Step 1 – The prosecution invokes the NSI Act
Section 6 sets out two conditions which must be satisfied before the NSI Act is invoked in a criminal proceeding:
(1) The proceeding must be a ‘federal criminal proceeding’, and
(2) The prosecutor must notify the court and defendant in writing that the NSI Act applies.
A ‘federal criminal proceeding’ is defined in Sect 14 of the NSI Act as a criminal proceeding in any court exercising federal jurisdiction (where any of the offences concerned are against a law of the Commonwealth), or a court proceeding involving the Extradition Act 1988. Subsection 13(2) provides that a criminal proceeding includes all stages of the trial process, as well as any interlocutory steps taken or appellate proceedings. Having said that, the NSI Act does not extend to proceedings in military or other tribunals, because regimes already exist in these forums for the protection of NSI.
Under subsection 6(1) of the NSI Act the prosecutor ‘triggers’ the operation of the Act in criminal proceedings. This is done by assessing the brief of evidence and notifying the court and the defendant if it is thought that the Act should apply to the case. If the prosecution provides this notification after the proceeding has commenced, the NSI Act will only apply to those parts of the proceeding that occur after the notice has been given. The court cannot invoke the NSI Act independently.
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Optional Step 1A – Conduct a pre trial conference
Section 21 gives the parties the option to apply to the court for a pre trial conference to consider issues relating to NSI. The court must conduct the conference as soon as practicable after the application is made. Pre trial conferences are advantageous because they can assist with the expeditious and early resolution of issues relating to NSI, as well as make the court aware of any expected disclosures of NSI. In the Lappas case, Justice Gray commented that the early detection and management of NSI is important, because it allows the court and the parties more flexibility to deal with disclosure issues. Pre-trial conferences were conducted in the Thomas, Ul Haque and Lodhi cases.
Optional Step 1B – Agree to section 22 arrangements
At any time during a federal criminal proceeding, the prosecutor and defendant may agree to an arrangement about the disclosure of NSI in the proceeding. The court may make whatever orders it considers appropriate to give effect to the arrangement. Section 22 arrangements have become common practice in cases where the NSI involved is limited, and where parties are willing to negotiate to protect the information appropriately. They are useful because they can alleviate the need for the parties to fully adhere to procedures in the NSI Act.
It is important to keep in mind that whether a pre trial conference is held or s 22 arrangements are entered into can have implications at the sentencing stage of a criminal proceeding. This is because the judge has discretion to take into account the co operation (or otherwise) 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
Section 24 of the NSI Act provides that if the prosecutor or defendant knows or believes that information which relates to or may affect national security will be disclosed during a proceeding, he/she must:
• notify the Attorney-General as soon as practicable, using the prescribed form, and
• advise the court, the other party and any relevant witnesses in writing that the Attorney General has been notified of an expected disclosure and provide them with a description of the information. Subsection 24(4) states that the court must then adjourn the proceeding until the Attorney General:
• provides a non disclosure certificate to the court under s 26(4), or
• advises the court under s 26(7) that no such certificate will be provided.
Expected disclosure of information by a witness Section 25 procedures apply if a witness is asked a question in the course of giving evidence, and the defendant or prosecutor knows or believes that in answering the question the witness may disclose information that relates to, or may affect, national security:
• The court must adjourn the proceeding and hold a closed hearing.
• At the hearing, the witness must provide the court with a written answer to the question.
• The court must show the answer to the prosecutor.
• If the prosecutor knows or believes that information in the witness’ answer relates to or may affect national security, he/she must advise the court and notify the Attorney General in writing.
• The proceeding must then adjourned until the Attorney General issues a non disclosure certificate under s 26(4), or advises the court that a certificate will not be issued.
It is an offence to disclose information which is likely to prejudice national security, where the Attorney General has been notified under ss 24 or 25 but is yet to issue a non disclosure certificate or advise that no certificate will be issued. These offences are punishable by two years imprisonment.
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Step 3 – Attorney-General to issue a section 26 or 28 certificate
Once the Attorney General has been notified of an expected disclosure of information which relates to or may affect national security, the Attorney General may:
(1) issue a criminal non disclosure certificate
(2) issue a criminal witness exclusion certificate, or (s 28)
(3) advise that he/she will not issue a certificate. (ss 26(7), 28(10)).
Issue a criminal non disclosure certificate
Criminal non disclosure certificates are used to protect information which is likely to prejudice national security from being disclosed during a federal criminal proceeding. The Attorney-General may issue a criminal non disclosure certificate if he/she:
• has been notified under ss 24 or 25(6) of an expected disclosure of information, or
• expects that a party to the proceeding or a witness will disclose information, and
• considers that disclosure of the information would be likely to prejudice the national security.
The Attorney General must give each potential discloser a copy of the certificate, describing the information and stating that it must not be disclosed except in permitted circumstances. If the information would be disclosed in a document, the Attorney General may also provide a copy of the document with the information deleted, with or without a summary of the information or a statement of the facts that the information would, or would be likely to, prove. If the information would be disclosed other than in a document, the Attorney General may choose to provide a written summary of the information or a written statement of the facts that the information would, or would be likely to, prove. The Attorney-General must give the court a copy of the certificate, along with copies of any other documents provided to each potential discloser.
Issue a criminal witness exclusion certificate
The Attorney-General may issue a witness exclusion certificate if he/she:
• has been notified under s 24 that the prosecutor or defendant knows or believes that a person sought to be called as a witness will disclose information by his/her mere presence, or
• expects that a person whom the prosecutor or defendant intends to call as a witness will disclose information by his/her mere presence, and
• considers that disclosure of the information would be likely to prejudice national security.
The Attorney-General must provide a copy of the witness exclusion certificate to the court and may provide a copy of the certificate to the prosecutor or defendant . Reasons as to why information should not be disclosed are discussed at length during the closed hearing process (see Step 4) and the court is obligated to publish reasons for its decision . In addition, the certificate and its accompanying documentation is sufficiently descriptive to enable to court to make an informed decision in relation to the handling of classified and NSI.
Advise that a certificate will not be issued
If the Attorney-General forms the view that a non disclosure certificate or a witness exclusion certificate ought not be issued, the Attorney-General must advise the prosecutor or defendant, as the case requires, and the court in writing of his or her decision (s 28(10)). This enables the proceeding to continue in the usual course without unwarranted delay. To date, there has only been one case in which the Attorney-General has declined to issue a ministerial certificate, as the court had already made orders under s 22 of the NSI Act which protected that information adequately. However, the Attorney-General expressly reserved his position in relation to the need to reconsider whether the disclosure of any matters identified in the notices would be likely to prejudice national security in the event that the orders made by the Court were varied or terminated.
Duration of certificates
A certificate ceases to have effect when the Attorney General revokes it or the court makes an order in relation to the use of the information under s 31 and that order becomes final . A criminal non-disclosure certificate will serve as conclusive evidence that the disclosure of the information in the proceeding is likely to prejudice national security in the pre-trial phase of criminal proceedings and extradition matters until the court rules on the validity of the certificate following a s 31 closed hearing.
It is an offence under ss 43 and 44 to disclose information or call a witness contrary to the Attorney-General’s criminal non-disclosure certificate or witness exclusion certificate.
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Step 4 – Adjourn proceeding and hold a closed hearing
The giving of a criminal non-disclosure or a witness exclusion certificate to the court triggers the need for the court to hold a closed hearing to decide whether to make an order under s 31 in relation to the disclosure of information or the calling of a witness. Where a certificate has been issued, the court will determine whether it will maintain, modify or remove the restriction on disclosure of information or the calling of witnesses.
If the certificate is received before the substantive proceeding, the closed hearing must be conducted before the substantive proceeding commences.
If the certificate is given to the court after the proceeding begins, the court must adjourn the proceeding in order to hold a closed hearing. If the Attorney-General revokes the certificate while the proceeding is adjourned or during the course of a closed hearing, the court must end the adjournment or the hearing.
A closed hearing for the purpose of the NSI Act is not interchangeable with the usual closed court or ‘in-camera proceeding’. Closure does not apply to the substantive proceedings and is strictly conducted for the limited purpose of addressing two matters:
(i) Whether to allow a witness to be called.
