Of Secret Trials and National Security

One hundred years ago, in July 1906, Alfred Dreyfus was finally pardoned. The affair which bears his name had lasted 12 years before Dreyfus was vindicated. He had been convicted of treason in a trial held in secret. The crucial evidence against him was not shown to him or his counsel. It was forged. It took 12 years for this gross violation of justice to be acknowledged and corrected.

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Two matters made the Dreyfus Affair possible: a secret trial using of concealed evidence; and racial/religious prejudice which ran so deep it blinded people to any concern about the quality of justice accorded to Dreyfus (who was a French Jew).

As to the second matter, Anti-Semitism may no longer exist in Australia in the virulent form which characterised Western Europe 100 years ago. However, there are groups who are sufficiently unpopular that most members of the general community do not regard their rights as important enough to deserve protection. Those unpopular groups include alleged paedophiles, alleged terrorists, Aborigines, people with mental disorders, and Muslims.

The Australian Government’s disregard for the basic rights of David Hicks and Mamdouh Habib illustrates the problem. In addition, John Howard watches unconcerned as Government members suggest that Muslim women shouldn’t wear hijab; that Muslims who don’t embrace Australian values should leave the country; that Muslims will soon swamp our population. All this against a background of constant reference to ‘Muslim terrorists’ creating the false sense that all terrorists are Muslim and therefore all Muslims are terrorists.

And as to the first matter, the possibility of secret trials already exists in Australia.

Division 105 of the Commonwealth Criminal Code provides that a member of the Federal Police may apply for a Preventative Detention Order (PDO), which will result in a person being jailed for up to 14 days without having been charged with, much less convicted of, any offence. The PDO is obtained in the absence of the person. When taken into custody, the person is given a copy of the PDO and a ‘summary of the grounds’ on which it was made but the evidence which the police used is not made available.

In addition, the summary of the grounds need not include any information which is likely to prejudice national security within the meaning of the National Security Information (Criminal and Civil Proceedings) Act (2004) the NSI Act.

Division 104 of the Commonwealth Criminal Code allows a senior member of the Federal Police to obtain a Control Order (CO), which can confine a person to a single address for up to 12 months, without telephone or internet access. COs are obtained in secret and in the absence of the person. When the person is served with the CO, they are given a summary of the grounds on which it was made, but again not the evidence.

In this way, a person’s freedom of movement can be grossly interfered with for up to 12 months without them knowing the evidence on which the CO was obtained. Again, the summary of the grounds on which the CO was obtained need not include any information which is likely to prejudice national security.

The NSI Act, therefore, looms large. It is perhaps the most draconian piece of legislation ever passed by an Australian Parliament in peace time. As originally passed in 2004, it was limited to criminal proceedings. In 2005, it was amended to extend to civil proceedings.

The Act says that, if a party to a court case believes that they will disclose, in the case, information that relates to national security, or the party intends to call a witness who would disclose such information, then the party must notify the Commonwealth Attorney-General, the opposite party and the court.

The court is then required to adjourn the until the Attorney-General acts on the matter. If the Attorney-General chooses, they may sign a ‘conclusive certificate’ to the effect that the proposed evidence or witness, would be likely to prejudice Australia’s national security interests. The certificate must then be provided to the court which must then hold a hearing to decide whether to prevent the evidence or witness from being called.

During that hearing, the court must be closed the Act authorises the court to exclude both the relevant party and their counsel. In deciding the balance between the interests of a fair trial and national security interests, the NSI Act directs the court to give the greatest weight to the Attorney-General’s certificate.

These provisions of the NSI Act are immediately alarming to anyone who understands the essential elements of a fair trial. They are all the more alarming when it is understood that ‘likely to prejudice national security’ is defined to mean that there is a ‘real, and not merely remote, possibility that the disclosure will prejudice national security’; and ‘national security’ is defined as: ‘Australia’s defence, security, international relations or law enforcement interests.’

This definition is rendered astonishingly broad when ‘law enforcement interests’ includes:

avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;

protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;

the protection and safety of informants and of persons associated with informants;

ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.

By reference to this definition, Australia’s national security is affected by each of the following things, for example:

evidence that a CIA operative extracted a confession by use of torture;

any evidence which tends to reveal operational details of the CIA, Interpol, the FBI, the Australian Federal Police, the Egyptian Police, the American authorities at Guantánamo Bay, etc;

evidence which tends to show the use of torture or other inhumane interrogation techniques by any law enforcement agency.

Thanks to Cathy Wilcox

These provisions are likely to have powerful effect in several types of case.

First, in cases where people are charged with terrorist offences, confessions may be received but evidence that torture or other improper practices were used to obtain the confession may be excluded, in the name of national security.

Second, where a person is the subject of a Preventative Detention Order or a Control Order and they seek judicial review of the order.

Third, in cases where a person’s rights have been interfered with because of an adverse security assessment by ASIO, it may prove impossible to have access to the material on which ASIO acted and thus impossible to challenge its accuracy.

There may be examples of the second type, but we are not allowed to know. The secrecy surrounding COs and PDOs means that, in effect, the general public will not learn of them until many years have passed.

However examples of the third type can alre
ady be identified. An adverse security assessment from ASIO can result in a person’s passport being cancelled, or their job application being refused, or (for foreign visitors) a visa being refused or cancelled. In those circumstances, getting access to the material which provided the foundation for ASIO’s assessment may prove difficult or impossible.

Cancellation of a passport following an adverse ASIO security assessment may be challenged in the Administrative Appeals Tribunal (AAT). The AAT Act contains provisions enabling the Attorney-General to grant a certificate which, in substance, prevents the applicant and their lawyer from being present in the Tribunal while certain evidence is given and submissions made. Here is the text of one such certificate, issued early in 2006:

I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia hereby certify that disclosure of the contents of the documents described in the schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security.

I further certify that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security.

As the responsible Minister I do not consent to a person representing the applicant being present when evidence described above is adduced and such submissions are made

In those short paragraphs, the Attorney-General produces the conditions which led to the false conviction of Alfred Dreyfus.

Faced with such a certificate, the applicant who seeks to have his passport restored will face an impossible burden in knowing what evidence must be called, because he will not know the full nature of the case against him.

Fair trials are one of the basic assumptions of a democracy. It seems a pity that we have abandoned the possibility of fair trials, ostensibly to save democracy from terrorists. These measures suggest that the greatest danger to democracy in Australia is the Federal Government. (In case this is seen to be an attack on the Howard Government, it is worth noting that the Labor Opposition did not oppose the measures.)

We have been alert long enough: it is time to be alarmed.