A Poisoned Apple? The Use of Secret Evidence and Secret Hearings to Combat Terrorism in Australia.
Edith Cowan University
Faculty of Business and Law
School of Law and Justice / Security Research Centre (secAU)
The use of secrecy in the form of secret evidence and secret hearings had a limited role in modern democracies where the focus is on open justice. This changed after the events of 11 September 2001. Secrecy may be a necessary adjunct to maintaining military options, for combating organised crime and countering terrorism but like a double-edged sword it can also cut into the fabric of the democratic state via abuses of power, and the maintenance and expansion of organisations beyond their usefulness. This paper considers the use of secrecy in Australia with particular reference to its impact on the administration of justice in terrorism matters. It reveals an increased use of secret evidence covered by new legislation that directly impacts on the trial process. It raises issues of fairness to accused persons and others who may be required to obtain security clearances to do their job. For the present, the system seems to work fairly, if only because of the skill, ability and commitment to fair justice of parties who work in the criminal justice system; but, there is a clear potential for abuse by those who say they require secrecy to protect Australians from terrorists.