Courts will have more sophisticated strategies to protect classified and security information during espionage and terrorism trials under new laws currently being considered by the Australian Law Reform Commission (ALRC).
The new procedures would apply in those difficult cases where the interests of fair and open justice clash with the need to protect information with consequences for national security, said ALRC president David Weisbrot. Though he acknowledged that these cases were rare.
Last week, the ALRC released a discussion paper, Protecting Classified and Security Sensitive Information, for public comment. The paper is part of an inquiry into how sensitive information can be protected in the course of legal proceedings.
“Our courts and tribunals operate within a strong tradition of open justice,” said Weisbrot. “However, there may be reasons of national security to avoid disclosing this kind of evidence in open court or to conceal the identity of an undercover agent, for example.”
The government may be “forced” to reduce criminal charges against an individual, even though it acknowledges the result is unsatisfactory, because it’s currently not clear how far the courts can go to accommodate legitimate national security concerns. “Ultimately this better serves Australia’s strategic interests,” Weisbrot said.
Weisbrot added, in what may appear to be a premature defence, that it was not simply a matter of balancing the rights of an individual to a fair trial against those of the government to maintain official secrets, but that there were also “compelling public interests in safeguarding national security, ensuring the prosecution of spies and terrorists … and adhering — to the greatest extent possible — to the principles and practices of open justice and open government”.
“It is important to note that our proposals do not increase the powers of the executive government,” Weisbrot concluded. “Rather, they provide the courts with flexible mechanisms to safeguard classified and security information when this is necessary,” Weisbrot concluded.