CoseNZa, Isabella --- "Keeping Secrets: the Protection of Classified and Security Sensi" [2004] ALRCRefJl 31; (2004) 85 Australian Law Reform Commission Reform Journal 53

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Reform Issue 85 Summer 2004/05

This article appeared on pages 53-58 of the original journal.

Keeping Secrets: The Protection of Classified and Security Sensitive Information

By Isabella Cosenza*

The ALRC recently completed a major inquiry into the Protection of Classified and Security Sensitive Information during court and tribunal proceedings and official investigations.

The ALRC was asked to assess the effectiveness of the various existing mechanisms to protect classified and security sensitive information and report on whether there were any other approaches, including non-regulatory alternatives, which would improve performance in this area. Following extensive consultations in Australia and overseas, including with the intelligence community, the Inquiry culminated in the release of the report Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98) in June 2004.

Criminal prosecutions for espionage, terrorism and the unauthorised disclosure of national security information have been rare in Australia, but in the current environment an increasing number of these types of cases may reach the courts. Classified and security sensitive information also may be relevant evidence in civil proceedings, especially where the Government is the defendant. Such information is also increasingly likely to surface in administrative decisions to refuse someone a security clearance, a visa or passport, or to resist the production of documents under freedom of information laws.

The challenge for the ALRC was to go beyond simply balancing the right of an individual to a fair and open hearing and the need of the Government to maintain official secrets. Consideration was also given to the broader and compelling public interests in: safeguarding national security and strategic interests; facilitating the successful prosecution of terrorists and spies; maintaining the integrity of the judicial process; and adhering, to the greatest extent possible, to the principles and practices of both ‘open justice’ and open and accountable government.

The ALRC made a number of recommendations across the field, from better decision making about the classification of documents in the first instance, to facilitating injunctive relief to prevent the threatened publication of sensitive information in contravention of the criminal law. A central feature of its report was the recommended enactment of a new National Security Information Procedures Act, which would apply to all proceedings in Australian courts and tribunals (except where expressly displaced by other legislation).

Shortly before the ALRC’s report was due to be delivered to the Attorney-General, the Australian Government introduced into Parliament the National Security Information (Criminal Procedures) Bill 2004, which concerns the protection of classified information in criminal trials. The Bill, to a large extent, incorporates the framework and terminology as well as some of the principles and processes developed by the ALRC in Keeping Secrets, as well as its Discussion Paper, Protecting Classified and Security Sensitive Information (DP 67) published in January 2004. This article outlines the key features of the ALRC’s proposed Act and notes some of the key differences between the Bill and the ALRC’s proposed Act. It also considers the report of the Senate Legal and Constitutional Committee¹ in relation to the Bill.

The Proposed National Security Information Procedures Act

The prosecution of former defence intelligence analyst Simon Lappas for passing classified information to an unauthorised person, highlighted the deficiencies in our present legal system for dealing with matters involving national security information, and was probably the immediate prompt for the Australian Government to issue the Terms of Reference for the Inquiry. These deficiencies included the absence of a clear outline of procedures that should or could have been adopted in presenting security sensitive information to the court, the lack of alternatives to full disclosure of sensitive material and the inflexibility of the current statutory statement of public interest immunity in the Evidence Act 1995 (Cth).

The ALRC recommended dedicated new legislation—the National Security Information Procedures Act—to deal with the issue of protection of classified and sensitive national security information in all stages of proceedings in courts and tribunals. Enactment of a new statute was preferred to placing the scheme in the Evidence Act 1995 (Cth) or other legislation that deals with court procedure generally to stress the exceptional nature of the procedures it authorises.

Information captured by the Act

While the treatment of sensitive information that emerges in the course of law enforcement operations (such as those relating to drug trafficking or organised crime) was relevant to the Inquiry, central to the Inquiry was classified and sensitive national security information. This information—to which the proposed Act applies—is concerned with Australia’s national security, defence, international relations and other important strategic interests. The ramifications of disclosure of such information extend to the very security and defence of the nation; for example, by identifying the capabilities or limitations of Australia’s intelligence services and defence arrangements.

Purpose of the Act

One of the key purposes behind the scheme set out in the proposed Act is to identify and bring forward as early in the proceedings as practicable—preferably before the trial—the issues associated with the admission, use and protection of any classified and sensitive national security information. Another key aim is to provide the court or tribunal with a wide range of possible methods of maximising the amount of evidence available for use in the proceedings while ensuring that fairness is afforded to all parties and public access is not unduly restricted.

