The government's national security legislation watchdog has called for stricter safeguards in proposed laws that would deny terrorism suspects subjected to bail-like "control orders" access to some of the evidence against them.
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The Independent National Security Legislation Monitor, former judge Roger Gyles, said denying people access to evidence against them in control order hearings would not honour the principles of open justice unless security-cleared lawyers known as "special advocates" were appointed to hear the evidence on the defendant's behalf.
Under the Coalition's latest round of national security reforms, suspects facing control orders – which can include tracking devices, curfews and curbs on phone and internet use – could be denied access to evidence against them if the court believes it is highly sensitive on national security grounds.
Mr Gyles said that under this law, "honouring the principles of open justice, a fair trial, a fair hearing and the equality of arms may not be achieved".
"Any reasonable means of improving the imbalance should be taken. That is the reasonable price to be paid or the maintenance of secrecy."
He has called for special advocates to be used as a solution.
Special advocates are not currently in the bill. But the bill is being examined by the Parliamentary Joint Committee on Intelligence and Security, including how the issue of fairness in control order cases should be tackled. The committee will take into account the latest watchdog's report.
While the withholding of evidence would apply only to control order proceedings, the proposal is controversial because it raises the spectre of "secret courts" that deny a person the ability to contest the evidence against them.
At the same time, police are increasingly concerned that they may jeopardise intelligence sources or relationships with foreign counterparts who supply information if sensitive intelligence cannot be protected.
Special advocates who represent the suspect in the closed sections of the hearing have also been recommended in a counter-terrorism review by the Council of Australian Governments.
Courts already have the power to appoint special advocates but putting them in the legislation would compel judges to do so in these cases.
The latest counter-terrorism reforms will also lower the age at which control orders can be applied from 16 to 14 – a move Mr Gyles said was "controversial" and needed "careful monitoring".
The new law would appoint children's advocates in control order cases involving suspects under 18, similar to those used in Family Court cases involving family breakup and custody battles.
But Mr Gyles criticised this, saying "it is a large step to move from that context to one where the proceeding is against the child and the choice is whether or not to impose an intrusive control order with criminal liability for breach".
He said it was "also odd, to say the least, that the parents who ordinarily would have the custody and control of the young person have no responsibilities in relation to control orders".
There have been concerns however that parents of children in terrorism cases may need to be kept out of proceedings if they themselves are involved in extremist activity.
