David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

The government does not support the repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004. Prior to the NSI Act, national security information could be protected from disclosure during court proceedings by relying on the common law doctrine of public interest immunity. Where a public interest immunity claim is successful, a case may be unable to proceed due to a lack of admissible evidence or because withholding information from a defendant may prevent them from mounting a full defence and receiving a fair trial. The NSI Act overcomes these difficulties by providing a framework for the disclosure, storage and handling of national security information. The NSI Act has been working effectively since it was created and the amendments in the bill will improve its practical operation.

As regards the question of whether the NSI Act infringes on a defendant’s right to a fair trial, it is the government’s view that the legislation does not interfere with the defendant’s right. This has been affirmed by recent court decisions. In R v Faheem Khalid Lodhi, the court held that subsection 31(8) of the NSI Act is consistent with the right to a fair trial. The court has an overriding discretion to order a stay of proceedings if it considers that the practical effect of excluding either certain information or an individual from proceedings would make the position of the parties unequal to the point where one party is prevented from adequately presenting their case.

With respect to amendments (36) and (37), the government opposes those amendments. The purpose of the notification requirements is so that the Attorney-General can determine whether he or she should issue a criminal non-disclosure or witness exclusion certificate under the act. The amendments in the bill will make it clear the notice obligations also apply if the prosecutor, defendant or defendant’s legal representative has applied for and been granted a subpoena and they know or believe that evidence to be produced or documents that are the subject of the subpoena would disclose national security information. For example, if a security or intelligence agency is subpoenaed for documents by the defendant’s legal representative, where that legal representative knows or believes those documents contain national security information, the representative must notify the Attorney-General of that knowledge or belief. The bill simply imposes an equivalent obligation to that which already applies to expected disclosure of security-sensitive information through witness testimony or documentary evidence that is disclosed during a proceeding.