Constitutionality of the NSI Act
In R v Faheem Khalid Lodhi, Part 3 of the NSI Act was challenged on constitutional grounds. Part 3 contains the NSI Act provisions on pre-trial conferences,non-disclosure certificates, notification procedures and closed hearings in the context of federal criminal proceedings In an intervention by media groups it was argued that procedures set out in Part 3 were unconstitutional because they breached the implied freedom of political communication. It was also argued that the NSI Act required State and Territory Supreme Courts to exercise Commonwealth judicial power in a manner inconsistent with their character.
Justice Whealy in the Supreme Court of New South Wales rejected these arguments and upheld the constitutional validity of the NSI Act. His Honour, notwithstanding the enactment of Part 3, held that questions as to the admissibility of evidence must still be determined in the ordinary way by the trial judge. His Honour observed that the Court’s ordinary powers to restrict access to hearings and exclude evidence have not been criticised on constitutional grounds. (These powers are found in the Crimes Act 1914, section 85B and the Criminal Code Act 1995, section 93.2.). He was also satisfied that the Court retains unfettered control over the trial to ensure the accused is not tried unfairly.
On 20 December 2007 the New South Wales Court of Criminal Appeal rejected an appeal by Mr Lodhi against his conviction and sentence in which he argued, in part, that subsection 31(8) of the NSI Act is unconstitutional (Faheem Khalid Lodhi v Regina  NSWCCA 360).
Common law doctrine of public interest immunity
Prior to the NSI Act, the common law doctrine of public interest immunity (PII) was the main mechanism by which the Commonwealth could seek to protect national security information from disclosure during court proceedings. PII allows a court to exclude evidence the admission of which would be injurious to the public interest.
There are a number of difficulties associated with reliance upon PII to protect national security information. Where a PII claim is successful, a case may be unable to proceed due to lack of admissible evidence or there may be difficulties in forming a full defence. Alternatively, a court may rule against a claim for PII and order the disclosure of national security information in open court, in which case there is a risk of adverse consequences for Australia’s national security. The Commonwealth may then be faced with a difficult choice between discontinuing the prosecution and risking prejudice to national security from the disclosure of the information. At a practical level, PII also has the disadvantage that confidentiality and security sensitive issues may arise unexpectedly, even sometimes after an inappropriate disclosure has occurred, and claims for PII will therefore often fall to be determined at very short notice, to the inconvenience of both the Court and the parties.
Section 130 of the Evidence Act 1995 (Cth) is the statutory equivalent of PII. It operates in much the same way as the common law principle, and as such suffers much the same difficulties in relation to the use of national security information in court proceedings. In addition to the problems outlined above, section 130 does not apply to all jurisdictions, and its application is limited to the trial stage of a proceeding.
The NSI Act, Regulations and Requirements overcome these difficulties by providing a comprehensive regulatory framework for the disclosure, storage, handling and destruction of all national security information involved in criminal or civil proceedings, whether in documentary or oral form. The NSI Act applies from the pre hearing stages through to completion of appellate proceedings, thereby enabling the parties to identify and bring forward any national security information issues as early as practicable. It is important to note that the NSI Act, consistent with ALRC recommendations, does not exclude nor impede a court’s power to uphold claims for PII, to make orders under s 130 of the Evidence Act 1995 or to make other protective orders such as closure of court and non publication orders.
Comparative legislation in the US, UK and Canada
In developing its legislative regime for the protection of national security information in court proceedings, the Australian Government gave careful consideration to the statutory approaches taken in the United States, United Kingdom and Canada.
United States and Canada:
Statutory procedures for the protection of national security information have operated in the US and Canada for more than 20 years. The Classified Information Procedures Act (the US CIPA) was introduced in 1980 in response to the problem of ‘greymail’, whereby defendants threatened to reveal classified information unless prosecutions were dropped or curtailed. In Canada, provisions dealing with the use of national security information in court proceedings are contained in the Canada Evidence Act (R.S., 1985, c. C-5). Both the US CIPA and the Canada Evidence Act place an obligation on criminal defendants to notify the Government if they expect to adduce national security information as evidence . The Acts also require that the nature and admissibility of such evidence be determined in closed hearings. Under the US CIPA, if a court determines that certain national security information is admissible, the US Government may seek orders allowing a redacted version, a summary or an admission of relevant facts to be adduced in place of the original information. In Canada, the first step is for the Attorney General to decide whether the national security information may be disclosed. This decision may then be challenged before a court, and if the national security information is found to be admissible the court may authorise the replacement of the national security information with a summary or a written admission of facts. In the event that a court refuses to allow a summary or admission of relevant facts to be substituted for the national security information, the Attorney General may issue a certificate prohibiting disclosure of the information.
Unlike the US and Canada, the UK does not have a single piece of legislation which deals comprehensively with the use of national security information in court proceedings. The public interest immunity principle is codified in the Criminal Procedures and Investigation Act 1996, while other procedures relating to the protection of national security information in criminal proceedings may be found in the Official Secrets Act 1920. Some of these procedures have been incorporated into the national security information Act. For instance, s 8(4) of the Official Secrets Act allows the prosecution to apply for all or part of the public to be excluded from the proceedings against a person for an offence under the Act ‘on the ground that the publication of any evidence to be given or any statement to be made in the course of the proceedings would be prejudicial to the national safety’. The court may also prohibit the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings.
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