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Review finds NSI Act ‘contorts power’

A review by the Independent National Security Legislation Monitor has been released.

A review of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) has recommended changes to help find the balance between secrecy, open justice and the rights to a fair trial.

The Independent National Security Legislation Monitor (INSLM)’s Review into the operation and effectiveness of the Act was tabled in Parliament on Thursday.

It was ordered in July last year following public disquiet over the Act’s use in the prosecutions of former secret service officer Alan Johns (a pseudonym), also known as Witness J, who was tried and jailed in secret in 2018; and of Witness K and Bernard Collaery, who exposed the Australia’s bugging of Timor-Leste’s government offices during negotiations over oil and gas resources in the Timor Sea.

INSLM Grant Donaldson SC said the prosecutions illustrated the cost of changes brought about by the Act.

“Although in broad terms, the Act reposes in courts the power to decide what can be disclosed to and withheld from defendants and parties, the Act contorts this power by requiring courts to subordinate the administration of justice, and a defendant’s right to a fair hearing, to the protection of national security,” Mr Donaldson said.

“The Act also constrains courts’ discretions in dealing with many procedural aspects of court processes that, in matters not involving the Act, courts readily deal with and have always dealt with.”

He said his recommendations involved the broad themes of enhancing open justice, replacing mandatory directions with principled discretion by judges, and ensuring defendants’ rights are not over-ridden by concerns about national security.

They include:

  • amendments 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;
  • requiring the Attorney-General to explain why any closed court orders are sought and their appropriateness;
  • funding to enable defendants to comply with the Act’s requirements in federal criminal proceedings;
  • repeal of a provision in the Act that forces judges to give “greatest weight” to the view of the Attorney-General in determining the level of secrecy to apply in Act cases;
  • amendments to the definition of “national security information” to refine its scope and to provide greater clarity; and
  • granting the court the power to appoint a “special advocate” at particular hearings where parties and their legal representatives are excluded.

“It is critical that the public be capable of following and understanding the conduct of trials, particularly high-profile trials, in which the Act is used,” Mr Donaldson said.

“It is critical that the public can scrutinise decisions of Attorneys-General seeking to impose secrecy and understand the reasons of courts for ordering or rejecting secrecy that executive government seeks.”

Read the report here.

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