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  • 'Are we now a totalitarian state?': case of Canberra's mystery prisoner alarms judge
  • By Christopher Knaus
  • 21/11/2019 Make a Comment
  • Contributed by: Dannii ( 12 articles in 2019 )
Former NSW supreme court judge flags concerns as lawyers call for overhaul of secrecy laws

A former New South Wales supreme court judge says the secret prosecution of a mystery Canberra inmate appears to be a “complete abandonment of open justice” as Australia’s peak lawyers’ body renews calls for a full review of secrecy laws.

Anthony Whealy, a judge with lengthy experience in NSW’s highest courts, has warned that the secret prosecution and imprisonment of a man in the Australian Capital Territory poses serious questions about the future of the justice system.

“At first blush, this looks like the complete abandonment of open justice,” Whealy told Guardian Australia. “Are we now a totalitarian state where people are prosecuted, convicted and shunted off to prison without they or the public having any notion as to what has happened?”

Proceedings against the Canberra man, understood to be a former military intelligence officer, were hidden from the public. He was sentenced to imprisonment and began serving time in the Alexander Maconochie Centre at some point in 2018, before being released this year. The nature of the charges has been kept secret, as has his name, identity, and background.

He was restricted in his communications with friends and family while behind bars, and the Australian federal police asked the prison to tip it off if he attempted to receive any “unusual visitors”.

Whealy said it was difficult to debate the case because so little was known about it.

“Is this a portent for the future of our trial system?” he said. “Unfortunately we cannot debate the merits of this, precisely because we are not allowed to know what has happened. Another victim to the greedy jaws of national security?”

The Law Council of Australia’s president, Arthur Moses SC, said he could not comment on the specifics of the case but described open justice as one of the “fundamental attributes of a fair trial”.

“Secrecy or suppression is only ever appropriate where the rare exceptions to open justice have been appropriately considered and applied,” Moses told Guardian Australia.

The secrecy surrounding the case has been imposed by commonwealth orders. Those orders – themselves not publicly available – prevent the identification of the inmate or the publication of the charges he faced. Not even the boss of the ACT prison saw copies of the orders.

Moses said a wide-ranging review was needed of secrecy provisions in federal legislation.

“The Law Council believes a thorough review of all existing secrecy offences across federal legislation should be conducted, taking into account the set of principles contained in the Australia Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.”

The case only came to light because of a dispute between the inmate and prison authorities. Their dispute centred on a memoir the inmate had written about his experiences of jail, which he said contained no details of the crimes he was convicted of.

The inmate sought to receive a visit from the Canberra-based author Robert Macklin, who he hoped would help him publish his memoir. The request for Macklin’s visit prompted the prison’s general manager to contact the AFP, who then raided the inmate’s cell and his brother’s home, then temporarily froze his phone and email communications.

He sought a judicial review of the prison’s actions in the ACT supreme court, which heard the matter in closed court and then published a judgment rejecting the inmate’s application. The judgment was released but contained no detail about the man’s identity, his crimes or his background.

Source: https://www.theguardian.com/law/2019/nov/21/are-we-now-a-totalitarian-state-case-of-canberras-mystery-prisoner-alarms-judge


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