The secret trial of Witness J
The idea of a person being tried, convicted and imprisoned for a criminal offence entirely in secret in modern day Australia is almost unthinkable. Yet, this is what occurred in 2018 to an Australian man known by the pseudonyms ‘Witness J’ and ‘Alan Johns’. Empowered by section 22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), an ACT Supreme Court judge ordered Witness J’s criminal trial to be closed to the public in order to protect national security information. Neither the facts of the case nor the judge’s reasons were published. The Commonwealth Attorney-General and the Director of Public Prosecution ran Witness J’s case in such secrecy that even the ACT Attorney-General was not aware of the case. The shocking nature of Witness J’s secret trial should prompt us to re-evaluate and reform the NSI Act to ensure greater standards of openness and transparency in court proceedings.
The case came to the public’s attention by chance in November 2019 when Witness J brought a lawsuit against the ACT prison where he served his sentence. In December 2019, the Commonwealth Attorney-General provided the first official details about the case in response to a Question on Notice asked by a senator. Further details were only published in June 2021 on the Independent National Security Legislation Monitor’s (INSLM’s) website. We now know that Witness J was a former Commonwealth official who held a high-level security clearance and was charged with criminal offences relating to the disclosure of confidential information that could endanger the lives or safety of others.
Australian judges frequently make closed court, suppression and non-publication orders to limit public knowledge of certain aspects of a case, for instance to protect witnesses’ safety. However, Witness J’s case has been described as unprecedented for the sheer extent of secrecy surrounding all aspects of the case andsignals the erosion of open justice in Australia.
The principle of open justice is fundamental to Australia’s legal system. Open justice has long been recognised by Australian common law as a crucial element of the right to a fair trial. It is important for court proceedings to be transparent and open to public scrutiny in order for courts to be seen as legitimate and to maintain public trust. Open justice is also required by international human rights law; Article 14 of the International Covenant on Civil and Political Rights guarantees the right to a fair and public hearing.
The principle of open justice is not absolute, however. Australian common law and international law both recognise that the protection of national security against threats such as terrorism and foreign interference may warrant some limitation on open justice. Information that could, for instance, compromise the identities of Australian intelligence personnel may reasonably be concealed from the public.
Australia’s national security legislation under review
The NSI Act aims to prevent information that may damage national security from being publicly disclosed in federal court proceedings. Section 22 allows the Commonwealth Attorney-General, the prosecutor, and the defendant to reach an agreement regarding the disclosure, protection, storage, handling or destruction of national security information during federal criminal proceedings. Under Section 22, judges have broad discretion to make any order they consider appropriate to give effect to that agreement.
In March 2020, prompted by Witness J’s case, the INSLM initiated a review to assess whether the NSI Act appropriately balances national security considerations and human rights protection. The review was hampered by the COVID-19 pandemic and the transition to a new INSLM. In March 2021, the current INSLM announced his own review of the NSI Act, received submissions by April, and held a public hearing in June.
The Human Rights Law Centre and the Law Council of Australia’s have recommended that section 22 be amended to ensure that a secret trial like Witness J’s does not happen again.Their recommendations include:
Minimum requirements of openness
Judges should not be allowed to make orders which supress all information about a case. Certain basic facts about a case should always be publicised to ensure a minimum standard of open justice. These facts could, for instance, include the number of charges against the defendant; a broad description of the offences; and the sentence imposed if the defendant is convicted.
Involvement of a contradictor or ‘open justice advocate’
Judges should be required to consider submissions from an independent contradictor or ‘open justice advocate’ before making orders. This person would direct the judge’s attention to the impact of the proposed orders on open justice and suggest orders that the judge could make to effectively balance national security with the maintenance of open justice.
Publication of judges’ reasons
Judges should be required to publish their reasons for making closed court, suppression or non-publication orders under section 22. It is possible for these reasons to be framed in a way that avoids divulging national security information while still providing insight into why a judge considers it appropriate to depart from the principle of open justice.
The future of Australia’s national security legislation
The INSLM’s review of the NSI Act is ongoing, but it is already clear that the Act requires reform. As the Human Rights Law Centre notes, ‘Secret trials have a long history in authoritarian states. They have no place in liberal democracies like Australia’.
Much work is still to be done to ensure that Australia’s national security legislation strikes the right balance between protecting national security and safeguarding open justice.
Kelly Yoon is a final year Bachelor of Arts/Bachelor of Laws student at UNSW and an intern at the Australian Journal of Human Rights.