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Walker-Munro, Brendan --- "'You Don't Need to Know': The Australian Experience of Criminal Intelligence as Evidence" [2021] CanLawRw 12; (2021) 18(2) Canberra Law Review 36

“You Don’t Need to Know”: The Australian Experience of Criminal Intelligence as Evidence

Brendan Walker-Munro[*]

Criminal intelligence, the synthesis of information and trained analysis to inform decision-making, has formed the cornerstone of policing and national security investigations for the last century. However, since 9/11 the traditional lines between “spies and cops” has become blurred, and Federal and State laws have become more permissive of the use of criminal intelligence as evidence in proceedings, often in circumstances where the parties are not allowed to view the evidence, test its strength or even know it exists. This article intends to engage with this paradigm, not only to expose its weaknesses but also to identify positivist mechanisms where such material – usually probative as to the facts in issue – might be used in ways that do not offend constitutional or common law principles.


In Australia, the Australian Federal Police (AFP) are considered the “major instrument of Commonwealth law enforcement”, with an ambit to enforce Commonwealth criminal laws and protect Australia’s national interests both domestically and internationally.[1] Yet over the past ten years this scope of the AFP’s investigative and prosecutorial activities has expanded dramatically. Following the terrorist attacks of 9/11, the AFP took centre stage for much of the national security reform that occurred to consolidate counter-terrorism powers.[2] On 20 December 2017, Parliament established the Department of Home Affairs, bringing together the AFP, the Australian Border Force (ABF), Australian Criminal Intelligence Commission (ACIC), the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Australian Security Intelligence Organisation (ASIO) into a single “super-department”.[3] This new body has investigative authority over a wide swathe of criminal conduct including counter-terrorism and money laundering, foreign interference and espionage, significant fraud, cybercrime, Customs, drugs, transnational organised crime and child exploitation.[4] State and Territory Police forces equally are experiencing expansions and deepening of their powers and remit in the investigation of ever-broader classes of crime.[5] Concomitant with this expansion of jurisdiction has been the growth in the use of “criminal intelligence” as a form of policing product. As will be explored later, the term criminal intelligence is one of contention, differing as to whether it is defined by statute or by policy. Criminal intelligence has, by Byzantine loops and knee-jerk policy positions, become embedded as a form of “secret evidence” that may be relied upon by Courts and Tribunals in numerous Australian jurisdictions to make a host of decisions across the domains of occupational regulation, security, employment and asset confiscation schemes.[6] Yet the interjurisdictional treatment of “secret evidence” under statute and common law has only been the subject of limited examination.

The purpose of this article is, in four parts, to add to existing scholarship on the increase in secrecy in Australia since 9/11, the intelligence/evidence overlap, and the growing migration of national security paradigms into other legal spheres. For my purposes, “secret evidence” is defined as the use of (predominantly) criminal intelligence in furtherance of a party’s case where that evidence is not supplied as a matter of right to the contradicting party, that party’s legal representatives, or the public at large. Part 1 will examine the frameworks in Commonwealth and State legislation that permit the use of criminal intelligence as secret evidence in proceedings. In Part 2, we will identify some of the challenges and dangers under the current Australian jurisprudential experience of criminal intelligence as secret evidence. Part 3 will benchmark Australia’s experience with that of the United Kingdom. I will conclude with Part 4 by suggesting some policy and legal proposals that might the Courts to make better and more robust decisions on secret evidence.

I: The Australian experience of secrecy

The concept of an open and transparent proceeding is integral to the fundamental legal tradition of fairness and equality.[7] Not only does a fundamental requirement of proceedings involve the disclosure to the parties of all evidence intended to be relied upon in reaching a judicial decision, but each party must be vested with rights to test and confront all of that evidence.[8] The idea that a Court might, on the application of an organ of the State, entertain legal argument and the filing of evidence in the absence of any of the parties (especially the one whom the proceedings may be about) is ‘antithetical to that tradition’.[9]

This is not to say that the traditional tests of relevance and admissibility reflected in the uniform Evidence Acts have not been modified to preclude information of a sensitive nature from reaching an open courtroom. Law enforcement and intelligence agencies have always had recourse to the public interest immunity (PII) to resist production of material that, although relevant and admissible, would be ‘injurious to the public interest’.[10] Cabinet papers[11], the names of police informers[12], and the records of security operations[13] have all been recognised as falling within the scope of the immunity.

Nor is PII solely limited in Australia to the common law. Section 130 of the uniform Evidence Acts[14] enshrines the test in Sankey to exclude admitting into evidence something that relates to matters of state[15], unless the public interest in admission and the administration of justice outweighs the public interest in preserving the secrecy or confidentiality of the evidence because of its potential damage to the nation or public service.[16] Irrespective of the scope of the immunity, the Court may, in determining whether or not the immunity has accrued, may examine the material, but only to determine whether the public interest attaches.[17] If the objection is not upheld, and the evidence is relevant and otherwise admissible, there is no scope for the evidence to be further withheld from the parties.[18]

A second statutory doctrine of secrecy was then created by the passing of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). This Act modified many of the rules of evidence relating to federal criminal and civil proceedings, defining “national security information” (NSI) as any information that related to national security, or the disclosure of which might affect national security.[19] The term “national security” is likewise broad, and covers Australia’s interests in defence, security, international relations and law enforcement.[20] The law enforcement interests include specific reference to criminal intelligence: the interests of the Commonwealth are in ‘avoiding disruption to national and international efforts relating to... criminal intelligence’, ‘protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence’ and ‘protection and safety of informants and of persons associated with informants’.[21]

The process of dealing with NSI will feature later in this article, but for present purposes an obligation is placed on the parties to notify the Attorney-General if national security information may be revealed in a criminal or civil proceeding.[22] The Attorney-General must then determine whether such a disclosure might prejudice national security. The Attorney-General may then proceed to intervene and be heard in the proceedings[23], issue a non-disclosure certificate[24], prevent witnesses from answering questions[25] or otherwise affect various aspects of the admission of evidence in an open Court to all of the parties.[26]

Despite these inherent interferences with the long common law traditions of open courts[27] (and the cluster of human rights associated with them[28]), there now appears to be an increasing reliance in Commonwealth and State law involving a third statutory doctrine of secret evidence: criminal intelligence. The mechanics of this species of secret evidence are illustrated by reference to the Serious and Organised Crime (Control) Act 2009 (SA).[29] The Act permits the Commissioner of Police to make application to the Supreme Court to make a declaration that ‘members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity’ and ‘the organisation represents a risk to public safety and order’, or for control orders for individuals to prevent consorting.[30] These application may be supported by the admission of criminal intelligence, being ‘information relating to actual or suspected criminal activity...the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety’.[31] The Commissioner of Police is responsible for making a determination whether or not such information is indeed criminal intelligence, a determination that is not reviewable and may indeed be made retrospectively (in the case of public safety orders).[32] The Court also has various duties associated with receiving and handling this evidence, such as maintaining confidentiality of the intelligence as well as hearing arguments and receiving evidence in the absence of the parties.[33]

Nor are these provisions solely the province of South Australian jurisprudence. Table One shows a listing of all Australian legislation that currently refers to, or deals with, the various uses of secret evidence.

