Review into the operation of section 22 of the NSI Act as it applies in the 'Alan Johns' matter

The submission to the Independent National Security Legislation Monitor’s (INSLM) review into the operation of Part 3, Division 1, which includes section 22, of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), as emerged in the ‘Alan Johns’ matter was prepared by the Law Council of Australia.

The Law Council notes that the INSLM is focussing on Part 3, Division 1 of the NSI Act and in particular section 22. These provisions provided the legal basis for the agreed arrangements and orders which led to the ‘Alan Johns’ matter being wholly suppressed.  

Open justice is one of the primary attributes of a fair trial. It is a fundamental rule of the common law that the administration of justice take place in an open court, and that secrecy or suppression is only ever appropriate where the rare exceptions to open justice have been appropriately considered and applied. At common law, these exceptions are premised on being ‘necessary to secure the proper administration of justice’¹ or as permitted by statutory provisions, such as the operation of the NSI Act. Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) protects the human right to a public trial and a public judgment for criminal proceedings, with limited exceptions.²

The Law Council notes that little information regarding the ‘Alan Johns’ proceedings has been made available to the public, including the charges and any reasons why the proceedings were conducted entirely in camera. The Law Council considers that based on the information available, the extent of the secrecy surrounding these proceedings is prima facie a disproportionate response to the requirements to protect national security.

While this case may be unprecedented, the available information suggests that the NSI Act requires some reform to recalibrate the balance between the requirements of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security.

The Law Council therefore makes recommendations that:

(a) primarily, section 22 of the NSI Act should be amended to prohibit the making of orders which are capable of suppressing all information about a criminal matter, and orders created under that provision should allow the disclosure of at least the most fundamental information about a criminal proceeding; or

(b) alternatively, there should be an added statutory precondition for the public interest in open justice, and a requirement to consider less restrictive alternatives, to be considered by a court before in camera proceedings take place under the section 22 of the NSI Act. A public interest advocate (PIA) scheme should be established for this step, which could be modelled on the Public Interest Advocate Scheme in the Telecommunications (Interception and Access) Act 1997 (Cth).

You can read the full submission below.
 

^{1 John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465.}

^{2 International Covenant on Civil and Political Rights, opened for signature, ratification and accession on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)}
 

Last Updated on 10/05/2021

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