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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 Independent National Security Legislation Monitor (INSLM) has announced that he will conduct a review into the operation of Part 3 Division 1, which includes section 22, of the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act), as emerged in the 'Alan Johns' matter.

This is a review that the INSLM has initiated pursuant to section 6(1)(b) of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act), having regard to section 9 of the Act.

Background

'Alan Johns' was charged, arraigned, convicted on his plea of guilty, sentenced and served his sentence - without public awareness of any of this.  This arose from orders made with the consent of the Commonwealth Director of Public Prosecutions, 'Alan Johns' and the Attorney-General, who was heard by reason of the invocation of the NSI Act.  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 only public explanation of the case is in an answer of the Attorney-General to a Question on Notice asked by Senator Patrick.  The answer was conveyed in the Senate on 19 December 2019. The following can be taken from the Attorney-General's answer.

'Alan Johns' is a pseudonym. 'Alan Johns' was charged with offences under Commonwealth law arising from disclosure of confidential information contrary to a lawful obligation not to do so.

The information was of a kind that “could endanger the lives or safety of others”. The risk to the lives and safety of others continued to exist as at the date of the Attorney-General's answer.

The prosecution of 'Alan Johns' was commenced in the ACT Magistrates Court and heard in the ACT Supreme Court.  The NSI Act was invoked to “manage the protection of the national security information in the proceedings”.

The court made orders under section 22 of the NSI Act “protecting the national security information”. The orders provided for a mechanism for closing of the court where “highly sensitive national security information would have been disclosed”.

'Alan Johns' pleaded guilty to the offences and was sentenced to a term of imprisonment.

Pursuant to s.22 of the NSI Act, the Court made orders that 'Alan Johns' could disclose the fact of his conviction and the terms of sentence and that the nature of his offending involved 'mishandling classified information'.  He could not otherwise disclose “sensitive information” including information that “reveals the nature of his offending or the provisions against which the defendant was charged or convicted”.

The Attorney-General noted in his answer to Senator Patrick; “The matter is unique in my experience, and I am not aware of any other similar cases”. 

Central to the 'Alan Johns' matter is section 22 of the NSI Act. It provides that during a federal criminal proceeding, the Attorney‑General, the prosecutor and the defendant, “may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information” and that the Court may then, “make such order (if any) as it considers appropriate to give effect to the arrangement”.

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.

Submissions

All INSLM reviews are strengthened by public engagement and interest.  The INSLM will be most assisted by submissions that have regard to the following.

  • The INSLM is well aware of the requirements and importance of the open court principle and aware of the extraordinary nature of the orders made in the 'Alan Johns' matter.
  • The INSLM welcomes submissions that proceed on the assumption that all parties subject of such orders would be represented at all stages of the proceeding, such as occurred in the 'Alan Johns' matter. “Such orders” is to be understood as prohibiting disclosure that a person has, with the consent and at the request of the parties, been charged with an offence, convicted on a plea of guilty and sentenced.
  • If a submitter considers that such orders should never be made, the INSLM would appreciate this being stated and explained.
  • If a submitter considers that such orders could properly be made so as to protect national security information, the INSLM welcomes submissions that address the following matters:
    • Is it desirable to require that there be a contradictor at any stage of a proceeding when orders, such as those made in the 'Alan Johns' matter, are proposed by the Attorney-General and the parties?
    • Is it desirable to require the Attorney-General to make submissions to the trial judge that would facilitate publication of reasons (including sentencing remarks) that do not disclose national security information?
    • If either of these matters, or others, are desirable, would they be best effected by legislative change or by other means?
    • In the event that such orders are no longer required to protect national security information, should there be a requirement for periodic 'review' of orders, such as those made in the 'Alan Johns' matter; and if so, how might this be done?

The INSLM invites written submissions and asks that they be provided by Friday, 30 April 2021.

Further guidance about making a submission, including accessibility and other content requirements, is available on this website. (Please refer to the submissions information on this website.)

Submissions to the review will be published progressively. If you wish to make a confidential submission, or wish for part of your submission to be withheld from publication, this must be included in your advice when submitting to the INSLM.

Persons who make submissions may be invited by the INSLM to give evidence at hearings conducted under the INSLM Act.

Views or opinions expressed in submissions reflect the views of the persons or entities making those submissions only. The publication of submissions on this website does not constitute any form of endorsement in either those submissions, or views or opinions expressed within them, by the INSLM.

Copyright in submissions or other related materials is not vested in the Commonwealth or the INSLM. The Australian Government does not accept responsibility for any breaches of copyright subsisting in submissions or other related materials.

Hearings

The INSLM will further consult with interested stakeholders through a series of private and public hearings. The public hearing was held in Canberra on Wednesday, 9 June 2021.

Read a transcript of the hearing.