No more secret trials: national security laws must protect open justice

The Human Rights Law Centre will today appear before the Independent National Security Legislation Monitor, Grant Donaldson SC, to call for urgent and comprehensive reforms to national security laws to protect open justice.

The Independent National Security Legislation Monitor (INSLM) is currently undertaking a review of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).

After revelations of the top-secret criminal prosecution of an intelligence officer known as Witness J, the INSLM conducted a targeted review in 2022 and recommended initial reforms to the NSI Act. The entire NSI Act is now under review to determine how a better balance can be struck between open justice and the protection of national security.

The Human Rights Law Centre made 14 recommendations in written submissions which included:

  • Open justice being included, recognised and preserved in the NSI Act

  • The repeal of a mandatory requirement for some hearings to be held in closed court

  • The removal of a provision that forces judges to give ‘greatest weight’ to the view of the Attorney-General in determining the level of secrecy to apply

  • The appointment of independent expert to advocate for transparency in cases where secrecy is sought; and

  • The retention and periodic review of secret judgments and other closed court materials, with appropriate access.

The INSLM is due to report back to the Attorney-General by 31 October 2023.

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

“Open justice is a critical democratic principle, protecting the human rights of all Australians. Yet in recent years we have seen the NSI Act used to shroud the prosecution of whistleblowers like Bernard Collaery, Witness J and David McBride in secrecy, and the fully-secret prosecution of Witness J. These cases undermine public confidence in our legal system.

“Comprehensive reforms are required to put open justice at the heart of the NSI Act. Appropriate checks and balances are needed to ensure the NSI Act upholds open justice without compromising national security. If adopted, our recommendations would help ensure the sweeping secrecy in cases like Collaery and Witness J can never happen again.”

Read the Human Rights Law Centre submission ‘Open Justice, Closed Courts’

Media Contact:
Thomas Feng
Media and Communications Manager
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au

Thomas FengDemocratic Freedoms