(a)) are the corresponding sections.
This has the effect of increasing the number of cases and situations where secrecy is required, and non-disclosure orders (or closed court orders) may be given. Thus, the amount and frequency of executive influence onto due process (discussed above) is increased due to the favour given to protection of national security information.
While the Act specifically provides that a non-disclosure order does not prevent the Court from staying a matter if non-disclosure would have a substantial adverse effect on their right to receive a fair hearing it is to be noted that despite this important protection it is inherently problematic for such a determination to be made in the absence of the accused. Only the accused can know the defences that they will raise to the charges against them and the basis upon which they will raised[12].
2 Over-Classification of ‘National Security Information’
‘National security information’ is defined in s 7 of the Act as ‘information: (a) that relates to national security; or (b) the disclosure of which may affect national security’. In s 8, ‘national security’ is defined as ‘Australia’s defence, security, international relations or law enforcement interests’. These definitions are very broad.
Many national security professionals acknowledge that there is significant over classification of information as secret by government.
One member of the 9/11 Commission stated that “only 10% of classification was for “legitimate protection of secrets”[13] The consensus seems to be that Australia is more secretive than the United States[14]. If this is so, one would expect that over classification in this country would be greater than in the US.
In 2020 the former head of ASIO, Dennis Richardson, in carrying out a review of the legal framework of national intelligence noted a tendency to over classification of material and Richardson noted that some agencies lacked appreciation of the careful balance required between the right to a fair trial, the principle of open justice and the protection of national security information[15].
The inclusion of ‘law enforcement interests’ extends the scope of this Act considerably.[16] The definition of ‘information’ set out in s 90.1 of the Criminal Code Act 1995 (Cth) also extends the scope of this Act: ‘information of any kind, whether true or false and whether in a material form or not and includes: (a) an opinion; and (b) a report of a conversion’. This definition means the NSI Act could even apply to a false rumour. This brings nearly all information which relates to or affects national security under the scope of the Act, whether or not it is relevant or true.[17]
This broad definition of ‘information’ and over-classification of what amounts to ‘national security information’ has serious implications. Anything that could fall within these definitions could be withheld from the defendant (or, in civil proceedings, withheld from one party[18]), which relates to issues of due process discussed above. These broad definitions and scope of the Act increased the encroachment of the executive on due process and a right to a fair trial. As a result, the executive is given ‘enormous scope for unwarranted interference in the administration of justice’.[19]
C Inconsistency in the Law
The NSI Act creates inconsistency in the law, as the common law ‘public interest immunity’ is used for other sensitive information not relating to ‘national security’. This public interest immunity can lead to different outcomes to the NSI Act, which leads to inconsistency depending on subject matter of the information in question.
The common law and the NSI Act result in different outcomes, as the common law more equally balances the interests of the administration of justice and the public interest in non-disclosure, whereas the NSI Act gives more weight to non-disclosure. This inconsistency is undesirable, and a uniform approach is preferrable.
D Overall Impressions
The NSI Act creates the impression that the right to a fair trial, due process, and procedural fairness are secondary to matters of national security. Considering that the criminal law is one of the most serious ways in which the state is permitted to exert significant force onto and power over individuals, strong and reliable safeguards are essential, particularly the right to a fair trial. The NSI Act undermines these safeguards, bringing the integrity of the courts into question. Although the protection of national security information is certainly important, it must be appropriately balanced with the administration of justice. The NSI Act does not achieve this balance, and the non-disclosure of national security information has encroached significantly on basic rights such as the right to a fair trial.
Additionally, more information is not disclosed both in trial and to the public (including the jury and media), creating a culture of secrecy. This undermines public trust in the government and courts, and the public is left unaware of very significant issues. The NSI Act (and other similar laws) are seen ‘as an indicator of the state’s willingness to restrict the flow of information’.[20] Further compounding this, the NSI Act has a chilling effect for free speech (particularly for journalists and whistle-blowers). This discourages people from reporting government misconduct out of fear of prosecution (such as the R v Collaery case).
