19 March 2004
Mr Ian Davis
Australian Law Reform Commission
GPO Box 3708

By email: security@alrc.gov.au

Dear Mr Davis

Comment on Discussion Paper 67: Protecting Classified and Security Sensitive Information

I refer to your request for comments on this Discussion Paper.

I note from the Discussion Paper that the ALRC is proposing a new statutory regime in respect of the disclosure and admission of classified and security sensitive information in court and tribunal proceedings.

The Human Rights & Equal Opportunity Commission (HREOC) does not wish to comment on the case for new legislative measures. However HREOC refers to its submission of 12 September 2003 (in response to Background Paper 8: Protecting Classified and Security Sensitive Information) and notes that the right to a fair hearing is at the centre of the criminal and civil procedural guarantees set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR). HREOC is of the view that it would be preferable to explicitly incorporate these guarantees into the proposed legislation and require courts to have regard to them in the exercise of discretions under the proposed new legislation. This would more directly ensure compliance with relevant human rights standards.

HREOC also notes in relation to specific proposals:

- Proposal 10-20

In relation to orders or findings under the proposed new Act, it is proposed that: “To the greatest extent reasonably possible consistent with the court’s determination on the need to protect classified or sensitive national security information used in proceedings, the court should ensure that any party whose rights are adversely affected by the order receives a copy of the reasons that allows it to pursue any avenue of appeal that may be open to it.” The ambit of the exception contemplated by the words “reasonably possible” is unclear. Article 14(5) of the ICCPR requires that a judgement or decision in criminal proceedings must be capable of being reviewed, and this right of review should extend to preliminary and procedural decisions and orders. Indeed, the Discussion Paper itself notes at paragraph 7.94: “The right to a fair hearing encompasses the right to a statement of reasons for a judgement, both generally on the merits of the case and in relation to procedural aspects of the hearing, including the use of classified and security sensitive information.”

- Proposal 10-40

HREOC is of the view that it is preferable to protect witnesses and classified information without resorting to secret evidence in civil proceedings. HREOC reiterates its submission of 12 September 2004, noted at paragraph 7.85 of the Discussion Paper, that civil proceedings such as immigration and similar hearings involving classified or security sensitive information may affect a person’s right to liberty under Article 9 of the ICCPR, or the right to leave any country (including their own) under Article 12(2) of the ICCPR. HREOC therefore supports the submission of the Law Society of New South Wales cited at paragraph 7.84 of the Discussion Paper, that as with criminal proceedings, immigration proceedings may impact on the freedom of an individual and persons facing immigration proceedings which could result in their removal from Australia should be afforded similar protections as provided to people in criminal trials. If however Proposal 10-40 is implemented, HREOC supports the proposal for detailed safeguards to protect human rights in respect of secret evidence.

Thank you for the opportunity to provide further comments as part of this inquiry.

Yours sincerely

The Hon John von Doussa QC

Last updated 15 April 2004.