Retired ACT Supreme Court Justice John Burns has copped a severe caning from the independent national security legislation monitor this week. It's over his handling of a case in which a man we cannot name was secretly charged with serious criminal offences, which cannot really be itemised other than in the most general way, who was tried in secret in a closed court with evidence we are not allowed to know about. He was found guilty and given a 31-month jail term in the ACT prison without the public - or even the ACT Attorney-General - being allowed to know anything about it.
Even now journalists and others are seriously constrained in what they can say about the case, known as the Alan Johns matter. Alan Johns is a pseudonym. We are not allowed to know why he was in jail, or to publish the reason if we find out. No court judgment is available, and no reasons were ever written for the restrictive orders. We are now allowed to know that the offence involved mishandling a secret document, but nothing about the circumstances. Otherwise, allegedly, people might die.
The Kafkaesque experience is somewhat like Bernard Collaery's. He was another the Commonwealth was proposing to try behind closed doors, often without Collaery or his lawyer being allowed to be present, or to confront or cross-examine his accusers. The new Labor Attorney-General, Mark Dreyfus, has ordered the prosecution discontinued. But there are ongoing arguments about whether the public will ever be allowed to see secret judgments essentially upholding the "justice" on offer.
I agree with the criticisms of the national security monitor - Grant Donaldson SC - the fourth lawyer to occupy that role since Australia went apeshit about the protection of the national security state at the beginning of this century. This nation now has a regime of secretive national security legislation which is more strict, severe and unaccountable than virtually any other western nation. That is even if evidence of the threat we face is on a lower scale than almost anywhere else.
We can't blame the judges for the compulsive secrecy, the active and coercive efforts to keep the public uninformed and out of the loop. They did not ask for their powers in such matters. Least of all John Burns or David Mossop, who had carriage of the Collaery trial until the case was aborted. They have been simply attempting to carry out laws proposed by the executive government - mostly at the instance of the spooks themselves. The spooks and ministers and prime ministers who have found them a convenient blanket for hiding their misdeeds and making aspersions about the loyalty of their political opponents.
Willy nilly the ACT court system is at the apex of the national security state. Canberra is where most of the spooks live. It's where most of the secret agencies are. It has also been shown to have judges and magistrates given to issuing warrants on demands and secrecy orders as requested.
The laws the judicial officers enforce have usually been considered, before enactment, by an unusually tame parliament intelligence committee full of boffins who have long gone native. If thought too tyrannical even for them, the details are somewhat softened, but usually without much in the way of extra safeguards and protections. Parliamentary enactment has been virtually automatic, and, because it has become a sacred cow, it is deeply infra dig to express any cynicism about the need, the ever-expanding national intelligence and security budget, or the service the public gets from it.
Nor, alas, does one ever get much cynicism or displeasure from the courts. It's not hard to find judges who will agree that in theory the "openness" of courts is a critical component of justice. But judges have become habituated to "deferring" to the opinion of very interested and not very detached players about what the national interest requires. That it involves the illiberal inversion of the onus of proof, and other departures from fundamental human rights is neither here nor there. Some judges are also allowing themselves to be bullied by officers of the Attorney-General's department who think they have a right to review and rewrite judge's reasons statements after they have been handed down. It has not been unknown, indeed, for judicial officers to have private discussions with some parties in the absence of the defendant.
Most judges will agree that the principle that the courts conduct their business in the open is fundamental to the justice system. Among the reasons given for this principle is an understanding that even judges can be tyrannical, lawless or unjust if they are not checked by the knowledge that others will see.
But we live in an age full of exceptions to the principle. We protect the identity of victims of sexual assault by forbidding publication of their names. We protect the identity of children, and often allow them to give evidence from behind screens or on television. We have restrictions on the publication of family law cases. Sometimes judges will suppress the publication until after a trial is over.
Such exceptions can be justifiable as being in the public interest. Generally, court orders are no wider than is necessary to protect the interest in question. But being used to lots of exceptions can habituates judges to making, on request, absurd orders not demonstrably in the public interest. It is a notorious fact that a professional has a better chance of having her name suppressed than an Aboriginal or invalid pensioner.
National security can be a legitimate public interest justifying suppression. Publication of some types of information may identify intelligence agents, or their targets, or expose colleagues. There are secrets, particularly in defence, that are worth withholding from potential enemies. Even dying over.
But who can wonder at public and journalistic cynicism at extravagant claims by the spooks when the law is being used to conceal illegal and shameful behaviour, such as the bugging of the East Timorese cabinet, or war crimes in Afghanistan and efforts to cover them up? Does anyone really believe that we would have had the Brereton inquiry, and the current agonising slow follow-up investigations, had not the terrible secrets been exposed, in alleged breach of national security legislation?
Many of the efforts, and much of the budget, of our most top-secret agency - the Australian Secret Intelligence Service - are now focused on "disrupting" boat voyages by people fleeing war and oppression, and seeking asylum, as is their right. People acting in "our" name are bribing foreign officials, high and low, and sometimes using violence against players. It has, accidentally of course, allowed prime ministers and others to manipulate the public by pandering to prejudice about refugees.
It's their masters, not the agents themselves we should blame. But it is stretching it to insist that such dirty work deserves all the same protections and immunities as spying on potential enemies or infiltrating a terrorist gang. It is not the same as clandestine intelligence gathering about the military intentions of a foreign power. If it were in the open, the popular reaction would see people put in jail, not for breaking the espionage laws of other countries but for crimes that ought to revolt the conscience. At the moment, however, it would be a breach of the law if any such "agent" were named. There is no public interest defence.
