Supplementary Submission: The operation of section 22 of the National Security Information (Criminal and Civil Proceedings) ACT 2004 (Cth) as it applies in the 'Alan Johns' matter (a pseudonym)
The Law Council’s primary position is that subsection 22(2) of the National Security Information (Criminal and Civil Proceedings) ACT 2004 (Cth) (NSI Act) should be amended to prohibit the making of orders which are capable of suppressing all information about a criminal matter, and that provision should require that orders allow the disclosure of at least the most fundamental information about a criminal proceeding.
However, if this position is not accepted, the Law Council considers there should be some added legislative step to elevate the public interest in open justice, and a requirement on the court to consider less restrictive alternatives, before in camera proceedings take place under section 22.
The Law Council acknowledges that a great number of orders made under subsection 22(2) will be uncontroversial; governing routine matters such as the practical arrangements for the physical storage and handling of documents containing national security information.
It also recognises that there will be circumstances where the need to close a court will be uncontroversial because it is readily apparent – such as a witness giving oral evidence which discloses the true identity of an employee of an intelligence service. It is unlikely that the submissions of a contradictor would be necessary or of assistance to a court in either of these circumstances.
This supplementary submission is intended to provide the Law Council’s views on those circumstances or ‘trigger points’ where a court, as part of that added legislative step, should be required to hear from a contradictor (in the form of a public interest advocate or similar) and consider their submissions canvassing less restrictive alternatives to those posed by the party’s subsection 22(1) arrangements, before making orders under subsection 22(2).
You can read the full submission below.