Arrangements for secret trials like a ‘Mongol horde’

Andrew Brown and Paul Osborne | July 19, 2023

Laws allowing courts to hold secret trials to deal with national security matters have been likened to “Mongol horde” pressure on the legal system.

Australia’s Independent National Security Legislation Monitor Grant Donaldson is examining whether the laws should change, following prominent cases, or be scrapped entirely.

Hearings will take place over two days on the national security information act, which prevents top secret or classified information being disclosed publicly during a trial.

The use of the law has been scrutinised after the case of the former military intelligence officer dubbed Witness J, also known by the pseudonym Alan Johns.

The case only came to light after Witness J launched a court challenge against a prison for tipping off police about a memoir he was writing.

Johns was charged, arraigned, convicted on his plea of guilty, sentenced and served his sentence, without the public being aware of any of it.

During the first day of hearings on Wednesday, Mr Donaldson said some courts had been hesitant about proceedings which fell under the act, due to the amount of extra requirements.

“Some courts feel as though you get a (national security information) matter, and you know, it’s like the Mongol hordes screaming over the mountain coming at you,” he said.

“What would be a very sensible idea is for the attorney-general to proactively deal with courts and say ‘here’s how these things … should be dealt with, and do (courts) need any assistance’.”

Mr Donaldson said there appeared to be broad support for changes to the security laws in order to make them more effective.

“What differentiates national security information from other categories of information that attracts these well understood rules is that national security information is, if not always, then invariably governmental information,” he said.

“There is proper disquiet about unnecessary and inappropriate government claims of secrecy.”

Mr Donaldson had previously said the Johns case showed how the NSI Act could be used to conduct a federal criminal prosecution “in ‘secret’ from start to finish and to maintain this secrecy, seemingly, indefinitely”, and that it should not happen again.

Deputy secretary of the attorney-general’s department Sarah Chidgey said the laws had been rarely used.

“Statistics demonstrate it’s been used sparingly, only when required, in almost 20 years of its operation,” she said.

“It’s been used in federal criminal proceedings involving 45 individuals and six civil proceedings.”

During 2021/22, the laws were used in three proceedings out of more than 4000 criminal cases involving the Commonwealth Director of Public Prosecutions.

The hearing will later hold a session with the legal team for Bernard Collaery, whose prosecution over allegedly leaking classified information about an alleged Australian spying operation in East Timor was dropped in 2022.

Mr Donaldson said while there were instances where the laws worked, there were cases where issues emerged.

“We’ve had a fair experience with those trials now – the NSI act is thought to work generally quite well,” he said.

“Where the issues have arisen – and Alan Johns and Witness K and Collaery are perfect examples of this – are where the prosecutions have related to secrecy offences.”

Attorney-General Mark Dreyfus says completely secret trials are inconsistent with the rule of law and court cases should be as open as possible while ensuring the protection of national security information.