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De-mystifying the National Security Information (Criminal and Civil Proceedings) Act

A manifestation of the dichotomy between liberty and security1 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 justice2.

The NSI Act

The National Security Information (Criminal and Civil Proceedings) Act 2004 (The Act) is supported by the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (The Regulations). The Regulation is a legislative instrument that sets out the practical requirements of implementing the Act and is crucial to its operation.


The NSI Act transcends the usual national security agencies and provides the framework for material identified as national security information applicable to all federal criminal proceedings and civil proceedings, regardless of the litigant or originator of the information. The definition of national security information under the Act and its pervasiveness throughout government and private enterprise makes the NSI Act relevant to all departments, agencies, corporations, and legal practitioners.

Why do we need the NSI Act?

R v Lappas and Dowling3, followed closely by an increasing number of counter-terrorism prosecutions and an increase in security-related proceedings in the Administrative Appeals Tribunal (AAT) was the beginning of an intersection of two worlds………the intelligence community and the justice system. There are many new legal and security challenges in bringing the intelligence community into the court room, however, none more contentious than the protection of national security sensitive information.

The advent of the NSI Act was borne from the push-pull of protecting sensitive national security information and the interests of prosecuting those that commit offences. Whilst doing so in a manner consistent with principles of the Australian justice system. Prior to the NSI Act, protection of sensitive national security material in federal cases was limited to the common law Public Interest Immunity (PII) system4, largely recreated in statute under Section 130 of the Evidence Act5. There are additional smatterings of other protections, including protective orders under the Criminal Code Act, Crimes Act6, or the inherent discretion of the court. Inconsistent and unreliable protections, including PII, just didn’t work for complex matters that relied heavily on national security sensitive material. PII claims were a lengthy, tedious process in complex matters and security of the information was not guaranteed. Defence lawyers were also frustrated by infringement of a fair trial afforded by the removal of material that may assist an accused person to defend themselves in proceedings7. In response to these challenges, the Australian Law Reform Commission (ALRC) conducted a detailed review8 of the mechanisms which existed to protect national security and made recommendations that supported the inception of the Act, which as passed on 8 December 2004.

Competing imperatives – Challenges for the NSI

Articulating the competing imperatives is necessary in understanding the balance that must be struck and how the NSI needs to provide appropriate and practical safeguards to protect the public interest in both the provision of justice and national security.

The table below allows a quick assessment of what is at risk and the considerations that affected parties need to turn their mind to, in order to understand the spirit behind provisions of the NSI Act.

Rights of the accused – protection of key principles of the justice systemProtecting against disclosure of national security sensitive information and government’s ability to provide a safe and secure Australia
The accused’s right to a fair trial and natural justice.Identifying to foreign powers the capabilities or limitations and methodologies of Australia’s intelligence agencies and defence arrangements.
The principle of open justice and public hearing.Undermining international and diplomatic relations.
‘Equality of arms’ – between parties to the case.Endangering the ongoing exchange of security information with domestic and international partners.
A full statement of the reasons for any decisions or judgement.Undermining security intelligence operations and endangering lives or wellbeing of officers and informants.
Procedural protections.Confirming the existence of matters which could otherwise be the subject to speculation.9

It’s worth noting…

that the constitutionality of the Act has been challenged in R v Faheem Khalid Lodhi10. This case sought to challenge the Act on two grounds. That Part 3 of the Act breached the implied freedom of political communication; and, that the Act required state and territory supreme courts to exercise Commonwealth judicial power in a manner inconsistent with their character. Justice Whealy rejected both these arguments. However, his Honour stated that questions as to admissibility of evidence must still be determined in the ordinary way by the trial judge and that he was satisfied that the Court retains judicial control to ensure the accused is not tried unfairly.

The upshot for government and practitioners is that parties to the proceedings must be aware that the trial judge has the final say on admissibility and the Act does not remove or restrain the court’s discretion in the conduct of the proceedings. Justice Gaudron in Dietrich v The Queen11 noted that the ‘inherent powers of a court to prevent injustice are not confined within closed categories’, meaning that it is open to the court to handle matters in a manner that is consistent with the law and proper administration of justice. Whilst this High Court of Australia’s decision was handed down in 1992, it remains key precedent on retaining judicial integrity in the Australian justice system.

There are likely to be future changes to the Act, potentially in relation to the following;

  • The broad definition of national security
  • Legislated adjournments creating delays and other court processes that were at the discretion or control of the Attorney-General
  • The accused right to see all material relevant to the case against them
  • Their freedom to choose an independent attorney who is not subject to a government vetting process where the government is also party to proceedings
  • A further constitutional challenge based on political interference in the exercise of judicial power (doctrine of the separation of powers)

The Independent National Security Legislation Monitor (INSLM) in review of the Act12 has implied that Australia’s obligations regarding a ‘fair trial for an accused’ under Article 14 paragraph 1 of the International Covenant on Civil and Political Rights are relevant.13 The ICCPR requires that ‘proper weight be given to the minimum guarantees provided in Article 14 paragraph 3 for an accused to have adequate facilities for the preparation of his defence and to communicate with counsel of his own choosing, to be tried without undue delay and to examine the witness against him’. This principle is the basis of the way in which natural justice operates in the Australian legal system. Any real or perceived departure from this standard presents ethical issues by its exception.

