Australia takes China to task for secret trials, but one could be happening here right now
OPINION | Democratic Freedoms
In early 2019, in a courtroom in Canberra, something truly historic happened. A former intelligence officer, known only as Witness J, was sentenced to almost three years in prison. He became the first Australian in our nation’s peacetime history to be charged, sentenced and imprisoned in complete secrecy. We only know about Witness J’s plight due to a series of coincidences – inquisitive journalists who happened to walk past a guarded courtroom, a civil lawsuit brought by Witness J from prison and questions asked in Parliament. But for those coincidences, we would never have known this case existed.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
It is noteworthy, then, that at the same time as our Foreign Minister, Marise Payne, is criticising Chinese authorities for their opaque trial of an Australian citizen, Australia’s Independent National Security Legislation Monitor, or INSLM, is reviewing the legal framework that permits secret trials on our own shores. Payne said last month that “as a basic standard of justice, access to the trial for observers should be a bare minimum to conform with international norms of transparency”. She is right. But Australia must practise what we preach.
On Wednesday, I will tell the monitor at a public hearing in Canberra that there is no place for secret trials in Australia. Open justice is a core democratic principle, serving to uphold public confidence in our legal system and act as an accountability mechanism. In contrast, secret trials are the hallmark of authoritarian regimes.
The law that enabled Witness J to be imprisoned in secret, the National Security Information Act (NSI Act), must therefore be urgently reformed. It should be amended to include minimum standards of openness, an Open Justice Advocate who participates in such cases and an obligation on judges to provide publicly accessible written reasons when partially closing the courtroom. Until we see these changes to the law, there is nothing to prevent another secret trial. In fact, one could be happening right now – and we wouldn’t know about it.
Sometimes limited secrecy may be necessary in criminal trials, particularly in cases involving national security information. For decades, the law has provided rules of evidence that enable a court to appropriately balance the public interest in open justice with the public interest in protecting such information. But the NSI Act, which the Howard government rushed through Parliament in 2004, ignoring a thoughtful review of the issue by the Law Reform Commission, puts a thumb on the scale in favour of secrecy.
While the Witness J case stands out for its complete opacity, the NSI Act is being used and misused elsewhere, too. In the case of Bernard Collaery, who blew the whistle on Australia’s espionage against East Timor, the trial judge has ordered that large parts of the case be heard behind closed doors. The judge had little choice: the NSI Act insists that “greatest weight” is given to the views of the Attorney-General – at the time Christian Porter, who had expressed his desire for the trial to be shielded from public scrutiny.
Collaery is appealing against the secrecy order, and the appeal was heard last month behind closed doors. About three minutes into the hearing, Bret Walker, SC, appearing for Collaery, conceded that the NSI Act gave the court no discretion and it had to be closed. The journalists in attendance were swiftly booted out, as was I. It seems likely that whoever loses the appeal will take the case to the High Court, where the highest court in our land will be faced with the unedifying prospect of hearing a matter of upmost public interest in private. The lack of discretion given to courts by the NSI Act is galling.
These incidents would be troubling in isolation, given the democratic significance of open justice. But they are set against the backdrop of a broader slide towards secrecy. Our freedom of information regime is chronically underfunded and beset by delays. The government continues to ratchet up secrecy laws, while failing to improve whistleblowing laws – despite an independent review telling the government that an overhaul was needed. High-profile whistleblowers, including Collaery and his client Witness K, David McBride (war crimes in Afghanistan) and Richard Boyle (unethical debt recovery by the Tax Office) face lengthy prison sentences for speaking up about wrongdoing. Journalists have been raided for doing their jobs.
Transparency is the greatest safeguard we have against wrongdoing and corruption. Democracy dies in the darkness. Witness J should not have been charged, sentenced and imprisoned in secret. We must ensure this historic event is never repeated.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.