The head of Australia’s domestic spy agency says he does not believe trials should be held in secret as a “matter of principle”, but warned the release of sensitive information could threaten the lives of his human sources and jeopardise intelligence-sharing with allies.
The national security legislation watchdog held a hearing on Wednesday into the case of Witness J, a former military intelligence officer who was prosecuted and sentenced in the Australian Capital Territory in all-encompassing secrecy in 2018 and 2019.
To the public, those involved in the courts, and even the ACT’s attorney general, there was no evidence the case ever existed.
The secrecy in the Witness J case was enforced through the National Security Intelligence Act, laws ostensibly designed to guide courts in handling sensitive information. The laws attempt to balance the principles of open justice against national security, but experts say they were used in the Witness J case in a way that was never intended.
Australian Security Intelligence Organisation chief Mike Burgess told Wednesday’s hearing he believed strongly in transparency, including in criminal proceedings, which he said was “important to me”, “important to Asio” and “important to national security”.
“As a matter of principle, I don’t think there should be a secret trial,” he said.
But Burgess, who declined to comment specifically on the Witness J case, also said the NSI Act was crucial in ensuring sensitive information did not fall into the wrong hands.
He said it allowed agencies to prosecute offenders for serious crimes without fear of losing control of sensitive information and causing “grave damage” to the nation’s security.
Burgess said foreign actors and their proxies watched certain criminal proceedings in Australia with the hope of obtaining details about intelligence gathering methodology and capabilities.
He said Australian intelligence was locked in a “race to innovate between spies and spy-catchers and those intent on inflicting violence on our citizens”.
“But it’s not just about technology and capabilities,” he said. “It’s also about our people. Our intelligence officers and human sources operate in challenging environments to protect Australia and Australians from threats to their security. We ask our people and our sources to take risks on behalf of the country, we need to give them the confidence that we can protect them.”
Earlier, the Independent National Security Legislation Monitor, Grant Donaldson, told the hearing there was no reason why a summary of the Witness J case could not have been published three years ago.
Donaldson released additional detail of the Witness J case on the INSLM website. The summary said Witness J had his employment terminated following the loss of his security clearance, which was re-assessed following concerns about his behaviour.
The intelligence officer subsequently made a series of complaints about his treatment to the intelligence agency, via unsecure means. Those communications contained classified information.
He was arrested and charged with multiple offences and pleaded guilty, prompting him to be remanded in custody in mid-2018. He was sentenced to two years and seven months, but only spent 15 months in prison and was released from jail in mid-2019.
The Law Council of Australia used its evidence before the hearing to argue for reforms to the NSI Act to avoid a repeat of the Witness J case.
Phillip Boulten SC, a member of the councils’s national criminal law committee, said there must be a minimum level of transparency in such cases.
He argued courts can, and should, publish details on the charge that is laid, the terms of the charge, a broad description of the offence, and whether the attorney general was required to consent to the prosecution.
Boulten said details of the sentence and any post-sentence restrictions, such as travel bans, should also be published.
Courts should also be made to publish reasons when they make orders through the NSI Act.
Such publications, he said, would have avoided the situation seen in the Witness J case, where the very existence of the case was hidden from public view.
“That was what shocked everybody, that there had been a complete set of proceedings take place without significant players in the system, let alone the public, knowing about it,” Boulten said.
The hearing is also exploring whether a public interest advocate should be appointed to argue in court for the principles of open justice in cases affected by the NSI Act.
Human Rights Law Centre senior lawyer Kieran Pender told the hearing that the nature of criminal proceedings encouraged both parties, including the defendant, to accede to secrecy.
Such an outcome occurred in the Witness J case.
“You have a perverse scheme arranged where all of the factors are pointing towards secrecy,” he said.
Both the Law Council and the HRLC advocated for the creation of a library of decisions made in NSI Act cases, which would be subject to periodic review to ensure the powers were being properly used.
Kathryn McMullan, a first assistant secretary with the Office of National Intelligence, told the hearing that the release of intelligence information could cause “exceptionally grave” damage to Australia, including by putting human sources at risk and undermining sophisticated capabilities.
McMullan said the handling of such information requires “complex and careful considerations about the possible harm that could result from each disclosure on a case-by-case basis”.
“For these reasons, where intelligence information becomes part of criminal proceedings, there must be appropriate mechanisms and processes, such as currently exist in the NSI Act, to ensure that any intelligence information disclosed to parties and the court is appropriately managed,” she said.
The Witness J case only came to public attention when the prisoner lodged a civil case against the ACT government and prison authorities.
