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December 21, 2019 – January 24, 2020 | No. 284
Julian Burnside and
Mikele Prestia
The secret trial of Witness J
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.
Witness J was secretly tried in Canberra, and secretly sentenced to a term of imprisonment at the Alexander Maconochie Centre in the ACT.
When all this first emerged last month, even the ACT justice minister 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.
The case of Witness J was revealed by author Robert Macklin in Canberra's CityNews on November 13. J is understood to be a former military intelligence officer. We don't know who he is; we don't know what crimes he has committed. The ABC reported that he had been held in custody since May 2018, was sentenced to 31 months' prison in February 2019 and was released in August 2019.
Prison general manager Corinne Justason was aware that certain Commonwealth orders applied to Witness J, although she was not aware of the terms of the orders. She knew the disclosure of information relating to Witness J and the offences of which he had been convicted was prohibited. And when she learnt J was writing a memoir in prison, she informed the Australian Federal Police.
Witness J's privileges were revoked. His access to email was terminated. His brother's house was raided nine days after Justason told the AFP about the memoir. Two days later, the AFP executed a search warrant raid on Witness J's cell.
When the AFP raided the home of Witness J's brother, they were looking for the manuscript of the memoir. While AFP raids for sensitive documents have become common in recent months – the ABC, journalist Annika Smethurst's home – the raids on J and his brother mark a departure from the norm even tested against that worrying standard.
In an open democracy, it is profoundly worrying that the government has the power to "disappear" a person.
Upon his release from the Alexander Maconochie Centre in August, Witness J began civil action against Justason over the seizure of his manuscript. J lost his claim but through this court action he learnt about the secret suppression orders – lifetime orders – that had been made against him. Before this case, he had no idea about them.
The underlying criminal case against Witness J remains a mystery to the public. In the senate on November 28, 2019, the minister representing Attorney-General Christian Porter refused to provide any details about the case. That Witness J was charged and sentenced in secrecy is scandalous in a country that purports to be a democracy. It is also a serious warning to all of us, raising the risk that Australia is quietly becoming authoritarian.
The secret trial and jailing of Witness J were not an aberration. They were authorised by two pieces of Commonwealth legislation – section 93 of the Criminal Code and section 38 of the National Security Information (Criminal and Civil Proceedings) Act.
The Criminal Code allows judges the discretion to make suppression orders and exclude the public from proceedings, if satisfied this is in the interest of the security or the defence of the Commonwealth. For obvious reasons, it is the government that will seek orders to keep its prosecutions secret.
The National Security Information Act allows courts to close themselves off to the public to prevent the disclosure of information likely to affect national security. It actually specifies that in any event where open justice and national security are irreconcilably opposed, the latter must be given "greatest weight". Again, it is the Commonwealth that asks for secrecy under these provisions.
The case of Witness J shows how these laws may be used.
When he was secretly tried and jailed, Witness J effectively disappeared. No one who realised he was no longer around – friends, family, colleagues – would be able to find out what had happened to him.
Recently, an account believed to belong to Witness J popped up on Twitter. It details 10 years spent working for the Australian military in East Timor, Afghanistan, Iraq and Indonesia, and another five years in the Department of Foreign Affairs and Trade.
According to the account, it was after his military career came to an end that Witness J – who had seen many of his fellow servicemen killed in the line of duty – sought mental health care. The department refused, citing his level of security clearance as preventing external treatment.
If this account is to be believed, this was the context in which Witness J committed the offence to which he pleaded guilty and was imprisoned. During his secret trial, Witness J's lawyers had no precedent upon which to work – with Witness J himself unaware of the court orders made against him. J's entire case is subject to a suppression order. However, a clue to his offending may lie in one of his recent social media posts in which he says he did not assist a foreign power.
Open justice is one of the mechanisms that protect our democracy. The idea of a secret trial raises an important question: Why would a Supreme Court justice conduct a jury trial in complete secrecy? The answer is that the prosecutor has told the court that national security must be protected.
Courts have long spoken of the vital nature of openness in the justice system.
Ruling on Russell v Russell, in 1976, High Court Justice Harry Gibbs said: "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."
Although open government "may embarrass the authorities", as Lord Bingham said in R v Shayler: "Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant."
The most serious offence with which Witness J may have been charged, under our national security laws, is treason. In 1916, the British diplomat Roger Casement was charged, found guilty, and hanged for treason. The trial was open. More recently, at the end of World War II, William Joyce, known as Lord Haw-Haw, was hanged after being tried and convicted of treason. Again, the trial was open, as all court cases should be.
"This is a shocking example of secrecy and abuse of state power and our descent into a police state. It is yet another argument for a charter of rights in Australia," Greens senator Nick McKim said recently, putting the issue succinctly.
"Open justice is critical to the rule of law, which in turn is critical to our democracy. There is no reasonable conclusion to be drawn from this matter other than that we are living in an authoritarian state. I have to ask: What has and is our country coming to?"
It is difficult not to agree with him.
Australia is well served by its judges: they have a fine history of being independent and honest. But even well-meaning judges can be persuaded that powers granted by parliament may need to be exercised from time to time.
Serious questions in this case need to be answered: Why do the provisions exist that enable the government to ask for a trial to be held in secret? Why did the Commonwealth attorney-general seek to persuade a judge, in the case of Witness J, to allow the trial to be so shrouded in secrecy that even Witness J himself only discovered by chance he was subject to a lifetime security order?
Without answers, I fear there will be an increasing tendency to seek closed courts, given that our politicians are so inclined to keep uncomfortable facts away from the voters.
This article was first published in the print edition of The Saturday Paper on Dec 21, 2019 as "Disappearing act".
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Julian Burnside is a barrister who specialises in commercial litigation and human rights.
Mikele Prestia is a writer, journalist and legal intern to Julian Burnside.
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