Table 1: Australian legislation containing references to “criminal intelligence”

Criminal Code (Cth), Div 104
Narcotics Drugs Act 1967 (Cth), ss 4 and 15M
Public Interests Disclosure Act 2013 (Cth), s 41
Criminal Code, s 86
Judicial Review Act 1991 (Qld), Schedule 2
Racing Integrity Act 2016 (Qld), ss 53A, 83, 101, 212 and 296 and Schedule 1
Security Providers Act 1993 (Qld), ss 11, 13, 48 and 71, and Schedule 1
Tattoo Industry Act 2013 (Qld), ss 12, 34, 35C, 61, 75, and Schedule 1
Tow Truck Act 1973 (Qld), ss 4C, 21A, 36B, 36C and 50, and Schedule 2
Weapons Act 1990 (Qld), ss 10B, 10C, 15, 18, 19, 28, 29, 30, 142A and 194, and Schedule 2
New South Wales
Crimes (Criminal Organisation Control) Act 2012 (NSW), Part 3B
Drug Supply Prohibition Order Pilot Scheme Act 2020 (NSW), s 10
Law Enforcement Conduct Commission 2016 (NSW), s 189
National Disability Insurance Scheme (Worker Checks) Act 2016 (NSW), ss 30, 33 and 44, and Schedule 1
Pawnbrokers and Second-Hand Dealers 1996 (NSW), ss 8A(2A) and 9
Tattoo Parlours Act 2012 (NSW), Part 3, Division 3
Australian Capital Territory
Northern Territory
Registration to Work with Vulnerable People Act 2013 (TAS), ss 3, 28, 30, 50, 51 and 53
Security and Investigation Agents Act 2002 (TAS), ss 8 and 37
South Australia
Firearms Act 2015 (SA), s 4, 15, 20, 24, 30, 33, 44, 47, 48 and 49
Serious Organised Crime (Control) Act 2008 (SA), ss 3, 5A, 7, 9, 29, 39Y and 42A
Serious Organised Crime (Unexplained Wealth) 2009 (SA), ss 3, 6, 34 and 35
Western Australia
Freedom of Information Act 1992 (WA), Schedules 1 and 2

Table One shows us that the largest proportion of Acts that purport to deal with criminal intelligence as a form of secret evidence are in the NSW, Queensland and South Australian jurisdictions – perhaps unsurprising given these States were the key battlegrounds for policymakers and law enforcers struggling to contain outlaw motorcycle groups.[34] Western Australia and Victoria have the least, followed by the ACT and NT, though all of these states have had demonstrated issues controlling organised crime in the last decade.[35]

Criminal intelligence in Australian jurisprudence is also distinguishable from the concept of PII and NSI on four bases:

The use of the evidence: PII and NSI resist admission of otherwise relevant and admissible evidence[36], forcing Courts to make a decision on ‘less than the whole of the relevant materials’.[37] Criminal intelligence on the other hand is often relied on to directly inform decision-makers and withheld from all of the parties[38];

The role of the Court: in PII and NSI cases the role of the Court is exclusionary, determining potential admissibility of the evidence by determining the truth of possible damage to the public interest[39] or Australia’s national security.[40] If the objection is upheld ‘they are not available to either [party] and the court may not use them. There is no question of unfairness or inequality’.[41] But for criminal intelligence, the Court’s discretion is inclusionary – it must not only determine if the evidence is criminal intelligence, but also whether it may be admitted, and the purposes and limits for such admission.[42] If it does so, the Court will be statute barred from making that material available to anyone[43];

The nature of the evidence: PII may attach to items or classes of evidence that may or may not go facts in issue, but otherwise have contents, or are within a class of documents, that offend the PII principle. NSI are likewise of a “class”, generally being documents or oral evidence from the security agencies of Australia.[44] On the other hand, criminal intelligence – as the ‘insights and understanding obtained through analysis of available information and data’ – essentially constitutes the opinion of the analyst and/or hearsay of the informer and would, but for the enabling Acts, be more limited in its admission[45];

Nature of proceedings: Claims for PII are usually determined on a certificate or affidavit evidence from the public officer or Minister having responsibility or authority over the evidence that is the subject of the claim.[46] Criminal intelligence proceedings involve the State producing the evidence to the Court in camera and in the absence of the other parties, and seeking that the Court make a decision on that material without the other parties viewing, commenting or testing it. Though NSI proceedings adopt in camera hearings, the parties are at least seized of awareness of the NSI and may be heard and/or make submissions in respect of the Attorney-General’s assertions as to that NSI.[47]

Thus we can say with some confidence that, although criminal intelligence might be evidence or a class of evidence to which PII and/or NSI could properly attach, the current statutory treatment of criminal intelligence is a wholly new paradigm, supported by a statutory framework that sits ill-at-odds with the Court’s traditional approaches to public and adversarial battles informed by all of the evidence. Challenges to strike down the principles of these Acts as unconstitutional (usually by reference to Kable[48] or Kirk[49]) have been mostly unsuccessful.[50] Ananian-Walsh summed up secret evidence thus:

The cases set up three necessary conditions for secret evidence to be acceptable in court proceedings. Secret evidence is permitted if the court: has the capacity to reassess the classification of the information; is not being forced to take particular steps with respect to the evidence; and retains sufficient discretion to potentially counteract any unfairness (for example, by attributing less weight to the evidence or ordering a stay of proceedings).[51]

The above exposition of the current state of Commonwealth and State law does not readily lend itself to a dissection of the challenges facing the use of criminal intelligence. This is because the enabling Acts often create a process enabling receipt of the evidence by the Court to prove certain facts in issue, but without notifying the other parties the evidence exists or permitting them to examine it.[52]

II: The challenges of criminal intelligence


The first of the challenges to any meaningful scholarly and policy debate about criminal intelligence is that there exists no consistent statutory definition between the Commonwealth, States and Territories. Take for example the definitions as they are applied in policy and statute. The South Australian Act (as discussed earlier) defines criminal intelligence as ‘... information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety.’[53] However the definition used by the ACIC – Australia’s frontline criminal intelligence agency – is vastly different: ‘... insights and understanding obtained through analysis of available information and data on complex offending patterns, serious organised crime groups, networks or syndicates and individuals involved in various types of criminal activities.’[54]

While both definitions draw out the connection between actual or potential criminal offending and the identities of offenders, the contrast of these definitions demonstrates one of the serious misunderstandings in law enforcement: confusing or conflating the disparate and overlapping concepts of information and intelligence.[55] Information (sometimes called data) is raw input – detail about a person’s whereabouts, phone calls, or online browser history; whereas intelligence is the result of a reasonable and informed analysis and processing, drawing inferences from that data that supports or guides an investigative decision or outcome.[56] Yet despite the yawning chasm separating these two concepts, both information[57] and intelligence[58] are referred to as a “national asset” by the Commonwealth.

