Mr McCLELLAND (Barton) (4.05 p.m.) —The opposition support the National Security Information Legislation Amendment Bill 2005. We believe one particular area of the legislation requires further examination, an area which I will refer to during the course of my contribution, but certainly the purpose and intent of the legislation are supported. The legislation basically extends to civil proceedings the framework that the House has previously considered with respect to the National Security Information Legislation Act 2005. That extension is in accordance with recommendations of the Australian Law Reform Commission in its report Keeping secrets: the protection of classified and security sensitive information, which was released in May 2004 and formed the basis for the preparation of the primary act and this amending legislation.
The bill we are considering today will be the second set of amendments made to the original act. The first of those amendments were made by the National Security Information (Criminal Proceedings) Amendment (Application) Bill 2005, which was passed by both houses of parliament last month with the opposition's support. Indeed, I think it can be fairly said that the opposition supported the expeditious passage of that legislation. Those first amendments were necessary to resolve ambiguities and, in particular, to confirm that the regime that applied to national security sensitive information applied to those proceedings that had already been commenced, not only to those proceedings commenced after the legislation was introduced. That bill also clarified that, rather than issuing a separate notification at every stage of the proceedings, it was only necessary for the prosecutor to issue one notification to the Attorney-General that national security sensitive information might be adduced during the course of the proceedings. We gave our support to that legislation and recognised the importance of passing it expeditiously, given its potential impact on criminal proceedings.
We will cooperate again in the expeditious passage of this legislation. We do think there is one issue with respect to preserving a civil court's ability to ensure fairness between the parties in circumstances where national security sensitive information may be adduced in the course of the proceedings, but I will refer to that a little later.
The National Security Information Legislation Amendment Bill 2005, as I have said, constitutes the second amendment to the primary act. I know that, appropriately, the Attorney-General in his second reading speech went through the major provisions of the legislation in quite some detail, but I think it is appropriate in our contribution to recognise at least the major thrust of those relevant provisions. Consistent with the primary act, the bill introduces a mechanism for the handling of national security sensitive information in civil proceedings.
We do have an issue which we have raised with the government, and I think it has been recognised in our discussions: civil proceedings may perhaps be too broadly defined. They have been defined in the bill as any proceedings in a court of the Commonwealth, a state or a territory other than federal criminal proceedings. They include contempt proceedings in relation to other civil proceedings or federal criminal proceedings. Civil proceedings are defined to include all stages of the civil process, including discovery, ex parte applications, interlocutory proceedings and appeal proceedings. It is appropriate that all stages of civil proceedings are included. In particular, the discovery process, which is increasingly utilised in civil proceedings, is obviously a point where national security sensitive information could become relevant or come to light.
Our concern with the definition that I have referred to is that, in referring to civil proceedings as proceedings in a court of the Commonwealth, a state or a territory other than federal criminal proceedings, it could be interpreted—at least with respect to the application of that provision—to also include state criminal proceedings, which is not the intention of the government. While that is probably made clear in other provisions of the entire act, we believe it is better for that ambiguity to be resolved. I think the government is prepared to do that.
As I have previously indicated in respect of the primary act, it is important to have a framework for dealing with national security sensitive information. This bill is consistent with the framework of the primary act as it applies to federal criminal proceedings. In particular, the legislation will operate once the Attorney-General has issued a notice to the parties and to the court that security sensitive material is likely to be adduced in the proceedings. Notice can be given at any time during the proceedings. It is also specified that, if the Attorney-General is a party to the proceedings, the Attorney-General must appoint another minister to undertake the administrative function of issuing the certificate in those circumstances. That is obviously to avoid the conflict of interest that may arise in civil proceedings but would not arise in criminal proceedings, where the party would obviously be the Director of Public Prosecutions in federal proceedings. [start page 21]
Before there is a substantive hearing as to whether or how the national security sensitive information should be dealt with, it is important that it be appreciated. The legislation tries to encourage agreement between the parties as to the best mechanism for handling that information, with the assistance of the court. In that context, either party has the ability to request that a conference be held between the parties and the court. The Attorney-General must be given notice of that conference in order to participate and, on behalf of the Australian people generally, to provide the Attorney's view of the appropriate method of handling that national security sensitive information. Should an agreement be reached in that conference phase, the court is empowered to make an order giving effect to the agreement.
I should say that, before the notification by the Attorney-General to the court, there is likely to be a previous stage where the Attorney-General is notified by the parties. In that context, the bill places an obligation on the parties to proceedings to notify the Attorney-General where they think it is likely that national security sensitive information will arise. That is obviously a public duty, which I think responsible legal practitioners will recognise in discharging it by appropriately judging and making an assessment as to whether national security sensitive information is likely to arise.
The bill essentially defines the context in which national security sensitive information may arise. It may arise in the form of a document, in the context of evidence to be given orally by a witness or in the context of the mere presence of a witness, given that person's involvement in an event or in the context of gathering information that is national security sensitive information. When the Attorney-General gives a certificate that indicates how that national security sensitive information should be dealt with, that certificate can state that the information should not be adduced. It could give a recommendation that it be summarised, or that it be adduced in a method that redacts the security sensitive information references in the document.
