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RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

A former intelligence officer in Canberra was charged, sentenced, and jailed - in complete secrecy in 2018.
It was only after he brought his own legal complaint - and a couple of journalists noticed some security guards in the courthouse that anything about his case was made public.

Now, as fragments of the proceedings against the man known as Alan Johns filter out, we’re learning what happens when our spy agencies go to court – and what we’re allowed to know.

Today - chief political correspondent at the Saturday Paper, Karen Middleton, on the case of Alan Johns.
It’s Wednesday August 10.

RUBY:

Karen, a couple of years ago, an Australian intelligence official was jailed in complete secrecy. So to begin with, what CAN you tell me about this man… and what he did?

Karen:

Well, that's a good point, actually, because we don't know very much about him at all. We're not allowed to know his name. We're not allowed to know the agency that he worked for. He was known in the court process by the pseudonym Alan Johns, but people would maybe be more familiar with his other name that he's been given in the public domain, and that is Witness J.

We did manage to find out he was an intelligence official. He worked in the domain of national security. But we don't know exactly who for. And everything about this whole court process that he was involved in was completely shrouded in secrecy.

He committed a crime. He pleaded guilty to this. He was charged of effectively mishandling national security information.

His employer in about 2018 had some concerns about what has been described as his behaviour and failing to meet reporting standards. They revoked his security clearance and then as a result of that he lost his job. Now he was upset, understandably, about that, but in the course of protesting that decision, he used an non-secure means of communication to make a complaint and he also disclosed classified information. And that's the basis in, as far as we know, anyway, of the charges that he pleaded guilty to.

RUBY:

Okay. So he’s pleaded guilty to these charges, around mishandling classified information. At this point though - at the point at which these charges are levelled at him - this is all kept a secret from the public. So what happens as the case starts to make its way through court?

Karen:

Well, it started in the Magistrates Court in the ACT and there was an application made by the Federal Attorney-General that the court should be closed. The whole thing should be secret because it involved secret national security information. So the magistrate read an affidavit through his lawyers, it was Christian Porter at the time handed up to her. She read it. She made a decision that there should be orders made, that the court be closed, that it be sealed effectively secret. But she didn't put down reasons for that.

Nobody took any notes of this. There's no transcription. There's basically absolutely no record of the decision that she made. Because he pleaded guilty to the offences. It then went to the Supreme Court for a sentencing hearing. This is where people started to get wind that something was happening.
A couple of journalists were in the ACT courts building and saw the big burly security guards standing outside a court back in 2018, 2019. Their names were Michael Inman from the ABC and Alexandra Back from the Canberra Times. And so they made enquiries - What's going on? And they eventually got a note back not from the Chief Justice, but from another judge, Justice John Burns, who it transpired was presiding in that case.

He sent a note and it was reported later that what he said was that quoting this note, the particularly sensitive nature of the material to be exposed in proceeding and the grave harm that could occur if the material became public outweighed the desirability of ensuring that proceedings before the court are open to the public. In other words, this is why the court has been closed. And he also said, allegedly, that the decision to close the court was not taken lightly. So this whole thing was conducted in secret. They at that point didn't know anything about what was happening inside.

RUBY:

They had just seen these security guards and wondered what was going on.

Karen:

Correct. And weren't able to find out any more at that point. But what did happen in secret, there was he was convicted and sentenced to two years and seven months in jail. Now, he served 15 months in a jail in the ACT. We don't know much about his incarceration at all. Nobody knew he was jailed at all. And he was eventually released in the middle of 2019.

The only reason that any of this came to light and the dots were joined about that mysterious case with the security guards, and the man they now call Alan Johns, was that he brought his own court action as a result of the way he said he'd been treated in jail.

While he was going through that sentencing process for this case his cell was raided at the jail by police who were looking for a memoir that he'd written. They were concerned that it might be disclosing something that it shouldn't. And he was complaining and protesting about that. And he brought an action against the Justice Directorate in the ACT over that incident.

