Courts should be forced to safeguard a minimum standard of transparency in sensitive national security cases to avoid a repeat of the “deeply concerning” secret prosecution of Witness J, human rights lawyers say.
The national security watchdog will on Wednesday hold a hearing into the case of Witness J, a former military intelligence officer who was prosecuted and jailed in complete secrecy in 2018 for the unauthorised disclosure of information.
The case prompted widespread criticism, including from former Independent National Security Legislation Monitor James Renwick, who said the secrecy was unprecedented and ought never be repeated.
The INSLM is now reviewing how laws intended to guide courts in handling sensitive national security information, the National Security Information Act, were used to keep the case shrouded entirely in secrecy.
Its first public hearing on Wednesday will take evidence from intelligence leaders, including Mike Burgess, head of the Australian Security Intelligence Organisation, and Kathryn McMullan, a first assistant secretary with the Office of National Intelligence.
The Human Rights Law Centre’s senior lawyer, Kieran Pender, will also appear, and will tell the hearing “there is no place for secret trials in Australia”.
Pender will say that what happened in the case of Witness J, also known by the pseudonym Alan Johns, should never be repeated and will advocate for reforms to force courts to maintain a minimum level of openness.
“Open justice is a fundamental democratic principle, with heightened importance in the criminal justice context,” he will tell the review. “There must be, we submit, a minimum standard of openness – a transparency floor – below which our courts cannot go when making orders pursuant to s 22 of the NSI Act.
“Orders of the kind made in the Alan Johns case should never be made again.”
Pender will also argue for the creation of an open justice advocate scheme, which would ensure someone is in court to argue for open justice in the public interest.
The Human Rights Law Centre says courts should be required to give reasons for making orders under the National Security Information Act, which justify the departure from open justice. It wants the courts to create a “secret judgments library” to allow unpublished rulings in National Security Information Act cases to be retained and reviewed periodically.
“This case may well be unprecedented,” Pender will say. “But unless the NSI Act is reformed, there is nothing to stop it happening again. That is not a prospect the Human Rights Law Centre would welcome; as such, reform is urgently needed.”
The National Security Information Act has been used in several prominent cases in recent years.
It has been used to enforce secrecy in the prosecutions of former Australian Secret Intelligence Service officer Witness K and his lawyer Bernard Collaery, who are charged with disclosing protected information about a bugging operation targeting Australia’s ally, Timor-Leste, for commercial gain.
The laws have also been used in the case of David McBride, a former military lawyer who is facing prosecution for leaking material to the ABC prior to its expose on war crimes in Afghanistan.
The secrecy imposed in the Witness J case, however, was total, unlike the others. It only came to light because Witness J lodged a civil case against prison authorities.
“The case of Witness J is deeply concerning … if it were not for several fortunate coincidences, the case might never have come to light,” Pender said in a statement.
“The mere possibility that someone can be secretly arrested and jailed for years without the public ever knowing erodes confidence in our legal system. The NSI Act needs to be reformed as a matter of urgency to ensure there is a minimum level of openness in all cases.”