(ii) Whether information potentially prejudicial to national security may be disclosed and, if so, in what form. Closed hearing requirements do not impede the traditional opportunities afforded to defendants to be heard on issues relating to the non-disclosure of information or more generally, in participating in the substantive hearing. The closed hearing is solely concerned with contested issues of disclosure preliminary to, but outside of, matters to be adjudicated (including the relevance and admissibility of NSI) in the substantive proceeding.
Overseas jurisdictions, and State and Territory court procedure statutes, allow for all or part of certain proceedings to be held ‘in-camera’. Arguably, the exclusionary provisions under the UK, Canadian and US regimes are broader in ambit than the closed hearing provisions under the NSI Act to the extent that the prescribed closure of the proceedings in these jurisdictions applies to the substantive hearing as opposed to a more confined ‘voir dire’ segment of the trial. In Lodhi, Whealy J expressly recognised the limited discretion the closed hearing provisions confer – relating only to the identification and disclosure of material that may be later adduced in the proceeding. His Honour acknowledged that, even in respect of that part of the proceeding where there is a discretion to exclude evidence, the defendant and his representative must be afforded an opportunity to make submissions to the court. As his Honour observed:
[q]uestions as to the admissibility of the evidence and the manner of giving the evidence remain for the determination of the trial judge in the ordinary way. These procedures would normally be carried out in open court and being about a situation where the only evidence properly placed before the jury is evidence that is properly admissible and not otherwise subject to exclusion.
In February 2006, Mr Lodhi lodged an appeal in the Court of Criminal Appeal (NSW) challenging, amongst other things, an order requiring closed hearings made by Whealy J. The appellant argued that his Honour had misapplied the statutory tests regarding closure of the court. Counsel on behalf of the Attorney-General, submitted that his Honour’s reasons for ordering closure of the court were appropriate. Spigelman CJ, McClellan CJ and Sully J rejected Mr Lodhi’s appeal. Their Honours affirmed it was proper for both non-publication and closed court orders to be made.
Closed hearing requirements
Subsection 29(2) provides that only the following persons can be present at a closed hearing:
• the magistrate, judge or judges comprising the court
• court officials (subject to the court’s discretion)
• the prosecutor • the defendant (subject to the court’s discretion)
• any legal representative of the defendant (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 s 30, and
• any witnesses permitted by the court.
The court has discretion to exclude the defendant, non-security cleared legal representatives of the defendant and non-security cleared court officials from the closed hearing where the court considers that the information would be disclosed to the person and that its disclosure would be likely to prejudice national security. The NSI Act seeks to strike an appropriate balance between protecting national security and not unduly interfering with court procedures.
Given that the court retains a discretion to exclude court personnel who do not hold the requisite security clearance, it is preferable to identify those officers that may need to be present in closed court arrangements (eg judges’ associates, tip staff, court reporters, corrections officers etc) as well as any staff who would be involved in the handling and storage of any NSI, and seek to have security cleared early to prevent any unnecessary delays.
Meaning of ‘legal representative of the defendant’ under s 29(2)
Having regard to references to the term ‘legal representative’ in subparagraphs 16(a),(ac) and (ad) of the NSI Act, the term ‘legal representative’ is likely to be construed as a person acting under a lawyer/client relationship in relation to which fiduciary obligations are exercised. That is, a person admitted as a legal practitioner to a State or Territory court, whether or not she or he has an entitlement to practice.
Records of closed hearings – s 29
Subsection 29(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 prosecutor and the Attorney General and his or her legal representatives. If the prosecutor, the Attorney General or his or her legal representatives considers that allowing access to the record may disclose information and the disclosure is likely to prejudice national security, they may request that the court vary the record so that it does not disclose 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.
Once the record has been finalised, the court must make it available only to:
• an appeal court conducting a review of the closed hearing decision
• the prosecutor • the Attorney-General and his or her legal representative if the Attorney-General has intervened in the proceeding under s 30, and
• any legal representative of the defendant with appropriate security clearance (subs 29(5)).
The court’s obligations regarding maintenance of the closed hearing record are prescribed by Part 3 the NSI Regulations.
