Right to fair trial under threat

Mr Cope President of the QCCL today said that the recent trial of Mr Bernard Collaery demonstrated that the National Security Information (Criminal and Civil Proceedings) Act has to be repealed.

When Mr Collaery delivered the QCCL’s annual Derek Fielding Memorial Lecture in 2022 he told us of the situation which occurred on a number of occasions during hearings in relation to his matter where not only were he and his lawyers excluded from the Court, but the prosecution team was also excluded from the court. The only people in Court were lawyers for the spooks arguing for the need to exclude evidence. Suffice to say no members of the public or journalists were present either.

Mr Cope says, “The Act allows for non-disclosure of national security information in criminal and civil proceedings in some instances, which adversely affects due process and the administration of justice in those proceedings.”

It cannot reasonably be denied that no person can have a fair trial when they do not have access to the entirety of the case against them. Nor can the public be satisfied that justice is being done in our Courts when the public is unable to obtain access to large parts of a Court proceeding in a matter of major public interest.

This legislation was introduced in 2004 at the peak of concerns about terrorism. Since then, we have learned that the law inappropriately prioritizes the secrecy of national security information over the administration of justice

This is particularly concerning when many experts here and, in the US, have made it clear that governments regularly over classify information as secret.

“In its recent submission[1] to the Independent National Security Legislation Monitor, the Council called for the repeal of the Act and a return to the common law principle of Public interest immunity as the basis for dealing with national security information in our Courts. Whilst that principle is not without its difficulties, the Council submitted that it resulted in a better balancing of the interest of the community in national security against the interests of the community in the open and fair administration of justice".

ENDS

[1] https://www.qccl.org.au/newsblog/review-of-the-national-security-information-criminal-and-civil-proceedings-act-2004