At common law, the two concepts of information and intelligence are equally murky. The High Court considers information according to its ordinary meaning:

[w]ithout necessary relation to a recipient: that which inheres in or is represented by a particular arrangement, sequence, or set, that may be stored in, transferred by, and responded to by inanimate things’.[59]

This does not stop the Commonwealth and States from legislating the term information without a degree of sufficient precision.[60] Further, although the definition of criminal intelligence in the State “serious crime” Acts are the same across Queensland, ACT, NSW, SA and Victoria[61], these definitions do not always seem to flow into the Acts that have been amended to rely on criminal intelligence for decision-making.. Take for example the following further definitions of criminal intelligence: ‘in relation to a person, means any information about the person’s connection with or involvement in criminal activity’[62]; or even ‘information that relates to criminal activities and is obtained from ... the Commissioner of Police; or ... any other entity, or body, responsible for the enforcement of laws of the Commonwealth or of this or any other State or of a Territory’.[63] In South Australia, numerous Acts permit the Commissioner of Police to “classify” evidence as criminal intelligence through a non-reviewable decision-making process, at which point all the protections of criminal intelligence will attach.[64] Ironically, there are finally various laws across Australian jurisdictions which rely on criminal intelligence as evidence and yet have no definition.[65]

These concerns around nomenclature are not simply abstract, academic or theoretical, and may have profound outcomes on the parties that are the subject of criminal intelligence that may be faulty, patchy, incomplete or simply wrong. For some, they may be blocked from undertaking otherwise legitimate or lawful professional activities or businesses[66], or face deportation from Australia[67] for reasons they will never be allowed to know. In no other case is the danger of flawed criminal intelligence more profound in the case of Dr Haneef – arrested, charged, stripped of a visa and subjected to significant pre-trial detention in circumstances where ASIO’s own security assessments did not deem him a security threat.[68]

The roots of criminal intelligence provisions

As we have already covered, the second difficulty with criminal intelligence is that its current statutory and common law treatment differs significantly to that of NSI and PII claims because they derive from substantially different legal traditions. It is to be remembered that PII involves only a balancing between the public interest in protecting the Executive and the public interest in the open administration of justice.[69] This protection derives from the idea that ‘proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions’.[70]

The protection of NSI, though seemingly capable of being a sub-set of PII, essentially ‘tilts the balance’ in favour of the protection of that material.[71] Though the effect of the enabling legislation may place a hand on the scale and affect the Court’s assessment of NSI, this does not make it unconstitutional or affect the integrity of the Court conducting the assessment.[72] The protection of NSI was deemed necessary because ‘[t]he existing rules of evidence and procedure do not provide adequate protection for information that relates to, or the disclosure of which may affect, national security’.[73] However this suggestion – given the lengthy history of successful PII claims – is perhaps disingenuous; instead, it is perhaps more correct to suggest that NSI was introduced to permit prosecutions (and subsequently civil suits) for national security issues to proceed apace:

A court which has found that sensitive security related information should not be disclosed will have an alternative to simply dismissing the charge. It will be able to admit documents and information in a redacted form that protects national security but preserves the essence of the information. Consequently, the Commonwealth will no longer have to choose between risking the disclosure of sensitive information that relates to national security and protecting this information by abandoning the prosecution, even when the prosecution relates to alleged crimes that could have grave consequences for our national security.[74]

The roots requiring the protection of criminal intelligence derive, coincidentally, from the two classes of information deemed expedient to be covered by the protection in the WA and NT definitions of criminal intelligence: that is, a.) the protection of sources of intelligence as well as existing or future investigations; and b.) the general secrecy of Police methodologies and tactics. Police informers have been protected by a long line of authority on PII[75], subject to the qualification that informers’ identities and evidence must be disclosed if it could tend to show the innocence of the accused.[76] And the secrecy of methodologies and tactics is perhaps not that surprising, as these in turn appear to have derived from patent cases (which also prohibited publication of certain matters in decisions).[77] Thus criminal intelligence provisions could, on one viewing, be seen as codifying the common law rules of PII.[78]

However much criminal intelligence that feeds into investigations is the result of a process of information receipt, digestion, analysis and formulation – it is as much an outcome of art than mere “information” in the terms referred by the High Court.[79] Thus what is unique about criminal intelligence material is a capacity to be not only opinion[80] or hearsay, but also suggestive (even probative) of certain tendencies in circumstances where the usual restriction on admitting or challenging such evidence is unavailable. This makes the various purposes to which criminal intelligence might be put a shaky proposition on which to base judicial or administrative decision-making.

Use for which criminal intelligence may be put as evidence

We come then to the principal danger attendant with using criminal intelligence as evidence; that is, the possibility that untested opinion, hearsay and tendency evidence may be deemed admissible to and considered by the Court in circumstances where the respondent has no capacity to view or challenge the material, or even know such material exists. Though speaking of the difficulties in dealing with PII claims, the dicta of Hampel J is instructive:

Establishment of a legitimate forensic purpose, or apparent relevance is ... a difficult exercise for the defence, as they do not have access to the material over which Public Interest Immunity is claimed. The defence cannot refer to the actual content of the documents when submitting there is a legitimate forensic purpose in seeking access to the documents sought, or that they have apparent relevance to an issue in the trial. The defence is, of necessity, restricted to broad or general assertions about legitimate forensic purpose or apparent relevance.[81]

Mason J (as he then was) made point irresistibly clear in Re JRL; Ex CPL[82], saying ‘It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.’ It was for this reason – that the provisions inter alia permitting the use of criminal intelligence were ‘unnecessary, excessive and disproportionate’[83] – the Queensland industry regulation framework no longer allows for criminal intelligence to be considered as evidence in making administrative decisions.[84] These amendments were made pursuant to the Serious and Organised Crime Legislation Amendment Act 2016 (Qld), in turn following a Taskforce report into the efficiency of the legislative measures to combat outlaw motorcycle groups.[85]

Of course, Mason J’s comments in Re JRL; Ex CPL[86] were prefaced with the words ‘unless Parliament otherwise provides’, and ironically, just prior to the repeal of the Queensland legislation the High Court in Pompano[87] settled the issue that Parliament can (and in that case did) exercise a legitimate source of constitutional power to allow for criminal intelligence to be utilised secretly.[88] So the substantive challenge to criminal intelligence as evidence remains; as Churches puts it, the effect of the line of High Court authority[89] is the creation of a constitutionally valid, legislative framework where ‘evidence that formerly would not have been available to the affected party, pursuant to public interest immunity, on which basis it was not utilised by the court, may now still not be available to the affected party, but can be used by the court’ (emphasis in the original).[90]

The third doctrine of secrecy and “curial” fairness

It follows logically that where a party cannot use, contest or even be aware of evidence that may go against their position or interests, the principles of open justice and procedural fairness become compromised.[91] Such compromises are not unknown to Australian jurisprudence; for example, in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[92] the High Court described that the Court, in dealing with PII claims, may ‘mould their procedures to accommodate’ the immunity. It was not until Gypsy Jokers[93] that the High Court has since applied this same moulding principle to the acceptance and consideration by a Court of criminal intelligence evidence. In vitiating the usual procedural safeguards, Australia’s highest court appears to have formulated the concept of “curial fairness”[94] as a novel safeguard for the interests of the opposing parties.

