Submission of the Human Rights And Equal Opportunity Commission to the Senate Legal And Constitutional Committee

Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004

Introduction

1. The Human Rights and Equal Opportunity Commission (the Commission) is established by the Human Rights and Equal Opportunity Commission Act 1986 (HREOC Act). The Commission is Australia's National Human Rights Institution.

2. The Commission's functions include those set out in section 11(1) of the HREOC Act. Section 11(1)(g) of the HREOC Act confers upon the Commission the function of promoting an understanding and acceptance, and the public discussion, of human rights in Australia.

3. The Commission seeks to highlight potential human rights issues arising out of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 (the Bills), in respect of compliance with the International Covenant on Civil and Political Rights (Schedule 2 to the HREOC Act) (ICCPR). Australia ratified the ICCPR on 13 August 1980, and the ICCPR is binding upon Australia as a matter of international law. [1]

National Security Concerns and the International Covenant on Civil and Political Rights

4. Australia may not currently derogate from any of its obligations under the ICCPR in any new measures which are introduced to protect national security information. [2]

5. Human rights law already seeks to strike a balance between legitimate national security concerns and the protection of fundamental freedoms. This balance is inherent in instruments such as the ICCPR, which includes limitations in various articles which may be invoked on grounds of "national security" and "public order". For example, the right to a public trial under Article 14(1) of the ICCPR may be limited, and the press and public excluded from all or part of a trial, on grounds including national security or public order. Such permissible limitations of ICCPR rights provide sufficient flexibility to cater even for the demands of emergency situations. [3]

6. In September 2002, the High Commissioner for Human Rights submitted a "Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective on Counter-Terrorist Measures"[4], in which the general principles of the ICCPR relevant to an analysis of counter-terrorism measures from a human rights perspective were set out, and States were reminded of the non-derogable nature of most of the obligations undertaken by them in ratifying the ICCPR.

7. A resolution specifically focussing on the need to protect human rights and fundamental freedoms while countering terrorism was adopted by the United Nations General Assembly on 18 December 2002.[5] It affirmed that States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights, refugee and humanitarian law.

8. The Commission notes that there is little difference between the approach the European Court of Human Rights (ECHR) takes to human rights and that of the United Nations Human Rights Committee. The ECHR has noted that it is prepared to take into account the background of terrorism in assessing the actions of States[6], however:

". the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to [counterterrorism measures]. The Court being aware of the danger such [action] poses of undermining or even destroying democracy on the ground of defending it."[7]

9. The ECHR's jurisprudence shows that the exercise of balancing legitimate national security concerns and the rights of individuals is neither a mechanical task nor an easy one. It varies from right to right and from situation to situation.

10. It is with these principles in mind that the Commission provides the following specific comments in response to the Bills.

Comment on National Security Information (Criminal Proceedings) Bill 2004 and National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004

11. The Commission notes that the Bills were introduced into Parliament five days before the Australian Law Reform Commission (ALRC) was due to provide its report to the Attorney-General, Keeping Secrets: The Protection of Classified and Security Sensitive Information. The subject matter of these Bills falls squarely within the scope of the ALRC's Terms of Reference for that report.

12. The Commission has concerns about certain provisions in the Bills and wishes to focus on those aspects of the Bills in this submission:

(a) Clause 34 - requirement defence counsel be security cleared and clause 41 - offence to disclose information to lawyers without security clearance

Article 14[8] of the ICCPR provides (emphasis added) that everyone charged with a criminal offence "shall be entitled to the following minimum guarantees, in full equality: .

(b) . to communicate with counsel of his own choosing; .

(d) .to defend himself in person or through legal assistance of his own choosing ."

The requirement for security clearance of lawyers in clause 34 of the Bill (and clause 41 which makes it an offence to disclose certain information to anyone without a security clearance) may compromise the entitlement of the accused to choose their own legal representative. The Commission notes that courts and litigants already have a range of mechanisms at their disposal to protect national security information. The Commission further notes that in contrast to the Bills, the scheme proposed by the ALRC leaves courts with a discretion (in the light of whatever objections the Crown may raise) to grant lawyers without a security clearance participating in proceedings access to classified material, albeit subject to such conditions and undertakings that the court considers necessary. The Commission prefers the scheme proposed by the ALRC in this regard, as one less likely to be at odds with the above human rights standards.

