For instance, they started to prohibit some form of incitement or punish the membership to proscribed

organizations; innovative norms restricted the border control, often facilitating the removal of individuals
representing a threat for the community; some laws allowed stricter types of covert surveillance; and laws
involving control, detention and preventative detention not dependent upon the measured processes of the
criminal law paradoxically took place in democratic legal systems

So, for example, if somebody has an opinion about Australia’s trade policy, or about Australia’s compliance with
international covenants, or about Australia’s response to, say, observations made by the International Labour
Organisation, or about the adequacy of Australia’s response to China’s human rights record, any of these opinions, or
any report concerning developments concerning them could

It could extend to the very subject matter of the proceeding itself, particularly on a criminal charge –
any criminal charge, whether or not related to terrorism. Virtually any evidence that a defendant would
propose to call would relate to ‘law enforcement interests’ because it relates to the subject matter of
proceedings in which a prosecutor is seeking to enforce the law. There is no restriction in the Act on the
types of proceedings that the Attorney General can designate as a proceeding to which the Act will
apply. Australia’s ‘law enforcement interests’ is left vague, but includes the matters specified in s. 11,
which is also quite diffuse but in a good way for the Government.

Leghalei and his family arrived in Australia under a Short Stay Business Visa. 1 year after in 1995, he
obtained a Religious Worker Visa allowing him to work as a Muslim leader and travel abroad (Australian
Federal Court 2005). Leghalei then applied for a permanent residency (PR) and received bridging visas
during the review period but was prohibited international travel (Australian Federal Court 2005) . In 1997, ,
failing to satisfy part 4002 of Schedule 4 of the Migration Regulations, namely the public interest criteria, he
was refused PR (Maley and Warne-Smith 2009) as applicants “not assessed” by the Australian Security
Intelligence Organisation (ASIO) was recognised as a security threat. During that year, Leghalei established
the Imam Husain Islamic Centre to address the educational, welfare, and religious needs of the Muslim
community. Between 1997 and 2002, Leghalei pursued review proceedings and a formal assessment carried
out by ASIO stating that he was "directly or indirectly a risk to Australian national security." (Australian
Federal Court 2005) Between 2002 and 2010, Leghalei appealed seeking to find out the motives for a such
assessment.

. Hussain was born in the United Kingdom in 1985, came to in 1991 and got the Australian citizenship in 1993. He
completed one semester of a Bachelor of Medical Science at Melbourne’s La Trobe University when won a scholarship
to the Islamic University of Medina (Saudi Arabia). He started to study there in 2003, and flew back to Australia for
holiday in 2005, intending to go back to Saudi Arabia to carry on his studies. Nevertheless, in August 2005, ASIO
officers interviewed him and later notified that Foreign Affairs Minister Alexander Downer had invalidated his
passport. In fact, ASIO had released an adverse security review stating that where Hussain travelled overseas, there was
a considerable risk he would participate in, or support others involved in, politically-based acts of violence against the
security of Australia or a foreign country.
In September 2005, an American citizen, Scott Parkin, a visiting peace activist, saw his visa annulled after the
Director-General of Security, Paul O'Sullivan, issued an adverse security assessment against him. Then, Parkin
was detained in Melbourne and held in custody for five days before being escorted under guard to Los Angeles.
Moreover, he was noticed to be required to pay the Australian Government $AU11,700 for his detention and removal
expenses. Therefore, Parkin challenged the adverse security assessment in the Federal Court in a joint civil action with
two Iraqi refugees, Mohammed Sagar and Muhammad Faisal, who faced indefinite detention on the island of Nauru
after an adverse security assessments in 2005 (Gooley 2007).

Cases Year Description

Leghalei ‘94 Family arrived in Australia under Short Stay Business Visa (Australian Federal Court 2005)
‘95 Obtained Religious Worker Visa, worked as a Muslim leader, Applied for PR and granted
bridging visas (Australian Federal Court 2005)
‘97 Refused PR failing to satisfy part 4002 of Schedule 4 Migration Regulations, public interest
criteria (Maley and Warne-Smith 2009)
Established the Imam Husain Islamic Centre to address the educational, welfare, and religious
needs of the Muslim community (Australian Federal Court 2005)
‘02 Pursued review proceedings and a formal assessment carried out by ASIO stating that he was
"directly or indirectly a risk to Australian national security" (Australian Federal Court 2005)
Filed appeal to investigate motives for such assessment.
‘10 Hearings before several legal boards such as the Immigration Review Tribunal, the Federal and
High Court of Australia (Feneley 2010 b)
Hussain ‘85 Born in the UK
‘91 Arrived in Australia
‘93
Obtained citizenship
‘03 Completed one semester of Bachelor of Medical Science at Melbourne’s La Trobe University
Won a scholarship to the Islamic University of Medina (Saudi Arabia) ù
Commenced studies
‘05
Returned to Australia for holiday
Intended to return to Saudi Arabia but interviewed by ASIO officers in August.
Later notified that Foreign Affairs Minister Alexander Downer had invalidated his passport.
ASIO had released an adverse security review stating that where he travelled considerable risk
was involved that he would participate or support politically-based acts of violence against
national security or a foreign country.
Parkin ‘05 September- American citizen Scott Parkin, a visiting peace activist had visa annulled after
Director-General of Security, Paul O'Sullivan issued an adverse security assessment against him.
Detained in Melbourne, held in custody for 5 days, then escorted to Los Angeles. Required to
pay the Australian Government $AU11,700 for his detention and removal expenses. Challenged
the adverse security assessment in Federal Court in a joint civil action with two Iraqi refugees,
Mohammed Sagar and Muhammad Faisal, who faced indefinite detention on the island of Nauru
after adverse security assessments in 2005 (Gooley 2007)
Such cases include espionage trials where an individual is charged with unlawfully disclosing classified
information to a foreign government. In espionage prosecutions, the civil liberties issues at stake are the
protection of the rights of the accused. Classified information may also be involved in prosecutions of
intelligence agency employees for crimes committed as part of their official duties, such as illegal
wiretapping, which crimes themselves may have violated civil liberties or subverted constitutional processes.
The criminal prosecutions arising out of the Iran-Contra scandal that are discussed below are examples of
this.

