July 2005 page 64

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Human Rights: Disclosure of information which may affect national security

By JOANNA HEMINGWAY
Joanna Hemingway is a legal officer with the Human Rights and Equal Opportunity Commission in Sydney.

THE NATIONAL SECURITY Legislation Amendment Act 2005 (Cth) (the Act) deals with the use of certain information relating to national security in Commonwealth and state civil proceedings. The Act passed into law on 21 June 2005 the government agreeing to an amendment made to the Act by the Senate in response to the recommendations of the Senate Legal and Constitutional Legislation Committee (the Committee) in its report into the Act.<¹ The Act is currently awaiting royal assent.

Overview of the National Security Legislation Amendment Act 2005

The Act seeks to extend the operation of the National Security Information (Criminal Proceedings) Act 2004 (Cth) to civil proceedings. That Act currently applies to Commonwealth criminal proceedings and similarly aims to prevent the disclosure of information in court where the disclosure is likely to prejudice “national security”.² The process by which the Act seeks to do this substantially mirrors the regime currently existing for criminal proceedings.

The Act provides that, where the Attorney-General forms the view that the disclosure of the information in a civil proceeding may prejudice national security, he or she may issue a certificate which prevents the disclosure of the information or requires disclosure of a summary or redacted version.³ Such information includes information introduced through a document, a witness’s answer to a question or conveyed through the mere presence of a witness.⁴ The court is then required to consider the certificate issued by the Attorney-General in a “closed hearing”.⁵ At that hearing the court may exclude parties or their legal representatives without the required security clearance from some or all of the hearing.⁶ Upon the conclusion of the hearing the court must make orders in relation to the disclosure of the information the subject of the certificate,⁷ having regard to whether there would be a risk of prejudice to national security if the information were disclosed or disclosed otherwise than in accordance with the Attorney-General’s certificate, and whether the making of the order for the exclusion of the information or a witness would have a “substantial adverse effect” on the fairness of the hearing.⁸ However, the court is required to give “greatest weight” to prejudice to national security.⁹

The Act also provides that the court retains power to stay civil proceedings, including where the orders of the court in relation to the disclosure of information would have a “substantial adverse effect on the fairness of the proceeding”.¹⁰

Human rights issues raised by the Act

In its submission to the Committee’s review of the Act,¹¹ HREOC argued that the Act raises issues in respect of two key human rights enshrined in the International Covenant on Civil and Political Rights¹² (ICCPR):

• Australia’s obligation to provide an effective remedy for violations of a person’s human rights (article 2(3)); and
• the right to a fair and public hearing (article 14(1)).

Right to a fair and public hearing

Article 14 of the ICCPR provides a right to a fair and public hearing, with limited exceptions. Relevantly, article 14(1) provides that the public may be excluded from proceedings (in whole or in part), for reasons of “ ... national security ... [or in] special circumstances”. Those exceptions are construed narrowly by the UN Human Rights Committee¹³ (HRC) to require that the measures taken by States Parties must be limited to what is strictly necessary in proportion to the perceived threat to national security, or required by the special circumstance.¹⁴ The HRC has also held that, where the “special circumstances” exception is relied upon, the court must give reasons for holding a closed hearing.¹⁵ Article 14(1) has also been interpreted as including equality of arms issues, including that parties are able to respond to the legal contentions and evidence adduced by other parties.¹⁶

The requirement for a closed hearing is triggered by the issue of a certificate by the Attorney-General. By removing the discretion to hold a closed hearing from the court, the Act adopts a ‘one size fits all’ approach. Removing the discretion of the court to order greater or lesser restrictions depending on the nature of the information said to require protection is unlikely to satisfy the test of proportionality expounded by the HRC. As well, by providing that the court may exclude a party or their legal representative in certain circumstances, the Act potentially compromises a person’s ability to respond to the legal contentions and evidence of the other parties and assist the court in presenting a contrary argument.

Right to an effective remedy

When the Committee considered the provisions of the National Security Information (Criminal Proceedings) Act 2004 (before it was passed by Parliament), it drew considerable comfort from the preservation of the Court’s power to stay proceedings as a means of ensuring fair criminal trials.¹⁷ However (as was acknowledged by the Committee),¹⁸ the power to stay is of less comfort in the context of civil proceedings.