Should the national security rules be used to conceal empire-building efforts by bureaucrats attempting to increase the powers of the national security surveillance state, and to search and intimidate anyone who writes about it? Is misconduct and serious abuse of power to be immune from exposure and public discussion because it might lead to identification of a spy, or an intelligence operation?
Should behaviour that is embarrassing to politicians and officials, or which shows them to be hypocrites, saying one thing and doing another, be protected? Should ministers and prime ministers, who have the power to declassify documents, be allowed to leak secret information against their political enemies? If politicians and bureaucrats abuse the national security laws, should they be entitled to send in the cops, asserting a wilful and very serious breach of the law?
Grant Donaldson sees the point of tough protections of national security secrets. He's heard - somewhere - that Richard Welch, a CIA chief in Athens was assassinated in 1975, after his name had been mentioned in a US magazine critical of the CIA. The story is mostly a public relations confection, used primarily to discredit the US Church Committee exposures of CIA excesses. Welch was certainly murdered by Greek terrorists, and soon after his name was mentioned in the magazine. But well before that, his name, job and address had frequently been in Athens newspapers. they didn't need a lefty mag in Washington to tip them off. But how convenient to be able to blame it.
Donaldson posits the case of an Australian intelligence officer who had infiltrated a terrorist organisation and later sought to sell information that would identify sources. If prosecutions had to be out in the open, without suppression orders, the accused person's identity could, of itself identify sources and collaborators. It could help terrorist organisations to identify and kill still active agents.
Well, we can't have that. But we are not seeing very many such cases. In those that are coming before the courts, the main sin has seemed to be skulduggery and illegality - even murder - from inside our national security system, and the concealment of hypocrisy, double-dealing, and lying. And preventing anyone discovering bad judgments, failed projects and downright embarrassing behaviour by public officials.
The guardians of the secrets might be very resistant to the idea that any recipient of a secret was free to consult her own conscience and "the public interest" about whether to disclose the secret. But can't we expect a sieving process by which the security establishment avoided the prosecution path in cases involving iniquity or silly behaviour? Regardless of the power of the courts, and their deference to the anxiety of the spooks, iniquity has a way of getting out anyway.
Avoiding the prosecution path does not make those who betray confidences any more immune from accountability or punishment than they already are, nor does it close off administrative consequences and disgrace. Mike Burgess, from ASIO, who can, of course, decide personally whether something is secret or not, is worried that "serious criminal activity will go unpunished if it becomes a choice between making sensitive information public on the one hand, and not proceeding with the prosecution on the other". Perhaps he should think more about the word "sensitive" and ask whether it embraces cover-up, cover-my-arse, or the green light to do improper things.
The national security and secrecy argument might carry more weight if police ministers and attorneys-general of recent times had not abandoned old ideas about standing outside of politics and partisan abuse of information in their hands. Donaldson posits (then rejects) the idea that an attorney-general is a guardian of the public interest in matters of open courts. The director of public prosecutions is not either. Sometimes even the defendant finds it better to be dealt with in the dark, away from public embarrassment. All too often judges have been showing themselves terrified by requests for closed courts, agreeing without considering the arguments against. Donaldson suggests that decisions about closed courts need a contradictor - security cleared and able to put arguments in favour of open and accountable justice.
MORE JACK WATERFORD:
Among the sins of former Justice Burns, according to Donaldson, were issuing orders for a closed court without hearing submissions. A deviation from the presumption of open courts should always involve a hearing. The orders were given even though no evidence was led that explained what national security information was being protected, and why.
Burns also failed to give reasons for the orders. None of the sentencing remarks have been published. Indeed, they may never be. The deliberately brief outline of the case made by the Attorney-General is not from an edited judgment. What happened when the public was allowed to know nothing about charges, conviction, sentence, and reasons for sentence, was unprecedented, Donaldson said. Sometimes courts issued temporary suppression orders to guarantee the integrity of a trial and remove them after.
Donaldson had no occasion to say so, but some of the problems are not unprecedented, at least in the ACT. It is not uncommon in this jurisdiction for a judge to hear a case, give reasons for sentence, and perhaps for a few interlocutory decisions, but to leave sitting forever suppression orders originally intended to last only up to the end of a trial. The Eastman case is a good example. Technically one cannot now mention the names of any of those involved in the growing of a cannabis crop near Bungendore, although the names were in the public domain for more than 25 years. All of the more than 50 suppression orders - I bet there is not even a public record of them anymore - were made without a contradictor arguing they should not be made. The former chief justice did not seem interested in organising any review of the orders. There is a public interest need for a judge to review them or otherwise they will last forever, seriously inhibiting any discussion of an important case, with important lasting lessons.
Donaldson seems to think that the legislation, if not necessarily its application has the balance between the need for secrecy and the public interest right. But there is no real weight for public interest at all, unless it is said to be the involvement of the attorney-general. That is not enough.
Sometimes overreach has its own perverse outcomes. An overstrict national security law reduces confidence in the law and in its administrators. Secretive prosecutions make heroes of people who disclose secrets. Where the wardens of secrecy show a lack of restraint, questions arise about their judgment and their omniscience. I don't know what they do to the enemy, but by God, they frighten me.
Jack Waterford is a former editor of The Canberra Times.
Jack Waterford is a former editor of The Canberra Times.
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