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Palmer, Andrew --- "Investigating and Prosecuting Terrorism: The Counter-Terrorism Legislation and the Law of Evidence" [2004] UNSWLawJl 27; (2004) 27(2) UNSW Law Journal 373

[*] Barrister at Law, Victoria; Associate Professor, Law School, University of Melbourne. The writing of this article was enormously helped by the able research assistance of Lucie O’Brien. I also benefited from the helpful comments of Brian Walters SC and Dr Jeremy Gans, my colleagues respectively at the Bar and at the Law School. Finally, the article was reviewed by three anonymous referees, each of whom made a number of important suggestions for improvement, many of which I adopted outright. Of course, responsibility for any errors, oversights or misconceptions remains mine and mine alone.

[1] In particular the Australian Security Intelligence Organisation Act 1979 (Cth), as amended by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 (Cth), and the Australian Security Intelligence Organisation Legislation Amendment Act 2003 (Cth).

[2] Including the National Security Information (Criminal Proceedings) Bill 2004 (Cth), which is largely based on proposals contained in Australian Law Reform Commission, Protecting Classified and Security Sensitive Information, Discussion Paper No 67 (2004).

[3] I will not be discussing the non-forensic uses that may be made of information gathered through this process. Cf, eg, Brian Walters, ‘The War on Terror: Labor’s Capitulation to the ASIO Legislation’ (2003) 12 Dissent 48, 50, discussing the possibility that information which a person was compelled to give might be used to identify targets for extra-judicial killing.

[4] See Australian Security Intelligence Organisation Act 1979 (Cth) s 34NA, which prohibits the questioning of persons under 16 years of age, and creates special rules for persons between the ages of 16 and 18.

[5] Australian Security Intelligence Organisation Act 1979 (Cth) s 34C(1).

[6] Australian Security Intelligence Organisation Act 1979 (Cth) s 34C(3).

[7] A ‘terrorism offence’ is defined in s 4 of the ASIO Act as an offence against div 72 (International Terrorist Activities Using Explosive or Lethal Devices) or pt 5.3 (Terrorism) of the Criminal Code (Cth).

[8] Australian Security Intelligence Organisation Act 1979 (Cth) s 34C(4).

[9] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(1).

[10] See Walters, above n 3, 50.

[11] Ibid 51.

[12] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(5)(a).

[13] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(2)(a)–(b).

[14] Australian Security Intelligence Organisation Act 1979 (Cth) s 34F(1)–(3).

[15] Australian Security Intelligence Organisation Act 1979 (Cth) s 34F(4)(a).

[16] Crimes Act 1914 (Cth) s 23D.

[17] Or 22 hours where the suspect is under 18 or is an Aboriginal or Torres Strait Islander: which rather suggests that any special protection offered these groups is effectively obliterated by the possible extension time of 20 hours.

[18] Australian Security Intelligence Organisation Act 1979 (Cth) s 34C(2)(c)–(d).

[19] Australian Security Intelligence Organisation Act 1979 (Cth) s 34C(3D).

[20] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(1A).

[21] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(1A)(b)(ii).

[22] See Duncan Kerr, ‘Australia’s Legislative Response to Terrorism’ (Speech delivered at the Criminal Bar Association of Victoria, Melbourne, 26 August 2003) 4, 11, referring to the letter from the Law Council of Australia to Prime Minister John Howard, 25 June 2003.

[23] Australian Security Intelligence Organisation Act 1979 (Cth) s 34HAA.

[24] Australian Security Intelligence Organisation Act 1979 (Cth) ss 34L–M.

[25] Australian Security Intelligence Organisation Act 1979 (Cth) s 34J(2).

[26] Australian Security Intelligence Organisation Act 1979 (Cth) s 34NB.

[27] Kerr, above n 22, 8.

[28] While the protocol seems to assume that a separate cell is a positive, this could equally be described as mandatory solitary confinement.

[29] See discussion below in Part II(C)(2).

[30] Australian Security Intelligence Organisation Act 1979 (Cth) s 34HB(7).

[31] Australian Security Intelligence Organisation Act 1979 (Cth) s 34G(8).

[32] The significance of this in terms of the admissibility of evidence is discussed at below in Part II(B)(2).

[33] Australian Security Intelligence Organisation Act 1979 (Cth) s 34(3), (5), (6) respectively.

[34] See Australian Crime Commission Act 2002 (Cth) s 30; and Australian Securities and Investment Commission Act 2001 (Cth) ss 58, 63; and especially 68.

[35] Australian Security Intelligence Organisation Act 1979 (Cth) ss 34G(4), (7), respectively.

