No place for secret trials in Australia, reform needed to improve national security law

The Human Rights Law Centre has welcomed a finding from the Independent National Security Legislation Monitor, a national security watchdog, that the level of secrecy in the trial of an intelligence officer known as Witness J should not have occurred and can never be repeated. 

Strict secrecy orders were applied to all aspects of Witness J’s case, with the entire prosecution taking place behind closed doors. The federal government had invoked the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) to facilitate this secrecy. 

Kieran Pender, Senior Lawyer at the Human Rights Law Centre, said: 

“Secret trials have a long history in authoritarian states. They have no place in liberal democracies like Australia. 

“This is important recognition from our national security watchdog that the Witness J secret trial should never have happened and can never be allowed to happen again. Open justice is a central tenet of Australian democracy and unnecessary secrecy is corrosive to public confidence in the judiciary.” 

The Monitor, Grant Donaldson SC, recommended a range of changes to the NSI Act and practice to better protect open justice. The recommendations included a requirement for court orders made under section 22 of the NSI Act, which were used to shroud the case in secrecy, to be made public.  

Following the publication of the report, Attorney-General Mark Dreyfus QC announced he has requested a full review of the NSI Act, which was also invoked in the prosecution of whistleblowers Witness K, Bernard Collaery and David McBride. The Human Rights Law Centre has been critical of the level of secrecy involved in these cases. 

“The full review of the NSI Act will be timely. However, we urge the Attorney-General to implement all the recommendations as soon as possible. These changes can and should be implemented now, before the full review takes place. 

“As the Witness J and Bernard Collaery cases have demonstrated, the NSI Act needs to be reformed to better protect open justice.” 

The Human Rights Law Centre made a submission to the Monitor, Grant Donaldson SC, and appeared before him during a public hearing in Canberra last year. 

Media contact:

Evan Schuurman, Media and Communications Manager, 0406 117 937, evan.schuurman@hrlc.org.au