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Senate Inquiry into National Security (Criminal Proceedings) Bills 2004 Print E-mail
Sunday, 18 July 2004

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. 

 

AMCRAN's submission opposed the substance of the Bills on three principled grounds:


  • Avoidance of broad, subjective and discretionary laws

 

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.


Also, 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 security-cleared.


  • Separation of executive and judicial arms of government


Under 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.


  • Right to fair trail


Under 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.


In concluding, AMCRAN suggested 5 key amendments to the legislation:


  1. That the definition of ‘national security' be set down more clearly

  2. That 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

  3. The Attorney-General's designations be made subject to judicial review.

  4. That the requirement for security clearance of lawyers be set out in the legislation, rather than in the PSM.

  5. That 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 neither.

 

This submission was prepared by Waleed Kadous and Agnes Chong. A copy of the submission is available here.

 

To view the Bills, the Explanatory Memoranda, Second Reading Speeches, as well as other submissions, please go to the Senate Committee website here.

 

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 (PDF).

 

Both Bills were enacted in substantially the same form as the National Security Information (Criminal and Civil Proceedings) Act 2004.

 

 
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