After that certificate has been issued, the court has an obligation to hold a closed hearing to consider the validity of the Attorney-General's certificate. Whilst the holding of a closed hearing is obviously controversial—and, for literally centuries, our system of justice has operated on the presumption that justice will be open and public—in this instance there is obviously a balance between the public's interest in open justice and the public's interest in preserving national security sensitive information. It is obviously vital to protect that information not only because of the potential for misuse of the information but to guarantee that we continue to receive national security sensitive information. Potentially, intelligence from other countries or, in some circumstances, the disclosure of national security sensitive information could prejudice the safety or the lives of the person or persons who provided the information. Clearly there are weighty public interest considerations to be balanced, but we believe that it is appropriate to hold a closed hearing to consider what will happen with the Attorney-General's certificate.
It is also important to recognise that the Attorney-General's certificate is considered entirely by the court. The court has the power to set aside that certificate, to agree with the certificate or to modify the certificate. While there is initially an executive act to determine what will happen with the national security sensitive information, the final body that determines whether it will occur is the court, and that is regarded as being appropriate by both sides of the House.
In the context of the closed hearing, there is a significant issue that has been controversial and could again be controversial in the context of civil proceedings—that is, whether a non security-cleared party or a non security-cleared lawyer should have the right to be present during the entirety of the closed hearing or to have access to the entirety of the national security sensitive information that will be considered by the court in that closed hearing. While there obviously should be a presumption that a party is present during the course of considerations that affect their interests, it has to be seen in the context that the party and/or their counsel or advocate would automatically have that entitlement if they obtained an appropriate security clearance. I will say something about that, which is of itself an issue, a little later in this contribution.
After the closed hearing, the court has an obligation to give reasons for its decision on what it will do with that certificate. Whether the court agrees with the certificate, modifies it or sets it aside, the court has to give reasons. Those reasons have to be given to the parties, and the record of the closed hearing has to be made available to a security cleared, self-represented litigant or advocate. Full appeal rights are preserved against that decision of the court.
With regard to the issue I flagged a short while ago, perhaps it is an overstatement to say there is a requirement for security clearance. I should state it in reverse: a lawyer or advocate, security cleared to the appropriate level, has a right to be present during all stages of even the closed hearing and to have access to the security cleared material. Contrary to what has been expressed by some organisations, the bill does not make it mandatory for a lawyer to be security cleared. Although I am always willing, if an opportunity arises, to fairly criticise the government, I do not believe that criticism of the government is justified in this instance. This is not a situation where the Attorney-General is seeking to exercise a power of veto or to exercise a gatekeeper function as to which advocate will appear in proceedings. Under this bill, the litigant has a choice either to retain their status as a self-represented litigant or to choose a lawyer. If they or their lawyers decide not to obtain a security clearance, certain consequences will follow—that is, they may not have access to the security sensitive material or be given the opportunity to contribute to the debate on how that security sensitive material should be dealt with by the court—but it is not a situation where obtaining a security clearance is mandated. [start page 22]
If a self-represented litigant or their counsel, despite receiving notice that the regime may be activated through the intention of a party to present security sensitive information, elects not to seek security clearance then the Secretary of the Attorney-General's Department may advise the court and the court may advise the litigant before them of the consequences of themselves or their advocate not having the security clearance and indicate that they have the option of retaining alternative counsel who would, if security cleared, have access to all the security sensitive information that might be considered by the court. But again, it is not a situation where the obtaining of the security clearance is mandated by this legislation.
The bill to enable the advocate or the self-represented litigant to obtain a security clearance makes it mandatory for the court to adjourn the proceedings to enable that security clearance to be obtained, again, facilitating that course of action. Again, I refer specifically to section 39A of the act which is a facilitative provision—that is, the Secretary of the Attorney-General's Department notifies a party or their advocate that the mechanisms of this legislation may arise and it is for the litigant or their advocate to make the decision whether or not to obtain the security clearance. Again, that is entirely consistent with the Australian Law Reform Commission recommendations. The Law Reform Commission was careful to not recommend—and specifically did not recommend—that obtaining a security clearance was mandated but it did recommend that certain consequences should follow if the security clearance was not obtained. The Law Reform Commission quite openly discussed those competing public policy considerations.
Our justice system is dependent upon a counsel being able to represent the interests of their clients without fear or favour, without being beholden to the executive in any way, shape or form—or indeed, subject to them being an officer of the court not being beholden to, other than to respect orders of, the court and not being an extension in any way of the court but rather at all times being fearless in their representation of their client's interests. But that has to be balanced with the consequences of national security sensitive information not being handled in accordance with our agreements with other nations, and that is that it will only be provided to those persons who have appropriate security clearances, or in the context of information potentially being mishandled through access to a person who does not have a security clearance.
