The Choice Between the Secret State and an Open Justice System

Bench J.: Yes. Ms Deeby.
Ms Deeby: If Your Honour pleases.
Bench, J.: I believe you have a submission.
Ms Deeby: I do, Your Honour. I submit that my client Ms Iced Pie cannot receive a fair trial in this matter of which she is accused.
Bench, J.: The charges are serious breaches of national security, Ms Deeby. I will hear your submission, but please explain your reasoning.
Ms Deeby: My client is charged that on her eponymous blog Iced Pie.com, she published details of the administration of Australian defence and security which offend in several ways. One is that the details could threaten the ability of Australia’s intelligence services to conduct their covert activities both domestically and internationally. Another is that hostile powers could gain new knowledge of our intelligence operations. Also, the information published by my client could have come only from an insider, in other words, a whistleblower. In this respect my client stands accused of encouraging someone to break promises made under the official secrets act.
I submit that legislation relating to electronic security causes an obfuscation of the responsibilities for material published by bloggers and indeed by journalists across media broadly.
Bench, J.: You refer I assume to the National Security Bill of 2004 and more particularly to the 2014 National Security Amendment Bill of 2014.
Ms Deeby: Exactly, Your Honour.
Bench, J.: Does your submission relate to the way the bill authorised security services to access any material on the internet or in e-mails to ascertain whether breaches and offences have occurred?
Ms Deeby: That is correct, Your Honour. In the second reading debates on the 2014 bill critics suggested that powers given security services such as Australian Security Intelligence Organisation and the Defence Signals Directorate were too broadly defined and nebulous and created offences needlessly. Interestingly, the bill’s proponents did not rebut the suggestion that security services might alter the content of emails and websites.
Bench, J.: That power to alter material was meant, as I understand it, to allow security services to mislead hostile forces and to safeguard secrets.
Ms Deeby: Indeed Your Honour. Not only that, but the legislation makes clear that the security services would not have to reveal that they made such alterations.
Bench, J.: I think I see where your submission is heading ....
Ms Deeby: I am sure you do, Your Honour. In the context of these extreme powers, it is impossible both in principle and in practice, to ascertain who posted the material in question.
Bench, J.: Could not the court request such information from the authorities concerned?
Ms Deeby: In theory, that might be feasible. But that assumes you know which authority or authorities in this acronym rich field might have done the interfering. It is not likely that any security agency would be co-operative in this regard. There are other problems. In practice, even parliamentary inquiries asking for information have complained that the security services are extremely tardy in responding to requests through Freedom Of Information for example, and some of their operations are exempt so that documents can be almost entirely redacted. In a case such as this, justice for my client could be delayed a decade or more.
Bench, J.: And you would argue that justice delayed is justice denied?
Ms Deeby: Perspicacious, Your Honour. And in this modern day, with the terrible experience of the Coalition Government’s disastrous Robodebt behind us, there is reason to be concerned that some covert agency could be created by artificial intelligence.
Bench, J.: You mean that the electronic paraphernalia of one or more covert security agencies could create a kind of – what is the term – an avatar, or perhaps a proxy?
Ms Deeby: Your Honour is very tech savvy. In a bygone era, security agents infiltrated what they viewed as subversive organisations such as movements protesting wars or apartheid or Aboriginal land rights or advocating for the rights of people persecuted because of their gender orientation. Apart from the obvious bias against progressive social movements, such actions were rightly condemned as being in themselves subversive as the spies played the role of agents provocateur.
Bench, J.: Hmmm. But why target your client?
Ms Deeby: In less democratic societies, people assume that those sent to prison must have done something wrong. Here we must look for alternative explanations. The security services have reason to want to silence my client. On her blog, she has published much material critical of them. What could be more natural than for them to lobby a paternalistic government for these extraordinarily dictatorial powers and then to refine them in a test case? They are trying to pull the woolsack over your eyes, Your Honour.
Bench, J.: Yes. It is hardly a fair trial if your client is declared guilty by definition.
Ms Deeby: Nor if the security agencies demand the trial is held in secret. I do not need to remind Your Honour that if a case is presented as a tautology, then no determination of facts can occur. I am sure you run an open court in which justice is possible.
Bench, J.: I think I must dismiss the case and suggest that the parliament revisits the legislation.
Ms Deeby: Thank you, Your Honour.

Lead photo by Jaiju Jacob.

Photo by Jaiju Jacob: https://www.pexels.com/photo/close-up-of-justice-symbolic-figurine-659388

Dr Tony Smith is a former academic who now spends time busking and writing songs and reviews. He lives in the bush in the NSW Central West.