Australia's national security watchdog will conduct an independent review into the laws that allowed the controversial secret prosecution of Witness J to go ahead without the public's awareness.
The newly-appointed Independent National Security Legislation Monitor Grant Donaldson announced on Tuesday morning the oversight body would assess whether legislation aimed at protecting Australia's national security were proportionate following the secret prosecution of a Commonwealth employee.
The review will welcome submissions and conduct public hearings to determine whether orders made under the National Security InformationAct were appropriate for protecting national security and whether adjustments were needed.
It follows the extraordinary case of a Commonwealth employee, who was secretly imprisoned in a Canberra jail for 15 months after being charged with disclosing confidential information.
The former intelligence officer, referred to as "Alan Johns", or Witness J, was publicly revealed following a raid by Australian Federal Police of his Alexander Maconochie Centre cell in order to intercept a memoir he was writing of his situation.
The case sparked outrage among politicians and the public, including then-ACT Justice Minister Shane Rattenbury who was unaware of the prisoner despite being in charge of the territory's corrections system at the time.
Attorney-General Christian Porter told the Senate in December 2019 the case was the first of its kind in the country.
"The matter is unique in my experience, and I am not aware of any other similar cases," Mr Porter said at the time.
Orders to keep the prosecution a secret were allowed to go ahead with the consent of Mr Porter, along with the Director of Public Prosecutions and Witness J.
Senator Rex Patrick, who received an answer from a question on notice to the Attorney-General in late 2019, said he questioned the judgment of Mr Porter given his involvement in a number of other matters relating to the suppression of national security information.
"The Attorney-General has made a number of misjudgments in relation to national security matters - notably in relation to the case of Witness K and Bernard Collaery, as well as the attempted suppression of an Audit Office report," Senator Patrick said in a statement to The Canberra Times.
"It is clear that sole reliance on the Attorney-General's national security judgment is fraught with risk of injustice.
"I look forward to the INSLM's inquiry and recommendations as to how a more appropriate balance can be struck between the principle of openness and the needs of national security, including the role of an independent authority to test national security claims."
The watchdog said the review would seek to consider how the process of applying the laws allowed for the case to be shrouded in secrecy and kept from the public's eye.
"Alan Johns' was charged, arraigned, convicted on his plea of guilty, sentenced and served his sentence - without public awareness of any of this," the watchdog's background summary read.
"The court was, for all appearances, closed. No reasons of any magistrate or judge who presided over any of the various steps in the process have been published.
"The INSLM will be considering in particular whether section 22 of the NSI Act, having regard to its operation in the 'Alan Johns' matter, is proportionate to threats to national security."
Law Council president Dr Jacoba Brasch welcomed the news and said the council remained supportive of reforms floated by Mr Donaldson's predecessor.
"The Law Council believes that the principle of open justice is particularly important in criminal proceedings. It goes to the heart of a person's right to a fair trial, in that justice according to law must not only be done but must be seen to be done," she said.
"Such review is particularly important, given that recent expansion of official secrecy offences in Commonwealth legislation could lead to further prosecutions."
Submissions will remain open until Friday, April 30 with a public hearing scheduled to be held in June.
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