(b) Clause 27 - closed hearings

The ICCPR concept of a fair criminal trial is based upon an adversarial model in which the defendant is confronted by the witnesses against them, who give oral evidence to the court, which is open to the public. Under Article 14 of the ICCPR, the press and the public may be excluded from all or part of a trial for reasons of national security only so long as the principles of a democratic society are observed, and only to the extent strictly necessary in proportion to the perceived threat to national security.[9] Reasons must be provided for not providing a public trial. [10]

The Commission is concerned that under clause 27 of the Bill, courts are directed by statute to hold a hearing in closed session in certain circumstances. The Commission is of the view that discretion to hold part or all of a hearing in camera should be left to the courts and safeguards upon the use of closed hearings should:

  • reflect the requirement that the exclusion of the public be "necessary in a democratic society";
  • reflect the requirement of proportionality; and
  • ensure that clear reasons for not providing a public trial are given and recorded.

The Commission notes that the ALRC Report does not propose that a court be directed or legislatively required to hold any hearing in closed session.

(c) Clause 23 - not permitting witnesses to answer questions and clause 27(3) - defendant may be excluded from part of hearing

Clause 23 provides that in certain circumstances, an in camera hearing must be held and the witness must provide a written answer to a question. The court must show that answer to the prosecutor, who in certain circumstances must advise the court and notify the Attorney-General, causing the proceedings to be adjourned (clause 23(5)). The court is not required to show the answer to the defence.

Clause 27(3) provides that the court may order that the defendant or legal representative, or both, are not entitled to be present during part of the hearing in respect of the national security information.

The possibility of restrictions on material disclosed to a party and denying a party access to the hearing undermines the right to a fair trial. It raises issues in respect of Article 14(3)(d) of the ICCPR, which provides that everyone charged with a crime has the right to be tried in their presence, and Article 14(3)(e), which provides the accused with the right to obtain the attendance and examination of witnesses under the same conditions as the witnesses against them. The ECHR has recognised that the right of a defendant to call witnesses and to confront and cross-examine witnesses against him are not absolute rights where there is a compelling reason for encroaching on these rights.[11] However it is required that there be appropriate measures to assess the necessity for doing so, in which the defence can take part (to the extent that the purpose of the protective measures is not undermined).[12]

Therefore any modifications of the ordinary criminal process must so far as is possible satisfy the principle of equality of arms[13], the most important criterion of a fair trial. While the court would appear to retain discretion under clause 23(5) as to whether to show the witness's written answer to the defence, and under clause 27(3) as to whether to exclude the defendant from part of the hearing, the Commission is of the view that safeguards should be set out in the Bill. Such safeguards should explicitly state that the court must give equal weight to the potential adverse affect of such an order on the defendant's right to receive a fair hearing.

(d) Clause 29 - factors to be considered by the Court in making an order

Under clause 29(9), 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. While acknowledging that possible prejudice to national security ought to be given great weight, the Commission is of the view that the courts should retain a more flexible discretion which can be better tailored to the circumstances of each matter. This will ensure that the interests of justice and the rights of the defendant are given equal weight and are served in each individual case.

(e) Other comments

  • The Bills require a record of the closed proceedings under the Bills to be kept (see clause 27(4)), but permit this to be available only to the court hearing an appeal on the decision made during that session (and not, for example, to the parties). Moreover, courts are not given the power to release that record if, on subsequent review, it appears that this would cause no prejudice to national security. The Commission is of the view that where this record is reviewed and found not to be prejudicial to national security, it should be disclosed at least to the defendant. The Commission also notes that there should be a procedure whereby the record of closed proceedings can be revisited with a view to being disclosed at a future point in time when no longer a national security issue.
  • The Commission notes and supports Recommendation 11-26 of the ALRC Report, which states:

"If the protection of any classified or sensitive national security information requires that it not be fully disclosed to the court (or tribunal) or to a party with the result that any party's rights, and its ability to fairly and freely present its case and to test the case of, and evidence tendered by, any other party is unfairly diminished, the court (or tribunal) may order that the whole or any part of a proceedings be stayed, discontinued, dismissed or struck out (or that any pleading be struck out in part or whole). Any such order may be made on the application of any party to the proceedings or of the Attorney-General of Australia intervening, or on the court's (or tribunal's) own motion. 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."

While courts already possess some of those powers (which are expressly preserved by the Bill - see clause 18), the Commission agrees with the ALRC that: ". a clear expression of all the powers available to the court in such circumstances is nonetheless useful." [14]

Conclusion

13. Any modification to the ordinary criminal law must conform to the human rights principles set out in the ICCPR, especially Article 14. The Bills establish a scheme for the handling of national security information in criminal proceedings that removes a degree of discretion and flexibility from the courts, and this is of concern.

