House of Representatives

National Security Information Legislation Amendment Bill 2005

Second Reading Speech

Mr Ruddock (Berowra - Attorney-General)

I move:

That this bill be now read a second time.

As part of its fundamental role to protect Australia's national security, the government has sought to strengthen the protections for security sensitive information.

These protections were significantly enhanced earlier this year with the commencement of the National Security Information (Criminal Proceedings) Act 2004.

This act applies to federal criminal proceedings to protect information that relates to, or whose disclosure may affect, national security.

The aim of the act is to facilitate the prosecution of an offence without prejudicing national security and the rights of the defendant to a fair trial.

This bill extends these protections to include certain civil proceedings.

It has become apparent that security sensitive information may, and in fact does, arise in civil proceedings, including, in particular, accident compensation and family law proceedings.

As with prosecutions for criminal offences, it is essential that parties can use security sensitive information in these cases without jeopardising Australia's national security.

The bill introduces a number of measures to strengthen the protections in civil proceedings for information that is likely to prejudice our national security.

It broadly adopts the same procedure that applies to federal criminal proceedings under the principal act, but with some necessary departures to account for the distinctive features of a civil proceeding.

As with criminal proceedings, the bill will only apply when notice is given to parties to a proceeding.

Once it applies, the bill enables information to be disclosed during a civil proceeding in an edited or summarised form.

It also provides for closed hearings to consider the disclosure of information that may prejudice national security.

Only parties and their legal representatives who possess security clearances to an appropriate level may attend these closed hearings.

This raises a significant point of difference with the principal act.

The bill departs from the procedure for criminal proceedings by enabling the parties, not just their legal representatives, to obtain security clearances to an appropriate level.

Unlike criminal proceedings, parties to civil proceedings come from all walks of life and many may qualify for, or already have, security clearances.

In addition, many parties will represent themselves in civil proceedings.

In recognition of the additional financial burden involved in engaging a security cleared legal representative to attend a closed hearing, the government has agreed that a self-represented litigant involved in a civil matter under Commonwealth law who is refused a security clearance at the appropriate level would be eligible to apply for financial assistance under the non-statutory special circumstances scheme.

If approved, this would provide financial assistance for the legal costs and related expenses associated with engaging a legal representative to attend the closed hearing. It is my expectation that such legal assistance in those circumstances would be available.

While the bill changes the way that information that may affect our national security is used in civil proceedings, it also seeks to uphold the interests of the parties to the proceeding.

The bill makes it clear that courts, in making an order in relation to the disclosure of information or a witness, must consider whether the exclusion of information or a witness would have a substantial adverse effect on the substantive hearing in the proceeding.

It also ensures that a court can stay a proceeding where it would have such an effect, even if the court had previously found otherwise.

The bill requires the court to give reasons to the parties and their legal representatives for a decision to make an order to admit, exclude or redact information, or to exclude a witness.

The court must also make a record of the closed hearing and provide this record to security cleared parties.

These measures demonstrate that the government has yet again struck the right balance between protecting national security and protecting the rights of parties.

It was also recommended by the Australian Law Reform Commission that this protection should be provided in civil proceedings, and that is one of the additional reasons that we are legislating in this form.

I present the explanatory memorandum.