The top-secret trial, conviction, sentencing and jailing of a former military intelligence officer known as Witness J has been described as "unusual" and "unprecedented", with one of Australia's national security watchdogs warning it "should never happen again".
The man, referred to as Witness J or Alan Johns, was convicted of mishandling classified information that, potentially, revealed the identities of agents recruited by Australian intelligence agencies.
Strict secrecy orders were applied to all aspects of the case, and his entire trial occurred behind closed doors, with details only coming to light when Witness J took action in the ACT courts to complain about his treatment and what he claimed was a breach of his human rights.
The Commonwealth was able to suppress the details of the case by using the National Security Information Act, a piece of legislation also used in recent cases against whistleblowers Bernard Collaery, Witness K and David McBride.
Witness J's extraordinary case fuelled a debate over transparency in the legal system, and whether too much ground had been ceded to national security concerns.
In March 2021, the Independent National Security Legislation Monitor (INSLM) Grant Donaldson SC restarted an investigation into how the legislation had been used in the Alan Johns/Witness J case.
"Alan Johns shows how [the law] can be used to conduct a federal criminal prosecution in 'secret', from start to finish, and to maintain this secrecy, seemingly, indefinitely," his report said.
"This should not have happened in [the] Alan Johns [case] and it should never happen again."
Mr Donaldson raised concerns with how the ACT Supreme Court had agreed to closed hearings in the case, without even hearing any formal submissions from the parties involved, describing that decision as "extremely unusual".
"The open court principle is most significant in criminal matters," he said.
"There is clearly and obviously a public interest in conducting criminal proceedings and prosecutions in open courts.
"When the executive government prosecutes crime, it is wielding some of government's most-immense power, and those proceedings should be seen and watched."
Mr Donaldson noted other "unusual" aspects of the case — namely that there was no evidence presented to the court as to why hearings should be closed, and no reasons for the decision were offered.
He argued the decision not to publish any of the sentencing remarks of ACT Supreme Court Justice John Burns was "unprecedented".
"The vast majority of Justice Burns' remarks when sentencing Alan Johns could have been made public," Mr Donaldson said.
The INSLM recommended that, in "exceptional" cases where closed hearings were requested, the Attorney-General be forced to justify their position before the court.
Mr Donaldson also said the fact secrecy orders have been applied should be made public, and reasons should be published.
Federal Attorney-General Mark Dreyfus said the government would consider the INSLM's report.
However, Mr Dreyfus has already asked the watchdog to review the entire National Security Information Act.
"The review will consider how the Commonwealth can better balance the vital importance of open justice with the essential need to protect national security," Mr Dreyfus said in a statement.