14. The balance between implementing measures for the protection of national security and the protection of human rights has been the subject of much thought and jurisprudence in the Western world, particularly in Europe. The non-disclosure of evidence and related issues were a substantial component in many miscarriages of justice in terrorist trials in the United Kingdom. That experience shows that any variation on standard criminal procedures must satisfy the principles of a fair trial and equality of arms between the prosecution and defence.

Human Rights and Equal Opportunity Commission
133 Castlereagh Street Sydney NSW 2000
2 June 2004


1. The ICCPR has its own individual complaint mechanism as provided for in the First Optional Protocol to the ICCPR (which was ratified by Australia on 25 September 1991).
2. While there are limited circumstances in which a State party may take measures which derogate from certain rights in times of public emergency or war under Article 4 of the ICCPR, such derogation requires that:

  • The public emergency must threaten the life of the nation;
  • The public emergency must be publicly proclaimed;
  • The measures must be strictly required by the exigencies of the situation;
  • The measures cannot be inconsistent with other requirements of international law; and
  • The measures must not involve discrimination solely on the grounds of race, sex, colour, language, religion or social origin.

Some rights under the ICCPR are non-derogable, and may not be derogated from in a public emergency or in any other circumstances. Article 4(2) of the ICCPR expressly provides that no derogation may be made from Article 6 (the right to life), Article 7 (which prohibits torture or cruel, inhuman or degrading punishment or treatment), Article 8 (paragraphs 1 and 2, which prohibit slavery or servitude), Article 11 (which prohibits imprisonment for inability to fulfil contractual obligations), Article 15 (the guarantee against retrospective criminality), Article 16 (the right to recognition everywhere as a person before the law) and Article 18 (the right to freedom of thought, conscience and religion).

In addition to these non-derogable rights expressly identified in Article 4(2), other rights have been held by the United Nations Human Rights Committee to be non-derogable. As certain elements of the right to a fair trial under Article 14 are explicitly guaranteed under international humanitarian law during armed conflict, there is no justification for derogation from these guarantees during emergency situations and certain requirements under the ICCPR in relation to criminal proceedings must be respected even during a state of emergency proclaimed under Article 4. These include:

  • the right to be tried by a court of law;
  • the fundamental principles of a fair trial, including the presumption of innocence; and
  • the right to judicial review of the lawfulness of detention (habeas corpus)

(Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001) at paragraphs 11 and 16).

3. Human Rights Committee, General Comment 29, op.cit., paragraph 5.
4. See http://www.un.org/Docs/sc/committees/1373/, Briefings, 24 September 2002.
5. (A/RES/57/219).
6. Noting that it ".recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of human rights. Accordingly. the Court will. take into account the special nature of terrorist crime and the exigencies of dealing with it, as far as is compatible with the application provisions of the Convention in the light of their particular wording and overall object and purpose": Fox, Campbell and Hartley v United Kingdom (A/182) (1988), paragraph 42.
7. Klass v Germany (A/28) (1978), paragraph 48.
8. Article 14 provides in whole as follows:

"1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."

9. Joseph S, "A Rights Analysis of the Covenant on Civil and Political Rights" (1999) 5 Journal of International Legal Studies 57 at 78. The principle of proportionality in relation to the limitations in certain ICCPR rights was considered in Faurisson v France (550/93). The author was a professor of literature at the Sorbonne University who was removed from his chair and convicted under France's Gayssot Act which prohibited the publication of opinions that denied the occurrence of the Holocaust. He argued that his right to freedom of expression had been curtailed. The Committee found that his conviction was justifiable under the limitation to Article 19, as it was a necessary and proportionate measure (under Article 19(3)(a), which permits restrictions on the right to freedom of expression "for respect of the rights and reputations of others").
10. In Estrella v Uraguay (74/1980), the Human Rights Committee found that a trial in camera violates Article 14(1) of the ICCPR if the State fails to provide a reason for not providing a public trial.
11. Van Mechaln v Netherlands (1997-III) 691 at paragraph 58.
12. Rowe and Davis v United Kingdom (16/02/2000) at paragraph 62.
13. Rowe and Davis v United Kingdom (16/02/2000) at paragraphs 60-67. In PG and JH v United Kingdom, the ECHR, finding no violation, said:

". as far as possible, the decision-making procedure complied with the requirement of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interest of the accused."

There is in that approach some flexibility for States by reason of the words "as far as possible", and some protection for accused persons in "adequate safeguards".
14. ALRC report, page 469, para 11.148.

Last updated 7 July 2004.