As use of the NSI Act grows, so will the avenues by which it will be challenged. The operation of the Act has been open to further public and parliamentary examination through accountability measures such as broader reviews on national security legislation14, Attorney-General and INSLM annual reports on the legislation and INSLM reviews15. Regardless of the high-level reviews and accountability measures put in place, the success or otherwise of the Act in achieving its objective is heavily reliant on parties to individual proceedings. The onus is on parties to proceedings to enter into agreements of disclosure and protection in good faith and with the aim of assisting the court to uphold the object of the Act. An innately fraught reliance in an adversarial legal system.

Why you can’t ignore the NSI Act

Fast forward to today. The NSI Act has been in operation since January 2005 and has assisted the government and judiciary with a framework for the protection (disclosure, storage, and handling) of national security sensitive information. However, once again, the way in which national security information is dealt with in legal proceedings has reared its ugly but unavoidable head. Recent examples are civil proceedings such as the defamation case brought by Victoria Cross recipient, Ben Roberts-Smith16 and the prosecution of former Australian Capital Territory Attorney-General Bernard Collaery and Witness K17 for the disclosure of protected intelligence. And this is just the beginning. There will be more prosecutions that invoke the NSI Act, from potential prosecutions under the Crimes Act 1914 arising from the recent Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry to proceedings arising from new secrecy offences in Division 122 of the Criminal Code Act 1995.18

Understanding the NSI Act and seeking early advice is now crucial for many reasons. Not least because the Act departs from the usual understanding of the rules of evidence; there are criminal offences attached to breaching the Act; individual legal practitioners may need to undergo a security vetting process; and practical measures for the handling and storage of national security information may need to be put in place early in the pre-trial phase. From the government perspective, departments and agencies, as the custodians of national security information, will need to be actively involved in decision-making throughout the stages of relevant legal matters to ensure they manage both their legal and security obligations appropriately. Balancing the responsibility of the Commonwealth’s obligation to act as a model litigant19 with security is a heavy burden on senior officials and one that holds the weight of the Australian Constitution and the credibility of public institutions.


About the author

Briony is a highly regarded professional who delivers valued legal advice and general advisory work on complex and sensitive matters.

Briony has over two decades of experience in law, policy, and program management within the Commonwealth Government and private sector. She has worked within central Commonwealth Government Departments, including the Attorney-General’s Department, the Department of the Prime Minister and Cabinet, Department of Defence, and as in-house counsel within a government agency.

Briony has led successful multi-discipline teams delivering defence, security policy and capability projects both in Australia and internationally. She has worked on various high profile and sensitive matters.

Briony provides commercial and public law legal advice and consultancy to private and public sector organisations. She is adept at identifying solutions to complex issues in the public sector. She is known for her judgement and positive, collaborative approach. Briony has strong representational and negotiation skills, having worked, or presented in various international fora or committees.

Briony provides clients with the benefit of her technical expertise with a strategic viewpoint and a focus on practical outcomes. She is skilled in analysing information, applying superior judgement, identifying all risks, challenges and limiting barriers.


Notes

1Nicola McGarrity and Edward Santow, ‘Anti-terrorism laws: balancing national security and a fair hearing’ in Victor V Ramraj et al (ed) Global Anti-Terrorism Law and Policy (Cambridge University Press, 2021) 122, pg 124.

2Section 3 NSI Act

3R v Simon Lappas and Sherryll Ellen Dowling [2001] ACTSC 115.

4The common law doctrine of public interest immunity (PII) was the main mechanism by which the Commonwealth could seek to protect national security sensitive information from disclosure during court proceedings. It does not apply to all jurisdictions and is not applicable to pre-trial procedures.

5Exclusion of evidence of matters of the state

6Section 85B Crimes Act 1914, section 93.2 Criminal Code Act 1995

7Insights: Public Interest Immunity Claims in Practice 2 December 2014 – Michael Rennie – 6 St James Hall Chambers

8Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98).

9Professor David Weisbrot, ALRC President, ‘Justice system must adapt to meet terror challenges’ (Media Release 2306, ALRC 23 June 2004) in Chapter 45 Protection of national section information, Comprehensive Review of the Legal Framework of the National Security Community Review by Mr Dennis Richardson AC, released 4 December 2020. pg 91.

10R v Faheem Khalid Lodhi (NSWSC 21 February 2006).

11Dietrich v The Queen (1992) 177-CLR 292

12Independent National Security Legislation Monitor Annual Report 16 December 2011. p.62

13ICCPR was signed by Australia in 1972 and ratified in 1980. Australia has not adopted the ICCPR into domestic law which means that it is not binding under law but is considered an international obligation.

14Comprehensive Review of the Legal Framework of the National Security Community Review by Mr Dennis Richardson AC, released 4 December 2020

15Independent National Security Legislation Monitor (INSLM) has a current review on the operation of section 22 of the NSI Act as it applies in the “Alan Johns” matter.

16The Commonwealth made an application under s38A and 38B of the NSI Act as notice that national security information from Department of Defence is likely to arise in civil proceedings –
Ben Roberts-Smith v The Federal Capital Press of Australia Pty Ltd & Ors.

17R v Bernard Collaery (directions hearing held in 2020). The Bernard Collaery and Witness K prosecutions – did not appear on court lists and were conducted with the entire proceedings,
including the existence of the trial, under the cover of an arrangement pursuant to the NSI Act.

18National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018

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