The Senate Legal and Constitutional Committee
conducted an Inquiry into the National Security
Information (Criminal Proceedings) Bill 2004 and the National
Security Information (Criminal Proceedings) (Consequential
Amendments) Bill 2004.
opposed the substance of the Bills on three principled grounds:
The Bill purports to apply to
‘national security,' defined as ‘Australia's
defence, security, international relations, law enforcement interests
or national interests.' Of these terms only ‘security'
and ‘law enforcement' are given objective definition.
This provides the Bill a problematically broad operation.
the Bill provides for security clearance for lawyers in antiterror
cases according to criteria contained in the secretive Australian
Government Protective Security Manual (‘PSM'), which is
only available to government departments and agencies. AMCRAN
objected the reliance on the PSM as it gave individuals and their
lawyers no secure information as to whether a lawyer might be
the Bill, the Attoryney General issues a certificate deigning
particular material ‘national security' material. This
decision is not reviewable by the courts under the Administrative
Decisions (Judicial Review) Act 1977 (Cth). AMCRAN objected to
this aspect of the Bill on the basis that it infringed the separation
of powers by usurping the supervisory function of the courts.
Cl 23 of the Bill, the court may order a closed hearing and
the exclusion of the defendant and their legal representative where
it is suspected that a witness will disclose information relating to
‘national security.' The exclusion of the defendant in
these circumstances is likely to prejudice transparency in the
criminal process, and the defendant's right to a fair trail.
concluding, AMCRAN suggested 5 key amendments to the legislation:
the definition of ‘national security' be set down more
it is inappropriate for the Attorney General to make designations of
‘national security,' and so an independent body such as
the Inspector General of Intelligence and Security take on this role
Attorney-General's designations be made subject to judicial
the requirement for security clearance of lawyers be set out in the
legislation, rather than in the PSM.
an ‘all or none' rule apply to evidence of witnesses
that might touch on national security-that is, either the
information be viewed by both the prosecution and defence, or
submission was prepared by Waleed Kadous and Agnes Chong. A copy of the submission is
view the Bills, the Explanatory Memoranda, Second Reading Speeches,
as well as other submissions, please go to the Senate Committee
The Senate Legal and Constitutional Committee Report on the National
Security Information (Criminal Proceedings) Bill 2004 and the National
Security Information (Criminal Proceedings) (Consequential Amendments)
Bill 2004 was released in August 2004 and is available here
Bills were enacted in substantially the same form as the National
Security Information (Criminal and Civil Proceedings) Act 2004.