The “unprecedented” and near total secrecy that hid the prosecution and imprisonment of a former Australian intelligence officer has prompted the federal government to order a review of laws governing the handling of sensitive national security information.
The former government faced persistent criticism of its use of the National Security Information Act to enforce extreme secrecy in cases of clear public interest, including the prosecutions of Bernard Collaery, Witness K, and former military lawyer David McBride.
The laws are designed to allow sensitive prosecutions to occur without classified information leaking into the public domain, and to stop cases collapsing if prosecutors fear they may inadvertently cause the release of sensitive material.
But in 2019, lawyers and human rights groups were left shocked after the laws were used to a prosecute and imprison a former intelligence officer – known only as Witness J or the pseudonym Alan Johns – in complete secrecy.
The secrecy was such that even the attorney general of the Australian Capital Territory, the jurisdiction in which proceedings were brought, did not know of the case.
The case prompted criticism that Australia was acting like an authoritarian regime, and the then watchdog of national security laws, James Renwick, said the secrecy around the Alan Johns prosecution was unprecedented and ought never be repeated.
“As far as we know there has never been another case, at least in peacetime in Australia, where all of it has been conducted in secret,” Renwick said. “That is something significant and different, and for my part, I would not like to see it repeated.”
Renwick initiated an inquiry into the Alan Johns prosecution in 2020. The Independent National Security Legislation Monitor’s final report was tabled in parliament on Thursday. It made a series of recommendations to overhaul the laws.
“Alan Johns shows how s22 [of the NSI Act] can be used to conduct a federal criminal prosecution in ‘secret’ from start to finish and to maintain this secrecy, seemingly, indefinitely,” the report found. “This should not have happened in Alan Johns and it should never happen again.”
The report identified four aspects of the case that were unusual and one which was “unprecedented”. The unprecedented aspect of the case, the report found, was that no sentencing remarks were ever released publicly.
Remarkably, the report found there was nothing stopping the “vast majority” of the sentencing remarks from being published.
The attorney general, Mark Dreyfus, immediately announced a review of the NSI Act following the release of the report.
“Today I asked the Independent National Security Legislation Monitor (INSLM), Grant Donaldson SC, to conduct a review into the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act),” he said.
He said Donaldson supported the need for a review of the laws.
“The review will consider how the commonwealth can better balance the vital importance of open justice with the essential need to protect national security.”
Human Rights Law Centre senior lawyer Kieran Pender said secret prosecutions had no place in liberal democracies and urged Dreyfus to quickly implement the report’s recommendations.
“Open justice is a central tenet of Australian democracy and unnecessary secrecy is corrosive to public confidence in the judiciary,” he said.