Curial fairness appears distilled as a synthesis of the Court’s inherent jurisdiction[95] and an interpretation of the statutory provisions permitting the admission of criminal intelligence.[96] Reliance on statutory authority seems absolutely necessary – as was laid bare in Cameron v Cole[97], the Court’s inherent jurisdiction may be altered by clear statutory intention.[98] However where the statute makes such an alteration, the principles of statutory interpretation also require that any operation of a power conferred by statute (i.e. to receive secret evidence) be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power (i.e. those to whom the secret evidence may refer).[99] There is also the danger that a respondent, keen to defend their position, overcompensates or makes admissions against their interests to defend or counter evidence they don’t know or understand.[100] So whilst procedural fairness may be extinguished, especially in circumstances invoking doctrines of secrecy[101], there must be some form of protection exercised in respect of the respondent’s interests.

In cases involving criminal intelligence therefore, the Court has stood as necessary protector of the rights of respondents, by invoking the Court’s inherent jurisdiction and viewing the material said to constitute criminal intelligence. There appear several good policy reasons for this.

One aspect of the necessity is because of the risk that Police may misclassify criminal intelligence (benignly or negligently) and thus deny the respondent crucial information relevant to their proceedings.[102] Another is the fact that secret evidence may be constitutionally valid but still offends the justiciable principles at the heart of the common law.[103] A third aspect allows the Court, having viewed the material and confirmed the nature of its secrecy and potential injury to the public interest, may then undertake its usual function of attributing what weight (if any) to assign to the criminal intelligence evidence.[104] Fourthly and lastly, Pompano[105] stands as clear authority that the Court retains control of its procedures to protect the respondent’s interest, whether by staying the proceedings indefinitely or rejecting any use of the evidence for want of relevance or credibility.

These various aspects contributing to the role of the Court in Australia’s third doctrine of secrecy have corollaries in international jurisprudence. This article will now examine the United Kingdom’s experience with handling secret criminal intelligence as evidence, through the evolution of its closed material procedures (CMP) and the use of special advocates.

III: The United Kingdom’s experiences with CMPs

The origin of CMPs is an evolution from the enactment of the Special Immigration Appeals Commission (SIAC), a body constituted to consider appeals of migration cases decided by the Home Secretary on the grounds of national security.[106] SIAC proceedings were held ex parte, in camera and involved the appointment of a special advocate for the appellant with an appropriate security clearance to consider national security information.[107] In SIAC proceedings special advocates fulfil two functions: to test the executive’s case for non-disclosure (the disclosure function) and to represent the interests of the person in the proceedings (the representative function).[108] Despite widespread criticism in both academia and media[109] the enactment of the Prevention of Terrorism Act 2005 (UK) and the Counter-Terrorism Act 2008 (UK) sought to permit Courts to hold in camera hearings to accept and consider law enforcement or security service information which could not be provided to the accused in criminal proceedings.[110]

The conceptual vehicle of CMPs and special advocates existing as a creature of both statute and the Court’s inherent jurisdiction to control its own civil proceedings was challenged in in Al Rawi.[111] There, the UK Supreme Court ruled that CMPs might have a legitimate basis in determining PII claims, but could not be used in civil proceedings without a specific statutory authority. Indeed as Lord Dyson put it ‘subject to certain exceptions and statutory qualifications, the right to be confronted by one's accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that.’[112]

Lord Dyson was not alone in his criticism of the CMP and special advocates. The European Court of Human Rights determined that even the appointment of a special advocate is insufficient protection, as the accused does not know the nature of the allegations against them and so cannot instruct the advocate appropriately.[113] In Tariq v Home Office[114] the UK Supreme Court held that a CMP did not violate the human rights of the appellant because ‘the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined’ and held that the CMP system was both necessary and contained sufficient safeguards. Despite this, the judiciary considered that even with statutory authority the rule of law required disclosure of sufficient information about the allegations against them.[115]

This is ultimately because the special advocate’s role derives not from a protection of the accused’s interests, but a protection of the public interest, i.e. to verify that the non-disclosure by the State to the other party has been exercised appropriately. Given this is the root of the relevant principle for CMPs, it is unsurprising that special advocates cannot adduce evidence to rebut the contents of the intelligence material.[116] Nor are the provisions of CMPs immutable – in Kennedy[117] a hearing was conducted entirely in the absence of both the parties and the special advocate, where the Court heard evidence of secret surveillance and law enforcement activities. The House of Lords called these arrangements ‘Kafkaesque’[118] and ‘the stuff of nightmares’.[119]

Later, the UK Supreme Court held that in considering a CMP, a Court needed to ensure the excluded party received as much information as possible about the closed evidence, efforts should be made by the parties to minimise the extent of closed material, and that the court should consider whether it is possible to avoid a closed hearing.[120] Even with these conditions, the majority of the court viewed CMPs with ‘distaste and concern’.[121]

Sweeping away these concerns of the Supreme Court, UK Parliament subsequently passed the Justice and Security Act 2013 (UK) (“the JSA”) which specifically authorised the use of CMPs and special advocates in civil proceedings, and codified the earlier judgments allowing the use of CMPs in lower Tribunals and Courts.[122] In the years since the passing of the JSA, CMPs have been adopted in other proceedings with varying levels of judicial support and criticism.[123] CMPs have, most recently, even been used in interlocutory proceedings where the State has resisted orders for production of applications for search warrants.[124]

IV: What can Australia learn?

Quite separate from the challenges outlined by the Supreme Court, House of Lords and European Courts of Human Rights, the CMP and special advocates frameworks face further unique difficulties in being “copied across” to the Australian legislative context, even in circumstances where CMPs have already been found to be valid exercise of the Court’s inherent jurisdiction.[125] As Martin[126] summarised special advocates cannot adduce contradictory evidence against criminal intelligence, find difficulties in government objections to disclosure (such as by PII), and limitations on the ordinarily free and frank discussions that could be had between special advocates and their “clients”.[127] Even the provisions for special advocates in Canada, held up as ‘the [law’s] best means at our disposal’[128] in handling secret evidence, have not been capable of solving these complexities.[129]

Rather than a special advocate existing as a rule of common law, the statutes themselves might be modified to insert a statutory officer to protect the rights and interests of the accused or respondent. In Queensland this mechanism was typified by the Criminal Organisation Public Interest Monitor (COPIM).[130] The COPIM was authorised as a ‘statutory amicus curiae’ to monitor and file submissions in respect of proposed declarations and control orders.[131] In particular, the role of the COPIM was to ‘to test, and make submissions to the court about, the appropriateness and validity of the monitored application’.[132] Similarly, the Independent National Security Legislation Monitor (INSLM) is an independent statutory officer with functions to review Australia’s national security and counter-terrorism legislation.[133]

