Australia’s national security laws will be reviewed in light of the secret prosecution and sentencing of a former spy given the pseudonym Alan Johns.
The trial of the man, also known as Witness J, was conducted behind closed doors and the charges, convictions of his guilty plea and sentencing were not publicly disclosed.
The former military intelligence officer was charged with disclosing confidential information, and his case only came to light after he launched a court challenge against the prison for tipping off police about a memoir he was writing.
A review by the Independent National Security Legislation Monitor Grant Donaldson has made recommendations to ensure the saga isn’t repeated.
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“Alan Johns shows how s 22 [of the National Security Information Act] can be used to conduct a federal criminal prosecution in ‘secret’ from start to finish and to maintain this secrecy, seemingly, indefinitely,” the report says.
“This should not have happened in Alan Johns and it should never happen again.”
The report found it was “unusual” no evidence was given about national security information that needed to be protected, no reasons were given for the gag order to be made, and that the physical identity of Alan Johns was in itself national security information.
The failure to publish any sentencing remarks was branded “unprecedented”.
“It is not uncommon for judgments of courts to be suppressed for periods of time,” the review noted.
“At sentencing hearings it is quite common for certain matters that are relevant to sentence to not be publicly disclosed or referred to in sentencing remarks.
“All of these matters being so; what occurred in Alan Johns, where nothing about charges, conviction and sentence was disclosed (prior to this review), is unprecedented.”
Mr Donaldson recommends the attorney-general be required to make a submission to the court to explain why a closed court is necessary to protect information and why the court has the power to appoint a contradictor to make submissions to the court on such orders.
Orders made under section 22 should also be publicly available, Mr Donaldson recommended.
“Even where orders are properly made for closed court hearings or broad suppression, the administration of justice would be enhanced by their publication,” the review says.
Annual reporting on the measures should also be enhanced, it said.
Attorney-General Mark Dreyfus announced a review into the National Security Information Act to be conducted in the wake of the Witness J report being tabled in parliament on Thursday.
“The whole of the NSI Act will now be referred to the INSLM for review. This is supported by Mr Donaldson who agrees that a review of the Act is beneficial,” Mr Dreyfus said in a statement.
“The review will consider how the Commonwealth can better balance the vital importance of open justice with the essential need to protect national security.
“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 government will consider the Witness J report before responding to the recommendations, Mr Dreyfus says.