The federal government has flagged amendments to national security laws to ensure that the near total secrecy that hid the prosecution and imprisonment of a former Australian intelligence officer cannot happen again.
The former government faced persistent criticism of its use of the National Security Information (NSI) Act to enforce extreme secrecy in cases of clear public interest, including the prosecutions of Bernard Collaery, Witness K and the former military lawyer David McBride.
Lawyers and transparency campaigners expressed particular concern about use of the NSI Act to secretly prosecute and imprison a former intelligence officer, known variously as Alan Johns and Witness J, in 2018.
The case prompted a review by the Independent National Security Legislation Monitor (INSLM), which found the total secrecy in the Witness J case “should not have happened … and it should never happen again”. The INSLM urged the government to ensure at least some level of transparency and open justice in future cases that involve sensitive national security.
The federal government’s response to the review, tabled last week, signalled its support for a suite of reforms, such as changes compelling the attorney general to seek that reasons be given and published when the NSI Act is used to close courts to the public.
The attorney general, Mark Dreyfus, said the government was committed to ensuring “appropriate laws are in place to ensure the proper administration of justice and protect national security information”.
“That is why the government has accepted all of the INSLM’s recommendations,” Dreyfus said.
“Recognising the importance of the principles of open justice, the government has implemented revised practices to give effect to the INSLM’s recommendations.”
The government’s changed approach was taken in the alleged foreign interference case of Di Sanh Duong, 67, where the attorney general submitted to the court this week that it should publish reasons for making orders under the NSI Act.
The government has also signalled it supports publishing more details about how and when the NSI Act has been used to enforce secrecy on court cases, and to better support the court to appoint contradictors, who can argue against closed court orders.
The INSLM is separately conducting a broader review of the NSI Act. The government said it “will consider legislative options” after the conclusion of that broader review.
In Collaery’s case, the former government attempted to use the NSI Act to hide “significant” parts of the then looming trial from the public.
Collaery said the proposed NSI Act reforms would be a good first step, and described Dreyfus as “courageous” for his decision to drop the prosecution and change the NSI Act.
“It’s a good interim step,” Colleary said.
“While the Alan Johns [Witness J] matter raises very, very serious concerns, some concerns of a most profound nature are yet to be examined by the national security legislation monitor and the future integrity commission.”
Greens senator David Shoebridge said the change was welcomed, but questioned why the government’s new approach would not be immediately entrenched in legislation.
“Without these legislative changes we remain at risk of secret trials, secret convictions and all the injustice that flows from that,” he said.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, said the secret trial of Witness J should never be allowed to happen again.
“This is an important first step in better balancing secrecy and transparency in Australia’s courts when national security issues arise,” Pender said.
The chief executive of Transparency International Australia, Clancy Moore, welcomed the government’s response.
“For far too long, the NSI Act has acted as a blanket of secrecy on important whistleblower cases and was used to hide the prosecution and then jailing of Witness J in the act,” Moore said.
