Letter: Law Reform Commission

19 March 2004

Mr Ian Davis

Australian Law Reform Commission

GPO Box 3708

SYDNEY NSW 2001

By email: security@alrc.gov.au

Dear Mr Davis

Comment on Discussion
Paper 67: Protecting Classified and Security Sensitive Information

I refer to your request
for comments on this Discussion Paper.

I note from the Discussion
Paper that the ALRC is proposing a new statutory regime in respect of the disclosure
and admission of classified and security sensitive information in court and
tribunal proceedings.

The Human Rights
& Equal Opportunity Commission (HREOC) does not wish to comment on
the case for new legislative measures. However HREOC refers to its submission
of 12 September 2003 (in response to Background Paper 8: Protecting
Classified and Security Sensitive Information) and notes that the
right to a fair hearing is at the centre of the criminal and civil procedural
guarantees set out in Articles 14 and 15 of the International Covenant
on Civil and Political Rights (ICCPR). HREOC is of the view that it would
be preferable to explicitly incorporate these guarantees into the proposed
legislation and require courts to have regard to them in the exercise
of discretions under the proposed new legislation. This would more directly
ensure compliance with relevant human rights standards.

HREOC also notes in relation
to specific proposals:

- Proposal 10-20

In relation to orders or
findings under the proposed new Act, it is proposed that: “To the greatest
extent reasonably possible consistent with the court’s determination on
the need to protect classified or sensitive national security information used
in proceedings, the court should ensure that any party whose rights are adversely
affected by the order receives a copy of the reasons that allows it to pursue
any avenue of appeal that may be open to it.” The ambit of the exception
contemplated by the words “reasonably possible” is unclear. Article
14(5) of the ICCPR requires that a judgement or decision in criminal proceedings
must be capable of being reviewed, and this right of review should extend to
preliminary and procedural decisions and orders. Indeed, the Discussion Paper
itself notes at paragraph 7.94: “The right to a fair hearing encompasses
the right to a statement of reasons for a judgement, both generally on the merits
of the case and in relation to procedural aspects of the hearing, including
the use of classified and security sensitive information.”

- Proposal 10-40

HREOC is of the view that
it is preferable to protect witnesses and classified information without resorting
to secret evidence in civil proceedings. HREOC reiterates its submission of
12 September 2004, noted at paragraph 7.85 of the Discussion Paper, that civil
proceedings such as immigration and similar hearings involving classified or
security sensitive information may affect a person’s right to liberty
under Article 9 of the ICCPR, or the right to leave any country (including their
own) under Article 12(2) of the ICCPR. HREOC therefore supports the submission
of the Law Society of New South Wales cited at paragraph 7.84 of the Discussion
Paper, that as with criminal proceedings, immigration proceedings may impact
on the freedom of an individual and persons facing immigration proceedings which
could result in their removal from Australia should be afforded similar protections
as provided to people in criminal trials. If however Proposal 10-40 is implemented,
HREOC supports the proposal for detailed safeguards to protect human rights
in respect of secret evidence.

Thank you for the opportunity
to provide further comments as part of this inquiry.

Yours sincerely

The Hon John
von Doussa QC

President

Last
updated 15 April 2004.