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Step 5 –Make section 31 orders in relation to disclosure
Criminal non-disclosure certificates
After holding a closed hearing under s 27(3) the court may make one of the following orders:
• 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.
• 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.
• That the information be disclosed – effectively overturning the Attorney-General’s certificate.
Witness exclusion certificate
After holding a closed hearing under s 28(5), the court must order:
• that the prosecutor or defendant must not call the person as a witness (s 31(6)(a)), or
• that the prosecutor or defendant may call the person as a witness (s 31(6)(b)).
In deciding which s 31 orders are most appropriate, the court must consider:
• whether the disclosure of the information or presence of the witness would constitute a risk to national security, having regard to the Attorney-General’s certificate (s 31(7)(a))
• whether an order to prevent disclosure or calling of a witness would have a substantial adverse effect on the defendant’s right to a fair hearing, including in particular on the conduct of his or her defence (s 31(7)(b)), and
• any other matter the court considers relevant (s 31(7)(c)).
The court must give greatest weight to national security considerations (s 31(8)). In Lodhi, counsel for the defendant suggested that the courts’ discretion under s 31 is a ‘sham’. Whealy J rejected this assertion, observing that there were no grounds for the supposition that in an appropriate case, the court would not make orders that diverged from disclosure directives given by the Attorney-General’s certificate. That the s 31 discretion is illusory or a sham is obviated, in his Honour’s consideration, by the fact that:
(1) there is an absolute right for the defendant and his/her legal representative to be heard under s 29(4)
(2) the court must give due consideration to the substantial adverse effect of an order on the defendant’s right to a fair trial, and
(3) the court is obligated to adhere to the object of the NSI Act, giving due regard to the administration of justice.
As his Honour observed, Part 3 of the NSI Act does not impinge ‘in any fundamental way upon the ordinary process of the establishment of guilt or innocence by judge and jury…… [t]he traditional protections given to an accused person are not put aside by the legislation.’
Once a court has made an order under s 31, the prosecutor or the defendant may request an adjournment so that they may consider the terms of the order and lodge an appeal against it, or in the case of the prosecutor, withdraw the charge. The court must grant the adjournment. Section 34 provides that an order made by the court under s 31 does not come into force until it ceases to be subject to appeal and remains in force until a court revokes it. By enabling the s 31 order to remain operative until revoked or made final, s 34 prevents the disclosure of NSI under an order that is later successfully appealed. If the higher court upholds the decision of the judge, the prosecutor can withdraw from the proceeding. Alternatively, it remains open to the Attorney-General to re-issue the non-disclosure or witness exclusion certificate in a form which may satisfy the court. Notably, a court order overturning the Attorney-General’s certificate cannot form grounds for re trial of parts of the proceeding conducted before the order was made. If the court orders that a redacted document or statement of facts be prepared, that abridged document or summary becomes admissible as evidence of the full contents of the document, consistent with rules of evidence.
Section 32 of the NSI Act obligates a court to produce a written statement of reasons explaining the s 31 order. As with a record of an NSI Act closed hearing, the court must supply the prosecutor and the Attorney-General with a proposed statement of reasons before it can be finalised and disseminated. The prosecutor or the Attorney-General may then apply to the court for a variation of the statement, where the proposed statement of reasons will disclose information 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 the requested variation, the prosecutor or the Attorney-General may appeal the decision under s 38(1). While the appeal is pending, the court must adhere to any request by the prosecutor or 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 prosecutor
• the defendant and his or her legal representative, and
• the Attorney-General and any legal representative of the Attorney-General if he or she is an intervener under s 30 (s 32(1))
Intentional contravention of the terms of an order under s 31 constitutes an offence under s 45 of the NSI Act.
