The regime set up by the NSI Act for civil proceedings is substantially similar to that for criminal proceedings. Obviously, a few key differences appear due to the nature of proceedings – for example, provisions which address the situation where the Attorney-General is a party to the civil proceeding.
When reading this part of the guidelines, it should be noted that where ss 6A(2) or 6A(4) apply, any references to the Attorney-General also means an alternative or different Minister.
Step 1 – Invoke the NSI Act
The procedure for invoking the NSI Act in the civil regime provides for either party to the proceeding (and/or their legal representatives) to ‘trigger’ the operation of the NSI Act if they expect to disclose information which relates to, or may affect, national security. This is consistent with ALRC recommendations.
As in the case of federal criminal proceedings, there are two requirements in order for the NSI Act to apply to a federal civil proceeding (s 6A):
(1) The proceeding must be a ‘civil proceeding’ A ‘civil proceeding’ is defined in s 15A as ‘any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding’. This encompasses all stages of the civil process, including an ex parte application (before or after an originating process is filed), discovery, exchange, production, inspection or disclosure of intended evidence, appeal proceedings, interlocutory proceedings or other proceedings prescribed by regulation. Civil proceedings are also likely to cover court ordered mediation, but would be unlikely to extend to other forms of mediation and arbitration. The provisions of the NSI Act do not extend to proceedings in administrative tribunals or military courts. This is because extant regimes cover the use of NSI in those forums, with provisions specifically tailored to deal with the types of NSI likely to arise; for example ss 36 and 39A of the Administrative Appeals Tribunal Act 1975.
(2) The Attorney-General must notify the parties and the court in writing that the NSI Act applies to the proceeding.
The person responsible for giving notice will depend upon whether the Attorney General is a party to the civil proceeding. If the Attorney-General is not a party to the proceeding, he or she must give written notice to the parties and to the court that the NSI Act applies to the proceeding (s 6A(1)). Where the Attorney-General is a party to a civil proceeding, he or she must appoint another Minister to perform the functions of the Attorney-General under NSI Act provisions, including notification under s 6A(2) . These provisions naturally draw an immediate distinction between the criminal and civil regimes.
Similar to the criminal regime, where the Attorney-General invokes the NSI Act after the proceeding has commenced, the provisions of the NSI Act will only apply to the proceedings occurring after notification has been given.
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Optional Step 1A – Conduct a pre trial conference
Before the substantive hearing in a civil proceeding commences, a party to the proceeding may apply to the court for a conference to consider issues relating to any disclosure in the proceeding of information that relates to, or may affect national security (s 38A(1)).
• The Attorney-General must be notified of the conference and the Attorney-General and any legal representative of the Attorney-General may attend (ss 38A(2),(3)).
• The court must conduct the conference as soon as practicable after the application is made (s 38A(4)).
• The conference may include consideration of whether a party is likely to be required to give notice of a potential disclosure of NSI under s 38D and whether the parties wish to enter into an arrangement about disclosure (see Optional Step 1B below).
Optional Step 1B – Agree to section 22 arrangements
Parallelling s 22 and its function in the criminal regime, s 38B allows the Attorney-General, together with the parties, to agree to an arrangement about disclosure of NSI at any time during a civil proceeding. The court may then make such orders as it considers appropriate to give effect to the arrangement. A successful s 38B arrangement and associated orders provide an alternative basis for the handling of NSI thereby minimising procedural requirements associated with protecting information through the operation of the NSI Act, and accords with ALRC recommendations.) of a convicted person during the pre trial negotiations regarding the possible disclosure of NSI .
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Step 2 – Notify the Attorney-General of Expected disclosure of NSI
Expected disclosure of information relating to, or the disclosure of which may affect, national security – s 38D
If a party knows or believes that he or she will disclose information or call a witness whose testimony may relate to or affect national security, the party must:
• notify the Attorney-General in writing of this knowledge or belief (s 38D(1))
• notify the Attorney-General using the prescribed form, (s 38D(3)), and
• advise in writing, the court, the other party to the proceeding and any relevant witnesses of their notification of an expected disclosure and provide each with a description of the information in question (s 38D(4)).
Upon receiving advice of such notification, the court must adjourn the proceeding until the Attorney-General either issues a civil non-disclosure certificate to the court under s 38F(5) or gives advice in writing to the court under s 38F(7) that he or she will not give a certificate. Where the NSI concerned is the subject of an existing certificate under either s 38F or 38H, or a s 38B arrangement and related court orders under s 38L, notification under these provisions may not be necessary.