Yet both the COPIM and INSLM are not an exemplar of the kind necessary to mitigate issues with the special advocate system. Firstly, statutory office holders may be subject to conditions on the terms of their appointment, somewhat diluting their independence.[134] Secondly, the functions of the COPIM are monitoring in nature – whilst this might discharge the “disclosure function”[135] of special advocates, it fails to deliver a representative function. In effect the COPIM protected the public interest residing in not disclosing criminal intelligence, rather than the public interest in protecting the rights of the accused or respondent.[136] Thirdly, in practice the COPIM was not the protection the legislature may have hoped it would be – it ‘... doubtless adds to the integrity of the process. But it cannot cure a want of procedural fairness’.[137]

Roach discussed other options available under the Canadian system, including reviews of intelligence declarations by Canada’s intelligence watchdog (Security Intelligence Review Committee) and disclosing secret evidence to counsel for the affected party on undertakings that the counsel will not share that evidence with his or own client.[138] This approach was criticised in the UK Court of Appeal in R v Davis[139] as requiring an unacceptable severance of the duty owed by defence counsel to their clients; however, some scholars disagree, suggesting that counsel’s duty to the Court is superior to that of the client, and that counsel will strive to preserve the secrecy on pains of serious professional misconduct, financial penalty or even imprisonment.[140]

The review of criminal intelligence by a watchdog or ombudsman type body does carry some force in an Australian context. Both the Commonwealth Ombudsman and Inspector-General of Intelligence and Security have significant powers of inspection and review[141], coupled with a lengthy history of frank and robust engagement with contentious matters of national policy.[142] Either these bodies could receive criminal intelligence monitoring functions or a “criminal intelligence monitor” could be established as a separate statutory office holder.

In either event, the monitoring powers must be exercisable in a manner that is explicitly not subject to Ministerial direction.[143] These powers should be exercised by a quorum of qualified individuals, including at least one current or former Judge of a Court[144] but also a former Police officer of senior rank with experience in the handling and treatment of criminal intelligence and a legal practitioner with specific experience in civil rights or PII/NSI claims. These areas of expertise are important in bridging the divide of what constitutes criminal intelligence between legalistic/formal definitions and those employed “at the coalface” of intelligence operations.[145] This body should also be given the specific, statutory function of protecting the common law rights of the accused or respondent (as opposed to preserving the public interest in the secrecy of the criminal intelligence information).

When criminal intelligence is sought to be used in a proceeding, the statute should require a notice to be given to this criminal intelligence monitor, who may then appear as amicus curiae in the proceeding, including any parts held in camera or ex parte. The criminal intelligence monitor must be capable of being served all of the information provided to the Court, subject to any anonymization of informant identities (such as was the case with the COPIM[146]). The person leading the criminal intelligence evidence should also be compelled to give the criminal intelligence monitor a short statement explaining what aspects of the evidence offend the public interest against disclosure. In making submissions and appearing before the Court in respect of criminal intelligence evidence, the criminal intelligence monitor must have a statutory requirement to prioritise its “representative function” over the “disclosure function” [147] to protect the rights of the parties that cannot view that evidence. The criminal intelligence monitor should also – subject to appropriate orders of secrecy or non-disclosure – be capable of cross-examining the witnesses who generated the intelligence, i.e. intelligence officers. Such a distinction is important, as often intelligence staff are not called as witnesses to proceedings to protect their operational capability, yet they are the people who make the “informed guesswork” which forms the bedrock of modern intelligence practice.[148]

Finally, and perhaps most importantly, there will need to be a specific provision for any criminal intelligence monitor to be capable of receiving instructions from the (co-)accused or respondent(s). Not only must these communications be given the highest imprimatur of protections from disclosure, but such communications must be deemed inadmissible in all forms of proceedings or exercise of statutory power.[149] Whilst the criminal intelligence monitor should rightly be prohibited from “on-disclosing” the nature or content of the material given to it by the State[150], it nonetheless will be seized of an awareness of both the reasons for the secrecy of the evidence (from its exercise of the test function) but also its application to the (co-)accused or respondent(s) subject to that evidence. In effect, the criminal intelligence monitor must be the circuit breaker between operational intelligence officers and the parties about whom that intelligence has been generated, whilst providing the Court with the best possible method for admitting, weighting and then using that evidence to determine the rights inter partes.

V: Conclusion

In the 2005 House of Lords case of Roberts, Lord Steyn made numerous deliberate references to the position of the appellant and the fictional character Joseph K in Franz Kafka’s The Trial. Though speaking of autocratic and authoritarian European regimes in the early 20th century, some of Kafka’s words might ring disturbingly in the ears of those subject to criminal intelligence evidence:

the legal records of the case, and above all the actual charge-sheets, were inaccessible to the accused and his counsel, consequently one did not know in general, or at least did not know with any precision, what charges to meet in the first plea; accordingly it could be only by pure chance that it contained really relevant matter ... In such circumstances the Defence was naturally in a very ticklish and difficult position. Yet that, too, was intentional. For the Defence was not actually countenanced by the Law, but only tolerated, and there were differences of opinion even on that point, whether the Law could be interpreted to admit such tolerance at all.[151]

Australia thus finds itself in a unique position, possessing the statutory frameworks of three doctrines of secrecy. In criminal, civil and even administrative proceedings, there now exists fundamental potential for Joseph K’s “secret legal records” to have a foundation in reality. Unsurprisingly, such blanket secrecy skews the needle of fairness too far in favour of the State. On the other hand, there exists a good policy position for protecting police and security agencies ability to operate covertly, identifying and neutralising threats to good public order and the safety of the body politic. What is needed is an appropriate balance, and not one determined by the Judges of the land. What we have argued for here is the establishment by Parliament of a criminal intelligence monitor, who have the ability to achieve this balance by reference to both law enforcement and law preservation.

In concluding, we would encourage further debate and research on this domain of State secrecy and achieving sound policy by the legislature. The rights to be balanced are not equal, are highly complex, and constantly in a state of flux. Yet, as Table 1 shows, Parliaments are not likely to slow in their use of criminal intelligence as a lever of control against offenders and lawbreakers. To avoid a catastrophic police state of which even Kafka would be ashamed, we must strive to achieve the balance that properly permits the Courts to assess what we all – were we in the shoes of Joseph K – might “need to know”.


[*] Dr Walker-Munro is a Senior Research Fellow with the University of Queensland’s Law & the Future of War research group.

[1] Australian Federal Police, Case Categorisation and Prioritisation Model (CCPM), 12 December 2020 <>.

[2] Gregory Rose, Diana Nestorovska, ‘Terrorism and National Security Intelligence Laws: Assessing Australian Reforms’ (2005) LawAsia Journal, 137; Anthony Reilly, ‘The Processes and Consequences of Counter-Terrorism Law Reform in Australia: 2001-2005’ [2007] FlinJlLawRfm 1; (2007) 10 The Flinders Journal of Law Reform 1, 81.

[3] Australian Federal Police, ‘Home Affairs Portfolio established’ (Media release, 20 December 2017) <>.

[4] Consistent with the Ministerial Direction issued under section 37(2) of the Australian Federal Police Act 1979 (Cth); see Australian Federal Police, Ministerial Direction (16 December 2020) <>.

