Submission: National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)

The NSW Council of Civil Liberties  considers that urgent reform of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) is required. The federal government has flagged amendments to national security laws to ensure that the near total secrecy that hid the prosecution and imprisonment of a former Australian intelligence officer cannot happen again.

While we applaud this sentiment, we are concerned that the NSI Act is easily abused for political ends, prescribes a misguided objective, and fails to provide adequate protections that would ensure open and fair justice in the trials to which it applies. We need action.

Having regard to the significant issues with the current NSI Act, the Council submits that it is not fit for purpose and that urgent legislative overhaul is required. We are agnostic as to whether this should occur via wholesale legislative reform to the existing NSI Act, or by repealing and replacing the current regime. What is important, however, is that the reformed version of the regime ensures better protections to parties’ rights and open justice, and adequate procedural limits on the exercise of powers under the NSI Act.

In our submission, we raised specific concerns with the existing NSI Act, including in relation to:

  • The Attorney-General’s full and final power to issue non-disclosure certificates, and the accompanying rules as to how courts must treat these, arguing this affords disproportionate power to the Attorney-General;
  • The absence of a requirement on the Attorney-General to seek reasons from the court where closed court orders have been sought under section 22;
  • Sections 31, 38J and 38L, which place disproportionate weight on risks to national security;
  • The inadequacy of the current definition of “national security information”, which is inappropriately broad and vague, covering misinformation and information already available to the public; and
  • The absence of an independent body to investigate potential breaches and misuses of powers of the NSI Act.

To address these concerns, we make specific submissions for reform of the NSI Act, including that:

  • The Attorney-General’s decision to issue non-disclosure certificates be made judicially reviewable;
  • That the definition of “national security information” be narrowed to limit it only to information not available to the wider public and to remove reference to “international relations”;
  • The balancing tests contained in sections 31, 38J and 38L be amended so that only where an “unacceptable risk” of prejudice to national security exists may courts issue closed court orders under those provisions;
  • In order to better protect defendants’ rights, provision be made to allow a lawyer or appropriate third-party representative with the requisite level of security clearance to represent the defendant's case in all national security information hearings; and
  • That the Attorney-General be required to seek reasons where closed court orders are sought under section 22.

Read our submission here.