Law Council of Australia


Secret trials need reform

10 June 2021

On 9 June 2021, Dr Jacoba Brasch QC (Law Council President), Mr Phillip Boulten SC and Dr Natasha Molt from the Law Council appeared before the Independent National Security Legislation Monitor (INSLM) in relation to the review into the operation of section 22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) as it applies in the ‘Alan Johns’ matter (a pseudonym).

The Law Council emphasised that trials involving national security need to strike a balance between secrecy and open justice.

In her opening statement, Law Council President, Dr Jacoba Brasch QC, said:

“Open justice is one of the primary attributes of a fair trial. It is a fundamental rule of the common law that the administration of justice take place in an open court, and that secrecy or suppression is only ever appropriate where the rare exceptions to open justice have been appropriately considered and applied. At common law, these exceptions are premised on being ‘necessary to secure the proper administration of justice’ or as permitted by statutory provisions, such as the operation of the NSI Act. Article 14(1) of the International Covenant on Civil and Political Rights protects the human right to a public trial and a public judgment for criminal proceedings, with limited exceptions.

“While the Law Council welcomes the release of the summary of offending document, little information regarding the ‘Alan Johns’ case has been made available to the public. We still do not know what offences he pleaded guilty to, why he was given a term of imprisonment, exactly why the proceedings were conducted entirely in camera, and why even the ACT Attorney-General was never made aware that he was imprisoned in a correctional facility he ultimately oversees. This information may never be revealed.”

You can read the Law Council’s media release here.



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