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Opening Statement: 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)

Dr Jacoba Brasch QC, President, Law Council of Australia

9 June 2021 
 

"The Law Council welcomes the opportunity to appear at this hearing before the Independent National Security Legislation Monitor as part of the review into the operation of Part 3, Division 1, which includes section 22, of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (or the NSI Act) as emerged in the ‘Alan Johns’ matter.

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 full opening statement below.

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