In 2003, Australian federal Parliament referred the issue of protection of national security information to the Australian Law Reform Commission (‘ALRC’). The referral was in broad terms, including that the ALRC evaluate existing mechanisms preventing the unnecessary disclosure of classified material or security sensitive material in the course of criminal or other official investigations, and ‘consider the need for regulatory measures designed to protect classified information or security sensitive material in the course of criminal investigations and proceedings.’ The ALRC published its Report Keeping Secrets: The Protection of Classified and Security Sensitive Information in May 2004; a chapter of recommendations related to the enactment of a National Security Information Procedures Act ‘to deal specifically and solely with the protection of classified and sensitive national security information in court, tribunal and similar proceedings.’
The National Security Information (Criminal Proceedings) Bill 2004 (Cth) and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 (Cth), were initially introduced into Parliament five days before the Report was due to be provided to the Attorney-General. In June 2004, the Bills were referred by the Senate to the Senate Committee for inquiry and report. Notwithstanding the Senate Committee’s recommendations that the courts’ discretion under the proposed legislation should be amplified in order for the legislation to survive a constitutional challenge, the Bills were reintroduced in November 2004 with modest amendments and commenced operation as the National Security Information (Criminal Proceedings) Act 2004 (Cth) (‘the Commonwealth Act’) and the National Security Information (Criminal Proceedings) (Consequential Amendments) Act 2004 (Cth), on 11 January 2005.
The decision to introduce the Bills five days before the ALRC report was due to be delivered to the Attorney-General is curious, as the ALRC was only able to note the provisions of the Bill without evaluating and comparing those provisions with its own recommendations. The ALRC noted that the Bills’ focus (ie federal criminal proceedings) was narrower than the ALRC’s Terms of Reference. That focus, however, was squarely within its Terms of Reference and was covered by the ALRC in both its 2003 Background Paper, and its 2004 Discussion Paper. The Act, at least, was consistent with the ALRC’s recommendation that an Act be enacted that dealt solely with the relevant processes. The Senate Committee, commenting upon the National Security Information (Criminal Proceedings) Bill 2004, reported that the ALRC had advised it that the Commonwealth Government did not consult it during the drafting and preparation of the Bill.
The ALRC Report is comprehensive. There were substantial differences between the recommendations made by the ALRC that dealt with the parts of the proposed Act dealing with federal criminal proceedings, and the Commonwealth Act.
The Commonwealth Act was amended to confirm that it applied to proceedings initiated before its commencement if the prosecutor gives notice in writing to the defendant and the court that the Act applies to the proceeding (though only to the parts of the proceeding that take place after the notice is given). On 3 August 2005 it was retitled the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) and its ambit was extended to cover civil proceedings as well as federal criminal proceedings.
Dr Martine Marich is a Criminal lawyer practising in Melbourne, Australia and is Australia’s only criminal lawyer to be both an accredited specialist in criminal law (Victoria) and hold a doctorate in law. She also lectures in criminal law. See http://martinemarich.com.au