Australia’s intelligence community believes foreign spies are using sensitive court proceedings as an “intelligence collection tool” while defending the need for tough secrecy laws.
Australia’s national security law watchdog, the Independent National Security Legislation Monitor, on Wednesday began public hearings examining the use of laws designed to protect sensitive information during court proceedings.
The National Security Information Act (NSI Act) is designed to guard confidential material that may harm Australia’s national security but the laws have prompted controversy in recent high-profile prosecutions involving Bernard Collaery, Witness K and Witness J, where they have significantly hampered open justice.
Andrew Shearer, the director general of national intelligence, said on Wednesday that court proceedings were seen as a vulnerability by foreign intelligence agencies for the exposure of sensitive information.
“We know that foreign intelligence services are gathering intelligence about legal proceedings and are using litigation as an intelligence collection tool,” Shearer said. “Our adversaries understand that national security information is vulnerable in legal proceedings and is at far greater risk than it might be inside an intelligence agency or a secure facility.”
He repeated a prior warning by Mike Burgess, the head of the Australian Security Intelligence Organisation, that foreign intelligence services would “absolutely” use sensitive legal cases to seek to obtain information on Australian sources, methods, personnel, capabilities, vulnerabilities and intelligence priorities.
The independent national security legislation monitor, Grant Donaldson is currently investigating the effectiveness of the NSI Act and is considering whether it should be subject to reform or scrapped altogether.
Donaldson has previously examined the NSI Act’s use in the case of Witness J, or Alan Johns, a former intelligence official who was prosecuted and jailed entirely in secret. In his 2022 report, he said the case showed how the NSI Act could be used to hold a “federal criminal prosecution in ‘secret’ from start to finish and to maintain this secrecy, seemingly, indefinitely”.
“This should not have happened in Alan Johns and it should never happen again,” the report said.
Shearer, speaking on behalf of the entire Australian intelligence community, said he supported changes to the NSI Act to modernise it. He said the intelligence community supported a modest change to the way national security information was defined under the laws.
But he said he believed the NSI Act was striking the right balance between the competing needs to ensure the proper administration of justice and the need to preserve secrecy.
Shearer said the current threat environment was characterised by “unprecedented” levels of espionage and foreign interference.
He said such activity was “more serious and sophisticated than ever before”, with foreign intelligence services in multiple countries aggressively targeting all levels of government.
“Therefore the threat we are facing today is not abstract, but very real,” he said.
Earlier, the Attorney-General’s Department deputy secretary Sarah Chidgey gave evidence that the NSI Act had only been used rarely – three times out of the more than 2,000 federal criminal prosecutions in 2021-2022 and only 51 matters in over 18 years of operation.
She said it provided an “essential framework” for promoting the administration of justice in an evolving security environment.
Donaldson said it appeared that the NSI Act works “generally quite well” in terrorism cases. But 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.”
The hearing continues in Canberra.
