National security trials a target for foreign spies: Andrew Shearer

Office of National Intelligence director-general Andrew Shearer said national security information was more "vulnerable" while in legal proceedings rather than in the hands of intelligence agencies or in secure facilities.

The national security watchdog, the Independent National Security Legislation Monitor, is taking a look at laws preventing Commonwealth secrets from being revealed in public trials, leading to closed courts.

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

In the case of Alan Johns, or Witness J, the former intelligence officer was secretly imprisoned in a Canberra jail for 15 months after being charged with disclosing confidential information in 2018.

Not even the ACT's justice minister Shane Rattenbury had been aware of the man's imprisonment.

The used of closed justice has been heavily criticised by human rights and legal advocacy groups, who warn it is undemocratic and disproportionate.

Appearing on behalf of the 10 intelligence agencies in the community, which includes ASIO and ASD, Mr Shearer on Wednesday said the laws continue to be necessary given the "unprecedented" threat of espionage and foreign interference.

"The challenge Australia faces from espionage and foreign interference today is unprecedented and the threats are more serious and sophisticated than ever before," he told the hearing.

"We know that foreign intelligence services are gathering intelligence about legal proceedings, and are using litigation as an intelligence collection tool.

"Our adversaries understand that national security information is vulnerable in legal proceedings and is at far greater risk than it might be inside an intelligence agency or a secure facility."

Mr Shearer said the law as it stood found the balance in the tension between maintaining tightly-held national secrets and open justice.

"The NSI Act ensures that the protection of national security information is not at the cost of the proper administration of justice and the court may order proceedings to be stayed if it threatens to impinge on a defendant's right to a fair trail," he said.

"This is an indispensable plank of our liberal democracy."

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In closed trials, judges can appoint a "special advocate" - a lawyer not involved in the prosecution or defendant's team - to represent the interests defendants where classified evidence is being presented.

INSLM Grant Donaldson said he strongly supported legislative changes to give judges express power to appoint "special advocates" in those cases.

Attorney-General's Department deputy secretary Sarah Chidgey, who appeared earlier in the day, said the laws to cloak prosecutions under secrercy had been rarely used.

"Statistics demonstrate it's been used sparingly, only when required, in almost 20 years of its operation," Ms Chidgey said.

"It's been used in federal criminal proceedings involving 45 individuals and six civil proceedings."

The watchdog said the laws worked most of the time but when they failed in certain high profile cases.

"We've had a fair experience with those trials now - the NSI act is thought to work generally quite well," he said.

"Where the issues have arisen - and Alan Johns and Witness K and Collaery are perfect examples of this - are where the prosecutions have related to secrecy offences."

Mr Donaldson has previously said secret cases are "exceptional" and the public should be made aware they are happening, even if orders are made to suppress their details.

He added Witness J case should never have been allowed to happen.

"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."

The public hearing continues on Thursday with witnesses from the Law Council of Australia, the Human Rights Law Centre and Bernard Collaery's legal defence team.