Some of the sentencing details of a man secretly convicted and detained in a Canberra prison could be sealed for 20 years due to national security concerns, despite parties agreeing to release a redacted version.
On Tuesday the ACT supreme court considered whether to publish sentencing remarks about the man, known by the pseudonym Alan Johns and also as Witness J, who was jailed in complete secrecy after pleading guilty and being convicted for the disclosure of confidential information.
The chief justice, Lucy McCallum, indicated she will give judgment on 14 April about the release of details that parties agreed would not prejudice national security.
In December Guardian Australia revealed that the attorney general, Mark Dreyfus, had cleared a version of the sentencing remarks for release. The independent national security legislation monitor (INSLM) has also approved a separate summary of the matter. Both are yet to be released.
Johns, a former commonwealth official, had his employment at an unnamed agency terminated due to loss of his security clearance. He was then convicted for offences related to complaints to his former employer that he had been treated unfairly, using what the INSLM referred to as “unsecure means” to communicate “classified information”.
Nothing was known about his case until a legal fight in 2019 over Johns’ prison memoir alerted media to his earlier conviction.
The secrecy that still surrounds the case is such that, even now, it cannot be listed on publicly accessible court lists, because the charges Johns faced are considered sensitive national security information that cannot be entered into the courts systems.
Documents released by the court on Tuesday, authored by the Australian government solicitor representing the attorney general, reveal Johns was sentenced to two years and seven months in prison as an aggregate sentence for five charges.
They claim release of some sections of the judge’s sentencing remarks would be “contrary to the public interest” because disclosure “could endanger the lives or safety of others”.
The documents reveal that delay in publication of sentencing remarks was partly due to the retirement of the judge who heard the case and partly because in August 2022 Johns did “not consent to the sentencing reasons being published” due to concerns “the information in the redacted transcript may not accurately characterise his conduct”.
In written submissions dated 22 March, Johns’ counsel, Joshua Nottle, said the matter was “almost without precedent” because the public was “entirely in the dark about the facts and circumstances of the offence”.
“Mr Johns was charged, pleaded guilty and was sentenced to a term of imprisonment entirely in closed court without identification of the offences and without publication of the reasons for decision on sentence, until now.”
Nottle accepted that some redactions would be necessary to balance the principles of open justice and protecting national security.
But he warned that redactions that were “overbroad, unnecessary or which primarily seek to minimise accountability or embarrassment have the potential to undermine public confidence in the administration of justice”.
Johns is not expected to challenge the proposed redactions, but Nottle observed there were “significant practical impediments to any potential challenge” if he had wanted to do so.
On Tuesday, McCallum canvassed the possibility the court may need to appoint a contradictor to argue against the attorney general’s proposed redactions, but noted this would need to occur in closed court.
No party objected, although Christopher Tran, representing the crown, submitted that the court should take some comfort from the fact even the independent monitor had accepted that the sentencing remarks could not be released in full.
In his written submission, Tran said the suppression of the unredacted remarks should “not be perpetual”, later adding in court that a period of 20 years might be an appropriate time to reconsider full release.
McCallum quipped that Tran, a relatively youthful barrister who joined the bar roll in 2014, may be the only one present to appear in two decades’ time.
