Open Justice, Closed Courts and the Constitution

Open justice is an essential feature of the judiciary, in Australia and elsewhere. The principle has constitutional salience, as an element of judicial power in Chapter III of the Constitution. Yet open justice is not absolute. In recent years, the tension between open justice and national security has been a matter of public controversy in Australia, as a result of the Bernard Collaery, Witness K and Witness J prosecutions, which have all been shrouded in secrecy. Reconciling open justice with the confidentiality required to protect national security is a common challenge for many jurisdictions. This Article compares the Australian approach with the United Kingdom and Canada. It argues that Australian law and practice in relation to protecting open justice in the national security context is underdeveloped. Drawing on the British and Canadian experience, the Article proposes methods to better balance these competing interests in Australia, in a manner which would reflect emerging constitutional principles.