Government response to INSLM Report on the operation of Part 3, Division 1 of the NSI Act in the Alan Johns matter
The Australian Government agrees with the recommendations of the Independent National Security Legislation Monitor (INSLM) in his report, Review into the operation of Part 3, Division 1 of the National Security Information (Criminal and Civil Proceedings) Act 2004 as it applies in the Alan Johns matter (Report).
The Government will consider legislative options to implement the recommendations in light of the INSLM’s broader review of the whole of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act). In the interim, the Government will consider establishing processes to give effect to the recommendations’ intent without legislative change.
Recommendations
Where closed court orders are sought from any court under s 22, the Attorney-General be required to make submissions to the court to explain why such orders are appropriate and should be made having regard to the object of the NSI Act and the deeply rooted common law tradition of the open court.
The Government agrees with this recommendation.
The Government supports the making of submissions on closed court orders sought under s 22 having regard to the circumstances of each case, noting it is a matter for the court’s discretion whether it receives submissions.
The Government will consider legislative options to implement this recommendation in light of the INSLM’s broader review of the NSI Act, including options to amend the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (NSI Regulation) or the Legal Services Directions 2017 (Directions) as proposed by the INSLM.
Until that broader review is completed, the Government will offer to make submissions to the court when seeking s 22 closed court orders in a proceeding.
Section 22 be amended to express that, where closed court orders are sought under s 22, the court has power to appoint a contradictor to make submissions to the court on such orders.
Alternatively, s 22 be amended to express that, where any orders under s 22 are sought, the court has the power to appoint a contradictor to make submissions to the court on such orders.
The Government agrees with the first formulation of this recommendation.
The Government supports explicitly recognising the court’s inherent power to exercise its discretion to appoint a contradictor where closed court orders are sought under s 22 of the NSI Act.
The Government will consider legislative options to implement this recommendation in light of the INSLM’s broader review of the NSI Act, including options to amend the NSI Act, the NSI Regulation or the Directions, as proposed by the INSLM.
Until that broader review is completed, the Government will, where appropriate, offer to make submissions to the court on the court’s inherent power to appoint a contradictor, when seeking s 22 closed court orders in a proceeding.
That orders made under s 22 of the NSI Act be made publicly available.
The Government agrees with this recommendation.
The Government considers that the administration of justice would be enhanced by making s 22 orders publicly available, noting that the appropriate timing and extent of publication may vary according to the circumstances of a particular case.
The Government will consider what legislative changes may be needed to facilitate public access to s 22 orders in light of the INSLM’s broader review of the NSI Act.
The Government will consult with relevant stakeholders, including the courts, to develop options to facilitate public access to s 22 orders.
That s 47 be amended to add to the matters to be reported:
- within the year, the federal criminal proceedings in which s 22 orders were made
- within the year, the federal criminal proceedings in which a judicial officer required the appointment of a contradictor before making or refusing a s22 order
- if these earlier matters cannot be detailed because of orders of a court, the number of federal criminal proceedings where such orders have been made
- within the year, the federal criminal proceedings in which orders that had in earlier years been made under s 22 ceased to operate
- the total number of federal criminal proceedings in which orders pursuant to s 22 continued to operate.
The Government agrees with this recommendation.
The Government supports increased transparency of the number of legal proceedings in which the NSI Act has been invoked.
The Government will consider amendments to s 47 to implement this recommendation, in light of the INSLM’s broader review of the NSI Act.
Until that broader review is completed and any legislative amendments are made, the Government proposes to incorporate additional data in future NSI Act annual reports on the number of proceedings in which the NSI Act has been invoked during the financial year, commencing with the annual report for 2021/22.
Where closed court orders are sought from any court under s 22, the Attorney-General be required to seek that reasons be given and published.
The Government agrees with this recommendation.
The Government supports the Attorney-General seeking that reasons be given and published where closed court orders are sought under s 22, having regard to the circumstances of each case and noting the giving of reasons is ultimately a matter for the court’s discretion.
The Government will consider legislative options to implement this recommendation in light of the INSLM’s broader review of the NSI Act, including options to amend the NSI Regulation or the Directions, as proposed by the INSLM.
Until that broader review is completed, the Government will ask that the court consider giving and publishing reasons for s 22 closed court orders made in a proceeding.