Major overhaul of national security law needed to protect open justice

A national security law used to shroud court cases in secrecy is undemocratic, possibly unconstitutional and in urgent need of comprehensive reform.

In a submission to the Independent National Security Legislation Monitor (INSLM) Grant Donaldson SC, the Human Rights Law Centre has recommended a range of reforms to improve the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).

In 2022, the INSLM recommended initial reforms to the NSI Act following a targeted review into Witness J’s fully-secret criminal prosecution. 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. 

In its submission, ‘Open Justice, Closed Courts’, the Human Rights Law Centre called for practical safeguards to mitigate the impact of the NSI Act on democracy and open justice in cases where a degree of secrecy may be necessary. The submission also proposed:

  • 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 in NSI Act cases

  • 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.

Human Rights Law Centre Senior Lawyer, Kieran Pender 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
Human Rights Law Centre
Media and Communications Manager
0431 285 275
thomas.feng@hrlc.org.au

Thomas FengDemocratic Freedoms