1.13The fact that disclosure might adversely affect one of these interests will not be the sole determiner of whether information should be withheld. Other compelling interests are at play such as fair trial rights, open justice and the right of citizens to hold government to account through court proceedings. Chapter 2 discusses these interests in more detail and explores why they are so important, and how they are relevant to this project - in particular, the protection of national security as justification for limiting natural justice and fair trial protections.
1.14It is useful to bear in mind the fact that the seriousness of the risk to national security is also relevant. A significant risk rather than the mere existence of a risk may be necessary. This paper explores how significant the risk must be and who decides.
1.15In 2001, Sir Geoffrey Palmer said that human rights and national security protections can be considered as complementary rather than opposing values. In his view, national security comprised:3
… freedom from interference; freedom from terrorist attack, freedom from deliberately incited racial violence, freedom from espionage which itself threatens basic freedoms such as privacy, freedom from the kind of genuinely subversive activity which is aimed – not just in theory but in fact – at destabilising or overthrowing the very democratic system upon which the exercise of civil liberties depends.
1.16The breadth of this statement demonstrates how difficult it can be to define “national security” with any clarity. In addition, it highlights the difficulty of creating a fair process for reconciling the potentially conflicting interests of protecting national security on the one hand and individuals’ rights relating to natural justice on the other. We return to this issue in Chapter 2.