The secrecy that is enabled by the NSI Act does not reflect well on the Australian government and can result in unjust outcomes for parties to criminal and civil proceedings. Because of this, it is recommended that the act be repealed so that disputes regarding national security can be presided over according to common law.
II Recommendations
In relation to the first submission, the QCCL recommends that the NSI Act should be repealed and replaced with the common law public interest immunity doctrine. This is primarily because the common law regard to public interest immunity would be more appropriate in the adjudication of disputes regarding the disclosure of national security information.
(a) A Public Interest in Common Law[21]
The principle of public interest immunity has been upheld in statutory and common law. Section 130 of the Evidence Act (1995) highlights the notion of public interest immunity in statute. Whilst this principle has been outlined in statutory provisions, it must also be interpreted through common law, as s130 does not extend to pre-trial processes.[22] Common law has upheld key notions regarding the three-step process of the public interest immunity principle and the relevant legal principles associated with it.[23]
The case of Alistair v The Queen outlined the three-step process the court must undergo when determining the application of the public interest immunity.[24] The court must initially consider the damage that could ensue to national security or executive interest through the disclosure of information.[25] It must then consider the adverse effects upon the administration of justice that could arise through the withholding of information.[26] These two aspects of public interest are weighed by the court in a ‘balancing test’ to determine whether the documents should be disclosed.[27] When evaluating public interest, there are two conflicting notions that must be considered. The court has upheld that if the injury to national security is of such magnitude that no other interest, public or private, will prevail over it, the documents will not be ordered to be produced as evidence.[28]. When conducting the balancing test, the court must decide which public interest predominates the other. The court exclusively possesses the power to consider and determine whether a document will be disclosed in court proceedings for the interests of the public.[29]
Under the common law, the court is required to assess the arguments for and against the non-disclosure of the documents. The test to deduce the level of harm to public interest is to determine whether there is a real probability of harm, as opposed to a possibility.[30] The party seeking to withhold documents from the court bears the onus of proof to establish that the public interest in preserving confidentiality outweighs the public interest in the right to the administration of justice.[31] The party seeking to withhold the documents must demonstrate that real risk of harm to public interest will arise if the non-disclosure of documents was not upheld.[32] The party seeking to maintain the inclusion of the document must show that the purpose of including the document or information in the proceedings must be a legitimate, forensic purpose and that the administration of justice would be frustrated if it were not.[33]
The public interest immunity under common law encompasses a range of considerations that are of importance and relevance to the public interests. The court upheld in the case of Hogan v Hinch that the meaning of public interest, in the context of statutes, ‘derives its content from the subject matter and the scope and purpose of the enactment under which it appears’.[34] The case also recognised national security as a public interest immunity, stating that in situations that require a “compelling consideration to national security”, a departure from the open justice principle may be justified, therefore requiring certain information to be withheld from court proceedings.[35] National security interests have been consistently recognised by the court as a category of public interest immunity under common law.
(b) Due Process Under Common Law
The common law public immunity principles can be considered more appropriate in handling court proceedings regarding issues of national security due to the consideration of due process in the ‘balancing test’. The consideration of public interest in the administration of justice is an integral component in the 3-stage process. The recognition of the importance of the administration of justice in the common law ensures that the open court principal is given substantial weight in criminal proceedings. This is of great importance, particularly in criminal proceedings, as the liberty of individuals is at risk, therefore requiring an adherence to due process to ensure their right to a fair trial is upheld. Whilst the objective of the NSI Act is to balance the protection of national security with the right to an open trial, section 31(8) of the Act gives the greatest weight to the Attorney-General’s certificate when considering the disclosure of information. The Act ensures that the interest of the executive, rather than the principal of an open court, is given greater consideration when determining the disclosure of information. This statutory provision is inadequate when applied in criminal proceedings, as an individual’s right to a fair trial is put at risk when greater weight is applied to executive interest. Greater weight to executive interest when determining the disclosure of information can also lead to a lack of transparency and accountability in relation to executive power. Therefore, common law principles regarding public interest immunity are more appropriate than the NSI Act in ensuring the principal of due process is upheld when determining the disclosure of information in criminal proceedings.
