Collaery case highlights need to reform NSI Act
7 July 2022
All comments are to be attributed to Law Council of Australia President, Mr Tass Liveris
The Attorney-General’s decision to direct the discontinuation of the prosecution of lawyer Bernard Collaery on the basis that it is not in Australia’s national interests (including national security interests), highlights the need for review and reform of official secrecy offences and the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).
Secrecy offences must be reviewed to ensure there are adequate protections for whistleblowers and their legal advisers who are concerned about potential matters of illegality.
The NSI Act also requires reform to recalibrate the balance between the principle of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security.
The Law Council has long advocated for significant reforms to the NSI Act to ensure that the court maintains the interests of justice without being directed to place greater weight on any one consideration, such as national security, over other equally important considerations.
The Law Council considers the NSI Act currently tilts the balance too far in favour of the interests of protecting national security at the expense of the rights of the accused and maintains that it is not a proportionate response to addressing the risk that information prejudicial to national security may be released.
It is the belief of the Law Council that courts should be empowered to identify the relevant considerations and the degree of weight to be placed on each of them.
The discontinuation of the prosecution of Mr Collaery presents an opportunity to review and reform both the elements of official secrecy offences with respect to their application to whistleblowers and the application of the NSI Act to the prosecution of such offences.
The Parliamentary Joint Committee on Intelligence and Security recommended in 2018 that the Attorney-General initiate a review of existing secrecy offences, taking into account the set of principles contained in the Australia Law Reform Commission’s report Secrecy Laws and Open Government in Australia.
The Law Council considers that implementation of this recommendation is critical and that the Independent National Security Legislation Monitor (INLSM) who reviews the operation, effectiveness and implications of national security legislation, would be well-placed (with appropriate resourcing) to conduct a review of the NSI Act.
The goal of reform of the NSI Act must be to balance the tensions that exist between national security and open justice. Public faith in the administration of justice requires that justice must not only be done, but it must also be seen to be done. Secrecy or suppression is only ever appropriate in those rare cases where the exceptions to open justice have been appropriately considered and applied.
Contact: Kristen Connell, P. 0400 054 227, E. firstname.lastname@example.org