[36] The imposition of evidential burdens in relation to defence is a feature these offences share with other offences created by the counter-terrorism legislation including Criminal Code ss 101.4 (‘Possessing Things Connected with Terrorist Acts’), 101.5 (‘Collecting or Making Documents Likely to Facilitate Terrorist Acts’), 102.3 (‘Membership of a Terrorist Organisation’), 102.6 (‘Getting Funds to or from a Terrorist Organisation’).

[37] See Criminal Code s 13.3.

[38] See discussion above in Part II(A)(1).

[39] Australian Security Intelligence Organisation Act 1979 (Cth) s 34F(8).

[40] For an excellent analysis of the difficulties likely to be experienced by lawyers involved in advising detained subjects, see Kerr, above n 22.

[41] Australian Security Intelligence Organisation Act 1979 (Cth) s 34C(3B).

[42] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(2)(b).

[43] Australian Security Intelligence Organisation Act 1979 (Cth) s 34D(4).

[44] See Australian Security Intelligence Organisation Act 1979 (Cth) ss 34C(3B), 34D(4A).

[45] Australian Security Intelligence Organisation Act 1979 (Cth) s 34TA(4).

[46] See Australian Security Intelligence Organisation Act 1979 (Cth) s 34F(1)(d), (8), (9)(a).

[47] Australian Security Intelligence Organisation Act 1979 (Cth) s 34TB(1).

[48] Australian Security Intelligence Organisation Act 1979 (Cth) s 34U(3).

[49] Australian Security Intelligence Organisation Act 1979 (Cth) s 34U(4).

[50] Australian Security Intelligence Organisation Act 1979 (Cth) s 34U(5).

[51] Australian Security Intelligence Organisation Act 1979 (Cth) s 34U(9).

[52] Australian Security Intelligence Organisation Act 1979 (Cth) s 34U(2).

[53] See Calcraft v Guest [1898] UKLawRpKQB 46; [1898] 1 QB 759.

[54] Suzanne McNicol, The Law of Privilege (1992) 83. For further discussion of this line of authority, see also 25–6 and 83–94; J D Heydon, Cross on Evidence (6th ed, 2000) [25025]–[25030].

[55] See Uniform Evidence Legislation ss 118, 119.

[56] [1913] UKLawRpCh 80; [1913] 2 Ch 469.

[57] At common law, see Heydon, above n 54, [25255]; for the legislative response, see Uniform Evidence Legislation is concerned, see ss 118, 119.

[58] Apart from those referred to below, see also Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation (1997) 42 NSWLR 351, 394 (Smart AJA); Gotha City v Sotheby ’s [1997] EWCA Civ 1897; [1998] 1 WLR 114, 122.

[59] [1976] VicRp 56; [1976] VR 547.

[60] [1887] NSWLawRp 28; (1887) 8 LR (NSW) 132.

[61] Braham [1976] VicRp 56; [1976] VR 547, 548.

[62] Ibid 549.

[63] Ibid 549.

[64] [2003] NSWSC 1117.

[65] The phrase ‘confidential document’ is given a very similar definition.

[66] ALRC, Evidence, Interim Report No 26 (1985) vol 1, [879], quoted in R v Sharp [2003] NSWSC 1117 [32].

[67] R v Sharp [2003] NSWSC 1117, [36]–[37].

[68] See discussion above in Part II(A)(6).

[69] Uniform Evidence Legislation s 128(7)(b).

[70] In Uniform Evidence Legislation jurisdictions, it is arguable – but in this author’s view doubtful – that the subject’s answers might satisfy the requirements of one or more of the exceptions contained in s 65, provided that the subject was unavailable to testify in the proceedings. In particular, the answers could conceivably satisfy the requirements of the exceptions for representations made under a duty (s 65(2)(a)), for representations against the interests of the person who made them (s 65(2)(d)) and for representations made in circumstances that make it highly probable that the representation is reliable (s 65(2)(c)). There is no common law equivalent to the third of these exceptions. While there are common law equivalents to the other two exceptions, they would only apply if the subject was dead; and both are narrower than their Uniform Evidence Legislation equivalents. See Jeremy Gans and Andrew Palmer, Australian Principles of Evidence (2004) 199, 204–6.

[71] See Gans and Palmer, above n 70, 197–8.

[72] Uniform Evidence Legislation ss 60, 136.

[73] See discussion above in Part II(A)(4).

[74] In relation to Federal Court challenges to the legality of warrants and so on, see Kerr, above n 22, 10–11.

[75] Section 138(3)(f) of the Uniform Evidence Legislation specifically requires a court to take into account a breach of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Nevertheless, the subject will still have to persuade the court that a provision of the Covenant was breached, and that the evidence ought to be excluded as a consequence of this.

