The Australian Capital Territory’s chief justice, Lucy McCallum, has described secrecy as “anathema to the rule of law” while releasing the long-awaited sentencing decision against Witness J.
The man, known by the pseudonym Alan Johns and also as Witness J, was jailed in complete secrecy after pleading guilty and being convicted for the disclosure of confidential information.
The sentencing remarks, released on Wednesday, reveal that Johns was not allowed to tell anyone other than his brother and uncle that he was in custody, not even his own mother.
Johns, a former commonwealth intelligence official, had his employment at an unnamed agency terminated due to the 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 Independent National Security Legislation Monitor referred to as “unsecure means” to communicate “classified information”.
Nothing was known about his case until a legal fight in 2019 over Johns’s prison memoir alerted media to his conviction.
Documents released earlier in April, authored by the Australian government solicitor representing the attorney general, revealed Johns was sentenced to two years and seven months in prison for five charges.
On Tuesday the ACT supreme court considered whether to publish sentencing remarks about Johns. In deciding to release the remarks, McCallum said cases such as Johns’s were likely to “cause consternation”.
“The prospect of a person being imprisoned in this country in proceedings closed to the public on suppressed charges proved by secret evidence is inherently likely to cause consternation,” she said.
“Secrecy is anathema to the rule of law. The administration of justice thrives on the discipline that comes with public scrutiny. That is the premise of the principle of open justice.”
But McCallum also said open justice was not absolute. “There will be occasions on which some limitation of the principle is necessary to secure the proper administration of justice.”
She released a redacted version of the sentencing decision. The remarks show the sentencing judge, John Burns, found Johns’s actions had posed a clear risk that sensitive information would be disseminated publicly, with “potentially significant consequences”.
“As an [REDACTED] you had access to sensitive [REDACTED] information,” Burns said. “You were trusted [REDACTED] on behalf of the Australian people with highly classified material for the purpose of discharging your duties [REDACTED].”
‘Even your mother has not been told’
The sentencing remarks reveal that the secrecy around Johns’s prosecution was such that even his own mother did not know he was behind bars.
“I accept that your present period in custody has been considerably more difficult for you than it would be for most remandees,” Burns said.
“You have to use an alias [REDACTED] and you have been precluded from telling anyone except your brother and uncle that you are in custody.
“Even your mother has not been told.”
Burns found Johns was motivated by perceived unfairness at his intelligence agency.
“You clearly believed that you were being treated unfairly and in a different way to that in which others in the organisation had been treated in the past,” he said. “You also expressed your lack of confidence in the processes available to challenge the decisions which had been made.”
But he also said that Johns’ “depressive illness played a significant role in the commission of these offences by impairing your judgment”.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, said secret trials “have no place in democracies like Australia, where open justice is a fundamental protection of our human rights”.
“Today’s publication of the Witness J sentencing remarks brings an end to an alarming five-year-long saga that should never have happened. It is testament to the media, civil society and the Independent National Security Legislation Monitor that this secret trial was identified, called out and now addressed.
“The government must change the law, pursuant to the monitor’s recommendations, to ensure this can never happen again.”
In December Guardian Australia revealed that the attorney general, Mark Dreyfus, had cleared a version of the sentencing remarks for release. The INSLM has also approved a separate summary of the matter.
The documents released in April claimed the 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”.
They also revealed that the 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.”
