Reforms to national security laws to protect open justice within reach
The Human Rights Law Centre has welcomed recommendations by an independent review into the law that enabled the prosecutions of Witness J, Witness K and Bernard Collaery to be shrouded in secrecy, and called on the Attorney-General to urgently implement the review's findings.
The Independent National Security Legislation Monitor (INSLM)'s Review into the operation and effectiveness of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), tabled in Parliament on Thursday, recommended changes to improve the balance between secrecy, open justice and fair trial rights.
The INSLM’s Report, tabled in Parliament yesterday, made a number of recommendations consistent with the HRLC’s submission ‘Open Justice, Closed Courts’, including for:
Amendments to the NSI Act to provide that the court is to exercise its discretion as to whether any hearing under the Act is to be closed to the public, and that closed court orders are made publicly available;
Open justice improvements, including to require the Attorney-General to make submissions to explain why any closed court orders are sought and their appropriateness, having regard to the fundamental open court tradition of our common law system;
The provision by the Attorney-General of necessary funding to enable defendants to comply with the NSI Act requirements in federal criminal proceedings where the NSI Act has been invoked;
The repeal of a provision in the NSI Act that currently 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;
Amendments to the definition of ‘national security information’ in the NSI Act to refine its scope and to provide greater clarity;
The introduction of changes to the NSI Act to improve the fairness of trials including granting the court the power to appoint a ‘special advocate’ at particular hearings where parties and their legal representatives are excluded, and associated reporting requirements including as to the number, location, and adequacy of the pool of those eligible and willing to act as special advocates;
Amendments to the NSI Act to require the retention of and regular review of material by the Attorney-General to make decisions as to whether it is in the public interest to make information available to the public where it has not previously been made publicly available;
The maintenance of a ‘repository of all judgments any part of which have been redacted in exercise of powers under the NSI Act’ and the facilitation of appropriate access to judges, legal representatives, and parties to NSI Act proceedings; and
More onerous annual reporting requirements with respect to the operation and application of aspects of the NSI Act.
The Human Rights Law Centre calls on the Federal Government to urgently introduce amendments to the NSI Act as recommended by the INSLM to ensure these much-needed improvements become law.
Human Rights Law Centre Senior Lawyer, Kieran Pender said:
“This is a landmark review that confirms the NSI Act is currently failing to safeguard open justice and fair trial rights. We call on the Attorney-General to accept the Monitor’s recommendations and urgently legislate to properly balance secrecy and transparency in our court system.”
Read the Human Rights Law Centre’s submissions: