Security Information in Proceedings Legislation Bill

Members, we come now to Part 2, which is the debate on clauses 8 to 28, “Procedures to protect security information in proceedings”. The question is that Part 2 stand part.

Thank you very much, Madam Chair. Just a couple within this part from me at least. I know Todd Muller is looking forward to taking a couple of calls on it as well. He’s told me how interesting he’s found the debate so far. I think the only thing that could possibly make it more interesting was if he were to join in.

💬 Hon Member: Go, Todd!

💬 Arena Williams: Come on, Todd. Let’s go, woohoo!

Well, members of the Justice Committee are encouraging. I think they should look in the mirror.

But, anyway, seeing as I’ve currently got the dubious honour of being on my feet to talk about Part 2 of this Security Information in Proceedings Legislation Bill, I am interested to know about the role of the special advocate. It’s a key feature of the legislation that a person is going to be appointed as a “special advocate”, and there are ways that that takes place, and the legislation sets out certain things about what the special advocates will do, of course, and a little bit about what kind of person they should be.

My concern is that it’s quite a specialised kind of role. We’re going to need people who are knowledgeable in the law generally, because a wide range of kinds of matters could come up for the person who happens to have some sort of interesting security situation in their background. Ideally, special advocates will be quite experienced. In any given matter, it will be important that they don’t have a conflict of interest; that’s always the case for lawyers. Obviously, you don’t want someone standing up and appearing who went to law school with the judge or has some other kind of, you know—I was going to say cosy relationship. That’s probably not only disgracefully informal but also probably understates the seriousness of this idea that we have to have people who, in this particular instance, aren’t actually even appointed by the person who’s the subject of the proceedings as their lawyer. This person is imposed. And I don’t mean that rudely, but they’ll be imposed on the person. This is your person who’s going to make sure that your legal rights are not derogated from, they’re the champion, they’re the trusted adviser, and they’re the legal representative, and that’s a very serious thing. So we need to have good people, people who are appropriate for the role of special advocate, appointed to such.

I just really hope that we have enough such people in our justice system, in our legal profession, who haven’t been burnt out or found another area of practice that they want to hold, and so on, such that they’re not available for this important task, to the extent that it’s possible. I know the Minister doesn’t have a magic wand to wave over the profession, but, you know, it is a challenging time at the moment for the legal profession, particularly with courts under a huge amount of strain generally, huge amount of stress, burnout—all these issues are familiar to us as people who take an interest in the justice system in general. Particularly with relation to the special advocate then, I ask the Minister: is she confident that we will have enough such people available to fill these roles, to be on the panel, and so forth?

Madam Chair, thank you for the opportunity just to respond to some of the insightful questions from my colleague Chris Penk. The role of the special advocate, I think, will be quite critical to the operational aspects of these procedures. But what I’ll just make a brief note on is that it’s not a novel solution. So, you know, we’ve seen, for example, the Immigration Act and the Telecommunications (Interception Capability and Security) Act—they make express provision for the use of special advocates. And, in these areas, prior, the court’s also relied on its inherent jurisdiction, in some cases, to appoint special advocates, with the consent of parties, to lessen the risk of closed-court procedures undermining the affected party’s right to natural justice. The only other brief note I’ll make there is that this is something that the Law Commission recommended.

With all those caveats that you rightly raise around capacity, competency, etc., there is a process as to who can be appointed as a special advocate, as you rightly pointed to, in clause 17. One thing I will note, though, is that the—and it might not have been as clear on a brief read. I make no comment as to the member’s observations here, but the non-Crown party, as opposed to having a special advocate imposed upon them, can choose their special advocate. So they can nominate a lawyer from a panel; that’s sort of set out there at clause 17(2). They are provided with a list, so that list will have a range of special advocates that the court deems appropriate, and then, from that grouping, the individual can therefore choose who would be appropriate to be their special advocate and represented on the panel. But there is some element of choice there.

Thank you, Madam Chair. I think the Minister Hon Kiritapu Allan is fair to point out that it wouldn’t be a complete Hobson’s choice in terms of an advocate being imposed—and I didn’t meant to use that word perhaps as bluntly as I did—but, nevertheless, a person must choose from the panel. So it’s still a limited choice, so I think the Minister’s allowing me to make that point with that reasonable characterisation that there’s an element of choice—not quite “any colour you like as long as it’s black”, but, nevertheless, we are limiting rights. So, you know, to acknowledge the importance of the advocate role and the desirability of having sufficient of them—apart from anything else, that’s encouraging to hear that the Government’s turned its collective mind to that.