I know some people reading this speech may say that is a terrible imputation to make against a potential legal counsel, given the professional standards that they have to comply with and so forth. I specifically state that I am not making any such imputation but when you consider the right of a litigant and indeed the right of counsel to appear in proceedings, to present and to advocate their cases to the best of their ability against the public interest of preserving the source of national security information and the integrity of the information, it is not an overly burdensome obligation, as the Australian Law Reform Commission pointed out, to require counsel to obtain a security clearance. Indeed, I think it is fair to say that you would have to try pretty hard not to obtain a security clearance. It would certainly be the exception rather than the rule for a person to be denied an appropriate security clearance in those circumstances.
The government has agreed in the context of a self-represented litigant that if a self- represented litigant was denied a security clearance then this could have a particularly significant impact if that self-represented litigant was not given the opportunity to appear in a closed hearing or was not given the opportunity to receive and comment upon the security sensitive information. But the government has, we believe appropriately, agreed to provide for a special circumstances scheme to effectively provide legal aid to a self-represented litigant in that situation to obtain the services of a security cleared legal representative to have access to that material. The bill also amends other acts, in particular, the Administrative Decisions (Judicial Review) Act and the Judiciary Act, essentially to remove the right to challenge the Attorney-General's certificate under the provisions of the judicial review legislation. That is appropriate because there are full rights of appeal against the orders of the primary court that are made in the closed hearing.
In concluding, I move into an area where the opposition does have some concern. We note that the bill specifically retains, as is appropriate, the right of a civil court to direct its own proceedings and indeed to make such orders and give directions—that is not the precise language—as are necessary to ensure that the parties before it are afforded a fair hearing.
But our concern is how that works in practice. It is perhaps not as difficult in the context of federal criminal proceedings where, after having considered how information is to be adduced, a court may say, `Look, in that context it is not possible for an accused to receive a fair hearing and we will in those circumstances stay the proceedings.' But it may well not be appropriate—and, indeed, it may be most inappropriate—for civil proceedings to be stayed. It could cause real injustice to a party: for instance, a party to a personal injury suit having their proceedings stayed may be deprived of compensation or, indeed, a party to a defamation proceeding having their actions stayed may well suffer an injustice in the context of not obtaining confirmation for the damage they have sustained from any defamatory context. [start page 23]
Equally it is possible that a restriction or an impediment on a defence in a defamation context may be relevant, and it could indeed conceivably be relevant in the case of a media company making imputations that a person was or was not involved in terrorism resulting in their being made a respondent to defamation proceedings. I am not sure that this legislation has addressed circumstances where those media outlets may wish to plead as a defence truth or what impact this legislation would have or would potentially have on their ability to plead truth if their ability to present evidence that was available was impeded as a result of either the Attorney-General's certificate or the Attorney-General's certificate as modified by an order of the court.
I am not sure that the government have thought through the consequences of the application or potential application of these provisions in the context of civil litigation, which, as I have said, is quite different indeed from the conduct of federal criminal proceedings. So it is that issue, and it is quite a narrow issue, that we would like examined by the Senate Legal and Constitutional Committee. We believe that can be considered and reported on expeditiously. That would also avail the committee of consulting more broadly with state governments, who we understand from at least cursory contact may not have been consulted as much as they appropriately should have been consulted in the context of this legislation affecting, or potentially affecting, the way some civil proceedings are conducted. Obviously civil proceedings are within the jurisdictions of those state governments. I know the government have said that there is precedent for dealing with information that is not admissible before a court and have referred to the case of Rann v Olsen, but, having read that case, we are again not satisfied that that addresses the issue. Staying a civil proceeding is quite different from staying a criminal proceeding, and staying a civil proceeding may in fact cause real injustice to the parties.
In summary, we have to be realistic. There is a need for the legislation. In raising that issue, I am not criticising the thrust and purpose of the legislation. There is a need to protect national security sensitive information, whether it be adduced in criminal proceedings or whether it be adduced in civil proceedings as the Australian Law Reform Commission recommended. There are competing demands for open justice. In response to that I have indicated that there is a particular part of the proceeding that will be closed—that is, the closure to consider the national security sensitive information. There is a public interest in ensuring that Australia has access to intelligence from other countries and that security sensitive information is properly dealt with and handled and, hence, should not be disclosed to people who do not possess the appropriate level of security clearance. But, again, balancing that public interest with ensuring that national security sensitive information is dealt with properly does not, we believe, cast an overly serious burden, given the consequences, on lawyers or litigants to obtain security clearance—particularly in the context where there is an automatic right to obtain an adjournment for that purpose and in which circumstances the litigant or their lawyer is entitled to access the national security sensitive information. So, while it is legitimate and valid to raise concerns, it is important that in raising those concerns people are not blind to the broader national security interest in preserving the integrity of national security information and our access to it. So we believe the substance of the bill has established the appropriate balance and we do support the purpose and intent of the legislation, subject to the one reservation that I mentioned.