Secret trials in the Australian 'police state'

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It sounds like a police state effort. An author makes an attempt to assist a pseudonymously named prisoner publish a memoir. The effort is scotched by the authorities. The police spring into action raiding the cell of that prisoner, and that of his brother. All take place without the knowledge of the Australia media or public.

Oblique angle of an Australian Federal Police badge. (Credit: Getty Images)Not much is known of Alan Johns, other than he was a former military intelligence officer. Both his crime and his background remain cloaked by secrecy. In fact, the entire matter of his conviction and his existence would have remained secret but for legal proceedings arising from his draft memoir penned while in prison.

In the Supreme Court of the ACT, Justice Burns heard a case dealing with judicial review of decisions made by the Director General of the ACT Justice and Community Safety Directorate. The Alexander Maconochie Centre had informed the Australian Federal Police about the manuscript, a copy of which had been emailed to the inmate's brother. The AMC, it was claimed, further 'took administrative action against him by withdrawing privileges without following notified policy'.

Ironically enough, the writing process was deemed a restorative one for Johns, part of a Mental Recovery Health Plan involving the completion of three manuscripts over six months. But on being informed of the memoir's existence, Johns' cell and the home of his brother were raided by the AFP. Both email and phone communications were also frozen.

Unfortunately for Johns, no relief was possible. He was no longer an inmate of the AMC, and did not establish 'that the declarations are aimed towards legal controversies regarding rights that are protected or enforced in the courts. On the facts of this matter, none of the plaintiff's rights have been infringed.'

The entire affair stunned the assisting author, the Canberra-based Robert Macklin. 'I didn't think we had secret trials in Australia. It worries me that we do.' This was a sentiment repeated by former ACT chief minister John Stanhope. 'I just didn't think it was credible.' The proceedings were 'held in such secrecy that not even the media was aware that this trial had occurred and that an Australian citizen had been sentenced to imprisonment'.

The tension between exposing a case and concealing both its fact and its contents are matters peculiar to the Anglo-Australian legal system. Underlying this play is the sketchy idea of open justice, a concept explained by the Australian High Court as 'the rationale ... that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional cases'.

 

"The relevant and troubling question here is how many other cases of this sort remain hidden from view."

 

On closer inspection, the Australian legal system reveals, at stages, considerable hostility to open justice. 'This', suggests Mark Pearson, 'is because of the relative priority the courts and lawmakers have assigned to the principles of open justice and the administration of justice, and the competing rights of free expression, privacy and a fair trial.'

The Australian Law Reform Commission lists various limitations to open justice: the use of in camera proceedings (excluding the public and media in court); cases of concealing information from those in court, where the court pseudonymises parties, or where prohibitions are placed upon the publication of reports or proceedings. In criminal cases, the concept of sub judice contempt will be known to those journalists who have fallen foul of the injunction against publishing anything prejudicial to the accused from the moment of arrest or charging till the appeal period concludes.

This has led to various inconsistencies and absurdities. When Cardinal George Pell was convicted in December 2018 in Victoria, a suppression order made by the court forbade reporting the trial and conviction in Australia. Foreign press outlets were not so bound: Australians had to seek alternative sources for reportage.

The secret proceedings against a former ASIS agent, Witness K, and Canberra lawyer and former ACT Attorney-General Bernard Collaery are also examples of a legal system bitten by the clandestine. That these covered the illegal bugging of the Timor Leste Cabinet by ASIS to give Canberra an upper-hand in boundary, oil and gas negotiations did not impress the prosecutors. The domestic intelligence service, ASIO, proceeded to raid Collaery's home while he was assisting diplomats from Timor Leste in the Hague.

When the case came to trial, Ernst Willheim, a visiting fellow at the ANU College of Law, was perplexed. 'The Collaery and Witness K matter did not appear in the court's list.'