Expected disclosure of information by witness answering question – s38E
Where a party to a proceeding knows or believes that a witness’ testimony involves information that relates to or may affect national security, that party must advise the court. Once advised, the court must:
• order that the witness provide to the court a written answer to the question
• adjourn the proceeding upon receiving the written answer unless the information disclosed by the written answer is the subject of an existing civil non-disclosure certificate given to the court under s 38F or is the subject of a court order under ss 38B or 38L
• provide a copy of the written answer to the Attorney-General if the proceeding is adjourned, and
• continue the adjournment of the proceeding until a civil non-disclosure certificate is issued under s 38F(5) or advice given under s 38F(7) that no such certificate will be issued.
Under ss 46A, 46B and 46C, the NSI Act makes it an offence to disclose NSI or call a witness who will disclose NSI after the Attorney-General has been notified under ss 38D or 38E and before the Attorney-General has advised whether he or she will issue a certificate. These offences are punishable by two years imprisonment.
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Step 3 – Attorney-General to issue a section 38 certificate
The Attorney-General may do one of three things:
(i) issue a civil non-disclosure certificate (s 38F(2))
(ii) issue a civil witness exclusion certificate (s 38H(2)), or
(iii) advise that he or she will not issue a certificate (ss 38F(7) and 38H(9)).
(i) Issue a civil non-disclosure certificate (s 38F(2))
The Attorney-General may issue a civil non-disclosure certificate if one of the following circumstances arises (s 38F(1)):
• The Attorney-General has been notified under s 38D that a party knows or believes that a person involved in the proceedings will disclose NSI.
• The Attorney-General for any reason expects that a party to a civil proceeding may disclose NSI or intends to call as a witness a person who may disclose NSI (including by the mere presence of a witness).
• The Attorney-General considers that a written answer given by a witness under s38E will disclose information, but subs 38H(1)(a) does not apply, and the Attorney General considers that the disclosure is likely to prejudice national security.
Section 38F uses the terms ‘potential discloser’ and ‘permitted circumstances’. The term ‘potential discloser’ is defined in s 38F(9). These definitions will necessarily change on a case by case basis (for example, some cases may not call any witnesses who will disclose NSI). The term ‘permitted circumstances’ is defined in s 16 of the NSI Act. Permitted circumstances under the civil NSI regime are far broader than those in the criminal NSI regime. In the civil regime, permitted circumstances extend to disclosures where a party to civil proceedings or their legal representative has been security-cleared and discloses the information in the proceeding or in the course of their duties in relation to the proceeding . Security clearances then, in the civil NSI regime, act primarily as a restriction on access to NSI, rather than disclosure of NSI. However it is important to note that the civil NSI regime still allows for the Attorney-General and/or the court to restrict disclosure through summaries or redactions where it is deemed necessary. Use of restrictions on NSI will always depend upon the nature of the information involved.
Documentary evidence which may disclose NSI Where the NSI concerned is in the form of a document, the Attorney General may give each potential discloser a revised version of the document together with a civil non disclosure certificate which describes the information and states whether NSI may be disclosed, and if so, how. The certificate may prohibit use of the document (except in permitted circumstances), or provide a redacted version of the NSI. The redacted version may be a copy of the document with text deleted, with or without a summary of the information that has been deleted, or a statement of facts that the information in the document, would, or would be likely, to prove.
Non-documentary evidence which may disclose NSI This is most commonly oral evidence. In this case, the Attorney-General may give the potential discloser a written summary of the information or a written statement of the facts that the information would, or would be likely to prove. The non-disclosure certificate also describe the information and state whether NSI may be disclosed, and if so, how . As with documentary evidence, a certificate may be used to prohibit disclosure of the document (except in permitted circumstances) or to provide a redacted version of the NSI. It may also be used to disclose a summary or statement of the NSI.
The Attorney-General must provide the court with a copy of the civil non-disclosure certificate, the source document and a copy of the revised document, and if applicable, the summary or statement of NSI. This ensures that the court has at its disposal the source documents for reference during any closed hearing and before making an order on disclosure issues under s 38L.
(ii) Issue a civil witness exclusion certificate (s 38H)
The Attorney-General may issue a civil witness exclusion certificate if one of the following circumstances arises (s 38H(1)):
• The Attorney-General has been notified under s 38D that a person involved in the proceedings knows or believes that a person sought to be called as a witness may disclose NSI by his/her mere presence.
• The Attorney-General for any reason expects that a person whom a party intends to call as a witness may disclose NSI in evidence by his/her mere presence, and
• The Attorney-General considers that the disclosure is likely to prejudice national security.
The Attorney-General must provide the civil witness exclusion certificate to the party seeking to call the witness in question and that party’s legal representative. A copy must also be provided to the court. A certificate may be issued at the same time as notification (invoking the NSI Act) is given under s 6A.
