Speech by Terry O'Gorman to The Persecution of Truth Conference 30/4/23
In an article in the Law Society Journal in July of 2022 Kieran Pender, a senior lawyer with the Human Rights Law Centre, observed that “3 men are presently before Australian Courts charged with revealing information about the inner-workings of government agencies or the conduct of our Armed Forces. Such prosecutions say plenty about the lack of protections afforded to whistle blowers, what is the price for our democracy and why the change of government must signal a new approach for Australia’s treatment of whistle blowers”.
Pender referred to the case of Bernard Collaery who is a distinguished Canberra lawyer and former ACT Attorney General. Together with his client, Witness K, Collaery was charged in 2018 with secrecy offences. The backdrop to the case is Australia’s espionage against Timor-Leste in the early 2000s, when Australian Intelligence Officers allegedly bugged the Timor Cabinet Office to gain an upper hand in energy negotiations with the newly independent nation. Witness K pleaded guilty and was given a suspended sentence. Collaery was charged with a greater number of offences mostly relating to disclosures to ABC journalists and his case was only recently discontinued by Federal Attorney General Mark Dreyfus KC[1].
Pender in the same Law Society article also referred to the cases of David McBride and Richard Boyle.
During McBride’s time as an Australian Defence Force lawyer he twice served in Afghanistan. He raised concerns internally about Australian soldiers’ conduct in Afghanistan before ultimately blowing the whistle to the ABC. The ABC “Afghan Files” reporting revealed multiple incidents of troops killing unarmed men and children and was later vindicated by the war crimes allegations made in the Brereton Report. McBride was charged with theft and secrecy offences in 2018 and 2019. He has pleaded not guilty. Like Collaery, McBride’s case has been shrouded in secrecy[2].
Then there is the case of Richard Boyle who blew the whistle about misconduct within the Australian Taxation Office internally at first and ultimately to the ABC. Boyle alleged that the ATO was misusing its enforcement powers through unethical debt recovery practices. He has been vindicated. Several inquiries including by the Senate have confirmed his allegations. Boyle was charged in 2019 initially with an astonishing 66 counts later downgraded to 24[3].
Pender notes that it is worth reiterating that Collaery, McBride and Boyle are on trial for telling the truth about government wrongdoing. No one really denies what they blew the whistle on namely Australia’s immoral alleged espionage against Timor-Leste, the potential war crimes committed by our Special Forces in Afghanistan and misconduct at the Tax Office. All 3 whistle blowers have been vindicated, in one way or another. There is a revised treaty following international legal proceedings in relation to Timor, the Brereton Report appears to vindicate McBride and there is now an ongoing criminal investigation into allegations of war crimes by Australian SAS personnel. There is a Senate Inquiry in relation to Boyle. Yet all 3 have faced imprisonment for telling the truth[4].
A little over a week ago the ACT Supreme Court released sentencing remarks in the case of Witness J which has been kept secret for more than 3 years[5].
In the case Witness J the Independent National Security Legislation Monitor (Grant Donaldson SC) in June 2022 released his report into the operation of the National Security Information Act as it applies in the Witness J matter.
Donaldson notes that as to the publication of the sentencing remarks in Witness J it is impossible to conceive that any Judge would have openly published the whole of the sentencing remarks observing it was plainly correct that disclosure of the confidential information that underlay the charges against Witness J could endanger the lives or safety of others[6].
Former New South Wales Justice Anthony Whealy KC has stated that Witness J’s trial appeared to be a ‘complete abandonment of open justice’, and has queried whether Australia is now a ‘totalitarian state where people are prosecuted, convicted and shunted off to prison without they or the public having any notion as to what happened’[7].
