Witness J case unprecedented says national security watchdog

Independent National Security Legislation Monitor James Renwick said wholly closed criminal cases were unprecedented in Australia, apart, possibly, from during the world wars.

"As far as we know there has never been another case, at least in peacetime in Australia, where all of it has been conducted in secret. That is something significant and different, and for my part I would not like to see it repeated," he said, speaking at Senate estimates hearings on Tuesday night.

"There has been an apparently unique set of circumstances whereby a person was charged, arraigned, pleaded guilty, sentenced, and has served his sentence with minimal public knowledge of the details of the crime."

The case only became publicly known because its existence was revealed in passing in a separate civil case.

Dr Renwick is reviewing the case and has invited submissions.

He said while the Attorney-General, the Director of Public Prosecutions and Witness J had agreed to the secrecy orders, it was "unsurprising that almost any accused would agree to orders of that sort".

Even with Witness J's consent, he was surprised that no reasons were given publicly, given the public interest in open justice.

Dr Renwick said judges should hear from the media in such cases, and also perhaps from a security-cleared private counsel who could have access to the full information.

Crucially, judges should be required to publish reasons for keeping cases secret, which would show they had turned their mind to the rules for secrecy and also allow appeal.

Liberal Senator Amanda Stoker accused Dr Renwick of reaching conclusions before he had started his investigation.

"I'm ... troubled by some of the language that is used," she said. "You just use language like 'I don't want to see that happen again' in relation to the Witness J case and yet you told us that you haven't commenced your review of it yet. How can you conclude that it is a circumstance so undesirable as to not want it to occur again?"

Dr Renwick replied that he knew "quite a lot about the facts", although he was yet to read the entire secret transcript and evidence.

"There is significant concern about this case, I can assure you, from many many informed lawyers," he said.

"I'm treading on eggshells here because I do know a lot about the true facts ... none of which I can reveal .... There's a range of reasons why I wouldn't like to see this happen again."

Open justice was an important basic principle, he said. Temporary suppression orders were sometimes made, including in cases where more than one person was accused, and identities were sometimes suppressed to protect informers or others with identity protection. But in the Witness J case "the entirety of this process was carried out in secret in a unique fashion".

"I'm very happy to say that in principle that is not something I would like to see repeated again," he said.

Witness J is an ex-military intelligence officer reported to have served in East Timor, Iraq and Afghanistan before he was imprisoned in Canberra's jail in 2018. He was released in August last year.

The case came to light after he launched his own case against the prison for tipping off police about a memoir he was writing. The prison wasn't told the man's true identity or the reasons for his jailing but were asked to tell police if any unusual visitors tried to visit him.

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Even ACT Justice Minister Shane Rattenbury only found out about the case when it came to light through the Supreme Court judgment in November last year in the man's civil case against the jail.

Mr Rattenbury's ignorance of a top-secret prisoner in his own prison prompted former chief minister Jon Stanhope to call for a clean-out in the top echelons of the ACT public service.

Mr Stanhope points out that the man's case against his treatment by the jail was heard in the Supreme Court in July, while Witness J was still in prison. In that case, the ACT government solicitor represented the ACT Justice Directorate, and it was revealed that Witness J had also sought help earlier in the year from the ACT Official Visitor and the ACT Ombudsman.

Mr Stanhope said it was remarkable that not one of those officials, nor the police, nor the prison had told Chief Minister Andrew Barr, Attorney-General Gordon Ramsay or Mr Rattenbury that a prisoner was suing the Justice Directorate.