Australia’s secrecy laws are up for review. 

The Independent National Security Legislation Monitor (INSLM), Grant Donaldson, has commenced a hearing to examine Australia's most powerful secrecy law, the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).

In response to the NSI Act's shortcomings, lawyer Bernard Collaery, previously charged under the intelligence act alongside his former client 'Witness K,' called for the removal and immediate repeal of sections that kept his prosecution secret. 

He emphasised the need for a thorough review of the act, which he believes has led to difficulties in judicial interpretation and rigidity in application.

The NSI Act has gained notoriety following its use in secret prosecutions, including that of 'Witness J'. 

Mr Collaery's charges were dropped last year when the Labor government assumed power. Nonetheless, the implications of the act continue to resonate, prompting the INSLM's comprehensive review.

Mr Collaery urged for this inquiry to have been conducted earlier, stressing the dangers of rigid black-letter provisions in the act that have contributed to prolonged legal trauma.

Throughout the INSLM's review, it was revealed that Mr Collaery's legal team appeared 59 times in ACT courts over four years, with the majority of issues concerning secrecy and disclosure.

The Law Council of Australia appeared before the INSLM too, presenting their concerns regarding the NSI Act's impact on fair and public hearings and the principle of open justice. 

Law Council President Luke Murphy asserted that while safeguarding national security information during federal proceedings is essential, the NSI Act's current approach goes too far in limiting fundamental rights.

The Law Council has proposed five critical areas of improvement for the NSI Act. First, they called for the repeal of sections 39 and 39A, which involve the security clearance process, arguing that it interferes unjustifiably with individuals' rights to legal representation and poses a threat to the independence of the legal profession.

Second, they advocated for the repeal of subsection 31(8), which they believe prioritises national security interests over the rights of the accused and the principle of open justice. The Law Council recommends amending subsection 31(7) to explicitly consider the principle of open justice before making any orders.

Third, the Law Council stressed the need for a more precise definition of the NSI Act's scope of operation. They suggested amending the notice provisions to require notification to the Attorney-General only for the disclosure of a more narrowly relevant class of information. Additionally, they called for greater specification of the degree of prejudice required under section 17 to establish disclosure likely to prejudice national security.

Fourth, the Law Council expressed serious concerns about the proportionality of the offences in Part 5 of the NSI Act and the accompanying regulations. They highlighted the risk of prosecuting lawyers for merely fulfilling their professional duties and opposed any proposal to increase penalties for these offences.

Fifth, the Law Council supported the explicit regulation of the appointment of special advocates for closed court applications, non-disclosure certificate hearings, and decisions to disclose information in court reasons for orders under the NSI Act.