Some of Australia’s most eminent jurists have expressed concern at the roles of former attorneys-general, a magistrate, a judge and the court system overall in charging, convicting, sentencing and jailing a former intelligence officer in absolute secrecy, as details of the process are revealed for the first time.
Independent National Security Legislation Monitor (INSLM) Grant Donaldson, SC, is leading the criticisms after investigating the application of secrecy orders in the case of the man known publicly as “Witness J” and to whom the courts gave the pseudonym “Alan Johns”.
Alan Johns worked for a security agency and was remanded in custody in 2018 and sentenced to jail the following year after pleading guilty to five offences relating to disclosing classified information. His name and the nature of his work remain secret, as does anything that could identify the agency. Disclosing these details, or any further specifics of the offences he committed, is a crime. None of that, or indeed anything about the case at all, including that it was even occurring, was ever revealed publicly in any court.
Donaldson has examined the application in the Johns case of section 22 of the act that governs the protection of national security information, the National Security Information (Criminal and Civil Proceedings) Act, or NSI Act. His report was published last week.
“Alan Johns shows how s22 can be used to conduct a federal criminal prosecution in ‘secret’ from start to finish and to maintain this secrecy, seemingly, indefinitely,” Donaldson writes in his report. “This should not have happened in Alan Johns and it should never happen again.”
Donaldson is now reviewing the whole act, after what he describes as this “unprecedented” case, every detail of which was initially hidden from public view.
Donaldson says the Alan Johns case, and the recently abandoned, unrelated case against lawyer Bernard Collaery – who represented another former intelligence officer known as Witness K, also convicted of revealing classified information – shows what can happen when secrecy provisions are applied too heavily in cases that are entirely about handling secrets. Unlike in terrorism cases, in which only aspects of the evidence will invoke secrecy orders, cases that are all about secrecy are being completely shrouded.
The INSLM’s new, broader review will examine how secrecy orders operated in the Collaery case and also in the recent defamation trial brought by former special forces soldier Ben Roberts-Smith.
In the Alan Johns case, Donaldson suggests that at multiples stages, senior office-holders – primarily the then attorney-general Christian Porter and Australian Capital Territory Supreme Court justice John Burns – favoured national security arguments over considerations of open justice.
Not only was the entire case kept secret, but no reasons were recorded for that decision and no public explanation ever given for the jail sentence. Even though the judge’s final orders stipulated that the attorney-general should come back to the court within six months of sentencing and advise it on which aspects of the reasons could be made public – and Porter’s lawyers did so – nothing was ever published.
“I think that the most egregious part of this process was that the reasons that were given by the judge for eventually sentencing Alan Johns for what he did were not made public, even in an abbreviated form,” Donaldson tells The Saturday Paper this week. “And that is really the most extraordinary aspect of this case.”
So concerned was Donaldson about this failure that he obtained the judge’s sentencing remarks and negotiated with security agencies and the relevant parties to reach a form of words that could be published. He presented them to the Attorney-General’s Department on June 4 last year, urging that the attorney make an application to the court to have that done.
By then, Senator Michaelia Cash had replaced Christian Porter. She never acted on Donaldson’s recommendation.
“If that had been published, then at least everybody would know a lot more than they know now about those circumstances,” Donaldson says. “It was provided to the attorney-general’s advisers with a clear understanding of what I thought should have happened. And that hasn’t happened.”
The new attorney-general, Mark Dreyfus, is now seeking advice on whether to apply to the court to publish a declassified version of the judge’s sentencing remarks.
A spokesperson for Dreyfus says it was “disappointing” that Cash “failed to formally act” on Donaldson’s proposal.
“The government is committed to ensuring that the appropriate laws are in place to ensure the proper administration of justice and protect national security information,” the spokesperson says.
Grant Donaldson says this week that there is “no excuse” for judicial officers not to give reasons in significant matters. He says while “trivial” matters don’t always require reasons, this kind of case is not trivial.
“I struggle to understand how orders providing for the closing of a court for the entirety of a prosecution [are not explained]. Those orders should not be made without reasons being given. And even if they can’t be published, they should be prepared and given. Always.”
Former New South Wales Supreme Court justice Anthony Whealy, QC, endorses Donaldson’s criticism.
“He’s polite but blunt in his criticism of the judge,” Whealy said this week. “I can’t say there’s any problem with that. I think the criticism was well deserved.”
The concerns about the administration of justice in the Johns case began in the ACT Magistrates Court.
In a hearing before Chief Magistrate Lorraine Walker in which Porter’s lawyers first applied for secrecy orders, Walker was handed Porter’s affidavit, read it and granted the orders. She gave no reasons, and the appearance was not transcribed. Donaldson reports that “there are no records of Her Honour’s reasons” and Porter’s counsel did not take notes. The affidavit itself is the only record.
“That needs to be maintained … by the attorney-general’s legal advisers in some way,” Donaldson says.
One of Australia’s most prominent barristers, who served as the inaugural INSLM, Bret Walker, SC, also emphasises that records must be kept, especially by courts.
“Part of the constitutional role of a court, particularly a superior court, is to hold all other parts of government and private individuals accountable by legal standards,” Walker tells The Saturday Paper. “A record is the best-established means of showing that holding to account. And not coincidentally it’s also – along with publicity – the best means of holding the courts to account.”
Walker argues there is far too much secrecy in both the commercial world and in government.
“It just seems to me that the public are entitled to be very wary that secrecy is being invoked for reasons that might actually be dominated by an aversion to embarrassment politically,” Walker says.
