The Australian common law protects national security information from disclosure in a number of ways – including the application of the exclusionary evidentiary principle of public interest immunity, requiring the balancing of the public interest in restricting harm to the nation or the public service by disclosing the information, with the public interest in requiring all relevant information to be adduced (see Sankey v Whitlam (1978) 142 CLR 1, 38 per Gibbs A-CJ of the High Court of Australia, as he then was), and the granting of orders controlling the flow of information outside the court. The limitations of the common law were exposed in the Australian Capital Territory case of R v Lappas v Dowling ([2001] ACTSC 115, [8]-[15] per Gray J), in which the Crown made a successful claim for immunity from disclosure of national security information, but was precluded from adducing a shell or redacted version of the immune documents in proof of guilt.

This case was decided in 2001, at a time when the challenges posed by terrorist acts were becoming increasingly acute. In 2003, the Federal Attorney-General referred the issue of protection of national security information to the Australian Law Reform Commission, requiring the consideration and evaluation of existing and potential regulatory measures designed to protect classified information or security sensitive material in the course of criminal investigations and proceedings. In May 2004, immediately prior to the handing down of the Australian Law Reform Commission’s report, the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Procedures) (Consequential Amendments) Bill 2004 were introduced into Australian Federal Parliament, providing a regime for protection of national security information in criminal proceedings, and, controversially, including a closed hearing procedure which could be conducted in the absence of the defendant, and their criminal lawyer (if that legal representative did not have an appropriate security clearance issued by the federal executive government).

Following an inquiry by the Legal and Constitutional Affairs Committee of the Senate, the National Security Information (Criminal Proceedings) Act 2004 (Cth) was enacted, later becoming the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Australian criminal law provides extraordinary powers of investigation and control that may be sought from the courts by prosecutorial agencies in relation to terrorism suspects, under both Commonwealth, and state or territory law, the latter given that the state and territories’ referral of constitutional power was expressly subject to the concurrent operation of any law of the state or territory. The orders which can be made by courts include orders for preventative detention, control orders, and special police powers. These procedures are ancillary to federal criminal proceedings, in that they apply to persons under suspicion of involvement in activity – it is therefore the parts of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) applying to civil proceedings that may apply, as supplemented by secrecy provisions in the relevant state and territory Acts. Indeed, many of the orders available, by their very nature, are sought ex parte, though they may be subject to review by a court at the application of the subject to the order, hence the (perceived) need for the extension of the protection of sensitive information. The investigative orders are related and relevant to the prosecution of terrorist acts.

Author Bio: Dr Martine Marich is a criminal lawyer practising in Melbourne Australia and is the only Australian lawyer to be both an accredited specialist in criminal law (Victoria) and have a doctorate in law. She also lectures in criminal law. See http://www.martinemarich.com.au

Category: Legal
Keywords: Criminal lawyer, Criminal lawyers, Criminal lawyers Melbourne