ACT Chief Justice Lucy McCallum last week ordered the redacted publication of the previously withheld transcript relating to the 2018 secret trialling of Witness J, a former Australian military intelligence official, who was referred to as Alan Johns during court proceedings, be released.
In introducing the ruling of since-retired ACT Justice John Burns, McCallum sets out that “five criminal offences based on his treatment of sensitive classified information” led to secrecy orders being made under the National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth).
Indeed, so secret was the trialling and imprisonment of Witness J that it only came to public awareness after the then inmate had his cell raided by the AFP in order to seize his memoir, which led him to raise a November 2019 claim against what he’d considered a breach of his rights.
The accidental exposure of J’s case came at the height of questions being asked about the undermining of open justice under then AG Christian Porter, as partially secreted prosecutions were being launched against Witness K, his counsel Bernard Collaery and ex-ADF lawyer David McBride.
In releasing the transcript on 18 April, Justice McCallum further explained that “the principle of open justice is not absolute”, and that Witness J, in agreeing to its publication, had stipulated that, while in keeping with national security, he wanted as much of the ruling published as possible.
Justice Burns sentenced J to two years and seven months prison on 19 February 2019, which was the day following the AFP raid on his cell, as he’d been on remand since May the year prior.
The inmate had pleaded guilty to five charges: the nature of which, it’s been ruled, will never be released.
The transcript does reveal, however, that Witness J was entrusted with “highly classified material” in the course of his employment, and at the time of his months-long offending, his security clearance was up for review, which could have been detrimental to his career if its level was reduced.
Witness J’s initial offending ended once he was caught. And at a meeting with his seniors, he was informed that his clearance was being revoked and there were two avenues for review. But J stated that he didn’t trust these processes and that the public would be best placed to pass judgement.
These assertions made by J at the meeting were the subject of one of his charges. Although Burns accepted that his reaction was motivated by an understanding that he was being “treated unfairly” and that he didn’t trust the processes, rather than any attempt to use his knowledge as leverage.
“I am not so satisfied and accordingly, I will not sentence you on the basis that was a veiled threat to reveal [REDACTED] the information contained therein,” Justice Burns noted. “The offence is nevertheless a very serious example of this type offending.”
But Burns did find that in relation to the final charge against Witness J, that he’d made those he was dealing with aware that he “could hurt… Australia’s security interests” by disclosing material, and while the judge didn’t believe he actually intended to do this, he did want others to fear it.
“Whatever may have been your motive, I am satisfied that you intended that this statement should be considered a threat, albeit one that you were not intending to carry out,” Burns made clear.
Witness J’s legal team put it to the court that in making these threats, its client had experienced a “grave lapse of judgment”, but this wasn’t “malicious” as he was never seriously considering his threats to the nation’s security, and Burns accepted this.
The now retired judge further remarked that J had a long history of “high level of security work” in the organisation that employed him, so, in making these threats, whether he was serious or not, he was well aware of the gravity of his comments and the real threat they posed to people’s lives.
In sentencing the former intelligence officer, Burns underscored that there was no evidence that he had actually tried to pass confidential information on to third parties, and that on being charged, he cooperated with the court to bring about a prompt end to the matter.
The judge then sentenced J to 21 months inside, of which he only ended up serving 15, and this saw him released in August 2019. A further stipulation on his release was that he enter into a three-year good behaviour bond and regularly consult with a psychologist during that period.
Closed door justice
The Independent National Security Legislation Monitor determined to launch an investigation into the Alan Johns case, in order to consider whether, in providing for the extreme secrecy that surrounded it, section 22 of the NSI Act was proportionate to any security threats posed.
Released in June last year, the INSLM report outlined “that the vast majority of Justice Burns’ remarks when sentencing Alan Johns could have been made public”, and it recommended the transcript should be published, whilst the related provisions under the NSI be further reviewed.
“This should not have happened in Alan Johns, and it should never happen again,” INSLM Grant Donaldson SC underscored.
In response to the INSLM report, the attorney general Mark Dreyfus tasked Donaldson last July with reviewing the NSI Act in its entirety. And on the release of the previously suppressed transcript last week, the nation’s chief lawmaker said he welcomed the moved and in fact, had requested it.
“The former government agreed to an unprecedented level of secrecy in the prosecution of ‘Alan Johns’ resulting in wholly closed criminal proceedings,” Dreyfus told reporters. “This is not consistent with the rule of law and open justice.”
Human Rights Law Centre senior solicitor Kieran Pender, whose been highly critical of the secrecy provisions surrounding this case, as well as the whistleblower prosecutions that have prevailed since Porter’s time, released a statement praising the end to the extended wait for the publication.
“Secret trials have a long history in authoritarian states. They have no place in democracies like Australia, where open justice is a fundamental protection of our human rights,” remarked Pender.
“The government must change the law, in line with the monitor’s recommendations, to ensure this can never happen again.”