And in the course of that, someone who gave evidence mentioned the fact that there was an Alan Johns matter, another matter that was secret. And so nothing could be said about that.
Now the judge in the case was the same judge, Justice John Burns, and in his judgement there was a reference to that.

And the journalists then managed to join the dots and eventually in the public domain was the fact that someone had been charged, convicted and jailed without anyone knowing.

RUBY:

Okay, so just so I'm clear. Alan Johns ends up in jail in a process that's completely secret. While he's in jail, police raid his cell looking for a memoir that he's written. He complains about that. He takes that to the court. And then through doing that, it becomes clear that he is the man that was part of this secret case involving guards at the door. And journalists manage to put that together, and that is the only reason that we even have a name to go with the secret case.

Karen:

That's right. Well, it's only because they knew there had been this other secret hearing that they put two and two together.

RUBY:

And so how unusual is it for a case to be run completely in secret like this?

Karen:

Well, it's unprecedented. It hasn't happened in this country before. And of course, it raises questions about the principles of open justice that we have here in Australia.

The key here is that it was a case that was about secrecy, whereas other cases like terrorism cases have elements about them that are protecting secrets. This whole case was about secrets and revealing them. And so the government effectively through the attorney general and its lawyers and then the court threw a blanket over the whole thing.

RUBY:

We’ll be back after this.

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RUBY:

Karen, when it was revealed that Alan Johns, not his real name, this former intelligence officer had been charged, sentenced, and jailed all in complete secrecy, what kind of alarm bells did that raise?

Karen:

Well, when there was publicity around this case, people in the legal community and people in the general community were pretty astonished that this could have happened in a country like Australia, a free and open democracy where we think we have a justice system that is based on the principle of open justice. And one of the people who has a key watchdog role in national security latched on to this and decided that it was worth investigating. Now, that person is known as the Independent National Security Legislation Monitor, or they call him the INSLM for short. That person is now Grant Donaldson, an eminent jurist based in Western Australia, and he completed that investigation and handed down a report just a couple of weeks ago. And it's fascinating and it's this report that confirms that this in fact was unprecedented, the way that this was handled, the whole case being shrouded in secrecy.

Archival tape -- Grant Donaldson:

The reasons that were given by the judge for eventually sentencing Alan Johns to what he did were not made public, even in an abbreviated form. And that is really the most extraordinary aspect of this case.

Karen:

His report looked at one section of the key piece of legislation that governs the handling of national security information. Section 22 in that act. It's known as the National Security Information Criminal and Civil Proceedings Act. And there's one section that makes provisions for secrecy orders when dealing with cases of national security information. So he was looking at the Alan Johns case and how that section impacted on this case.

And he then uncovered the sequence of events that demonstrated how little record there was and how there was absolutely no publicity around any of it.

Archival tape -- Grant Donaldson:

None of the hearings that involved Alan Johns were publicised at all. In fact, there was no public notification that there was even a hearing or hearings that were going on.

Karen:

And then when the man was sentenced to jail, there was no record made public of why he was sentenced to jail, so somebody could be put in prison in secret. And we're not allowed to know why.

Archival tape -- Grant Donaldson:

There is no excuse for judicial officers to be not giving reasons. When the matter warrants it. Some matters judges don't have to give detailed reasons for because they're just trivial matters. But I struggle to understand how orders providing for the closing of a court. For the entirety of a prosecution. Those orders should not be made without reasons being given. And even if they can't be published, they should be prepared and given.

Karen:

He said that section of the act was used to, quote, conduct a federal criminal prosecution in secret from start to finish and to maintain this secrecy seemingly indefinitely. He said this should not have happened in Alan Johns and it should never happen again.

RUBY:

It is extraordinary when you think about it Karen - not only are the details of the case kept secret, but the very act of prosecuting the case is secret, and then on top of that the reasons for keeping any of this secret, are also secret.