The proposed legislative scheme would require parties to proceedings in which classified and security sensitive information is likely to arise to notify the court or tribunal and the other parties accordingly once they become aware of this possibility. The court would be empowered to make an order that all parties to a proceeding file and serve lists of all classified and security sensitive information that they reasonably anticipate will be used in the proceedings, either in their own case or in rebuttal to the case of any other party. The recommended mechanism covers both the pre-trial disclosure of material in criminal proceedings and discovery, subpoenas, interrogatories and witness statements in civil proceedings, as well as the use of all such material at trial or any final hearing.

Powers of the court

The proposed Act is a consolidation of existing and new mechanisms—adapted from national and overseas practice—available to the court or tribunal in dealing with sensitive information. The Act would give the court or tribunal the powers to make orders determining the relevance and admissibility of any classified or sensitive national security information and the form in which it may be tendered as evidence or otherwise used in the proceedings, to meet the exigencies of the particular case. Such orders may include:

• replacing classified material with unclassified summaries;

• admitting the sensitive material after it has been edited or ‘redacted’ (that is, with the sensitive parts obscured);

• using closed circuit televisions, computer monitors, headphones and other technical means to obscure the content of sensitive evidence from the public or particular people, in otherwise open proceedings; and

• closing all or part of the proceedings to the public.

Secret evidence

The proposed Act would not allow for secret evidence to be tendered against an accused in a criminal prosecution, however. To sanction such a process would put at risk the protections afforded to an accused under the International Covenant on Civil and Political Rights, such as the right to be present at one’s own trial and to examine adverse witnesses, and could constitute an abuse of process. Further, legislation that either requires or authorises a court to hear classified and security sensitive evidence in the absence of the accused runs the real risk of infringing Chapter III of the Australian Constitution as it could be legitimising or mandating a process not in accordance with judicial process. The ALRC also recommended that evidence involving classified or security sensitive information should not be withheld from a party to a civil proceeding (except certain matters involving judicial review of administrative decisions) or to a tribunal proceeding where the court or tribunal intends to rely on that evidence, except in exceptional circumstances and subject to a number of safeguards, including that:

• the affected person should always be notified of the fact that secret evidence is being used against him or her;

• the normal rules of evidence should apply, even where they are not mandatory, as a safeguard to protect the absent party; and

• a complete record of the proceedings should be prepared and kept by the court or tribunal, including a written statement of reasons for any decision or order made.²

The National Security Information (Criminal Procedures) Bill 2004

On 27 May 2004, just prior to the completion of the ALRC’s report, 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. The Senate Legal and Constitutional Committee (the Senate Committee) has recommended that the Bills proceed subject to its recommendations.

The Bills essentially deal only with certain aspects of federal criminal proceedings and do not canvass the much broader range of issues that the ALRC was asked to consider in the Terms of Reference for its Inquiry. However, the Bills do accord with the central recommendation of Keeping Secrets, that the Commonwealth enact an Act that deals solely with the protection of classified and security sensitive information in legal proceedings.

A number of the processes contained in the National Security Information (Criminal Procedures) Bill 2004 (the Bill) are consistent with those expressed by the ALRC in Keeping Secrets, including the requirement that the prosecutor and accused notify the court, the other party and the Attorney-General as soon as practicable once they become aware that they or another witness will disclose information that relates to or may affect national security.

However, there are some points of departure between the Bill and the ALRC’s proposed Act which are set out below.

Application

The Bill applies chiefly to criminal proceedings, whereas the ALRC’s proposed Act applies to civil and administrative proceedings as well as criminal proceedings. The special procedures in the Bill are triggered only if and when the prosecutor gives the accused and the court notice in writing to that effect. Under the ALRC’s recommendations 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, or by the court or tribunal acting on its own motion.³

Pre-trial proceedings

Under the Bill, the court is required to hold a closed 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 or exclusion of a witness.⁴ 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.⁵ The Senate Committee noted that the ALRC’s recommended scheme sought to expedite proceedings by providing for pre-trial proceedings to resolve matters about the use of information during the trial. It recommended that the Bill be amended to allow the court to make decisions about use of the information before commencement of the trial.⁶

Closed hearings

As stated above, the Bill requires the court to proceed in camera when determining whether it will accept an Attorney-General’s certificate in relation to non-disclosure of information or exclusion of a witness. The ALRC expressed the view in Keeping Secrets that the court should retain the ultimate discretion in determining whether or not to hold all or any part of a hearing, including a pre-trial hearing, in camera, following a consideration of the public interest, and the evidence led by the party seeking such an order.

