Australia’s secret trial laws need reform, LCA says

By Melissa Coade

Wednesday June 9, 2021

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National security interests must be balanced against open justice, says the Law Council of Australia. (Image: Adobe/vadim_fl)

National security interests must be balanced against issues of secrecy and open justice, the Law Council of Australia (LCA) has told a hearing before the Independent National Security Legislation Monitor (INSLM).

The LCA made a submission to the hearing on Wednesday as part of a review into how national security laws apply to a matter involving Alan Johns (a pseudonym) or ‘Witness J’. In 2018 the former military intelligence officer was secretly prosecuted and imprisoned for the unauthorised disclosure of information

The lawyer’s representative body said that the operation of s22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), as it applied to the Alan Johns matter, did not appear to be a proportionate response in protecting national security.

LCA president Dr Jacoba Brasch said it should not be forgotten that open justice was a primary attribute of conducting a fair trial. She added that it was difficult to view, based on the information made publicly available, that John’s matter warranted the extent of secrecy that it enjoyed when he was prosecuted in a closed court. 

“It is a fundamental rule of the common law that the administration of justice take place in an open court, except in the most exceptional of circumstances,” Brasch said.

“It is hard to see that the extent of the secrecy surrounding the ‘Alan Johns’ case was a proportionate response to the requirements to protect national security.”

In 2019 The Guardian reported that ACT justice minister Shane Rattenbury said he had no knowledge of the Johns trial until after it had happened. 

“I am deeply disturbed by the extraordinary levels of secrecy surrounding the ‘Witness J’ case: secrecy that is a direct result of the commonwealth government’s apparent growing disregard for the principles of open justice and a robust democracy,” Rattenbury said.

“It is disturbing that Canberrans, along with other Australians, only learned about this case after the fact due to the restrictive commonwealth legislation.”

“I include myself in this group – despite my role as minister in a territory government, I was not advised in relation to this issue.”

The LCA said that based on Johns’ summary of offending, which was recently made publicly available, it remained unclear why the ACT Attorney-General was never made aware that Johns was imprisoned in a correctional facility that he ultimately oversaw.

Other key issues also remained unknown such as what offences Johns pleaded guilty to, why he was given a term of imprisonment, and why his trial was conducted entirely in camera.

Dr Brasch noted that the way the NSI Act was structured encouraged an accused person to opt for more disproportional trial outcomes, such as closed trials (by consenting to arrangements and orders under section 22). This was because the alternative choice was to go through a ‘lengthy contested hearing with the aim of securing more appropriate orders under section 31’.

Without reforming the laws, she warned there was no guarantee against Australia conducting another secret trial or imprisoning a person in secret. 

“The NSI Act requires some reform to recalibrate the balance between the requirements of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security,” Brasch said.


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