In its response to the findings of a review of national security orders that have been used by the federal government to cloak specific trials in secrecy over recent years, the Albanese government agreed in its 19 January response to action all the recommendations the inquiry made.
In March 2021, the Independent National Security Legislation Monitor (INSLM) launched its own inquiry into part 3 division 1 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act), in reference to how it applied to the Alan Johns matter.
Better known as Witness J, Alan Johns, a pseudonym, is a former intelligence officer, who was detained in an ACT prison, and tried and convicted by the ACT Supreme Court in 2019, without the public knowing, as all details were hidden and the transcript of proceedings were withheld.
The NSI Act provisions that permitted the case going ahead in a such a clandestine manner were consented to by all parties involved, however since the Witness J trial, these measures have been applied to multiple other cases involving classified information at the behest of an attorney general.
And while current AG Mark Dreyfus has consented to all recommendations laid out by the INSLM in June last year, the reforms agreed to won’t prevent further closed-door trials, rather they’ll simply provide more transparency relating to the reasoning behind and securing of such secrecy measures.
Section 22 of the NSI Act provides that at any time during federal criminal proceedings, the attorney general, prosecution and the defence “may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information”.
And in his report, INSLM Grant Donaldson SC found that the Witness J-Alan Johns case showed that section 22 “can be used to conduct a federal criminal prosecution in ‘secret’ from start to finish and to maintain this secrecy, seemingly, indefinitely”.
“This should not have happened in Alan Johns, and it should never happen again,” the lawyer added.
Witness J was tried in relation to “mishandling of classified information” offending in late 2019, as all parties agreed to the secrecy arrangements. And it only became public knowledge, after author Robert Macklin revealed the matter in a November 2019 article in Canberra’s City News.
In the case of section 22 orders, the INSLM has recommended that the AG in applying, makes submissions as to why such an order is required and that courts be required to appoint a contradictor to argue against such measures.
Further recommendations included that section 22 orders be publicly reported upon on being issued, that the use of the orders be detailed in an annual report, as well as a further stipulation whereby the attorney general be required to provide reasons for their requirement.
The AG’s office agreed to all recommendations and to act in accordance with them prior to considering legislative options in relation to them and a broader Dreyfus-launched review of the NSI Act that’s currently underway and will likely result in the amending of the laws later this year.
Concealing government wrongdoing
But while the Witness J trial almost passed without notice, a number of other prosecutions have been underway or are currently ongoing that deal with national security matters that then AG Christian Porter greenlighted, and further saw him issue non-disclosure orders in relation to.
Porter determined that the Commonwealth Director of Public Prosecutions proceed with the cases against Bernard Collaery and Witness K, despite a five year hiatus since they were initially raided in relation to their matters, as well as with the prosecution against ADF whistleblower David McBride.
Non-disclosure orders have been applied to these additional cases. In order to do this, the then attorney general had to invoke the power contained in section 26 of the NSI Act, which provides that information which might prejudice national security can be withheld from the public.
The court must then deliberate on how such an order will be applied, and in doing so, the greatest weight must be placed upon the desires of the attorney general. And further the AG is currently required to report annually on the instances in which these laws have been exercised.
Eroding open justice
Secret trials on national security grounds have become a key feature of what’s been described as the creep towards authoritarianism in this country, and while the Albanese government is attempting a rights-forward reform agenda in this regard, it’s quite light on the depth of changes being made.
This growing climate of secrecy is undermining open justice, a key principle underpinning our liberal democracy, which provides transparency to ensure that justice prevails, and it does this through the provision of public scrutiny and guarding against abuses likely to occur behind closed doors.
The Guardian has reported that in regard to the recommendation to the provision of reasons for NSI orders being made, Dreyfus has already submitted these in relation to the prosecution of Australian Chinese man Di Sanh Duong, the first person to be tried under 2018 foreign interference laws.
And while Dreyfus dropped the Collaery case, he hasn’t repealed the conviction of co-accussed Witness K, the prosecutions against McBride and tax office whistleblower Richard Boyle are ongoing, and he continues to supress transcript from hearings where Collaery had secrecy measures lifted.
So, with the recent announcement around reforming the section 22 NSI powers, along with his actions in relation to ongoing trials, attorney general Dreyfus has conveyed that whilst there will be more transparency around orders, the secret trials they result in will continue.
As ADF whistleblower David McBride told Sydney Criminal Lawyers in December, he’d appreciate it if Dreyfus would explain why he’s determined to drop Collaery’s case, but not his own, while the lawyer further questioned attempts by government to shroud Boyle’s case in secrecy.
“We saw the most extreme extent of this in Richard Boyle’s case, when the ATO applied for suppression orders as if it was a national security case,” McBride said, “even though it was a case about the tax department carrying out garnishee orders excessively against small businesspeople.”