(iii) Advise that he or she will not issue a certificate (ss 38F(7) and 38H(9)) If the Attorney-General decides not to issue a civil non-disclosure certificate, he or she must advise each potential discloser and the court of this decision to allow the proceeding to continue in the usual course.
Duration of certificates
Civil non-disclosure and witness exclusion certificates will cease to have effect from the time an order is made by the court in relation to the NSI covered by the certificate, and that order becomes final. The certificate will also cease to have effect if revoked by the Attorney General.
It is an offence under sections 46D and 46E to disclose information or call a witness contrary to a civil non-disclosure certificate or witness exclusion certificate.
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Step 4 – Adjourn proceeding and hold a closed hearing
The procedures for civil NSI closed hearings broadly mirror those in place for criminal NSI closed hearings. Receipt of a non-disclosure certificate triggers the need for the court to hold a closed hearing. The court must decide whether to make an order under s 38L in relation to the disclosure of NSI.
If the Attorney-General issues a civil non-disclosure certificate or witness exclusion certificate prior to the substantive trial of a matter, the court must conduct a closed hearing before that trial occurs. Where the certificate is issued after the substantive trial has commenced, the court must adjourn the proceeding to consider the possible disclosure of NSI . If the Attorney-General revokes the certificate or an order is made under s 38B while the proceeding is adjourned and/or during the course of the closed hearing, the court must end the adjournment or hearing.
Closed hearing requirements
Persons who may be present at closed hearings – s 38I Subsection 38I(2) states that only the following people can be present at a closed hearing:
• the magistrate, judge or judges comprising the court
• court officials (subject to the court’s discretion)
• the parties to the proceeding (subject to the court’s discretion)
• the parties’ legal representatives (subject to the court’s discretion) • the Attorney-General and his or her legal representative if the Attorney-General exercises his or her right to intervene in the closed hearing under s38K, and
• any witnesses allowed by the court.
The court has a discretion to exclude non-security cleared parties, their non-security cleared legal representatives and non-security cleared court officials from the closed hearing where the court considers that the relevant information would be likely to prejudice national security. If the Attorney-General or his or her legal representative argues in favour of excluding evidence or a witness from the proceeding, the parties and any legal representative must be afforded the opportunity to make submissions in response to such an argument.
A party retains the option of being represented by an uncleared legal representative, consistent with ALRC recommendations. However the court has discretion to order, under s 38I, that specified material not be disclosed to that legal representative unless he or she holds a security clearance at the appropriate level. In this case the party concerned has the option of retaining a legal representative who holds the requisite security clearance. For further discussion of security clearances and legal representatives, please refer to criminal proceedings guidelines.
Records of closed hearings – subsections 38I(5)-(7)
Subsection 38I(5) states that a court conducting a closed hearing must make and keep a record of the hearing. The court must provide a copy of the proposed record to the Attorney-General and his or her legal representatives. If the Attorney-General or his or her legal representative considers that allowing access to the proposed record may disclose information and the disclosure is likely to prejudice national security, the Attorney General or his or her legal representative may request variation of the record to avoid disclosure of NSI.
The court must make a decision on the request for variation to the record. If the court decides against variation, the prosecutor or the Attorney-General and his or her legal representatives may seek an order that the court delay making the record to allow an appeal to be lodged. The Attorney-General may appeal a decision made under s 38I in relation to the variation of the record. Once finalised, the court must only make the record available to:
• a court hearing or reviewing an appeal against the closed hearing decision, and
• the Attorney-General and his or her legal representative if the Attorney-General has intervened in the proceedings under s 38K, and
• a security-cleared unrepresented party or security cleared representative of a party.
The court’s obligations regarding maintenance of the closed hearing record are prescribed by Part 3 of the NSI Regulations.
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Step 5 –Make section 38 orders in relation to disclosure
After holding a closed hearing under s 38G(1), the court may make one of the following orders:
(i) That the information not be disclosed, except in permitted circumstances (consistent with the Attorney-General’s certificate). The court may also specify how the information may be disclosed – for example, by permitting disclosure on a redacted basis.
(ii) That any person to whom the certificate is given, any person to whom the contents of the certificate have been disclosed and any other specified person must not disclose the information (whether in the proceeding or otherwise) except in permitted circumstances.
(iii) That the information be disclosed – (effectively overturning the Attorney-General’s certificate)
After holding a closed hearing under s 38H(6) the court must order that the relevant party:
(i) must not call the person as a witness in the civil proceeding (s 38L(6)(a)), or
(ii) may call the person as a witness in the civil proceeding (s 38L(6)(b)).
Whether or not a document can be tendered as evidence will depend whether it is admissible under the ordinary rules of evidence.