[5] Greg Martin, ‘No worries? Yes worries! How New South W ales is creeping towards a police state’ (2010) 35 Alternative Law Journal 3, 163-167; Greg Carne, ‘Beyond Terrorism: Enlarging the National Security Footprint Through the Telecommunications Interception and Intelligence Services Legislation Amendment Act 2011 (Cth)’ (2011) 13 Flinders Law Journal 2, 177-239; Penny Crofts, Jason Prior, ‘The Proposed Re-Introduction of Policing and Crime into the Regulation of Brothels in New South Wales’ (2016) 28 Current Issues in Criminal Justice 1, 209; Vicki Sentas, Michael Grewcock, Criminal law as police power: Serious crime, unsafe protest and risks to public safety (2018) 7 International Journal for Crime, Justice and Social Democracy 3, 75-90. DOI: 10.5204/ijcjsd.v7i3.554; Luke McNamara, Juliea Quilter, Russell Hogg, Heather Douglas, Arlie Loughnan, David Brown, ‘Theorising Criminalisation: The Value of a Modalities Approach’ (2018) 7 International Journal for Crime, Justice and Social Democracy 3, 91.

[6] See for example Anna Talbot, ‘The use of secret evidence in civil and criminal proceedings’ (2017) 142 Precedent 30.

[7] Scott v Scott [1913] AC 417, 476; R v Sussex Justices, Ex p McCarthy [1923] EWHC KB 1; [1924] 1 KB 256, 259.

[8] Lee v The Queen (1998) 195 CLR 594, 32.

[9] Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7, 1.

[10] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38.

[11] Australian National Airlines Commission v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29; Lanyon v the Commonwealth (1974) 129 CLR 650; R v Lewes Justices; Ex parte Home Secretary [1972] 2 All ER 1057; Sankey, n 11.

[12] Marks v Beyfus [1890] UKLawRpKQB 125; (1890) 25 QBD 494; Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667; ASIC v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227.

[13] Allister v R [1984] HCA 85; (1984) 154 CLR 404.

[14] Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (TAS); Evidence Act 2008 (Vic).

[15] See for example Evidence Act 1995 (Cth), s 130(4).

[16] Elucidating the balance described in Conway v Rimmer [1973] AC 388, 400.

[17] Condon [2013] HCA 7; (2013) 252 CLR 38, 97.

[18] Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531, 580, 586, 592 and 595; HT v The Queen [2019] HCA 40.

[19] National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 7.

[20] Ibid, s 8.

[21] Ibid, s 11.

[22] Ibid, ss 24 and 38D.

[23] Ibid, ss 20A and 38AA.

[24] Ibid, ss 26 and 38F.

[25] Ibid, ss 25 and 38E.

[26] Ibid, ss 20B, 22, 38AB, and 38B.

[27] Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ [2011] MelbULawRw 16; (2011) 35 Melbourne University Law Review 449.

[28] Anthony Gray, ‘Constitutionally Protecting the Presumption of Innocence’ [2012] UTasLawRw 1; (2012) 31 University of Tasmania Law Review 1, 132; Anthony Gray, ‘Constitutionally Heeding the Right to Silence in Australia’ (2013) 39 Monash University Law Review 156; Anthony Davidson Gray, ‘Forfeiture Provisions and the Criminal–Civil Divide’ (2012) 15 New Criminal Law Review 32; Anthony Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32 University of Tasmania Law Review 2, 149. Internationally the United Kingdom’s system was struck down in A v United Kingdom [2009] II Eur Court HR 137, 234 for being in contravention of art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, 213 UNTS 221, entered into force 3 September 1953).

[29] See also Greg Martin, ‘Outlaw Motorcycle Gangs and Secret Evidence: Reflections on the Use of Criminal Intelligence in the Control of Serious Organised Crime in Australia’ (2014) 36 Sydney Law Review 3, 501.

[30] Serious and Organised Crime (Control) Act 2009 (SA), ss 9 and 11.

[31] Ibid, s 3.

[32] Ibid, ss 5A, 9, 29 and 39Y.

[33] Ibid, s 5A.

[34] Martin, n 29.

[35] See for example Bob Gosford, ‘Is the NT’s Hells Angels ban unlawful?’ (2013) Crikey, <>; Glynis Quinlan, ‘Police association: Bikie gangs mocking Government and putting Canberrans in “incredible danger” (2018) RiotACT!, <>; Margaret White, Andrew Cappie-Wood, Review of Victorian Criminal Organisation Laws – Stage One (Report to Victorian Parliament, 30 June 2020).

[36] Sankey, n 11; Marconi’s Wireless Telegraph Co Ltd v Commonwealth (No 2) (1913) 16 CLR 178; Rogers v Home Secretary [1973] AC 388; see also Lodhi v R [2006] NSWCCA 101; R v Collaery (No 7) [2020] ACTSC 165.

[37] Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33, [33]; citing Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 556.

[38] Commissioner of Police New South Wales v Gray [2009] NSWCA 49; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319; South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181.

[39] Robinson v State of South Australia (No 2) [1931] AC 704.

[40] Lodhi v R [2006] NSWCCA 101; R v Khazaal [2006] NSWSC 1353; R v Collaery (No 7) [2020] ACTSC 165.

[41] HT v R [2019] HCA 40, [32].

[42] See also the former Criminal Organisation Act 2009 (Qld), s 59.

[43] South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181.

[44] Thomas v Mowbray [2007] HCA 33; Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531.

[45] See for example the exclusion of opinion evidence under the uniform Evidence Acts, Parts 3.2 and 3.3, though noting that the evidence of intelligence analysts are likely to satisfy the ‘specialised knowledge based on the person's training, study or experience’ criterion to otherwise qualify as “expert evidence” under section 79.

[46] Barton v Csidei [1979] 1 NSWLR 524; Alister v R [1984] HCA 85; (1983) 154 CLR 404; Sankey, n 11; R v Rusmanto [1997] NTSC 29; (1997) 6 NTLR 68; Woodroffe v National Crime Authority (1999) 168 ALR 585.

[47] See generally National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), Division 3 of Part 3 and Division 3 of Part 3A.

[48] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[49] Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

[50] K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7.

[51] Rebecca Ananian-Welsh, ‘Knowing the case against you: secrecy is eroding fair process’ (2014) The Conversation, <>.

[52] See for example Serious Organised Crime (Control) Act 2008 (SA), s 5A.

[53] Serious and Organised Crime (Control) Act 2008 (SA), s 3.

[54] Australian Criminal Intelligence Commission, Australian Criminal Intelligence Management Strategy 2017-2020 (Australian Criminal Intelligence Commission, 2020).

[55] Celine C Cocq, ‘“Information” and “intelligence”: The current divergences between national legal systems and the need for common (European) notion’ (2017) 8 New Journal of European Criminal Law 3, 352-373. <>

[56] Adapted from United Nations Office on Drugs and Crime, Criminal Intelligence. Manual for Front-Line Law Enforcement (New York, United Nations, 2010), 1; United Nations Office on Drugs and Crime, Criminal Intelligence. Manual for Analysts (New York, United Nations, 2011), 1.

