The Human Rights Law Centre has called for new legal safeguards to prevent secret trials following the case of Witness J, an intelligence agent who was prosecuted and jailed in complete secrecy.

In a submission to the Independent National Security Legislation Monitor (INSLM), Grant Donaldson SC, the Human Rights Law Centre has recommended urgent reform of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) to prevent any further secret trials from taking place in Australia.

In 2019, Witness J was sentenced to almost three years’ imprisonment after he pleaded guilty to national security offences. Every stage of Witness J’s prosecution took place in complete secrecy, because of an agreement reached under s 22 of the NSI Act between the agent, the prosecutor and then-Attorney-General Christian Porter.

The case only came to light following inquiries from two court reporters, a civil claim commenced by Witness J and questions raised in federal parliament.

Human Rights Law Centre Senior Lawyer, Kieran Pender said:

“Secret trials have a long history in authoritarian states. They have no place in liberal democracies like Australia. 

“Open justice is a fundamental democratic principle. It is an essential accountability mechanism and ensures public confidence in the justice system. While in limited circumstances narrow exceptions to open justice might be justifiable, we should never have a situation where a person is charged, prosecuted and sent to prison entirely in secret.”

In its submission to the INSLM’s inquiry into the operation of s 22 of the NSI Act in the context of the Witness J case, the Human Rights Law Centre outlined the need for minimum standards of openness that would prevent a fully-secret trial taking place again.

The submission also proposed several new safeguards, including an Open Justice Advocate being involved in the s 22 process, the requirement for published statement of reasons from judges in relation to s 22 orders, and the establishment of a ‘secret judgment library’ – mirroring the approach adopted in the United Kingdom – where secret court decisions can be stored and periodically considered for publication.

“The implementation of these changes would go a long way to addressing the open justice deficit at the heart of the NSI Act.

“There is no place for secret trials in Australia. The NSI Act must be urgently amended to ensure the secrecy which shrouded the Witness J case can never be repeated.”

Human Rights Law Centre’s submission to the INSLM review into the operation of section 22 of the NSI Act as it applies in the “Alan Johns” matter (a pseudonym) is available here.

Media contact:
Michelle Bennett, Engagement Director, 0419 100 519