Abstract
Sometimes secrecy in law is required to protect vulnerable witnesses or suppress sensitive evidence. However, particularly since the terror attacks of 11 September 2001, governments in liberal democratic societies have increased secrecy and the use of clandestine procedures under the pretext of safeguarding national security. In many instances, these developments have eroded civil liberties, infringed upon constitutional guarantees, and had negative effects on due process rights. In Australia, where individual rights and freedoms have only limited constitutional expression, it is hoped the doctrine of representative and responsible government will act as sufficient protection for human rights. Conversely, drawing on examples ranging from the regulation of immigration to the control of serious organised crime, this article proposes that escalating secrecy in the current era has a corrupting effect on democratic principles and the rule of law.
Highlights
Under certain circumstances, secrecy is accepted as necessary in law
After considering whether that would make any difference to the legal assault on democratic rights and freedoms, the article concludes by arguing ultimate responsibility lies with politicians to guarantee democratic principles, citizen rights, and the rule of law so they do not continue to be undermined by increasing secrecy on the pretext of ensuring national security and controlling crime
There has been a tendency for politicians to act with impunity when enacting laws relating to populist issues involving claims of threats to national security or public safety, such as in the areas of counterterrorism, organised crime, and immigration and border protection
Summary
Secrecy is accepted as necessary in law. For instance, secrecy can arise in legal proceedings via the operation of a variety of evidential privileges, such as legal and other professional privileges, as well as in applications for public interest immunity, which, if successful, require the exclusion from proceedings of material that courts have determined would prejudice the public interest if disclosed. Agents and civilians, as well as posing risks to national security, which are the kinds of charges levelled at Julian Assange and WikiLeaks, for instance (see Martin, Scott Bray and Kumar 2015) In light of these developments and other examples discussed below, this article proposes that negative legal secrecy has a corrupting effect upon democratic principles and the rule of law. A fundamental argument of this article, is that negative forms of secrecy, which undermine established legal principles, rights and guarantees, have a corrupting effect on the rule of law and democratic values This is because, in the context of the operation of the neoliberal state in post‐democracy, they satisfy broadly the notion outlined earlier that corruption entails ‘the distortion and subversion of the public realm in the service of private interests’, where the idea of the public realm:. After considering whether that would make any difference to the legal assault on democratic rights and freedoms, the article concludes by arguing ultimate responsibility lies with politicians to guarantee democratic principles, citizen rights, and the rule of law so they do not continue to be undermined by increasing secrecy on the pretext of ensuring national security and controlling crime
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