[57] Lyria Bennett Moses, ‘Who Owns Information? Law Enforcement Information Sharing as a Case Study in Conceptual Confusion’ (2020) 43 UNSW Law Journal 2, 615-641; citing Department of the Prime Minister and Cabinet, Australian Government Public Data Policy Statement (Policy Statement, 7 December 2015).

[58] ACIC, n 6.

[59] D'Arcy v Myriad Genetics Inc (2015) 258 CLR 334, 371.

[60] For a comprehensive review, see Bennett Moses, n 48, 615.

[61] Criminal Organisation Act 2009, s 59 (now repealed); Criminal Code (Qld), s 86(3); Criminal Organisations Control Act 2012 (Vic), s 3; Crimes (Sentencing) Act 2005 (ACT), s 61B; Crimes (Criminal Organisation Control) Act 2012 (NSW), s 3. WA and NT’s contribution to criminal intelligence adds the disclosure or prejudicing of Police investigative, surveillance and information-gathering methods and procedures: Criminal Organisations Control Act 2012 (WA), s 109; Serious Crime Control Act 2009 (NT), s 6.

[62] Weapons Act 1990 (Qld), Schedule 2.

[63] Registration to Work with Vulnerable People Act 2013 (TAS), ss 3, 28, 30, 50, 51 and 53; Security and Investigation Agents Act 2002 (TAS), ss 8 and 37.

[64] Casino Act 1997 (SA), s 45A; Child Safety (Prohibited Persons) Act 2016 (SA), s 5; Disability Inclusion Act 2018 (SA), ss 18A, 18C, 18Y and 18Z; Firearms Act 2015 (SA), s 4; Freedom of Information Act 1991 (SA), Schedule 1; Gambling Administration Act 2019 (SA), s 5; Hydroponics Industry Control Act 2009 (SA), s 3; Liquor Licensing Act 1997 (SA), s 4; Parliamentary Committees Act 1991 (SA), s 15O; Serious Organised Crime (Unexplained Wealth) 2009 (SA), s 3.

[65] Betting and Racing Act 1998 (NSW); Combat Sports Act 2013 (NSW); Drug Supply Prohibition Order Pilot Scheme Act 2020 (NSW); Explosives Act 2003 (NSW), ss 13 and 24A; Firearms Act 1996 (NSW), ss 11, 29 and 75; Paintball Act 2018 (NSW), s 69; Tattoo Parlours Act 2012 (NSW). See also Associations Act 2003 (NT), s 40; Firearms Act 1996 (Tas), ss 29 and 141; Sex Industry Offences Act 2005 (Tas), s 17

[66] K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4; Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21

[67] Graham, n 34.

[68] John Clarke, Report of the Inquiry into the Case of Dr Mohamed Haneef: Volume 1 (2008).

[69] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404.

[70] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 43.

[71] National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 31(8) and 38L(8).

[72] Faheem Khalid Lodhi v R [2007] NSWCCA 360, [66]-[68].

[73] Explanatory Memorandum, National Security Information (Criminal Proceedings) Bill 2004 (Cth), 2.

[74] Commonwealth, Parliamentary Debates, Senate, 30 November 2004, 80 (Christopher Ellison); see also the example of the “Alan Johns” matter – Independent National Security Legislation Monitor, Current Reviews (Australian Government, 2020), <>.

[75] R v Hardy (1794) 24 State Tr 199; Attorney-General v Briant (1846) 15 M & W 169; Marks v Beyfus [1890] UKLawRpKQB 125; (1890) 25 QBD 494, 498 and 500; Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22.

[76] D v National Society for the Prevention of Cruelty to Children [1978] AC 170; Alister v R [1984] HCA 85; (1984) 154 CLR 404; AB v CD & EF [2017] VSCA 338 (the “Lawyer X” case).

[77] Aktiebolaget Hassle v Commissioner of Patents (No 2) (1989) 96 FLR 175; applied in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4, [184].

[78] See for example Lord Diplock in D, n 67, where he called the protection of informers a ‘rule of law’.

[79] D’Arcy, above n 51.

[80] Irrespective of whether this opinion is deemed “expert” or not; see n 42.

[81] [46].

[82] [1986] HCA 39; (1986) 161 CLR 342, 350.

[83] Explanatory Notes, Serious and Organised Crime Legislation Amendment Bill 2016 (Qld), 2.

[84] Security Providers Act 1993 (Qld), ss 11(3)(b) and 13(3A)(b), Liquor Act 1992 (Qld) ss 107, 107E, 142ZK, 173EQ; Motor Dealers and Chattel Auctioneers Act 2014 (Qld), ss 23, 158, 230A and 240; Racing Integrity Act 2016 (Qld), ss 53A, 83, 101, 212 and 296; Second-Hand Dealers and Pawnbrokers Act 2003 (Qld), ss 7, 111 and 141; Tow Truck Act 1973 (Qld), ss 4C, 21A, 36B, 36C and 50. The Weapons Act 1990 (Qld) still permits criminal intelligence to be used, as the regulation of firearms and other weapons is restricted solely to the jurisdiction of the Queensland Police Service.

[85] Explanatory Notes, Serious and Organised Crime Legislation Amendment Bill 2016 (Qld), 1 and 28-34.

[86] [1986] HCA 39; (1986) 161 CLR 342, 350.

[87] Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38.

[88] Cf. Russell v Russell (1976) 134 CLR 495, 520.

[89] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7.

[90] Steven Churches, ‘Paradise Lost; But the Station is Always There’ (2010) 12 Flinders Law Journal 1, 20.

[91] Russell v Duke of Norfolk [1949] 1 All ER 109; Re v K (Infants) [1963] Ch 381; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348; Wilson [1996] HCA 18; (1996) 189 CLR 1, 22; Bass v Permanent Trustee Co [1999] HCA 9; (1999) 198 CLR 334; Wainohu v New South Wales (2011) 243 CLR 181; Pompano, [159].

[92] [2005] HCA 72; (2005) 225 CLR 88; citing Sankey, n 11, and Alister, n 43.

[93] Gypsy Jokers, n 34, [183].

[94] Churches, n 81, 10.

[95] For a comprehensive review, see Rebecca Ananian-Welsh, ‘The Inherent Jurisdiction of Courts and the Fair Trial’ (2019) 41 Sydney Law Review 4, 423.

[96] See Table 1.

[97] [1944] HCA 5; (1944) 68 CLR 571; see also R v Carroll [2002] HCA 55; (2002) 213 CLR 635.

[98] Cf. in Hussain v Elonex Plc [1999] EWCA Civ 1009; [1999] IRLR 420 where their Lordships said that a Court must act and receive evidence in the open and that ‘[n]o custom or practice may override that basic principle’. Yet their Lordships said nothing of Parliament’s power to do so.

[99] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636.

[100] Greg Martin, ‘Jurisprudence of Secrecy: Wainohu and Beyond’ (2012) 14 Flinders Law Journal 2, 201.

