Secrecy laws 'possibly unconstitutional', Human Rights Law Centre submission to National Security Legislation Monitor warns following Witness J case

The Independent National Security Legislation Monitor is undertaking its inquiry into the National Security Information Act to review the operation and effectiveness of the laws. A report will be delivered to the Attorney-General later this year.

The review was prompted by the prosecution of "Witness K", a former Commonwealth officer, and his legal counsel, Bernard Collaery.

The oversight body's head, Grant Donaldson, delivered in July last year his scathing report into the case of Alan Johns, or "Witness J", who was secretly imprisoned in a Canberra jail for 15 months after being charged with disclosing confidential information in 2018.

The Human Rights Law Centre described the laws enabling the secret case as "undemocratic, possibly unconstitutional and in urgent need of comprehensive reform".

In its submission to the watchdog's inquiry, senior lawyer Kieran Pender called for changes to prevent trials and prosecutions going ahead under a cloak of darkness.

"Open justice is a critical democratic principle, protecting the human rights of all Australians," Mr Pender said.

"Yet in recent years we have seen the NSI Act used to shroud the prosecution of whistleblowers like Bernard Collaery, Witness J and David McBride in secrecy, and the fully-secret prosecution of Witness J.

"These cases undermine public confidence in our legal system."

Mr Pender proposed 14 recommendations to prevent the case of Mr Collaery and Witness J from ever being repeated.

Among them are the narrowing of scope to ensure the law can only be used where necessary and proportionate to the risk to national security posed along with the retention and periodic review of closed court materials.

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Aspects of the act should also be amended to highlight the importance of open justice and that the preservation of open justice is among the law's aims, he wrote.

While Mr Pender said the laws should remain pending significant improvements, he suggested it should be repealed entirely if the necessary reforms aren't enacted.

"Comprehensive reforms are required to put open justice at the heart of the NSI Act," he said.

"Appropriate checks and balances are needed to ensure the NSI Act upholds open justice without compromising national security.

"If adopted, our recommendations would help ensure the sweeping secrecy in cases like Collaery and Witness J can never happen again."

The ACT Supreme Court released the judge's sentencing remarks in April, peeling back more of the mystery surrounding the man's offences.

Highly-redacted remarks from Justice John Burns, released more than four years after Witness J was first jailed, reveal the former intelligence officer's mishandling of classified information potentially placed people in "quite grave" danger.

Attorney-General Mark Dreyfus welcomed the sentencing remarks' release, saying he had requested the court to do so following the INSLM's recommendation.

"The former government agreed to an unprecedented level of secrecy in the prosecution of 'Alan Johns' resulting in wholly closed criminal proceedings," he said.

"This is not consistent with the rule of law and open justice.

"While it is always a matter for the court to determine what is published, court proceedings, including judgments and reasons, should be as open as possible whilst ensuring national security information is protected."

The series of events relating to Witness J was publicly revealed following a raid by Australian Federal Police of his Alexander Maconochie Centre cell in order to intercept a memoir he was writing of his situation.

The case sparked outrage among politicians and the public, including then-ACT justice minister Shane Rattenbury who had been unaware of the prisoner despite being in charge of the territory's corrections system at the time.

Mr Donaldson's report into aspects of the law confirmed its limitations allowed for a "seemingly" indefinite imprisonment.

"Alan Johns shows how s 22 can be used to conduct a federal criminal prosecution in 'secret' from start to finish and to maintain this secrecy, seemingly, indefinitely," Mr Donaldson wrote.

"This should not have happened in Alan Johns and it should never happen again."

Mr Donaldson's report recommended the Attorney-General be required to provide a submission to argue for closed hearings.

He said the country's top law officer should be reminded secret cases in criminal prosecutions are "exceptional".

The public should also be made aware secret cases are happening, even if orders are made to suppress their details, he added.

"Even where orders are properly made for closed court hearings or broad suppression, the administration of justice would be enhanced by their publication," Mr Donaldson wrote.

Public hearings into Mr Donaldson's review of the act will be held Canberra on July 19 and July 20, 2023.

The INSLM's final report will be delivered to the Attorney-General before October 31.