The Law Council has called for reforms to the federal secrecy laws invoked in the defamation case involving the special forces veteran Ben Roberts-Smith.
The use of the National Security Information Act in the Roberts-Smith case against Nine Entertainment has prompted concern among transparency experts, while Labor has said the use of the powers should be reviewed by the national security watchdog.
The powers are designed to restrict the way a court can handle sensitive national security information. They have previously been used in a way that hides criminal proceedings from the public, most notably in the case against the military intelligence officer Witness J, who was charged, tried and imprisoned in secret.
While not commenting on the Roberts-Smith case directly, the Law Council of Australia said it still had concerns about the laws.
The council’s president, Pauline Wright, said it was a “fundamental rule” that justice take place in open court. Only in rare exceptions was secrecy or suppression appropriate, she said, and only when the principles of open justice had been appropriately considered.
“It is therefore imperative that where a statute, such as the [National Security Information Act] is applied, careful scrutiny is given to whether that Act strikes an appropriate balance between the requirements of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security interests,” she told the Guardian in a statement.
The Law Council wants changes to the law to force courts to give reasons justifying a decision to hear matters in closed court.
It has also called for a scheme to appoint “contradictors”, or special advocates, who speak on behalf of any party forced to leave a courtroom before confidential material is canvassed.
“The Law Council will closely observe proceedings in which the NSI Act is invoked, in both civil and criminal jurisdictions,” Wright said.
The attorney general, Christian Porter, this week confirmed that he had invoked the NSI Act in the Roberts-Smith defamation proceedings, acting on departmental advice.
It is thought to be the first time the powers have been used in defamation proceedings.
Roberts-Smith alleges the then Fairfax-owned Sydney Morning Herald and Age defamed him by publishing a series of stories suggesting he was a war criminal.
The case is thought to involve some sensitive material, including protected identities and confidential documents.
Invoking the NSI Act forces both the plaintiff and defendant to negotiate on orders governing how sensitive material will be handled in court. If they are unable to agree, the attorney general can make his own recommendation to the court.
On Wednesday Porter said the reaction to the use of the NSI Act had been exaggerated. The powers were not being used to conduct a secret trial of any type, he said, but to ensure sensitive national security information was protected.
“My department and Defence provided advice to me that said that it was possible that … because Defence had been subpoenaed that some of the information that the parties to the action sought to obtain from Defence might have involved matters of national security importance,” he said.
“Sometimes, things are simple but ... I have a responsibility to ensure that if that information is being sought, that it will be dealt with by the court in a way that might ... still protect the identity of the person whose identity should be protected.”