[101] Leghaei v Director-General of Security [2005] FCA 1576, [88]; this reasoning was not disturbed on appeal: Leghaei v Director-General of Security [2007] FCAFC 37, [51]-[55]. See also Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1.

[102] Gypsy Jokers, n 34; see also Rebecca Ananian-Welsh, George Williams, ‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ (2014) 38 Melbourne University Law Review 2, 362.

[103] George Williams, David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2013), 325-328.

[104] Pompano, n 10.

[105] Pompano, n 10.

[106] Special Immigration Appeals Commission Act 1997 (UK); an Act itself passed because of criticism of the Home Office by the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR.

[107] Ibid, s 6 and Special Immigration Appeals Commission (Procedure) Rules 2003 (UK), r 35.

[108] Evan Nanopolous, ‘European Human Rights Law and the Normalisation of the “Closed Material Procedure”: Limit or Source?’ (2015) 78 Modern Law Review 6, 913-944; see also M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863, [13]; Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350.

[109] Rebecca Scott-Bray, Greg Martin, ‘Closing down open justice in the United Kingdom’ (2012) 37 Alternative Law Journal 2, 126-127; Katherine Biber, ‘In Crime's Archive - The Cultural Afterlife of Criminal Evidence’ (2013) 53 British Journal of Criminology 6, 1033.

[110] Roberts (FC) v Parole Board [2005] UKHL 45; Mark Rix, ‘Counter-Terrorism and Information: The NSI Act, fair trials and open, accountable government’ (2011) 25 Continuum: Journal of Media and Cultural Studies 2, 285-97.

[111] Al Rawi and others v The Security Service and others [2011] UKSC 34; [2012] 1 AC 531.

[112] Ibid, [35]; see also Adrian Zuckerman, ‘Closed Material Procedure – Denial of Natural Justice: Al Rawi v Security Service [2011] UKSC 34’ (2011) 30 Civil Law Quarterly, 345-359.

[113] A v United Kingdom [2009] ECHR 301, [220].

[114] [2011] UKSC 35; [2012] 1 AC 452.

[115] Rebecca Scott Bray, ‘Executive Impunity and Parallel Justice? The United Kingdom Debate on Secret Inquests and Inquiries’ (2012) 19(1) Journal of Law and Medicine 1, 592.

[116] Adam Tomkins, ‘National Security and the Due Process of Law’ (2011) 64 Current Legal Problems 1, 3.

[117] Kennedy v United Kingdom (2011) 52 EHRR 4.

[118] Roberts, n 102, 95.

[119] AF v Secretary of State for the Home Department [2009] UKHL 28, [38]; see also ZZ v Secretary of State for the Home Department [2013] 3 CMLR 46, 1274-1275.

[120] Bank Mellat v Her Majesty’s Treasury [No1] [2013] 4 All ER 495.

[121] Ibid, 510.

[122] Justice and Security Act 2013 (UK), Part 2.

[123] R (British Sky Broadcasting Ltd) v Central Criminal Court [2014] UKSC 17; Gulamhussein and Tariq v the United Kingdom (Application Nos 46538/11 and 3960/12) unreported, 8 May 2018; Belhaj v

Director of Public Prosecutions [2018] UKSC 33; see also Mark Pope, ‘The UK Justice and Security

Bill 2012–2013: Using secrecy to legitimize the securitization of the law’ (2019) 12 Media, War and Conflict 1, 50-68.

[124] R (on the application of Haralambous) v Crown Court at St Albans [2018] UKSC 1; for a fuller analysis, see Daniella Lock, ‘A New Chapter in the Normalisation of Closed Material Procedures’ (2020) 83 Modern Law Review 1, 202-216.

[125] R v Lodhi [2006] NSWSC 571; AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109.

[126] Martin, n 29, 501.

[127] See also Adam Tomkins, ‘National Security and the Due Process of Law’ (2011) 64 Current Legal Problems 1, 215.

[128] Graham Hudson, Daniel Alati, ‘Behind closed doors: Secret law and the special advocate system in Canada’ (2018) 44 Queen’s Law Journal 1, 67.

[129] Kent Roach, ‘Secret Evidence and its Alternatives’, in Aniceto Masferrer (Ed.), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Springer, 2012), 179-200.

[130] Pursuant to Part 7 of the now-repealed Criminal Organisations Act 2009 (Qld).

[131] Queensland, Legislative Assembly, Explanatory Notes to the Criminal Organisation Bill 2009, 3.

[132] Criminal Organisations Act 2009 (Qld), s 86(c).

[133] Though this does not extend to making submissions to, or appearing before, a Court: Independent National Security Legislation Monitor Act 2010 (Cth), ss 5 and 6.

[134] Though noting that once appointed the INSLM is subject only to limited direction by either the Prime Minister or Attorney-General; Independent National Security Legislation Monitor Act 2010 (Cth), s 7; cf. Criminal Organisations Act 2009 (Qld), s 83.

[135] Evan Nanopolous, n 100, 920.

[136] Talbot, n 7, 30; see also Pompano, n 10, [54].

[137] Pompano, n 10, [208].

[138] Roach, n 121, 186.

[139] [1995] 1 WLR 613.

[140] Lucy Line, David Plater, ‘Police, Prosecutors and Ex Parte Public Interest Immunity Claims: The Use of Special Advocates in Australia’ (2014) 33 University of Tasmania Law Review 2, 255

[141] Ombudsman Act 1976 (Cth), Division 1 of Part II; Inspector-General of Intelligence and Security Act 1986 (Cth), Division 3 of Part II.

[142] See for example Richard Glenn, Centrelink’s automated debt raising and recovery system (Commonwealth Ombudsman report, April 2017); Vivienne Thom, Inquiry into the attendance of legal representatives at ASIO interviews, and related matters (Inspector-General of Intelligence and Security report, January 2014).

[143] Cf. the limited powers of influence over the INSLM.

[144] Similar to, and subject to the same “private practice” restrictions imposed on the COPIM in the Criminal Organisation Act 2009 (Qld).

[145] Talbot, n 7.

[146] Criminal Organisation Act 2009 (Qld), s 88(1) cf. s 88(2).

[147] Nanopolous, n 100.

[148] Nina Cope, ‘“Intelligence Led Policing or Policing Led Intelligence?” Integrating Volume Crime Analysis into Policing’ (2004) 44 British Journal of Criminology 2, 188-203; Shane Holmquist, Incorporating Intelligence-Led Policing in Integrated Cross-Border Maritime Law Enforcement Operations in British Columbia (PhD Thesis, University of the Fraser Valley, 2017); David Bright, Chad Whelan, ‘On the relationship between goals, membership and network design in multi-agency “fusion” centres’ (2019) 42 Policing: An International Journal 3, 441-454.

[149] Including by specific enactments in the State and Territory Evidence Acts to extend legal-professional privilege to communications with the criminal intelligence monitor; see also Ian Dennis, ‘The Human Rights Act and the Law of Criminal Evidence: Ten Years On’ (2011) 33 Sydney Law Review 3, 352.

[150] See for example Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC Report No 108, August 2008), 28.4.

[151] Roberts, n 102, 95.

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