Too few Australians know about the case of Witness J – not to be confused with the case against Witness K and Bernard Collaery, itself a disgraceful overreach of the law. But a veil of secrecy shrouds the case of Witness J that should be of concern to all of us.

J, a former ASIS officer, was secretly tried in Canberra, and secretly sentenced to a term of imprisonment at the Alexander Maconochie Centre in the ACT.  He was placed in a section of the gaol reserved for sex-offenders, even though his offence was not a sex offence.

When the facts of all this first emerged in November 2019, even the ACT Attorney-General was unaware of Witness J’s case. It was only through a civil action brought by J against the general manager of the prison in which he served his secret sentence that we have been able to glean a few facts.

To follow the trajectory of Australian politics since Scott Morrison came to power has been to watch a storm cloud of secrecy descend over Canberra. The case of Witness J — a former ASIS officer  who was tried and imprisoned in secret — is an unnerving insight into the current state of politics in this country.

Open Government – From Secrecy to Accountability, and back again:

Transparency from elected officials may seem like a self-evident good. However it is useful to understand the history of political secrecy in Australia — and that it has not always been the norm.

The history of government secrecy can be traced back to a time when monarchs were motivated by a desire to keep official information out of the public sphere, for fear it would weaken their rule whilst strengthening their rivals.[i] Official information was deemed the property of the Crown, and could be disclosed or withheld arbitrarily.[ii] Along with parliamentary democracy and the adversarial system of trial, Australia also inherited a culture of political secrecy from Westminster.[iii] Following World War II, technological advances allowed the Federal Government to process large volumes of information in a way previously impossible. Many federal ministers had served in World War II and returned to Australia suffused with ‘the military’s respect for secrecy.’[iv] This shift towards procuring, storing, and utilising information within government departments profoundly altered the relationship between citizens and government. Information had suddenly become a commodity; an ‘object in its own right, as well as a dimension of government activity.’[v]

As the scope of government data collection increased, so too did the accompanying secrecy provisions to safeguard this data. The Privacy Act 1988 (C’th) was enacted to protect the growing trove of sensitive personal and commercial information held by the government. Perhaps inevitably, the burgeoning amount of information amassed by the government led to a public pushback and a demand for transparency; the more government encroached into the lives of Australian citizens, the more Australians demanded accountability from elected officials.

From this civic tension, the principle of ‘open government’ arose.[vi] A Royal Commission into the Commercial Activities of Government in 1992 concluded that: “The purpose of [accountability] measures is to hold governments, public officials and agencies to account…Government is constitutionally obliged to act in the public interest.”[vii] The House of Lords summarised things succinctly when emphasising the importance of open government and open justice in preventing corruption and misconduct in the case of R v Shayler[viii]: “[Open government] may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant.” Witness J is an example of what can germinate in the dark when a government seeks to hide its activities from public scrutiny.

Open Justice & Secret Trials:

As the Executive has oscillated between secrecy and transparency — and, recently, back again under the Coalition — the gold standard for transparency has always been open justice in the judiciary. The High Court spoke plainly in the case of Commissioner of the Australian Federal Police v Zhao[ix] in stating ‘…court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.’

Exceptional circumstances, perhaps such as those in the case of Witness J. However, it is impossible to know the circumstances of Witness J’s case because the trial was conducted in complete secrecy, and all information regarding proceedings and Witness J’s identity are subject to suppression orders. Staggeringly, Witness J himself — who pled guilty to the crime he was charged with — was unaware of the court orders he faced, even while imprisoned. It was not until an unsuccessful civil claim against the general manager of AMC, that Witness J learnt of the court orders made against him. To reiterate, Witness J served 15 months in prison without knowing the full extent of the court orders made against him.

As Gibbs J said in Russell v Russell,[x][Openness] distinguishes [judicial] activities from those of administrative officials, for publicity is the authentic hallmark of judicial as distinct from administrative procedure. To require a court invariably to sit in closed court is to alter the nature of the court.” Gibbs J’s judgment identifies publicity as one of the key distinctions between judicial and administrative procedure. How, then, does a secret trial occur in a nation which upholds the common law principle of open justice?

