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Secret trials ‘have no place’ in Australia
The Human Rights Law Centre (HRLC) has welcomed a report rebuking the secrecy of the trial and imprisonment of an intelligence officer.
Jess Feyder
National security watchdog the Independent National Security Legislation Monitor (INSLM) found that the level of secrecy used in the trial of a former intelligence officer, known as “Witness J”, should not have occurred and should never be repeated, the HRLC said in a statement.
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Witness J was charged with mishandling classified information that potentially revealed the identities of agents recruited by Australian intelligence agencies.
Strict secrecy orders were applied to all aspects of Witness J’s case, including being charged, convicted, and imprisoned. The entire prosecution took place behind closed doors, and he spent 15 months secretly imprisoned in a Canberra jail.
The federal government invoked the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) to enable this secrecy.
The NSI Act was also invoked in the prosecution of whistleblowers Witness K, Bernard Collaery and David McBride — the HRLC has condemned the level of secrecy involved in all these cases.
“Secret trials have a long history in authoritarian states,” said Kieran Pender, HRLC senior lawyer. “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 release of the report invoked Attorney-General Mark Dreyfus QC to request a full review of the NSI Act and other laws governing the secrecy that can be applied to cases concerning national security issues.
“The review will consider how the Commonwealth can better balance the vital importance of open justice with the essential need to protect national security,” said Mr Dreyfus.
INSLM Grant Donaldson SC recommended changes to the NSI Act to lead to better protection of open justice.
The recommendations included a requirement that court orders made under section 22 of the NSI Act (the section invoked to shroud the case in secrecy) should be made public.
“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,” the HRLC said in a statement.
“These changes can and should be implemented now, before the full review takes place.”