The Johns case takes things to a different order. Its total absence in terms of reporting might itself be construed as a misadministration of justice. It revolves around a conscious effort to prevent disclosing the very existence of trial, conviction and consequences. Secrecy has its place, but is being used in the legal system in a way all too reminiscent of police states. The relevant and troubling question here is how many other cases of this sort remain hidden from view.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image credit: Getty Images

Topic tags: Binoy Kampmark, Alan Johns, secret trial, Witness K

 

 

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Existing comments

When we elect people like Morrison and Dutton to Parliament, and when the Labor opposition is too gutless to stand up to dangerous 'security' legislation, what else should we expect? Secret trials are the natural outcome of the creeping secrecy that began with Howard's Tampa and Morrison's 'on-water matters. But then it was happening to 'others' and not us. Wake up Australia!
Ginger Meggs | 26 November 2019


National interest and security must take precedent over public interest; it's a little naive to think that journos could resist publishing other than objective content or protect the case from scrutiny which inevitability makes finding uninfluenced jurors and legal processes difficult, if not impossible. There's a fine document titled "Disclosure of Official Secrets" which applies; public servants in certain organizations sign up to be bound to the Act and given the nature of their work must know the repercussions of breaches. "Whistle-blowers" and the sacrosanct secrecy of journalists' sources receives a lot of focus, the public assumption being that their conduct is altruistic, freedom of speech and noble; we might consider otherwise if we learn that the source was paid for the secrets or used them to assert some political or financial influence to their advantage. I refer to the 1970's cartoon series Superchicken's catchphrase to his sidekick: "You knew the job was dangerous when you took it, Fred".
Ray | 26 November 2019


Totally agree with Ray. And we are not a ‘Police State’ either ... a poor heading ..... no problem with the ‘story’ and good luck with it. Also .... Australia is awake and anyone not happy with this country nor PM Morrison should depart our shores . Good luck in finding anything better.
Jack | 27 November 2019


Is it in the National interest to hush up a case of commercial espionage? What is the greater risk to National security - the diversion of intelligence resources away from combating our enemies in order to steal from our friends, or the exposure of such behaviour?
LMNOP | 27 November 2019


Mr Johns was incarcerated in the ACT jail for less than 12 months, it appears. Assuming he was convicted of some security breach, the prison term seems short, or had he been held in remand for quite some time and this period was taken into account during sentencing. Another possibility might be that he appealed his conviction and won and was released. Do we need "The Justice Shonky Awards"? I nominate this case and the Bernard Collaery /Agent K case.
Steve Jordan | 27 November 2019


The government is there to serve us. Not the other way around. Secret trials are a sure sign that we are descending into fascism. What could possibly be so secret that we are not allowed to know? Do you seriously believe the clowns we have running the country are more capable than the citizens? Wake up. Secret trials HAVE NO PLACE IN A DEMOCRACY.
Penny Campton | 27 November 2019


Dr Kampmark’s article is both timely and desperately important. It isn’t an attack on a particular political party, even the one currently in government; not is it per se a defence of the rights of journalists. It’s a serious and necessary question about the health of the legal system that is an essential part of the Australian liberal democracy itself. If we allow it to be quietly taken apart without a challenge, we don’t deserve to keep it or the lifestyle that depends on it. Instead, our children will be left with the law and lifestyle of the jungle. The means will have defined our end.
Joan Seymour | 27 November 2019


Australia is becoming as bad as the kinds of things we (of a certain age) once associated with distant gulag-necklaced Stalinist Soviet Union. This is the kind of evil let loose from the time/age of "children-overboard" John Howard and his henchman - master-spy - and from "the nation-builder family" -Alexander Downer! It's all about secrecy - most unhealthy for democracies! Might I reference the US sci-fi writer Octavia Butler - and her Parable Series - The Sower - and - The Talents in which she writes verses warning us to beware of what we are told to say and think and see (and the power of such repetitions) and of being very careful of those we elect to be our leaders because their flaws will direct their game - if they be cowards (by the things they fear) if a fool - by those who control them, if a thief or a liar or a tyrant - by what lies at their own roots/failures/distortions of character. Those who wish for secrecy are hiding their own dark secrets - it is clear!
Jim KABLE | 27 November 2019