In the context of the general principles of public interest immunity, civil and criminal proceedings may be presided over differently under common law. In a criminal trial, the public interest in the disclosure of documents is generally granted more weight over the public interest of the protection of information.[36] However, in the case of civil proceedings, a private interest to disclose information will rarely be considered of greater weight than the withholding of information.[37] This is primarily due to the defendant’s liberty not being at risk in the context of civil proceedings. Common law recognises the differences in civil and criminal proceedings of the public interest and adjusts its considerations accordingly. This is appropriate, particularly in the context of criminal proceedings as due process is of particular importance when an individual’s liberty is at risk.
(c) Executive Power under Common Law
Under common law, the power to determine the disclosure of documents in the interests of the public is entirely exercised by the courts.[38] This provides a level of accountability to the executive, as the interests of the executive are often represented in cases concerning national security. The common law application of public interest immunity ensures that executive interest is not disproportionately weighted in the balancing test. This ensures that the notion of due process and a right to a fair trial is upheld in the context of criminal proceedings. Under s 31(7), the NSI Act grants the executive greater weight in determining the disclosure of information in criminal proceedings, which has the potential to impact the defendant’s right to a fair trial. The common law can be considered more appropriate in dealing with the protection of national security information and public adjudication.
(d) Classification of Secret Information under Common Law
The common law principles of public interest immunity are determined on a case-by-case analysis and can arise regarding any factor that the court considers relevant. National security information has been consistently recognised as a public interest immunity under common law.[39] The foundation of the public interest immunity is primarily concerned with the injurious nature of the documents to the public interest, as opposed to the secrecy or confidentiality of the documents. Whilst the NSI Act specifically addresses the protection of national security information, the scope of information that can be excluded due to its ‘secretive’ nature is broad. The common law principles are more appropriate in addressing issues associated with the protection of national security information, as it is primarily concerned with the harm of disclosure to the public interest rather than prioritising the harm to national security (regardless of whether it is in the public interest to keep secret). That is, national security information will be protected by the public interest immunity insofar as non-disclosure is actually in the public interest.
(e) Alternative Submissions
If the Act is not repealed, the QCCL endorses the recommendations that were observed in the Independent National Security Legislation Monitor upheld by the Federal Attorney General Mark Dreyfus as alternative submissions. The following were submitted:
Where closed court orders are sought from any court under the National Security Information Act the Attorney General be required to make submissions to the court to explain why such orders are appropriate and should be made having regard to the object of the NSI Act and the deeply rooted common law traditions of the open court;[40]
That the Act be amended to express that where closed court orders are sought the court has the power to appoint a contradictor (a Special Counsel or a Special Advocate) to make submissions to the court on such orders;[41]
That orders made under the NSI Act be made publicly available;[42]
Where closed court orders are sought from any court the Attorney General be required to seek those reasons be given[43]
Whilst we uphold that the NSI Act should be repealed and replaced by the common law, these recommendations could be incorporated into the current act as an alternative to the submission so as to provide accountability and transparency with regards to the provisions of the Act.
This submission was prepared by QCCL interns Elisabeth McCoombes and Lucy Johnston.
We trust this is of assistance to you in your deliberations.
[1] Rebecca Ananian-Welsh, Rose Cronin and Peter Greste, ‘In the Public Interest: Protections and Risks in Whistleblowing to the Media’ (2021) 44(4) University of New South Wales Law Journal 1242, 1242.
