National security law allowing secret trial of Witness J under scrutiny – Government, public sector

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There has been a sustained national debate over whistleblower prosecutions in recent years, with the main concern being national security laws that allow the trials of Witnesses K, Bernard Collaery and David McBride to be shrouded in secrecy.

But the covert criminal prosecutions that are taking the cake are those of the former Commonwealth official known as Witness J, who was tried, convicted and sentenced by the ACT Supreme Court without the public knowing. and the transcript of the proceedings was then retained.

Judged under the pseudonym Alan Johns, Witness J appeared in court in 2018. The former intelligence officer had received a high-level security clearance. But following a periodic review, this was revoked due to concerns about his conduct and his job was subsequently terminated.

After losing his job, Witness J filed a series of complaints with the agency about his unfair treatment by unsecured means, which could have endangered the lives of others. And that led to him being taken into custody and charged with several counts of violating national security provisions.

Once the case uncovered, the secrecy surrounding it led commentators to reaffirm that secret trials have no place in a liberal democracy, like Australia, where open justice is seen as a key element of Right wing state.

And due to widespread misgivings about the case, the Independent Observatory for National Security Law is currently reviewing the law allowing closed court proceedings, which is contained in Article 22 of the 2004 Law on National Security. information on national security (criminal and civil proceedings) (Cth).

Witness J pleaded guilty to five unknown counts which together were characterized as “abuse of classified information”. He was then sentenced to 2 years and 7 months imprisonment in the ACT, and was released after 15 months for good behavior.

“We only found out about this case by happy coincidence,” Human Rights Law Center (HRLC) senior lawyer Kieran Pender told Sydney Criminal Lawyers last week. And he added that it is promising that INSLM is now revising the secrecy provision.

Alan Johns’ trial only came to public attention after Witness J filed a complaint with the courts over a decision by Australian Federal Police to raid his cell in Alexander Maconochie Center in Canberra in February 2019 in order to confiscate a brief he had written.

In November of the same year, Senator Rex Patrick asked then-Attorney General Christian Porter about the case, who indicated in his response that he had given his consent for the prosecution to continue. , that all parties had accepted the confidentiality order, and that J chose his own lawyer.

“The NSI Act balances the need to protect national security information with the principle of open justice and gives the court broad powers to make any orders it deems appropriate on such matters,” Porter explained.

Article 22 of the NSI Act provides that at any time during the criminal proceedings, the Attorney General, the prosecutor and the defendant “may agree to an arrangement regarding the disclosure, protection, storage, processing or destruction, during the procedure, of information relating to national security ”. .

As part of the review, the current INSLM Grant Donaldson SC held a public hearing on June 21 of this year with a number of interested parties, which included Pender’s contribution.

The lawyer told INSLM that, from HRLC’s point of view, there was no room for secret trials in this country and that the INS law needed urgent reform. the continuation of the scenario of Witness J. And he underlined that the principle of open justice is particularly relevant in the penal context.

The Human Rights Law Center made three safeguard recommendations, which included appointing an advocate for open justice, requiring the court to give public reasons why a secrecy order should be enforced, and creating a ‘a “library of secret judgments”.

“The central point is that there has to be some openness,” Pender said during his testimony. “We do not accept that there are circumstances which would justify these arrangements being repeated.”

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