To understand how flagrantly open justice has been contravened by the Federal Government in the case of Witness J, it is helpful to understand what exactly it is. Open justice requires that:[xi] proceedings are conducted in an open court, information presented in court is communicated publicly to those present in court, and nothing is to be done to discourage fair and accurate reporting of judicial proceedings.[xii] None of the three substantive markers of open justice were present in the case of Witness J, who was charged and sentenced in closed court, left unaware of the orders he faced, and banned from speaking publicly about his matter.

Exceptions to Open Justice:

There are, of course, limitations to open justice, the most predictable of which is national security.[xiii] The Criminal Code[xiv] allows judicial discretion in making suppression orders and excluding the public from proceedings if it satisfied this is in the interest of the security or the defence of the Commonwealth. Justice Kirby stated in John Fairfax Group v Local Court of New South Wales[xv]: ‘…the open administration of justice serves the interests of society and is not an absolute end in itself.’ If the openness of judicial proceedings would detract from the attainment of justice in the case itself — including by endangering national security — then, ‘…the rules of openness must be modified to meet the exigencies of a particular case.’[xvi]

The National Security Information (Criminal and Civil Proceedings) Act[xvii]allows courts to close themselves off to the public — in the same manner detailed in the Criminal Code — to prevent the disclosure of information likely to prejudice national security. Further, it actually specifies — in any event where open justice and national security are irreconcilably opposed — the latter must be given ‘greatest weight.’[xviii] It is noteworthy that, in 2013, the Independent National Security Legislation Monitor (INSLM)[xix] suggested that s31(8) be repealed, so as to rebalance judicial perception when dealing with national security matters.

In R v Lodhi,[xx] Whealy J commented on the friction between open justice and national security, stating that legislation such as the National Security Information Act, gives more ‘comparative weight [to national security than open justice]…but the discretion remains intact.’ Whealy, whose reasoning was upheld on appeal to the NSW Court of Criminal Appeal, presciently stated: ‘The court’s task is to ensure that the accused is not dealt with unfairly…I see no reason why the same degree of vigilance, perhaps even at a higher level, would apply to the Court’s scrutiny of the Attorney’s specific certificate in a s31 hearing.’[xxi] Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), simply states that ‘…judgment in a criminal case shall be made public.’

Although federal legislation does allow for the judiciary to close itself off from the public under the pretext of national security, this is not a gateway to the denial of open justice itself. Former NSW supreme court judge Anthony Whealy has described the treatment of Witness J as a “complete abandonment of open justice.”[xxii] Even with legislation explicitly compelling judges to give greater weight to secrecy provisions than common law principles of open justice in national security measures; the rights of the accused to be dealt with fairly are absolute.

And for years, Witness J’s lawyers have been waiting to receive copies of relevant documents: they’re still waiting.

[i] E Campbell, ‘Public Access to Government Documents’ (1976) 41 Australian Law Journal 73, 77

[ii] ibid

[iii] P Finn, Official Information, Integrity in Government Project: Interim Report 1 (1991), 90.

[iv] G Terrill, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond, (2000), 41.

[v] ibid

[vi] Freedom of Information Review Panel, Enhancing Open and Accountable Government, Discussion Paper (2008), 158.

[vii] Report of the Royal Commission into the Commercial Activities of Government and Other Matters (1992), pt II, [3.1.1]

[viii] R v Shayler [2003] 1 AC 247, [21]

[ix] Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

[x] Russell v Russell (1976) 134 CLR 495, 520.

[xi] Jason Bosland and Ashleigh Bagnal ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-2012’ (2013) 35 Sydney Law Review 674.

[xii] ibid

[xiii] Hogan v Hinch (2011) 243 CLR 506, [21].

[xiv] Criminal Code Act 1995 (C’th) sch 1 s93.2(1) (Criminal Code)

[xv] (1991)  36 NSWLR 131, 141

[xvi] ibid

[xvii] 2004 (C’th)

[xviii] ibid s31(8)

[xix] Independent National Security Legislation Monitor, Australian Government, Annual Report (2013) 139.

[xx] [2006] NSWSC 571, [108]

[xxi] ibid

[xxii] Christopher Knaus, ACT justice minister says even he was kept in dark over secret prisoner. The Guardian, 22nd of November, 2019.