National security bill opens the door to expanded control orders and secret evidence

On Thursday, Attorney-General George Brandis introduced a new national security bill into the Senate. This is the fifth tranche of national security legislation to be introduced into parliament since July 2014.

This bill includes a host of new measures designed to address the evolving threat posed by terrorism. These include:

• a new offence of advocacy of genocide;

• amendments to the control order regime, so it applies to persons 14 years and older, and new measures to monitor controlees; and

• clarification of the basis for issuing a preventative detention order.

But the bill’s most concerning aspect is the proposal to expand the secrecy provisions available to courts in control order proceedings.

Keeping national security information secret in court

Since 2004, legislation has been in place to deal with information that is likely to prejudice national security in federal court proceedings.

This legislation created a special closed hearing procedure to determine whether national security information could be disclosed in court and, if so, in what form. This process regulates disclosure between the parties – that is, who gets to see what.

The bill expands this by creating special provisions that allow the court to consider sensitive material that the controlee and legal representative have not seen in proceedings to impose, confirm or vary a control order. It provides that a court can consider all of the information:

• contained in an original source document in control order proceedings, even where the controlee and their legal representative have been provided with only a redacted or summarised form of the document;

• contained in an original source document in control order proceedings, even where the controlee and their legal representative have not been provided with any information contained in the original source document; and

• provided by a witness, even where the information provided by the witness is not disclosed to the controlee or their legal representative.

The bill’s effect is to allow secret evidence into control order proceedings.

Secret evidence

“Secret evidence” is that which is not disclosed to an affected party and their legal representative. It is not new.

A successful claim of public interest immunity, for example, results in secret material being excluded from the evidence presented in court. What is new in the anti-terror context is legislation that allows the courts to rely on secret evidence in control order proceedings.

The Criminal Code already allows the Australian Federal Police (AFP) to exclude sensitive national security information at each stage of the control order process. This bill expressly provides that when deciding whether to impose a control order, a judge can rely on evidence that has not been disclosed to the controlee or their legal representative or been challenged – for example, through cross examination.

The government considers that “the inherent capacity of the court to act fairly and impartially” will ensure fairness in the proceedings. However, in the UK, the simple involvement of a judge in closed material proceedings has been deemed insufficient to guarantee a fair hearing.

UK Supreme Court justice Lord Kerr made the following comments in a case about secret evidence:

The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.

In the UK, a system of special advocates – security-cleared lawyers who can challenge secret evidence on behalf of persons excluded from proceedings – has been developed to mitigate some of the potential unfairness of closed material hearings.

The Council of Australian Governments’ (COAG) counter-terrorism legislation review proposed this in 2013. The government has not taken it up in this bill. It claims that existing and proposed new safeguards will be sufficient.

Sufficient safeguards?

The most important safeguard is that the controlee has sufficient information about the case against them such that they are able to challenge it effectively in the absence of full disclosure of the evidence.

The Criminal Code provides some safeguards regarding the minimum information that the controlee must be given about the case against them. However, it also allows the AFP to exclude sensitive national security information from the information provided. This has the potential to threaten the controlee’s right to a fair trial.

To combat the potential unfairness to the controlee, the COAG review recommended the introduction of a guaranteed minimum standard of disclosure:

… the applicant must be given sufficient information about the allegations against him or her to enable effective instructions to be given in relation to those allegations.

This was an important recommendation, but it has so far been ignored. The Independent National Security Legislation Monitor, Roger Gyles, QC, is conducting an inquiry into the adequacy of the safeguards relating to the control order regime – which now includes this bill. The Parliamentary Joint Committee on Intelligence and Security has begun an inquiry into the bill.

It is hoped that these inquiries seriously consider COAG’s recommendations.

The bill as it is will only require that, before making an order, the court must be satisfied that the individual has been given notice of the allegations on which the request was based, even if they do not not know the information on which the allegations are based. This has the capacity to further undermine the fairness of control order proceedings.

Sensitive national security information must be protected in control order proceedings. However, the bill does not adequately balance the right of the controlee to a fair trial and to know the case against them.

A control order may impose severe restrictions on the liberty and movement on a controlee. A controlee should have sufficient knowledge of the allegations against them to be able to challenge them.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.