Consistent with the ALRC’s views, the Senate Committee recommended that the clauses of the Bill which required the court to hold closed hearings be removed so that the court retains its discretion to determine whether it proceedings are open or closed.⁷

Safeguards for closed hearings

The ALRC concluded that whenever there was a restriction on the basic principles of open justice and the right to a public hearing, the court’s judgment on those issues should be set out in a statement of reasons. The ALRC recommended that written reasons for any order or finding under the proposed Act be made—which would include written reasons for holding a hearing in camera or for restricting publication of proceedings.⁸

Consistent with the ALRC’s recommendation, the Senate Committee recommended that the Bill be amended to include a provision requiring the court to provide a written statement of reasons for holding the proceedings in camera⁹ and to provide a written statement of reasons for any restriction placed on the distribution of all or part of a court transcript.¹⁰

As a further safeguard, the ALRC recommended that a full transcript of any proceedings heard in the absence of any one or more specified people, the public, any one or more of the parties, or the legal representatives of the parties should be prepared. The court could then determine to what extent the transcript should be sealed or distributed to the public and to the parties or their legal representatives. To the greatest extent reasonably possible—consistent with the court’s determination on the need to protect classified or security sensitive information used in proceedings—the court should ensure that all parties receive a copy of the transcript that allows them to pursue any available avenue of appeal.¹¹ In contrast, while the Bill requires the court to make a sealed record of the closed hearing, it requires the court to make the record available only to the court that hears an appeal against, or reviews, its decisions in the hearing.

In keeping with the tenor of the ALRC’s recommendation, the Senate Committee recommended that the Bill be amended to allow the court to retain the discretion to determine to what extent a court transcript or parts of it should be sealed or distributed more widely and any undertakings required for people to have access to the transcript.¹²

However, the Senate Committee recommended that if its two recommendations on closed courts, outlined above, were not supported, then as a commitment to the right of a defendant to a fair, public trial, the Bill should be amended to include a provision requiring the Attorney-General to publish a statement of reasons for any decision to hold a closed hearing.¹³

Excluding the accused

The Bill empowers the court when conducting a closed hearing to determine whether it will accept an Attorney-General’s certificate in relation to non-disclosure of information or exclusion of a witness, to exclude the accused or his or her legal representative where his or her presence is likely to prejudice national security. As noted above, the ALRC’s recommendations did not envisage a scenario where there would be criminal proceedings without the presence of the accused. An accused or his or her representative should be able to make representations to the court about disclosure of the material. It is not clear what safeguards would be available under the Bill in the event of an accused and his or her legal representative being excluded from a proceeding.

The Senate Committee recommended that the Bill be amended to provide that the accused and his or her legal representative can only be excluded from hearings in ‘limited specified circumstances’ and that courts will retain the power to stay proceedings if the accused cannot be assured of a fair trial.¹⁴ The express statement of the court’s power to stay proceedings is a welcome recommendation and in keeping with a recommendation made by the ALRC.¹⁵ However, the ALRC’s recommendations go further in protecting the accused. In addition to recommending against the use of secret evidence in criminal proceedings, the ALRC has recommended that where in a criminal case the judge has suppressed evidence which in the judge’s opinion must raise a reasonable doubt as to the guilt of the accused, the court may enter a verdict of acquittal or order that no further proceedings be brought for the crime(s) charged.¹⁶

Weighing interests

Under the Bill, the court is directed to give the greatest weight to the possible prejudice to national security when determining whether it will accept the Attorney-General’s certificates.¹⁷ 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.¹⁸ The Senate Committee agreed and recommended the removal of the provision of the Bill directing the court to give the greatest weight to national security.¹⁹

Security clearances

A controversial issue that the ALRC had to consider during the course of its Inquiry was the security clearances of lawyers acting in matters involving classified information. The ALRC concluded that it was inappropriate for a court to order a party to seek a security clearance, which is acknowledged to be an intrusive process to which a lawyer may validly object. It recommended that the court could order that certain specified material be disclosed only to people who hold a security clearance at a specified level, thereby directing its recommendation to the power to grant orders at controlling access to sensitive documents or information rather than imposing obligations on lawyers.²⁰

Under the Bill, counsel who do not hold a security clearance cannot gain access to national security information. However, the security clearance process would be triggered by the Attorney-General’s Department, limiting the court’s discretion to determine the procedures that would apply in a particular case.