Despite these observations the Independent National Security Legislation Monitor (referred to as the Monitor) made 3 recommendations in his June 2022 report to the Federal Attorney General Mark Dreyfus KC namely:
Where closed court orders are sought from any court under the National Security Information Act the Attorney General be required to make submissions to the court to explain why such orders are appropriate and should be made having regard to the object of the NSI Act and the deeply rooted common law traditions of the open court[8];
That the Act be amended to express that where closed court orders are sought the court has the power to appoint a contradictor (a Special Counsel or a Special Advocate) to make submissions to the court on such orders[9];
That orders made under the NSI Act be made publicly available[10];
Where closed court orders are sought from any court the Attorney General be required to seek that reasons be given[11].
Background to the National Security Information Act:
In the Bernard Collaery case Anthony Whealy KC a former Judge who presided over several of Australia’s recent terrorism trials said in October 2019 ‘This could be one of the most secretive trials in Australian History’[12].
The NSIA creates special procedures by which national security information can be protected while still being used as evidence.
National security information is defined broadly under the Act as any information relating to ‘Australia’s defence, security, international relations or law enforcement interests’.
There are 2 circumstances in which the NSI procedure can be triggered. The first is when the parties know in advance they are likely to reveal national security information during the trial and the parties must notify the Attorney General of this or face 2 years in prison.
The second set of circumstances relates to when a witness is being questioned on the stand and an answer has the potential to reveal national security information. If the lawyer or the defendant knows this could happen he or she must stop the witness from answering and notify the court. A failure to do this means facing 2 years in prison[13].
In either of these circumstances the Attorney General can issue a non-disclosure certificate that prohibits the information from being revealed or allows it to be revealed in summary or redacted form. The court then holds a closed hearing in which the Judge will determine whether and how the information may be used.
In a closed hearing not only are journalists and members of the public barred from attending but also the jury. The Judge may even exclude the defendant, the defendant’s lawyers or a court official if revealing information to them would be likely to compromise national security.
The main problem with the NSIA is that it creates a situation in which national security information can be used in a courtroom without the defendant, jury, media or general public knowing the details of that information[14].
The Collaery, McBride and Boyle cases have to be seen as part of a new trend whereby evidence is admitted into court and is available to one side (the prosecution, in criminal matters) but not to the other even though that evidence may be used against them. The circumstances in which this evidence is selectively admitted is much broader than the previous public interest immunity exception placed on national security. Much leeway is being granted to the Executive to exclude evidence from scrutiny[15].
The trend of increasing availability of secret evidence coincides with a dramatic increase in the use of civil proceedings that can result in severe penalties in the place of once traditionally available criminal proceedings. Federally, control orders, preventative detention orders and continuing detention orders (all creatures of counter-terrorism legislation) all allow sever curtailment of liberty, including lengthy periods of detention, on the satisfaction of the civil standard of proof and applying civil rules of evidence. At the State level organisations can be labelled ‘outlaw’ or ‘illegal’ in a civil proceeding with members effectively being criminalised as a result[16].
In considering the current operation of the NSI Act in an informative article in the Bond Law Review in 2022[17] it is observed that there is a difficult balance to be achieved between the public interest in avoiding harm to national security and the public interest in disclosing matters that should rightfully be in the public domain including information that is necessary to disclose in the interests of government accountability.
In Australia the trend towards suppression of the free flow of information particularly in recent years suggests that this delicate balance has been overthrown.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) noted that the prevailing argument from non government stakeholders is that the balance and legislation and culture within the Australian government has stepped away from transparency and engagement to excessive and unnecessary secrecy[18].
The Bond Law Review article notes that there are powers in the NSI Act to make such orders as the Court considers appropriate in relation to the disclosure of national security information if the Court is satisfied that it is in the interests of national security. The Court must determine whether any non-disclosure order would have a ‘substantial adverse effect’ on the defendant’s right to receive a fair hearing.
The accused and his lawyers must be given an opportunity to make submissions in relation to disclosure of information or the calling of witnesses.
The Bond Law Review article notes that while it is implicit in their right to make submissions that the accused must know the substance of the argument in relation to non-disclosure various provisions of the NSI Act mean that an accused person must make a submission about non-disclosure without knowing what the non-disclosure information is or what impact it might have upon the case.
