Unprecedented trial of ‘secret prisoner’ in Australia raises legal questions

December 9, 2019 by Ian Allen

An unprecedented closed-door trial of a man identified only as “Witness J”, who was convicted earlier this year of a crime that cannot be revealed, has raised questions about the relationship between security and the law in Australia. The man, who is also known as “Prisoner 123458”, was sentenced to a jail sentence in February of this year. His sentencing came following a closed-door hearing, which was described by a judge as “generally undesirable” and “unusual”.

Witness J is believed to be in his mid-30s and to have served as an intelligence officer in the Australian military, with a Top Secret security clearance. According to ABC News, he served in Iraq, Afghanistan, and East Timor and had a distinguished service record. But he drew the attention of counterintelligence investigators in 2018, while undergoing a five-year re-evaluation of his security clearance status. During that time he was reportedly serving as a civilian in an undisclosed country in Southeast Asia.

ABC News said that “some anomalies in [Witness J’s] answers” —presumably while he was undergoing a polygraph test— raised further questions about whether “he could be compromised”. This, according to ABC News, coincided with the deterioration of his mental health, which led him to seek “internal help” from his employer on several occasions. Reportedly, his Top-Secret clearance status did not allow him to seek outside professional advice about his condition. Witness J was eventually jailed in mid-May 2018 and spent a month in solitary confinement. He was then placed in a high-security wing for serious sex offenders at the Alexander Maconochie Centre prison in Canberra. This was not because he was a sex offender, but because it was determined that he would be safer there than in the other wings of the prison.

In February of this year, Witness J was sentenced in a closed-door trial, held under the secrecy provisions of Australia’s 2004 National Security Act. Australia’s Attorney General, Christian Porter, told ABC that the information shared in Witness J’s hearing was “of a kind that could endanger the lives or safety of others”. The only reason why records of Witness J’s incarceration have appeared on the public record was because officers of the Australian Federal Police obtained a warrant to search his prison cell in order to confiscate a personal memoir that they allege the prisoner composed about his case during his incarceration.

It is believed that Witness J was released from prison in August of this year, 16 months before completing his sentence. He is not able to speak to the press, or identify himself in public in connection with this case. According to ABC News, he is only allowed to refer to his conviction as having been for “mishandling classified information”. Several experts have commented on the secret trial of Witness J One expert, Bret Walker, a barrister and former independent national security legislation monitor, told “ABC News that the case of Witness J was “a perfectly well-intentioned piece of national security legislation might not be operating in the way one would like”.

► Author: Ian Allen | Date: 09 December 2019 | Permalink