The judge who jailed the man dubbed Witness J described him as reckless and driven by anger when he sent classified information over an insecure system.
The ACT Supreme Court has released the formerly secret sentencing remarks on the case against Witness J, in which he was described by Justice John Burns as "grossly reckless and driven by anger".
The sentencing remarks had remained secret since November 2019 when Witness J was sent to jail and was only released today.
The former intelligence officer was sentenced to more than two years in jail but served only 15 months after pleading guilty to breaches related to classified information.
It was an unprecedented case where the charges, hearing and sentencing remained completely secret under section 22 of the National Security Information Act.
It only came to light when Witness J unsuccessfully tried to sue Canberra's jail over his treatment.
Since then there's been a battle to find out more, including through a public inquiry conducted by the Independent National Security Legislation Monitor, Grant Donaldson into the case.
Security officers including the head of ASIO, Mike Burgess, gave evidence during public hearings.
Mr Donaldson was scathing in his final report saying this should never happen again, that a person be charged, sentenced and jailed in complete secrecy.
Mr Donaldson released a statement revealing the broad parameters of the case against Witness J in which he explained the man held a high-level security clearance and was subject to strict reporting conditions and standards of behaviour.
It was revealed that his clearance was revoked and he lost his job after failing to address concerns raised about his conduct.
"Shortly following his termination, Alan Johns* made a series of complaints to the agency via unsecure means, that he had — or to the effect that he had — been unfairly treated." Mr Donaldson said.
"In these unsecure communications, Alan Johns communicated classified information.
"In doing so, he breached secrecy obligations, which he was obliged to follow and which he understood as part of his former employment and as a former security clearance holder.
"Alan Johns' actions put at risk this classified information, which was of a kind that could endanger the lives or safety of others."
Mr Donaldson also suggested the sentencing remarks by Justice John Burns in 2019 should be released.
Justice Burns's remarks are heavily redacted and don't say what the charges were although it is revealed there were five charges.
Witness J was sentenced to two years and two months in jail.
'Grossly reckless'
Justice Burns noted a doctor's report which detailed Witness J's depressive illness, and he accepted that had a role in reducing his moral culpability.
But he said although there was remorse Witness J had known what he was doing.
"I cannot accept that you were unaware of the gravity of your conduct and the risks to national security as well as the lives and wellbeing of individuals that was inherent in your conduct," Justice Burns said.
"You were grossly reckless in your conduct because of your anger towards what you perceived to be unfair and discriminatory treatment of you."
The process of releasing the remarks was interrupted by Justice Burns's retirement.
But the former federal government had begun to make moves for that to happen, which was recently revealed in correspondence released by the ACT Supreme Court.
Ironically the only objection to the release came from lawyers for Witness J in August last year.
In a letter to the Commonwealth his lawyers took exception to the redacted version of the sentencing remarks saying:
"…it appears to us that it is an inaccurate characterisation of his conduct as we understand it."
But earlier this month during a brief hearing in the ACT Supreme Court the Attorney-General, Commonwealth Prosecutors and lawyers for Witness J all agreed the remarks should be released, minus any national security information.
That was supposed to happen on Friday but was delayed while lawyers carefully combed through the planned release for anything that should be redacted.
It has been delayed this week while the parties agreed on the form of the remarks to be released.
The inquiry into the Witness J case, was focused on whether section 22 of the National Security Information Act had been appropriately applied.
The section applies to Commonwealth cases and effectively allows the Federal Attorney General a say in what can and cannot be disclosed.
The same law was applied in the cases against Witness K and Bernard Collaery, who were charged with conspiracy to reveal classified information about Australia's alleged bugging of the East Timor government during negotiations over an oil and gas treaty.
It is also being used in the case against David McBride over the alleged leak of material about alleged war crimes in Afghanistan.
The fact of those cases was not suppressed although much of the detail has been hidden from view.
The National Security Legislation Monitor is now conducting a review of the entire National Security Information Act at the direction of the Albanese government.
Attorney-General Mark Dreyfus said that he welcomed the court's decision to make the sentencing remarks public and that he had previously requested they be made public.
"While it is always a matter for the court to determine what is published, court proceedings, including judgements and reasons, should be as open as possible whilst ensuring national security information is protected," he said in a statement.
"The former government agreed to an unprecedented level of secrecy in the prosecution of 'Alan Johns' resulting in wholly closed criminal proceedings.
"This is not consistent with the rule of law and open justice."
*A pseudonym used for Witness J.
