Submission: National Security

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.