The ALRC’s scheme would leave the courts with a measure of discretion to grant lawyers participating in proceedings access to classified material notwithstanding that they do not have a security clearance—albeit subject to such conditions and undertakings that the court considers necessary. 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 with the ability of the other party to retain their counsel of choice.

The Senate Committee recommended that the court assume a more active role in determining whether a defendant’s legal representative requires a security clearance before being able to access information. The Committee recommended that the Bill adopt the recommendation made by the ALRC in this regard.²¹

Flexibility of approach

The ALRC’s recommendations would give courts and tribunals a necessary measure of flexibility in making orders both as to the use and admission of sensitive material in proceedings. Under the Bill, however, in some circumstances the court’s powers to make alternative orders to full disclosure are available only once the court has determined that the information is admissible in evidence in the proceedings.²²

The Senate Committee recommended that the Bill should be amended to allow the court the discretion to make decisions in relation to the admissibility of evidence containing classified or sensitive national security information at such time as it considers appropriate.²³

Conclusion

Most of the recommendations made by the Senate Committee are consistent with the recommendations made by the ALRC in Keeping Secrets and go some way to addressing concerns expressed about the Bill. However, in certain areas, the ALRC’s proposed scheme provides greater flexibility for the courts and is more attentive to the need for protection of the rights of an accused.

Finally, while the protection and use of classified and sensitive national security information in criminal proceedings has received attention in the Bill, it is important that the recommendations of the ALRC in relation to the protection and use of such information in civil and administrative proceedings are also given consideration in due course; as the ALRC noted, it is likely that the largest number of matters will occur in administrative proceedings.

Stop press

In November 2004, the National Security Information (Criminal Proceedings) Bill 2004 was reintroduced to the Senate in amended form. It passed through the Parliament on 8 December 2004. The revised Bill adopts a number of changes in keeping with the recommendations of the ALRC’s report Keeping Secrets and the Senate Legal and Constitutional Committee’s report on the original Bill. Changes include:

• closed hearings, in relation to information that is the subject of an Attorney-General’s certificate, will be held by the trial judge before the trial begins, not at the start of the trial as proposed in the original Bill;

• defendants and their legal representatives can only be excluded from hearings in limited specific circumstances (these circumstances are much more limited than in the original Bill, and in relation to legal representatives only if the legal representative does not hold an appropriate security clearance) and the revised Bill ensures that the courts retain the power to stay proceedings if the defendant cannot be assured of a fair trial;

• the court is required to give reasons for its decision for admitting, excluding or redacting information or excluding a witness;

• the court is given the normal discretions to rule on admissibility of evidence.

* Isabella Cosenza is a Senior Legal Officer at the Australian Law Reform Commission

Endnotes

1. The Senate Legal and Constitutional Committee, Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings)(Consequential Amendments) Bill 2004, August 2004 (Senate Committee Report).

2. See Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendations 11-41, 11-42 and 11-43.

3. See Ibid, Recommendations 11-4, 11-6 and 11-7.

4. See, for example, National Security Information (Criminal Proceedings) Bill 2004, cl 23, 25-26.

5. See Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendation 11-9.

6. Senate Committee Report, Recommendation 9.

7. Ibid, Recommendation 1.

8. See Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendation 11-21.

9. Senate Committee Report, Recommendation 2.

10. Ibid, Recommendation 5.

11. See Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendation 11-22.

12. Senate Committee Report, Recommendation 4.

13. Ibid, Recommendation 3.

14. Ibid, Recommendation 6.

15. See Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendation 11-26.

16. Ibid.

17. National Security Information (Criminal Proceedings) Bill 2004, cl 29(9).

18. See Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendations 11-26, 11-28, 11-33, 11-34 and 11-36.

19. Senate Committee Report, Recommendation 13.

20. Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98), Recommendation 11-25.

21. Senate Committee Report, Recommendation 10.

22. National Security Information (Criminal Proceedings) Bill 2004, cl 29(6).

23. Senate Committee Report, Recommendation 11.