It is important that Australians have a wide discussion about the very concerning issue of secret trials that Binoy Kampmark has so ably raised. During the Cold War, conservative politicians continually criticised the Soviet bloc nations for such behaviour. And now, it appears that Australian leaders are adopting the same odious practice. I think that the comment by Ginger Meggs is a very accurate one. We have a very conservative government that is intent on stifling many of the freedoms that we have fought for. In addition, we have a very conservative opposition that does little to protest against these actions and often goes along with them. This is certainly the case with the handling of prosecution of Witness K and Bernard Collaery. Our government wants to punish these two courageous men - not because they undermined Australia's security as claimed - but because their actions contributed to stopping our leaders from denying Timor-Leste an international border in the Timor Sea and taking its resources . This was an extremely inhumane act by our leaders given it occurred after the East Timorese had suffered 24 years of genocide and gross human rights abuses at the hands of the Indonesian military (TNI). And during those years, both LNP and ALP governments provided military aid to the TNI and diplomatic support to the Indonesian dictatorship. Jack states that we are not a police state. Others might say that we seem to be headed in that direction.
Andrew (Andy) Alcock | 27 November 2019


Hey Jack “...anyone not happy with this country nor PM Morrison should depart our shores .” I shouldn’t have to explain why that is a completely unacceptable thing to say. So I’m not going to. But here's a clue. It’s undemocratic.
Paul Smith | 27 November 2019


Thanks for shining light on dark places, Binoy. Obviously there are legal complexities and processes most of us laypeople do not know about. However the ways governments are busy hiding facts, spin confecting communication and treating whistleblowers is sufficient to scare off would be critics. The current film "Official Secrets" details the treatment of a whistleblower in England who exposed America's bullying the UN Security Council into invading Iraq. Then taking England, America and Australia as well to war on a lie, with unbelievable and unnecessary loss of life. Obviously, and as in the case of Julian Assange, the embarrassment of politicians is a more serious crime than slaughtering thousands.
michael | 27 November 2019


This is BEYOND beyond belief. The question is: how do you get these illegitimi back? I believe in the rule of law. But when law is manipulated to subvert and smash the spirit of the term "the rule of law" a higher obligation is required. The people responsible for this travesty are, to use Tammy Fraser's words, lower that a snake's duodenal.
Paul Smith | 27 November 2019


I had heard of the case in question but the name Alan Johns was unmentioned. What on earth was he convicted of and exactly why were details suppressed? On the surface, it seems absurd that a seemingly unrelated memoir was suppressed. It's a plot worthy of John Le Carre.
Edward Fido | 27 November 2019


The electorate is the arbiter of the behaviour of officials appointed by a state apparatus. Smug Australian voters are content with this type of egregious villainy. Perhaps matters may change if these mendacious blackguards bang on the door of authors such as Dr Kampmark. Or to borrow one of George Santayana's aphorism's; "those who cannot remember the past are condemned to repeat it".
Henry Johnston | 29 November 2019


We are in a police state. Reporters not being able to report. The fact that any of us could be gaoled without access to lawyers or our human rights. Facial Recognition that we all will be subjected to. The cashless welfare card which quarantines income for people on support incomes, and then those people cannot visit charity shops and pay cash, or visit markets. The fact the current Government spent billions of dollars on a family of four to be taken and gaoled at Christmas Island. The water scandals. Allowing people from China to buy excessive amounts of land in Australia. Preventing demonstrators access to properties which show cruelty to animals. Soon it will be illegal to demonstrate and voice our concerns publicly. And also the fact that the current Government is sending Aboriginal Peoples and others overseas when they commit a crime, despite the fact that they are supported by their own Communities and have lived her for years. Please stop voting for them and choose some other group that has more humane, decent Policies and certainly better economic policies. The current Government is also mismanaging our economic security in Australia. When the Great Depression started one of the main signals was shops closing down i.e. empty shops, people losing jobs, massive job cuts, and every day people being unable to afford housing and food. We are in a Depression and no one wants to admit it. We have a government with racist policies. Look around you people. Open your eyes. Start speaking up and Demonstrate in the streets. Yes Climate has changed over the centuries. But the truth is that in the past those changes took millions and billions of years. Todays climate is changing in just decade. There is a big difference. We need to remember that there are other political parties out there Besides Liberal, the Nationals and Labour. None of these parties come up to scratch in my opinion.
Susan Barry | 02 December 2019


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