[76] [1978] HCA 22; (1978) 141 CLR 54.

[77] For the same reason, there is no point in considering whether a statement made by a subject in response to compulsory questioning can properly be regarded as ‘voluntary’, voluntariness being a condition of admissibility for confessions in criminal proceedings.

[78] See Gans and Palmer, above n 70, 426–9.

[79] The various legislative proposals discussed in this part are dealt with in more detail by Patrick Emerton, ‘Conviction without Evidence: A Disturbing Trend in Australia’s “Anti-Terrorism” Laws’ (2004) 4 Queensland University of Technology Law and Justice Journal (forthcoming).

[80] See ALRC, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report No 98 (2004) 5. The final Report only became publicly available after the writing of this article was completed.

[81] [2001] ACTSC 115, [30].

[82] Brendan Nicholson, ‘Balance of Justice and National Security, or Blindfold for the Courts?’, The Age (Melbourne), 5 June 2004, 7.

[83] See R v Lappas [2001] ACTSC 115.

[84] ALRC, Protecting Classified and Security Sensitive Information, Background Paper No 8 (2003).

[85] ALRC, above n 2.

[86] 18 USC Appendix (1980).

[87] ALRC, above n 2, [10.1]. See also [10.2].

[88] Ibid [10.4].

[89] See Second Reading Speech, National Security Information (Criminal Proceedings) Bill 2004 (Cth), House of Representatives, 27 May 2004, (Philip Ruddock, Attorney-General); Explanatory Memorandum, National Security Information (Criminal Proceedings) Bill 2004 (Cth).

[90] At the time of writing the Bill had been introduced in the House of Representatives and referred to the Senate Legal and Constitutional Legislation Committee. The Committee’s Report, recommending a number of amendments to the Bill, was handed down in August 2004: Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 (2004).

[91] National Security Information (Criminal Proceedings) Bill 2004 (Cth) cl 22; ALRC, above n 2, [10.5]; and ALRC, above n 80, 21, Recommendation 11.6. The Bill also imposes notice requirements during the course of the trial: cl 23. Under the ALRC’s proposed Act, the parties would subsequently be required to file lists of all classified or sensitive national security information that they anticipate might be used in the proceedings: ALRC, above n 2, [10.9].

[92] See, eg, Criminal Procedure Act 1986 (NSW) ss 134–51, the Crimes (Criminal Trials) Act 1999 (Vic), and the Criminal Code (WA) s 611C(1), referred to in ALRC, above n 2, [10.20]–[10.36].

[93] National Security Information (Criminal Proceedings) Bill 2004 (Cth) cl 24; see also ALRC, above n 2, [10.32].

[94] National Security Information (Criminal Proceedings) Bill 2004 (Cth) cl 25(1).

[95] Clause 34 of the Bill contains provisions relating to security clearances for defence lawyers. These provisions have been strongly objected to by the Law Council of Australia: Submission 8 to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, discussed in ALRC, above n 90. A lawyer without a security clearance is obviously much more likely to be excluded from the closed hearing than one who does, so the Bill effectively contains heavy incentives to encourage a defendant to engage a lawyer who has a security clearance.

[96] These provisions have also been strongly objected to by the Law Council of Australia: see ALRC, above n 90, [3.52].

[97] National Security Information (Criminal Proceedings) Bill 2004 (Cth) cl 25(1).

[98] ALRC, above n 2, [10.32].

[99] Cf Alister v R [1984] HCA 85; (1984) 154 CLR 404.

[100] ALRC, above n 2, [10.32].

[101] See ibid [10.12].

[102] These proposals are not included in the National Security Information (Criminal Proceedings) Bill 2004.

[103] See, eg, Statement of Professor David Cole, Georgetown University Law Centre on the Use of Secret Evidence in Immigration Proceedings and HR 2121 Before the House Judiciary Committee (2000), referred to in ALRC, above n 90, 378–9.

[104] ALRC, above n 2, [9.8]. See also ALRC, above n 95, 379; Submission 11 to ALRC, Inquiry into Protecting Classified and Security Sensitive Information (2004) (Law Council of Australia).

[105] ALRC, above n 2, [10.38]; and ALRC, above n 95, 481.

[106] See ALRC, above n 2, [10.136]. Because the Bill only applies to federal criminal proceedings, it does not address this issue.

[107] ALRC, above n 95, 482.

[108] ALRC, above n 2, [10.39].

[109] Ibid [10.40]; ALRC, above n 95, 495–6.

[110] ALRC, above n 2, [10.137].