The US Supreme Court acknowledge that if the government seeks to bring criminal charges against an
individual, it must reveal the factual basis for those charges, even when that would require disclosing
sensitive NSI. The government has the choice whether to continue to protect such information or bring
criminal charges, but it may not do both 1. Both the Fifth Amendment right to due process and the Sixth
Amendment right to a fair trial require the dismissal of criminal charges if the government refuses to provide
the defendant with discovery of all relevant information and to allow admissible evidence to be presented 2.
In other words, there is no privilege to withhold classified information in criminal trials.

This act aimed to give access to criminal defendants to, and then use, relevant information that might have
been classified. Further, it was designed to prevent some kind of defendants, such as former officials, who
knew classified information, from threatening to disclose secrets at trial in order to pressure the government
to drop the charges against them.

There has been only one case where the judge insisted that classified information was relevant and
necessary to the defendants defence and the government then refused to allow the information to
become public. As a result, the court dismissed the indictment because of the Attorney Generals refusal to
authorize the disclosure of classified information. This case was one of the criminal trials brought by the
Special Prosecutor, not the Attorney General in the Iran-Contra scandal. The former CIA station chief in
Costa Rica was charged with lying to investigators in connection with CIA activities in support of the contras
fighting the Nicaraguan government3. Although, from one perspective, this was a victory for the civil
liberties of the defendant, many observers believe that the judge acted from political motives simply to
protect a CIA employee.

1
The government is not necessarily completely without power, even if it cannot bring criminal charges. It could for example fire a
government employee on the basis of secret information, although government agencies must follow certain guidelines when doing
so.

2
United States v. Nixon, 418 U.S. 683, 711 (1974); Jencks v. United States, 353 U.S. 657, 670-72 (1957); Roviaro v. United States,
353 U.S. 53, 60-61 (1957). See Dycus, Berney, Banks, Ravenhansen, National Security Law (2d ed. 1997) at 806.

3
Congress had banned the use of U.S. funds to provide certain kinds of aid to the Contras and the White House and the CIA
conspired to violate the funding ban.
Yet, the possibility of using the FOIA to obtain classified information in dispute during a criminal trial
allows for additional public oversight of the government and particularly CIA activities. For example,
in the trial of the CIA station chief, the Iran-Contra Independent Counsel who had been appointed to
investigate the scandal, objected to the Attorney Generals decision not to allow use of classified information
at trial on the grounds that the information was fictional secrets because it was already publicly known. The
Independent Counsel further charged that the Attorney General must have known that if the CIA station
chief had gone to trial, he would have implicated his superiors in lying. Thus, a serious question was raised
as to the legitimacy of the Attorney Generals actions, whether he was simply protecting CIA officials rather
than legitimate secrets. To test that hypothesis, the Center for National Security Studies requested the
disputed information under the FOIA, went to court to get it and eventually, in fact, did obtain much (but not
all) of the information the Attorney General had refused to allow to be introduced at trial.

Another problem is courts' issuing written decisions, portions of which are withheld from the public
because they discuss classified information. For example, in the prosecution of the CIA station chief
referred to above, the Court of Appeals in approving the lower courts dismissal of the charges, described the
classified information which the defendant had unsuccessfully sought to introduce. The published opinion
then replaced those portions of the text with asterisks. Secret judicial opinions seem not only unconstitutional
but also unnecessary. There are many public court opinions concerning discovery or admissibility of
privileged information, which discuss the privilege issue without describing the privileged information. Such
a practice should be followed in CIPA cases also. Otherwise, there will be a corrosive effect on judicial and
public understanding of the requirements of openness in an adversary proceeding as well as a constitutional
violation in the specific case.

‘Hussain v Minister for Foreign Affairs’ is about a young Australian-citizen student, Syed Hussain,
whose passport was seized in 2005. Therefore