Factors to be considered by the court in making an order under s 38L
In deciding which s 38L orders are most appropriate, the court must take into consideration:
• whether the disclosure of the information or presence of the witness would be a risk of prejudice to national security, having regard to the certificate (s 38L(7)(a)), and
• whether such an order would have a substantial adverse effect on the substantive proceeding (s 38L(7)(b)), and
• any other relevant matter (s 38L(7)(c)).
The court must give the greatest weight to national security considerations (s 38L(8)). The court retains its inherent power to stay the proceeding where it believes that the NSI Act procedures prejudice the trial such that the due administration of justice (s 19) is not achievable even after making an order under s 38L.
Reasons in support of a s 38L order
Section 38M of the NSI Act requires a court to produce a written statement of reasons explaining the s 38L order. Again, in parallel to the criminal regime, the court must give a copy of the proposed statement of reasons to the Attorney General (or his or her legal representatives if intervention under s 38K has occurred), prior to finalising and disseminating such a statement. The Attorney General may then apply to the court for a variation of the statement where he/she considers the proposed statement of reasons is likely to prejudice national security. The court is then obliged to make a decision on the variation sought. If the court does not agree to any requested variation, the Attorney-General may appeal the decision under s 38S. While the appeal is pending, the court must adhere to any request by the Attorney General to delay dissemination of the written statement. Once finalised, the written statement of reasons must be provided to the person who is the subject of the order (for example, the witness whose evidence in chief may disclose NSI), the parties to the proceeding, their legal representatives and the Attorney General where he or she has intervened.
Provision for appeal
Subsection 38R(1) allows a party to a civil proceeding or the Attorney-General to appeal a s 38L order.
An intentional disclosure of the terms of a s 38L order constitutes an offence under s 45 of the NSI Act.
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Step 6 – Issue security clearances
NSI Act civil security clearance provisions
The purpose and intentions behind the civil NSI provisions relating to security clearances mirror the criminal provisions. For this reason, it is proposed this part of the guide only briefly detail the requirements for security clearances in civil proceedings under the NSI Act.
Section 39A of the NSI Act triggers the requirement to obtain a security clearance if, before or during a civil proceeding, the Secretary of the Attorney General’s Department provides written notice that issues relating to disclosure of NSI are likely to arise. Upon receipt of this written notice, a party, his or her legal representative and any assistants may apply to the Secretary for a security clearance at the appropriate level.
A party to a proceeding may apply to the court for the proceeding to be deferred or adjourned pending receipt of a security clearance by the party or his or her legal representative or to enable another legal representative to be security cleared. In these circumstances, the court must defer or adjourn the proceeding, ensuring NSI Act provisions will not interfere with the defendant’s right to be fairly and independently represented. The security clearance process is conducted at arm’s length and legal representatives can choose to obtain their security clearances from a number of providers of security vetting services. If a clearance is denied, the applicant may seek a review of the decision by the Administrative Appeals Tribunal.
If the party or legal representative does not apply for, or does not receive the security clearance, the Secretary may advise the court that either the clearance has not been sought or not been given. The court may then advise the party of the consequences of not being security cleared or being represented by an uncleared legal representative and may recommend that the party seek a security clearance or engage a legal representative who has been given, or is prepared to seek, a security clearance. Uncleared legal representatives risk the possibility that they will not have access to NSI which is relevant to the proceedings against their client.
Security clearances and legal aid implications
In recognition of the additional financial burden involved in engaging a security cleared legal representative to attend a closed hearing, a self-represented litigant involved in a civil matter who is refused a security clearance at the appropriate level would be eligible to apply for financial assistance under the Special Circumstances Scheme. If approved, this would provide financial assistance for the legal costs associated with engaging a security cleared legal representative to attend the closed hearing and any related appeal. The opportunity for such unrepresented parties to access financial assistance in order to retain a security cleared lawyer is an important component of the scheme.
Special requirements apply to legal representatives who assist legally-aided clients in the conduct of a matter relating to Australia’s national security. Such practitioners or those assisting such practitioners should consult the Commonwealth Legal Aid Guidelines, in particular Schedule 3, Part 1 – Guideline 7 (National Security) which came into operation on 4 July 2006 (Commonwealth Legal Aid Amendment Guidelines 2006 (No. 1) refers). The Commonwealth Legal Aid guidelines do not interfere with a legal aid commission’s obligation, when assigning work, to have regard to any preference expressed by a legally aided defendant for a legal practitioner, nor do the guidelines restrict a legally assisted client’s ability to nominate a preferred legal practitioner. In terms of security clearance procedures, legal aid practitioners should be aware that after the issue of a s 39 notice, further payments pursuant to a grant of legal assistance are contingent upon the legal practitioner operating under the legal aid scheme being security cleared or having lodged an application for security clearance.