[2] Christopher Knaus, ‘Open justice v secrecy: what is the case against Witness K lawyer Bernard Collaery all about?’, The Guardian (online, 18/05/2023) <https://www.theguardian.com/australia-news/2022/jan/31/open-justice-v-secrecy-what-is-the-case-against-witness-k-lawyer-bernard-collaery-all-about#:~:text=Witness%20K%2C%20a%20long%2Dserving,time%20of%20heightened%20terror%20threat.>.
[3] See Hogan v Hinch (2011) 243 CLR 506
[4] [2020] ACTSC 165, [133]-[134]
[5] [2022] FCA 532
[6] ‘Minimum guarantees in criminal proceedings’, Attorney-General’s Department (Web Page) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/minimum-guarantees-criminal-proceedings>.
[7] [2020] ACTSC 291
[8] Anna Talbot, ‘The use of secret evidence in civil and criminal proceedings’ [2017] Precedent (Australia Lawyers Alliance) 58.
[9] Senate Legal and Constitutional Legislation Committee, Committee Hansard, 5 July 2004, Sydney, 42, as cited in Ibid.
[10] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[11] [2020] FCA 1285
[12] Ibid page 43
[13] Quoted in Kitrosser Free Speech and the Leaky Ship of State 6 Journal of National Security Law & Policy 409 at page 428 where similar views by other respected figures in the world of American Intelligence are quoted and see also Brennan Center for Justice Strengthening Intelligence Oversight 2015 at pages 16 and 17.
[14] See ‘Hear no evil, see no evil, speak no evil: The Secretisation of information by government in Australia’ Kylie Weston-Scheuber Bond Law Review Volume 34 Issue 1 page 44 – quoting the views of Dennis Richardson
[15] Ibid page 40
[16] Mark Rix, ‘Counter-terrorism and information: The NSI Act, fair trials, and open, accountable government’ (2011) 25(2) Continuum: Journal of Media & Cultural Studies 285, 287.
[17] Ibid, 286.
[18] As discussed in Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285.
[19] Rix (n 9) 287.
[20] Lawrence McNamara, ‘Counter-Terrorism Laws and the Media: National Security and the Control of Information’ (2009) 5(3) Security Challenges 95, 109.
[21] It should be noted for the record that in the past, this Council has been critical of the excessive use of the public interest immunity. But for the reasons set out in the submission it is clearly preferable to this Act.
[22] Esso Australian Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
[23] Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2021] FCA 552, [10]-[11] (Abraham J).
[24] Alistair v The Queen (1984) 154 CLR 404, 4 (Gibbs)
[25] Ibid
[26] Ibid
[27] Ibid
[28] Sankey v Whitlam (1978) 142 CLR 1, [38]-[39], (Gibbs)
[29] Ibid
[30] Roberts-Smith v Fairfax Media Publications (No 6) [2020] FCA 1285 36
[31] Sankey v Whitlam (1978) 142 CLR 1, [38]-[39]
[32] Ibid
[33] Alistair v The Queen (1984) 154 CLR 404
[34] Hogan v Hinch (2011) 243 CLR 506, 31 French
[35] Ibid, 21
[36] Roberts-Smith v Fairfax Media Publications (No 6) [2020] FCA 1285 36
[37] Roberts-Smith v Fairfax Media Publications (No 6) [2020] FCA 1285 36
[38] Sankey v Whitlam [1978] HCA 43 (1978) 142 CLR 1
[39] Asiatic Petroleum Co Ltd v Anglo Persian Oil Co Ltd [1916] 1 KB 822
[40] Grant Donaldson, Independent National Security Legislation Monitor Annual Report, (Annual Report, 2021-2022) 27
[41] Ibid 27. This Council has long argued that the Commonwealth should establish a Public Interest Monitor to appear as a contradictor on applications for warrants. In our view, such a body should be established and one of its functions should be to appear as the contradictor where this Act is involved
[42] Ibid 27
[43] Ibid 27