I did have at least one other question in relation to Part 2, and it’s to do with clause 12. So this is the “Obligation to give [the] court, special advocate, and special adviser access to security information”. So this is a scenario where the Crown is obliged to give the authorised court “access to any security information at issue in the specified proceeding.” So, more or less, there’s an obligation of disclosure. Of course, the Crown, which is the party that’s, effectively, going to be making a case against the non-Crown party, has got to provide access to that security information. My question is: what’s the consequence if that doesn’t happen or, probably in more real terms, if it happens quite late in proceedings?

The reason I ask is it’s not just a hypothetical, theoretical point for the sake of filling in a committee of the whole House stage, my understanding or, certainly, my knowledge—based on discussions with defence lawyers at the moment in general proceedings, so outside the security realm—is that it can be the case that the Crown can—for example, police prosecutors—disclose quite late in the piece information that they hold that’s relevant, to which the defendant or accused is entitled. And if the lawyer for that person gets the information very much last minute but the trial proceeds anyway, then that can put them at quite a disadvantage, actually. So, notwithstanding that, the technical obligation—yes, the information has been disclosed and, you know, let’s have the trial now.

I guess what I’m really sort of angling for is some sort of indication from the Minister, to the extent she can give it, yes—and we’re talking about the court procedures and the executive doesn’t run those, rightly so—that she can provide some comfort or some direction about how she envisages the policy to play out if it’s the case that the Crown provides the information that they’re required to provide, but quite late in the piece—I would like to think that the non-Crown party wouldn’t be disadvantaged by that.

Oh, this is actually a very interesting question, which goes to some of the broader issues that are occurring within the courts right now, which the member rightly raises. It’s outside the scope of this bill, but I note that the work that’s been done through the Criminal Process Improvement Programme (CPIP) at the moment is directly targeted at looking at these types of issues around disclosure and when non-Crown parties are getting the relevant information etc. And I think that there’s a bit of room to run there, and there’s some learnings that will be taken from the CPIP trial, if you will, that will probably address and align, I think, with some of the observations you’ve heard from some of your defence legal colleagues.

Those issues to the side for the second, with respect to clause 12 of the bill and the obligations that it imposes, you’re right: the Crown must provide access to the information. So where the information is relevant, the Crown must always disclose to a non-Crown party. I know that your question was more around the timeliness and others, but, as I think we’re all collectively aware, there are no hard-wired time frames for disclosure currently, across these types of proceedings. But I do think, as I’ve sort of alluded to, there is some scope there and some learnings that we’re taking from the CPIP process, which I think may have an impact here as well.

Thank you, Madam Chair. My final question under Part 2 is in relation to clause 28, “Agreed general practices and procedures”. I thought this was interesting just to highlight that what we’ve got here is a situation where the Chief Justice and the Attorney-General are being asked, I think, in essence, to agree on general practices and procedures that might be necessary to implement special procedures and ensure that security information is protected at all times. It’s just interesting to me because normally, of course, in legislation, an obligation is framed as an obligation—you know, it would be, for example, the Chief Justice and the Attorney-General must, as soon as practicable after the commencement of this section, agree on any general practices, and so on. Here we are just saying “may”. I presume that’s sort of a deference to the courts; in this place, we shouldn’t be instructing the Chief Justice on how to do her job—currently her job. But, nevertheless, presumably the Minister would agree with me that it’s going to be absolutely central to the operation of this law that general practices and procedures are necessary to ensure the protection of security information.

Of course, again, that’s at the heart of the whole regime, the idea that there is such thing as security information, that there are such things as national interests in relation to security, and that’s protecting individuals who give us this information or intelligence, and it’s to protect our reputation and our interoperability with Five Eyes partners and others. So any assurance the Minister can give about her expectation, framed, of course, in the language that’s appropriate for the comity between Parliament, the executive, and the courts.

Thank you, Madam Chair. Absolutely correct—the language in this provision is structured to acknowledge comity and to avoid any inference that the executive would be directing the Chief Justice to undertake any particular action. So, as is appropriate, the agreement will be struck, and, as the provision sets out, on a basis that is as soon as practicable.

Part 2 agreed to.

Part 3 Security information in civil proceedings