fundam entos de la tiranía
EOLIDE TESALIA
IV. Las tiranías en la región del Istmo y en el Peloponeso
The INSLM has given consideration to whether special advocates would improve the fairness of the NSI Act. The question of whether special advocates should be introduced as a component of the NSI Act régime arises most acutely in relation to closed hearings required by subsecs 27(3) or 28(5).470 These hearings are voir dire hearings to determine whether or
not information must be disclosed (and if so, in what form) or why a witness should not be called to give evidence. While the defendant and their lawyers must be given the opportunity to make submissions to the court about the prosecutor’s non-disclosure argument471 their
ability to be meaningfully heard on why the information sought to be redacted or summarized should be put to the jury is hindered by subsec 29(3) of the NSI Act. This provides that the court may order that the defendant or their lawyers must not be present during any part of the hearing in which the prosecutor or Attorney-General’s representative gives details of the
468 Introduction to the Commonwealth Director of Public Prosecutions Statement on Prosecution Disclosure. The
Statement sets out the CDPP’s disclosure obligations, detailing the prosecution’s duty to disclose to the defence not only material which the prosecution intends to use to prove its case, but also disclosure of any other material gathered in the course of the investigation which may be of assistance to the defence. The Statement specifically notes that there are exceptions to the disclosure rules, including where material is immune from disclosure on public interest grounds (where a successful PII claim has been made) or where the prosecution must comply with the NSI Act in disclosing national security information.
469 R v H and C [2004] UKHL 3 (5 February 2004) per Lord Bingham of Cornhill, Lord Woolf, Lord Hope of
Craighead, Lord Walker of Gestingthorpe and Lord Carswell at [18]. The Court found that something less than full disclosure “may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial.” [18]
470 The INSLM respectfully disagrees with his Honour’s findings in Lodhi that subsec 29(2) is drafted sufficiently
broadly so as to allow a special defence counsel (special advocate) to take part in a hearing required under subsec 27(3) or 28(5). The INSLM does not consider that such special counsel could be considered “any legal representative of the defendant” within the meaning of para 29(2)(e) and therefore would not be a person who may be present at such a hearing. The introduction of special advocates for these hearings would require legislative amendment to the list of permitted persons who may be present.
information or gives information in arguing why the information should not be disclosed or the witness should not be called to give evidence.472
It is important to note that this discretionary power to exclude defendants and their lawyers only applies where the information will be disclosed and the disclosure would be likely to prejudice national security. PII claims have a long tradition of being successfully argued (in both open and closed court) with defence lawyers present. In this context, lawyers for both sides and the court have adopted measures to avoid the disclosure of the secret information without the need to prevent lawyers’ access to the PII hearing altogether. The INSLM sees no reason why such a practical approach would not continue to be applied to proceedings under the NSI Act as a way of preventing the information from being disclosed during the hearing and thus satisfying the court that the information would not be disclosed to the defendant or uncleared lawyer, obviating the need to order they not be present during the hearing. On the appointment of special counsel, the INSLM agrees with the observations of Lord Bingham in R v H and C:-
Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should
472 The court may order this where information, the subject of a non-disclosure or witness exclusion order, would be
disclosed to the defendant, or any legal representative of the defendant who doesn’t hold the required level of security clearance, and that the disclosure would be likely to prejudice national security.
not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant.473
Discussions with the Attorney-General’s Department and portfolio agencies revealed little appetite for special advocates, primarily due to the strength of the NSI Act processes for providing access to secret information compared to the immigration and civil contexts in which special advocates are used internationally.474
It is a fallacy to suggest a special advocate could represent the accused. The special advocate would be there to assist the court in determining issues related to the disclosure of national security information, specifically, whether the information should be disclosed and in what form (presenting arguments for example that the information is unlikely to prejudice national security or on its importance to the defence). However, the INSLM does not believe that a special advocate can provide the court with assistance to an extent that would remedy the fair trial issues that would arise where a defendant’s lawyer was excluded from the court during argument over whether potentially critical and exculpatory evidence should be adduced in a criminal proceeding.475 Seen in light of the safeguards in the NSI Act, and given
the fundamental problems associated with using special advocates to overcome fair trial deficiencies in criminal proceedings, the INSLM does not recommend the introduction of special advocates to the NSI Act régime.
Not least because of the COAG Report recommendation to opposite effect, the INSLM certainly does not suggest some expedient or technique of the kind attempted by the appointment of special advocates should not remain of active interest to those minded to improve the NSI Act. To the contrary, rather, the position so far as the INSLM sees it at present is that there does not appear to be sufficient improvement to the NSI Act, understood
473 [2004] UKHL 3 at [22].
474 Attorney-General’s Department Response to Question on Notice from the INSLM, 12th September 2013
475 In Harkat (2004) 125 C.R.R. (2d) 319, the Federal Court of Canada held that a judge had sufficient power and
flexibility to protect the rights of a person when reviewing the reasonableness of an immigration security certificate (affecting their right to remain in Canada) without the need to appoint an amicus. The court held that while the appointment of an officer to appear before the judge and point out possible weaknesses or inadequacies in the certificate had merit, the court held that on balance it would not be advisable to adopt such a mechanism. Central to the court’s reasoning was that the adversarial element afforded by such a procedure may be rather artificial and would make the whole process of reviewing security certificates unduly complex. The court didn’t consider the appointment of an amicus to be necessary to ensure a fair hearing and the court could properly exercise its jurisdiction without the appointment of an amicus. The court held that an experienced judge is capable of giving consideration to all relevant matters without the assistance of an amicus.
as discussed above, by imposing one or other of the current special advocate models available by examples in other jurisdictions.476
A not unimportant factor, in a country with a population as small as Australia’s,
notwithstanding our generous self-endowment with lawyers, is that a cadre of skilled special advocates would represent not only an expense to the public purse but, more importantly for the administration of criminal justice, a likely diminution in the availability of counsel for both prosecution and defence in terrorist proceedings.
Whether the defendant’s lawyers are present at the hearing or not, and regardless whether there are special advocates, it is and would remain the rôle of the prosecution to assist the court on issues of fairness arising under subsec 31(7) of the NSI Act. Reassuringly, officers of the Commonwealth Director of Public Prosecutions confirmed that this has been done in the past and will continue to be done in the future.