Bernard Collaery’s lawyers say courts should be banned from hearing secret evidence about crucial aspects of a case which are hidden from an accused under strict national security laws.
Collaery’s legal team gave evidence on Thursday to the Independent National Security Legislation Monitor, Grant Donaldson, about their experience in dealing with the secrecy restrictions contained in the National Security Information (NSI) Act, which is designed to safeguard sensitive information during court proceedings.
Intelligence agencies believe the law is necessary to prevent sensitive material being exploited by foreign spies, who see court cases as a potential intelligence collection tool, and believe it is appropriately balancing the need for secrecy with the proper administration of justice.
Collaery’s legal team told Donaldson that, while they understand the need for the NSI Act, it has fundamental problems and requires significant reform.
In a detailed submission earlier this month, they told the inquiry the secrecy restrictions on the case were so severe that Collaery was forced to obtain government approval for his lawyer to view evidence against him, communicate with his legal team in-person in secure rooms chosen by the commonwealth, physically transport documents around the country at exorbitant cost and compose drafts on commonwealth laptop computers at pre-approved locations.
The government was also able to lead “court-only evidence” in support of its effort to impose secrecy on the case. That court-only evidence was deemed so sensitive that Collaery and his legal team were never able to see or know about it.
Phillip Boulten SC, who acted for Collaery and sits on the Law Council of Australia’s national criminal law committee, said the use of court-only evidence could potentially go further.
He suggested that evidence about a defendant’s guilt or innocence – material that goes to the substantive issues at trial – could be completely withheld from a defendant and their lawyers under the NSI Act, and shown only to a court or jury.
“It is more than theoretically open to the prosecuting authorities and to the government to want to try to prosecute someone where evidence that goes to the facts in issue is so secret that the accused should not know it,” he said. “And we say there should be a ban on that.”
Boulten said defendants could seek a permanent stay to halt the case against them in such cases, citing the unfairness.
Donaldson, a watchdog overseeing national security laws, suggested that the argument over a stay “wouldn’t be a very long” one, given the clear unfairness such a scenario would pose to defendants.
“Are you talking about evidence that goes before a jury, to which jury has a regard in deciding guilt or innocence, that is not shown to the defendant or defence and they’re not present in court while it’s given?”
Boulten replied: “That’s what I’m talking about. That might be very, very easily solved in a criminal trial. It might not be so straightforward in civil proceedings and it’s certainly not the case in proceedings where they are designed to make orders against somebody.”
Earlier, the Human Rights Law Centre and the Law Council of Australia raised serious concerns about the NSI Act and called for significant reform. The HRLC senior lawyer Kieran Pender told the inquiry the laws “significantly undermined open justice”.
Pender made a series of recommendations, including that an independent advocate be appointed in NSI Act cases to ensure someone is in court arguing for open justice.
“[The open justice advocate] addresses an all-too-real vice in these cases where secrecy otherwise suits the interests of all of the parties,” he said.
The Law Council of Australia said the way the NSI Act was operating represented an “unacceptable restriction on the right to a fair trial, and to a public hearing and the principle of open justice”.
The Law Council said the NSI Act effectively allows the government to dictate which lawyers can act for defendants by imposing a security clearance requirement.
Lloyd Babb SC, the chair of the Law Council’s national security law working group and the NT’s top prosecutor, said the law is at odds with Australia’s international obligations.
“Without significant amendments, these provisions permit an unjustified interference to a person’s legal right to a legal representative of his or her choosing,” Babb said. “This is a critical facet of the rule of law and it is protected by Australia’s obligations under international human rights law.”
