The federal government’s use of national security legislation to enforce secrecy on the Ben Roberts-Smith defamation case has prompted concern from transparency campaigners, who say such laws are undermining the democratic right to open justice.
The attorney general, Christian Porter, has ordered provisions of the National Security Information Act be applied to civil proceedings between Roberts-Smith, a special forces veteran, and Nine Entertainment, which he accuses of defaming him as a war criminal in a series of news stories.
The attorney general’s intervention, first reported in the Australian, follows the use of similar gag orders in criminal proceedings against Witness K and his lawyer Bernard Collaery, and in the case against Witness J, the Canberra intelligence officer who was charged, tried and imprisoned in total secrecy.
The Roberts-Smith case alleges that Nine defamed the veteran by suggesting he committed war crimes in Afghanistan between 2009 and 2012.
Lawyers for both Roberts-Smith and Nine will now attempt to agree on orders to govern how sensitive material will be handled and stored, which would then be approved by the court. If they are unable to reach an agreement, the attorney general will make his own recommendation to the court.
It is understood that some aspects of the case do not cover sensitive national security material and may remain open to the public.
The type of material most likely to be suppressed includes classified documents, the identity of sensitive witnesses and evidence about military tactics and strategy.
The case differs significantly from others where the NSI Act has been invoked, however. Unlike prior cases, the Roberts-Smith case involves a media company as a party to the proceeding, meaning there will be a clear advocate for the public’s right to know at the bar table.
Porter said his “preference” was to have proceedings in open court but that: “My responsibility as attorney-general is to protect Australia’s national interest and that is what I have done in invoking the NSI Act to ensure a balance between these sometimes competing demands.”
The move has prompted renewed concern from transparency campaigners.
Transparency International Australia’s chief executive, Serena Lillywhite, said the increasing use of national security laws pointed to “an ever-increasing state of secrecy” which was not healthy for democracy.
“The national security legislative framework has the potential to encroach on democratic rights, such as open access to information open legal proceedings,” she told Guardian Australia.
“When gag orders are invoked it understandably raises concerns about transparency and accountability. Gag orders have a chilling effect on whistleblowers, journalists and the legal profession.”
A spokesman for the attorney general said it was “quite usual” to intervene in cases where national security matters may be raised. He said the attorney general acted on advice from his department in such matters.
“Protection of national security information through the NSI Act provides an additional layer of protection to the general powers of courts and is specific to national security information which may be relevant to the safety of, and national interests of Australians,” he said.
“The attorney general acts on behalf of the commonwealth in this regard and, clearly, given the issues at the centre of the action, Defence is the relevant portfolio agency.”
The trial has now been delayed, though the delays were due largely to the systems being used for remote proceedings, which were not suitable for confidential material.