In making a determination the Court is required to give the greatest weight to the consideration of whether permitting disclosure or calling the witnesses would compromise national security[19].
In 2020 the former head of ASIO, Dennis Richardson, in carrying out a review of the legal framework of national intelligence noted a tendency to over classification of material and Richardson noted that some agencies lacked appreciation of the careful balance required between the right to a fair trial, the principle of open justice and the protection of national security information[20].
It is important to note that Justice Whealy who presided over a number of cases involving application of the NSI Act has observed that the Act has the capacity to create a situation where the defendant’s right to a fair trial may be significantly impaired[21].
While the Act specifically provides that a non-disclosure order does not prevent the Court from staying a matter if non-disclosure would have a substantial adverse effect on their right to receive a fair hearing it is to be noted that despite this important protection it is inherently problematic for such a determination to be made in the absence of the accused. Only the accused can know the defences that they will raise to the charges against them and the basis upon which they will raised[22].
It is also important to observe that in his 2020 review Richardson noted that the United States has a greater willingness to make public disclosures about sensitive information and capabilities to achieve a successful prosecution in relation to its equivalent legislation and Richardson suggested that Australian Intelligence Agencies should be prepared to move in the same direction[23].
Conclusion:
The NSI Act is now to be the subject of a comprehensive review. This is to be welcomed particularly in the light of the criticisms of the Law Council of Australia when the NSI Act was introduced in 2004 where those criticisms have been shown to be prescient.
The Law Council noted:
‘Decisions which are critical to the nature of the prosecution case including possible exculpatory elements being determined in the absence of the accused or their lawyer by a Judge who is processing prosecution arguments in secret.[24]’
It is also time that there be a national review of legislation in criminal and civil cases not involving national security allowing the closing of courts and suppression of reporting of court proceedings. Such a review should pay particular attention to closed court or suppression orders sought by the government including the reasons for seeking such orders, the outcome and the particular limitations imposed[25].
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[1] See LSJ Online ‘Whistle blowing and the high cost of speaking up’ 01/07/2022
[2] Ibid page 2
[3] Ibid page 2
[4] Ibid page 3
[5] See ABC News Online ‘ACT Supreme Court releases Witness WJ sentencing remarks kept secret for more than 3 years’ 19/04/2023
[6] See 4th paragraph INSLM Review into the operation of the NSI Act June 2022 page 18
[7] See Christopher Knous ‘Are We Now a Totalitarian State’ The Guardian 21/11/2019 referred to in ‘Hear no evil, see no evil, speak no evil: The Secretisation of Information by Government in Australia’ Bond Law Review Volume 34 Issue 1 2022
[8] Ibid page 40
[9] Ibid page 41
[10] Ibid page 43
[11] Ibid page 48
[12] See The Conversation 02/10/2019
[13] Ibid
[14] Ibid
[15] See Anna Talbot ‘The use of secret evidence in civil and criminal proceedings’ [2017] Precedent Australian Lawyers Alliance page 58
[16] Ibid
[17] See ‘Hear no evil, see no evil, speak no evil: The Secretisation of information by government in Australia’ Kylie Weston-Scheuber Bond Law Review Volume 34 Issue 1
[18] Ibid page 33 referring to the Parliamentary Joint Committee on Intelligence and Security Report into Law Enforcement and Intelligence Powers on the Freedom of the Press August 2020
[19] Ibid page 39
[20] Ibid page 40
[21] Ibid page 43
[22] Ibid page 43
[23] Ibid page 44
[24] See ‘Hear no evil, see no evil, speak no evil: The Secretisation of information by government in Australia’ Bond Law Review Volume 34 Issue 1 2022
[25] See ‘Hear no evil, see no evil, speak no evil: The Secretisation of information by government in Australia’ Kylie Weston-Scheuber Bond Law Review Volume 34 Issue 1 2022 pages 50-51