While a joint parliamentary committee has unanimously recommended the passage of the government’s National Anti-Corruption Commission (NACC) bill, subject to minor amendments, the bill contains the potential for a future attorney-general to prevent the revelation of details of corruption in intelligence services or in any area affecting foreign policy or national security.
Sections 235 and 236 of the bill enable an attorney-general to prevent the disclosure of material that would “prejudice the security, defence or international relations of Australia”, prejudice Commonwealth-state relations, cabinet information, information on defence, intelligence and law enforcement operations, or reveal information provided confidentially by another government.
The power is similar to that under part three of the National Security Information (Criminal and Civil Proceedings) Act 2004, which enables an attorney-general to issue a certificate blocking the disclosure in federal criminal proceedings of national security information. Christian Porter used that power to keep details of the bugging of the Timor-Leste cabinet by ASIS and the Howard government secret. Porter also sought to use section 31 of the NSI Act to have Bernard Collaery’s case heard in secret, but was rebuffed by the ACT Court of Appeal.
There’s a recognition of these kinds of problems in the new bill. For both sections, there’s a caveat:
To avoid doubt, causing no more than embarrassment or prejudice to a person’s reputation is not a ground covered…
That, of course, was at the heart of the prosecutions of Witness K and Collaery and the vexatious manner in which it was conducted: an attempt to protect a long list of people, beginning with John Howard and Alexander Downer, and continuing through senior intelligence officials, bureaucrats and political advisers, some of whom later became MPs and ministers themselves, from the revelation of their appalling conduct in relation to Timor-Leste.
Dreyfus and his drafters deserve acknowledgement for an effort to limit the capacity for misuse of the national security and international relations exemptions of the kind that was blatantly abused by the Coalition.
An attorney-general could also prevent the NACC from obtaining information in the first place — but that is limited to information provided to the government by a foreign government in confidence under a legally-binding international agreement.
A spokesperson for the attorney-general pointed out that the certificate would not prevent the commissioner from publishing a report about the corruption. But the proposed sections give ample power to a future attorney-general to invoke 235 and 236 as a means to obscure the actions of, for example, a government that orders ASIS to spy on a friendly state for the purposes of helping a fossil fuel company that later offers employment to some of the perpetrators.
In that case, an attorney-general could argue the issue is not one of embarrassment of the perpetrators, but of damage to the national interest, the revelation of espionage tradecraft and operational details and the inner workings of the national security committee of cabinet — not to mention damage to our relations with the victim state.
That is, Dreyfus’ current drafting assumes that future attorneys-general will be committed to the national interest and be willing to do the right thing, when Australia’s recent experience is of attorneys-generals prepared to wage legal war on those who embarrass political allies and the intelligence services, despite clear evidence of significant and deeply damaging misconduct.
“The attorney-general’s ability to issue certificates will also be subject to strict legal safeguards,” Dreyfus’ spokesperson noted — not just the “embarrassment” clause but that the decision would be appealable.
Collaery fears that the power could be used in the future to hamper investigations — including into the government misconduct that led to his and Witness K’s prosecution. “The proposed integrity commission will itself decide the extent to which inquiries may be retrospective,” he told Crikey. “If the current Coalition leadership gets back into power it can either again use similar NSI powers or sections 235 and 236 to effectively halt any inquiry into the events that lost and are still losing Timor-Leste and Australia billions of dollars.”
He points out that the NSI Act provisions can also “be used in any prosecution arising from an integrity commission recommendation to prosecute. Until the bill and the NSI Act are reformed we are no way forward.”
Any system that relies on good people doing the right thing will eventually break down, because eventually someone different will arrive and not do the right thing. The system itself must be capable of resisting such people. Dreyfus’ mechanism, despite its attempts to address how the Coalition abused the NSI Act powers, risks exactly this mistake.