Karen:

It's the invisibility cloak thrown over the whole thing. That is the key. That is why this whole thing is unprecedented, because at every stage, nothing was allowed to be known about it. We weren't even allowed to know the case existed and we weren't allowed to know that someone had been convicted, which means that there was a man in jail that nobody knew about, and there's no protections for him in that scenario. Nobody argued in the court against the secrecy.

And he says that needs to be addressed in future. And I actually spoke to a number of other jurists about this as well.

One of the key things that Grant Donaldson has proposed as a result of his review is that there be more active use of the power to appoint what's known as a contradict in a court, in a situation like there was in Alan Johns, where no one's really arguing for the other aspects of the public interest, not just the national security considerations, but the considerations of open justice. Now, the judge has that power there already, but clearly isn't always using it. And Grant Donaldson said it should have been used in this case and it obviously should be an active option.

Now, in his report, he only says that there should be something entrenched as a reminder to judges that they can do this. But in the conversation I had with him, he did go a bit further and said that maybe in some cases there's an argument for making it compulsory to have somebody standing in a court when everyone's arguing for a complete secrecy blanket over the whole thing, saying, hang on a minute, what about the importance of open justice? Have a listen to these arguments.

RUBY:

Yeah, I mean, the principle of open justice seems to be key to this. Does the fact that this happened, the fact that it could happen at all run the risk of undermining our confidence in the courts, given that their transparency is key to us trusting what happens.

Karen:

It absolutely does. And that goes to a key point about this whole thing, that we need to have confidence in our court system. We need to understand the decisions it makes. That is what gives it credibility, and it underpins its position in our community. It's one of the key pillars in our Western style democracy here. And if things are done in secret, we can't have that confidence. And in fact, Grant Donaldson makes the point that while he thinks the secrecy was excessive in this case, there was a good case for a pretty high level of secrecy.

He says if public explanations were given for the decisions that were made, people would understand that actually a lot of them were pretty reasonable because we were dealing with information that was very important and that could have caused harm if it had been disclosed. But we don't see that. So it's interesting. It isn't just the exposure of things that might have gone wrong. It's the support in terms of confidence of the things that were done correctly and that underpin the whole system.

Archival tape -- Grant Donaldson:

I would have thought that it would give people greater confidence in understanding why the matter was dealt with in the closed court. And I think that it would give the community confidence that a proper process was undertaken by the court in dealing with the matter.

But in the absence of publication of the reasons, I think people are entitled to be sceptical and they are entitled to be concerned.

RUBY:

And this case, Karen, it raises this kind of intriguing question of what don't you know that you don't know? Because the reason that we have the information that we do about this particular case is because Alan Johns brought his own legal action. But there is also this element of coincidence and chance to the information that has been gathered. And so it makes you think that, you know, something like this could very easily happen again and we wouldn't necessarily know about it.

Karen:

And that's right. It could without vigilance and without probably some changes to the law. And that's exactly the point that Grant Donaldson is making. We need to take this very seriously. We need to look at the implications for our whole system of justice. And maybe we need to make some changes to the law to make sure that the case of Alan Johns or witness J doesn't happen again.

RUBY:

Karen, thank you so much for your time.

Karen:

Thanks, Ruby.

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RUBY:

Also in the news today -

The FBI has reportedly raided the home of former US president Donald Trump at his Mar-a-lago resort.

Trump released a statement during the raid saying, quote: “my beautiful home, Mar-a-lago in palm beach, Florida, is currently under siege, raided and occupied by a large group of FBI agents.”

The search reportedly related to 15 boxes of classified material Trump took to the residence when he left the White House.

And the Greens have announced their pathway to supporting a ‘yes’ vote in a referendum on a voice to parliament.

Greens senator Lidia Thorpe said she wants the government to take concrete steps towards the other two components of the Statement from the Heart: treaty and truth.

I’m Ruby Jones, this is 7am. See you tomorrow.

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