“And the public should be intrinsically concerned about that because there is nothing more damaging to democracy than the government using procedures to prevent the people knowing its embarrassing conduct. It’s at the heart of the relationship between governed and government that we would know what they’re doing.”
Donaldson says there are “many things that seem to me could be published that are not”.
“... It’s a surprise some of the things that are kept secret,” he says. “Well, it’s a surprise to me.”
In his report, Donaldson also finds that Christian Porter did not perform the role that was envisaged when the law was changed in 2010 to add the attorney-general as a participant in secrecy cases. Instead of advocating as the first law officer for the publication of at least basic details of the case, in the interests of open justice, Porter pressed for absolute secrecy and made no effort to persuade the judge to protect the public’s right to know.
Former Justice Whealy, who presided over significant terrorism cases in which section 22 orders were made, agrees with the criticisms of Porter’s role.
“I wished he’d gone a bit harder,” Whealy says of what he calls Donaldson’s “muted” rebuke.
“I’ve always thought that he [Porter] had a distorted view of national security. And I think in this case, that same point of view was being displayed. I think, as attorney-general, he needed to balance national security with the principles of open justice. He needs to be a champion of the principles of open justice. And I think he failed in that regard.”
Alan Johns himself also did not object to the secrecy – Donaldson notes that defendants mostly prefer a lack of publicity for their crimes – and it seems Justice Burns did not critique the application. Nobody argued a contrary view.
The Saturday Paper put it to Donaldson that when citizens can’t turn to their government to protect their interests because it is the government bringing an action against them, they should be able to expect that basic protection from a court – and that this did not occur for Alan Johns would seem to be a very bad precedent.
“I agree,” Donaldson responds. “I don’t think there is another matter in which these circumstances have occurred.”
In fact, it was only through media investigation and then Donaldson’s decision to examine the case and the basis for the secrecy orders involved that any significant details have emerged. Donaldson published the sequence of magistrate’s and judge’s orders in the case and a more detailed declassified summary.
He has now proposed that courts be actively encouraged to use their powers to appoint a special counsel, known as a “contradictor”, in cases when the public interest in disclosure is not being adequately represented. He says it may be necessary to compel it.
“I think there’s a good argument to be made that if those sorts of orders – that really do clash with the open court principles so bluntly – are sought, that there might always be a contradiction.” Donaldson says. He will consider this as part of his wider NSI Act review.
He will also consider whether the law should be changed to automatically make section 22 cases publicly available after a period of time, as is the case with cabinet documents, and only sealed for longer on application to a court. In the course of his review, he discovered there was no process for reviewing the secrecy orders in past cases and that storage arrangements were “haphazard”.
Bret Walker supports such a move. “Most statutory provisions for courts to order secrecy of materials require the duration to be specified, because perpetual secrecy is not very attractive [and unlikely] to ever to be necessary,” Walker says. “And so, a capacity to revisit necessity as circumstances change also seems to be a significant safeguard.”
The Alan Johns case began in 2018, when his employer raised issues around “behaviour” and failing to meet reporting standards, revoked his security clearance and terminated his job. In protesting against that decision, he disclosed classified information via unsecure means, leading to the charges.
Johns was sentenced in the ACT Supreme Court in early 2019 to a jail term of two years and seven months and was released in mid-2019, having served a total of 15 months. None of this was made public at the time.
During the course of the secret sentencing trial, two journalists – Michael Inman and Alexandra Back – noticed security guards outside a closed court and made inquiries of the chief justice.
According to ABC journalist Andrew Probyn, who wrote about the events on December 5, 2019, they received a note from the judge presiding, Justice John Burns, describing the secrecy arrangements as “generally undesirable” and “unusual”.
“The particularly sensitive nature of the material to be exposed in the proceeding, and the grave harm that could occur if the material became public, outweighed the desirability of ensuring that proceedings before the court are open to the public,” Burns’ note said. “The decision to close the Court was not taken lightly.”
The secret hearing was only linked to Alan Johns – and the most basic facts of his incarceration made public – when Johns brought his own 2019 court action against the director-general of the Justice and Community Safety Directorate in the ACT over his treatment in jail. Police had raided his room, looking for a copy of a memoir he had written, concerned about what it might disclose.
The case was heard before the same judge, Justice John Burns. Burns’s judgement on the prison case referred to evidence given by a directorate officer about orders from a separate case involving Alan Johns. That evidence had suggested details of his offences had to be kept secret. Journalists joined the dots, questions were asked, and Christian Porter eventually had a statement tabled in parliament, which still gave very little away.
Grant Donaldson says Porter could have divulged more. He argues the kind of secrecy employed in the Alan Johns case ultimately undermines confidence in the court process. He says there were good reasons for a high degree of secrecy, but because it was excessive nobody has been allowed to know them.
“I would have thought that it would give people greater confidence in understanding why the matter was dealt with in a closed court and I think that it would give the community confidence that a proper process was undertaken by the court in dealing with the matter,” Donaldson says. “But in the absence of publication of the reasons I think people are entitled to be sceptical. And they’re entitled to be concerned.”
Anthony Whealy echoes the words in Donaldson’s report. “This was something that should never have happened or that should never happen again,” Whealy says of the Johns case. “And that’s exactly the conclusion he came to – and I think we should applaud him for doing that. And even if he’s critical of the judge, then so be it. We have to shoulder up to that and realise that this is a very important report, and it will have important consequences for future trials.”
This article was first published in the print edition of The Saturday Paper on August 6, 2022 as "‘Damaging to democracy’: The secret trial of Witness J".
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