The rights of defendants must not be overridden by national security concerns, a new report warns.
Australia’s Independent National Security Legislation Monitor, Grant Donaldson, was asked by the incoming Labor government last year to review laws covering how courts deal with sensitive information.
The concerns stemmed from the prosecutions of two intelligence officers known as Witness J (known also as Alan Johns) and Witness K, as well as lawyer Bernard Collaery.
Donaldson said the NSI Act, as the laws are known, was important in that it enabled information to be used in prosecuting serious crimes but came at a cost.
“The prosecutions of Alan Johns, Witness K and Mr Collaery … illustrate this cost,” he said.
“Even though the NSI Act provides for greater disclosure by executive government to parties in court proceedings, it requires that court processes are more secretive.
“Overweening secrecy of executive government is replaced by secrecy of some extremely important work of courts.”
He said the NSI Act required the courts to “subordinate the administration of justice and a defendant’s right to a fair hearing, to the protection of national security”.
Donaldson described the secrecy of the Alan Johns case as a “shameful tale”.
Johns was charged, arraigned, convicted on his plea of guilty, sentenced and served his term, without the public being aware of any of it.
Collaery and his client, a former intelligence officer known as Witness K, were charged over allegedly leaking classified information about an alleged Australian spying operation in East Timor.
Charges against the lawyer were dropped by the federal government in 2022, following a long and protracted legal fight.
Attorney-general Mark Dreyfus said he would consider the report’s 40 recommendations.
“The Albanese government is committed to ensuring we have appropriate laws in place to protect national security information while upholding the principles of open justice,” Dreyfus said.
He said the response would focus on three key themes.
These were open justice, the repeal of mandatory directions in national security cases in favour of principled discretion by judges that prioritise national security and ensuring the rights of defendants are not overridden by national security concerns.
Human Rights Law Centre senior lawyer Kieran Pender said the landmark review confirmed the laws were failing to safeguard open justice and fair trial rights.
“We call on the attorney-general to accept the monitor’s recommendations and urgently legislate to strike a better balance between secrecy and transparency in our court system,” Pender said.
The centre argued in its submission to the review that the NSI Act had “radically changed the operation of open justice in Australia, in matters relating to national security”.
The laws were not only disproportionate and lacked robust safeguards and oversight but had aspects which may be unconstitutional, the submission said.
The Australian Federal Police told the review the agency “strongly supported” the retention of the NSI Act.
But it welcomed consideration of enhancements to ensure it was “fit for purpose”.
Australian Associated Press
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