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Step 6 – Issue security clearances
The purpose of security clearance provisions is to protect NSI involved in court cases. The security clearance procedure is not particular to the Australian jurisdiction. Defence counsel may be required to be security cleared in criminal cases in the US under the US CIPA legislation . Security clearance of legal representatives in US matters involving NSI have been undertaken for many years and the process has been accepted by the US legal profession as being part of their obligations to properly represent clients. Further, recent case law has determined that security clearances are the best mechanism to prevent unauthorised disclosure of classified information in the custody of the court . A lack of security clearance may prevent – and will certainly delay – a US practitioner’s access to classified information. In Canada, security cleared counsel appear before hearings conducted by the Security Intelligence Review Committee and are appointed from a panel of security cleared lawyers. In the UK, the Juries Act 1974 permits limited security checks of potential jurors in accordance with the Attorney-General’s guidelines.
The security clearance process
The security clearance process comprises a series of assessments and background checks to ensure individuals are eligible and suitable to access NSI. Individuals complete an information package that is composed of a series of questionnaires (including a request for information about financial issues for clearances at the national security Secret level and above). This information is used as the basis for conducting the background checks and inquiries. From these, an assessment of the individual’s suitability to access security classified material and other valuable resources is made. The level of clearance required is decided by relevant Australian Government agencies and may vary depending on the nature of the information involved in the particular case. The security clearance can be conducted by a number of security vetting service providers. Clearances in current matters have been conducted by the Australian Security Vetting Service, in the Attorney-General’s Department.
Given that the court retains a discretion to exclude court personnel who are not security cleared as explained under the Closed Hearing Requirements section of this paper, it is prudent for the court to identify those officers that may need to be present in closed court arrangements (eg judges’ associates, tip staff, court reporters, corrections officers etc) as well as any staff who would be involved in the handling and storage of any classified or NSI, and seek to have them cleared early on in the proceedings in order to prevent any undue delays. The security clearance process is the same as that undertaken by government officers including DPP officers and counsel acting for the DPP and the Commonwealth. Security clearances have been undertaken for court officers in the Thomas, Lodhi, Ul-Haque, Hassan, Khazaal and Operation Pendennis matters. Some defence representatives have also been cleared. Officers who obtain a security clearance receive training regarding their obligations as security clearance holders.
Security clearance provisions in the NSI Act
Section 22 of the Act provides for the prosecutor and defendant to agree to arrangements for federal criminal proceedings about disclosures of information relating to or affecting national security, and for the court to make orders to give effect to such arrangements. When a s 22 order or arrangement is in place in relation to the storage, handling, destruction, access and preparation of information relating to national security, the requirements set out in the NSI Regulations and the NSI Requirements do not apply. However, there will be circumstances in specific cases where the requirements appropriate for security are best expressed by section 22 orders rather than in accordance with the general standard outlined by the NSI Act and the NSI Requirements.
Security cleared defence representatives
The Commonwealth Director of Public Prosecutions may contact defence representatives to recommend their early application for a security clearance, so as to prevent possible delays later in proceedings should the need for a security clearance arise. Alternatively, s 39 of the NSI Act provides for similar notice to be given by the Secretary of the Attorney General’s Department. Under s 39 of the NSI Act, the requirement to obtain a security clearance is triggered if, before or during a federal criminal proceeding, the Secretary of the Attorney General’s Department provides written notice to the defendant’s legal representative or a person assisting the defendant’s legal representative that an issue is likely to arise in the proceeding relating to a disclosure of information that is likely to prejudice national security . Upon receipt of the Secretary’s notice, the defendant’s legal representative and his or her assistants may apply to the Secretary for a security clearance by the Attorney-General’s Department. The security clearance process is conducted at arm’s length from the agencies involved in prosecutions. 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. The defendant may apply to the court for the proceeding to be deferred or adjourned pending receipt of a security clearance by 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.
Uncleared defence representatives
If the defendant’s legal representative does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows, the prosecutor may advise the court that the defendant’s legal representative has not sought clearance. The court may then advise the defendant of the consequences of being represented by an uncleared legal representative and may recommend that the defendant 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. For example, the NSI Act affords the court discretion to exclude participants from the proceedings under s 29(3) if the court considers that disclosure of information would be likely to prejudice national security. In addition, s 46 provides that it is an offence to disclose NSI to an uncleared person except in limited circumstances, such as where the disclosure has been approved by the Secretary or the disclosure takes place in compliance with conditions approved by the Secretary (see generally subs 46(c)), or under ‘permitted circumstances’.
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