The power of the court to issue a stay in civil proceedings potentially compromises Australia’s obligation to provide an effective remedy for violations of a person’s human rights under article 2(3) of the ICCPR. This is because, unlike in criminal proceedings, a stay may, in some civil cases prevent litigants accessing an effective remedy for human rights violations involving issues of national security: for example, in proceedings relating to a person’s entitlement to a protection visa or proceedings concerning a decision to detain and deport a non-citizen.

Violations of article 14(1) would also impact on whether a remedy was an “effective remedy” within the meaning of article 2(3).

Recommendations of the Committee

Making reference to the human rights issues raised by the Act, the majority of the Committee<¹⁹ made several recommendations, including that:

• The court should retain its discretion to determine whether to hold an open or closed hearing, and be required to provide written reasons where it decides to hold a closed hearing.²⁰
• The court should retain a power to stay civil proceedings as a “last resort”.²¹
• In determining whether to make an order for the exclusion of information or a witness, the court should have regard to whether it would have an “adverse effect” on the hearing, not the higher standard of “substantial adverse effect” and should not be required to give “greatest weight” to national security considerations.²²
• In determining whether to make an order excluding a party and/or their legal representative the court be required to consider whether the making of that order would adversely affect a person’s right to a fair hearing, including the right to contest all of the arguments and evidence adduced by other parties.²³
• A clause should be introduced into the Bill, requiring the Attorney-General to report on the operation of the Bill within 18 months of its commencement.²⁴

Amendment of the Act

In response to the recommendation of the Committee that the court should retain a power to stay civil proceedings as a “last resort”, the Act was amended by the Senate to provide factors to which a court must have regard when determining whether to exercise the stay provision. Those factors include whether a party has reasonable prospects of obtaining a remedy in the proceedings, the extent of any financial loss that a party would suffer as a result of the proceedings being stayed and any other relevant factors. None of the other recommendations of the Committee were adopted by the Senate.

The Act passed through the House of Representatives on 21 June 2005, as amended by the Senate.

Endnotes

1. Commonwealth Senate Legal and Constitutional Legislation Committee, Provisions of the National Security Information Legislation Amendment Bill 2005, May 2005 (Committee Report). The full text of the report is available on the Committee’s website at http://www.aph.gov.au/senate/committee/legcon_ctte/national_sec/report/report.pdf. HREOC made a submission to that inquiry, the full text of which is available at http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/index.htm.

2. ‘National security’ is defined in ss.8–11 of the Act.

3. See ss.38F(3) and 38H(2).

4. See ss.38F and 38H.

5. See ss.38G(1) and 38H(6). The requirements of a closed hearing are set out in s.38I.

6. See ss.38I(3) and 39A.

7. See ss.38L(1).

8. See ss.38L(7).

9. See ss.38L(8).

10. See Item 13 of Schedule 1 to the Bill (amending s.19 of the Act).

11. Above n1.

12. Opened for signature 16 December 1966, 999 UTS 171; entered into force on 23 March 1976 except article 41 which came into force on 28 March 1979; ratified by Australia on 13 August 1980 except article 41 which was ratified by Australia on 28 January 1993.

13. The UN Human Rights Committee is the expert body with responsibility for considering the progress made in the implementation of the ICCPR. It considers reports prepared by States Parties on the legislative, judicial, administrative or other measures adopted to give effect to the ICCPR and the progress made by States Parties in that respect (articles 28(1), 40 (4) and 40(5)). It also considers individual complaints of human rights violations by States Parties (article 41).

14. Joseph S, “A rights Analysis of the Covenant on Civil and Political Rights” (1999) 5 Journal of International Legal Studies 57, 58.

15. See Estrella v Uraguay (74/1980), UN Doc CCPR/C/18/D/74/1980.

16. See Äärelä v Finland (179/1997), UN Doc CCPR/C/73/D/779/1997.

17. Commonwealth Senate Legal and Constitutional Committee, Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) Consequential Provisions Bill, August 2004, 25 (Recommendation 6), available on the Committee’s website at http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/200204/national_security/report/index.htm.

18. Committee Report, [3.37].

19. The minority of the Committee rejected the Bill.

20. Committee Report, [3.75] – [3.76].

21. Ibid, [3.38].

22. Ibid, [3.79].

23. Ibid, [3.110].

24. Ibid, [3.163].

HREOC has made several submissions to the Commonwealth Parliament in relation to the recent raft of ‘anti-terrorism’ laws introduced by the Government, the full text of which are available on HREOC’s website at http://www.humanrights.gov.au/legal/index.html.