Secret Witnesses, Secret Information and Secret Evidence: Australia’s Response to Terrorism

Mississippi Law Journal, Vol. 80, No. 4, pp. 1371-1394, 2011

Sydney Law School Research Paper No. 11/74

25 Pages Posted: 26 Oct 2011

See all articles by Miiko A. Kumar

Miiko A. Kumar

The University of Sydney - Faculty of Law

Date Written: October 26, 2011

Abstract

The fundamental principles that govern criminal trials are open justice, fairness to the accused and the ability of the accused to confront evidence. This article aims to consider the extent to which terrorism trials conducted in Australia have undermined these principles by the use of anonymous witnesses, the non-disclosure of intelligence and the use of secret evidence. The first part of this article examines the right to a public hearing, the right to fair trial and the right to confrontation. The second part examines the use of secret witnesses and comparison is made with European jurisdictions to demonstrate that the differing Australian law on anonymous witnesses is in need of reform. The third part considers Australia’s statutory regime to prevent disclosure of information that is likely to prejudice national security. Such a regime takes the unusual step of directing judges to weigh national security more favorably than the rights of the accused when determining whether information can be disclosed. Finally, the article will briefly look at the use of secret evidence. Secret evidence is routinely used to claim public interest immunity, but its use outside the terrorism trial to obtain control and preventative detention orders is the most alarming part of Australia’s legislative response to terrorism as this procedure presents the greatest infringement to the principles of openness, fairness and confrontation.

Keywords: open justice, fair trial, confrontation, anonymous witnesses, public interest immunity, secret evidence

JEL Classification: K10, K14, K30

Suggested Citation

Kumar, Miiko A., Secret Witnesses, Secret Information and Secret Evidence: Australia’s Response to Terrorism (October 26, 2011). Mississippi Law Journal, Vol. 80, No. 4, pp. 1371-1394, 2011, Sydney Law School Research Paper No. 11/74, Available at SSRN: https://ssrn.com/abstract=1949575

Miiko A. Kumar (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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