It sounds like a police state effort. An author makes an attempt to assist a pseudonymously named prisoner publish a memoir. The effort is scotched by the authorities. The police spring into action raiding the cell of that prisoner, and that of his brother. All take place without the knowledge of the Australia media or public.
Not much is known of Alan Johns, other than he was a former military intelligence officer. Both his crime and his background remain cloaked by secrecy. In fact, the entire matter of his conviction and his existence would have remained secret but for legal proceedings arising from his draft memoir penned while in prison.
In the Supreme Court of the ACT, Justice Burns heard a case dealing with judicial review of decisions made by the Director General of the ACT Justice and Community Safety Directorate. The Alexander Maconochie Centre had informed the Australian Federal Police about the manuscript, a copy of which had been emailed to the inmate's brother. The AMC, it was claimed, further 'took administrative action against him by withdrawing privileges without following notified policy'.
Ironically enough, the writing process was deemed a restorative one for Johns, part of a Mental Recovery Health Plan involving the completion of three manuscripts over six months. But on being informed of the memoir's existence, Johns' cell and the home of his brother were raided by the AFP. Both email and phone communications were also frozen.
Unfortunately for Johns, no relief was possible. He was no longer an inmate of the AMC, and did not establish 'that the declarations are aimed towards legal controversies regarding rights that are protected or enforced in the courts. On the facts of this matter, none of the plaintiff's rights have been infringed.'
The entire affair stunned the assisting author, the Canberra-based Robert Macklin. 'I didn't think we had secret trials in Australia. It worries me that we do.' This was a sentiment repeated by former ACT chief minister John Stanhope. 'I just didn't think it was credible.' The proceedings were 'held in such secrecy that not even the media was aware that this trial had occurred and that an Australian citizen had been sentenced to imprisonment'.
The tension between exposing a case and concealing both its fact and its contents are matters peculiar to the Anglo-Australian legal system. Underlying this play is the sketchy idea of open justice, a concept explained by the Australian High Court as 'the rationale ... that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional cases'.
"The relevant and troubling question here is how many other cases of this sort remain hidden from view."
On closer inspection, the Australian legal system reveals, at stages, considerable hostility to open justice. 'This', suggests Mark Pearson, 'is because of the relative priority the courts and lawmakers have assigned to the principles of open justice and the administration of justice, and the competing rights of free expression, privacy and a fair trial.'
The Australian Law Reform Commission lists various limitations to open justice: the use of in camera proceedings (excluding the public and media in court); cases of concealing information from those in court, where the court pseudonymises parties, or where prohibitions are placed upon the publication of reports or proceedings. In criminal cases, the concept of sub judice contempt will be known to those journalists who have fallen foul of the injunction against publishing anything prejudicial to the accused from the moment of arrest or charging till the appeal period concludes.
This has led to various inconsistencies and absurdities. When Cardinal George Pell was convicted in December 2018 in Victoria, a suppression order made by the court forbade reporting the trial and conviction in Australia. Foreign press outlets were not so bound: Australians had to seek alternative sources for reportage.
The secret proceedings against a former ASIS agent, Witness K, and Canberra lawyer and former ACT Attorney-General Bernard Collaery are also examples of a legal system bitten by the clandestine. That these covered the illegal bugging of the Timor Leste Cabinet by ASIS to give Canberra an upper-hand in boundary, oil and gas negotiations did not impress the prosecutors. The domestic intelligence service, ASIO, proceeded to raid Collaery's home while he was assisting diplomats from Timor Leste in the Hague.
When the case came to trial, Ernst Willheim, a visiting fellow at the ANU College of Law, was perplexed. 'The Collaery and Witness K matter did not appear in the court's list.'
The Johns case takes things to a different order. Its total absence in terms of reporting might itself be construed as a misadministration of justice. It revolves around a conscious effort to prevent disclosing the very existence of trial, conviction and consequences. Secrecy has its place, but is being used in the legal system in a way all too reminiscent of police states. The relevant and troubling question here is how many other cases of this sort remain hidden from view.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.
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