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Old 4th December 2019, 04:43 PM   #1
arthwollipot
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The Strange Case of Witness J

I don't usually post in this subforum, but it appears to be the appropriate place for this curious episode in Australian legal history.

'The quiet person you pass on the street': Secret prisoner Witness J revealed

Quote:
Just 13 words are all there are on the public record to note one of the most extraordinary episodes in Australian legal history.

After a secret trial of a secret prisoner, the sentence was delivered — you guessed it — in complete secrecy.

You have to know what you're looking for, but even when you find those 13 words, they are not at all illuminating. In fact, they would defeat the purpose of being there at all, were it not for the legal tease they present.

"Before Justice Burns, in Court Room SC4, at 10:00am," it starts promisingly enough.

Then comes the inevitable punchline: "Sentence: Matter Suppressed."

The date was February 19 of this year. The venue was the ACT Supreme Court in Canberra.

Exactly why the Commonwealth and the justice system should conspire to allow such exceptional measures has unnerved legal experts and dismayed former judges.

"Permanently secret legal proceedings is not the kind of conduct we want an Australian justice system to include," said barrister Bret Walker, a former independent national security legislation monitor.

An investigation by the ABC has uncovered the remarkable events that led to the secret trial, the unravelling of a man's impressive career and the circumstances of his arrest, which led to a jail sentence of two years and seven months for serious national security offences.
What are we to make of this?
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Old 4th December 2019, 04:47 PM   #2
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What I make of this thread is hype for something else.
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Old 4th December 2019, 04:50 PM   #3
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More:

Witness J: How to hide a criminal trial from the public despite Australia's principle of open justice

Quote:
Revelations about a man being tried and imprisoned in secrecy, and the fluke discovery of the case, have revived calls for Australia's secrecy laws to be reviewed.

Exactly how the case of "Witness J" came about remains a mystery.

It's left some wondering how it can occur in a society founded on the principle of open justice.

The nation's chief law officer insists secrecy was needed to protect national security.

"The court determined, consistent with the Government submission, that it was contrary to the public interest that the information be disclosed and the information was of a kind that could endanger the lives or safety of others," Attorney-General Christian Porter told the ABC.

This is how a trial can become so secret that the public doesn't even know it exists ... and why.
Of course, these are only extracts from the beginning of each article. You should definitely click through for the whole thing.
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Old 4th December 2019, 04:54 PM   #4
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Driving clicks? I'm taking this less and less seriously every moment.
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Old 4th December 2019, 04:57 PM   #5
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Originally Posted by theprestige View Post
What I make of this thread is hype for something else.
What something, do you think?

Originally Posted by theprestige View Post
Driving clicks? I'm taking this less and less seriously every moment.
I never post full articles, because that is against the MA. Every time I quote a news item, I post a link and the first couple of paragraphs. Do you think I'm an advertiser for the ABC now?

Do you want to talk about the case, or not?
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Old 4th December 2019, 05:00 PM   #6
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You post all the questions, but none of the answers. Do your links have the answers?
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Old 4th December 2019, 05:03 PM   #7
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Originally Posted by theprestige View Post
You post all the questions, but none of the answers. Do your links have the answers?
Yes. Some of them. Other answers are still unknown.
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Old 4th December 2019, 05:11 PM   #8
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Interesting case.

As a general observation, liberal democracies take the position that the workings of the justice system must be transparent, open and accountable. But there are exceptions to this rule, and they occur when either the national interest is open to compromise or the safety of any individuals is considered likely to be compromised.

In those situations, the national interest or the safety of individuals almost always comes first, even when the result is a partially- or fully-closed trial with reporting restrictions/bans. Obviously these are judgement calls, and we are supposed to trust the judgement of senior elected politicians, senior law officers and senior police officers when it comes to assessing these sorts of threats and consequently the restrictions that may be required for trials.

And my own belief about this is that this is probably the most sensible and proportionate approach. The main caveat IMO is that the threat assessments are as objective and accurate as they can possibly be in the circumstances of each case, and that the collective wisdom of those charged with making these judgement calls is sufficient for the correct call to be made.

I'll read more about this specific case over the next 24 hours or so, and try to give my own observations and opinion on whether the correct judgement call was made here.
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Old 4th December 2019, 05:11 PM   #9
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Originally Posted by arthwollipot View Post
Yes. Some of them. Other answers are still unknown.
Then the whole thing is rhetorical. You're posting questions to drive clicks to answers you already know. What's left to discuss? That you don't have all the answers? Okay: You don't have all the answers. So what?
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Old 4th December 2019, 06:10 PM   #10
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Originally Posted by theprestige View Post
Then the whole thing is rhetorical. You're posting questions to drive clicks to answers you already know. What's left to discuss? That you don't have all the answers? Okay: You don't have all the answers. So what?
I posted it because it's an...

Originally Posted by LondonJohn View Post
Interesting case.
and I thought some people here might like to talk about it. But all you've been doing is attacking me, implying that I have some kind of alterior motive. Do you want to talk about the case or not? If not, don't.
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Old 4th December 2019, 06:19 PM   #11
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It is interesting, thanks for posting.
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Old 4th December 2019, 06:25 PM   #12
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retired barrister Anthony Smith

Writing about a different Australian case Anthony Smith said, "The nineteenth century legal philosopher, Jeremy Bentham, in a passage embossed upon jurisprudence, stated: ‘Publicity is the very soul of justice…’ and U.S. Supreme Court Justice Louis Brandeis coloured it further with, ‘Sunlight is the best disinfectant.’"
EDT
Nothing above is specific to this case, and I do not have a strong opinion on it yet.
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Old 5th December 2019, 12:37 AM   #13
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Originally Posted by theprestige View Post
What I make of this thread is hype for something else.
What makes you say that

Originally Posted by theprestige View Post
Driving clicks? I'm taking this less and less seriously every moment.
Why would Arth be trying to "drive clicks"? Do you think he is working for the ABC?

Originally Posted by theprestige View Post
You post all the questions, but none of the answers.
Yeah, people tend to do that when they have questions they don't know the answers to.

Originally Posted by theprestige View Post
Do your links have the answers?
If they did, Arth wouldn't be asking about them.

Originally Posted by theprestige View Post
Then the whole thing is rhetorical. You're posting questions to drive clicks to answers you already know. What's left to discuss? That you don't have all the answers? Okay: You don't have all the answers. So what?
Again, what makes you think this?
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Old 5th December 2019, 10:12 PM   #14
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It all sounds quite dodgy to me.

What sort of crime (or situation) might hypothetically necessitate a secret trial?

Espionage? In the US, to the best of my knowledge, while some of the evidence may need to be kept secret, the fact itself that a person has been accused and is being held in custody is public record.

As I mentioned in another thread, it sounds a bit like in China, where a person can simply "disappear" without any sort of public acknowledgement by authorities that the person is in custody or what the alleged crime was.

https://en.wikipedia.org/wiki/Habeas_corpus

For habeas corpus to be effective, one would have to be aware of the fact that a person is in custody in the first place.

Quote:
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.[21] In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.[22][23][24]
Does this mean or imply that the individual was tried in secret under the Australian Anti-Terrorism Act 2005, and therefore the alleged crime is one of terrorism?
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Old 5th December 2019, 10:30 PM   #15
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It's possible, but that's the thing - we don't know. All we have been able to find out is that it is related to national security. It might have been terrorism, but it might have been espionage. We just don't know.
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Old 5th December 2019, 10:31 PM   #16
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Originally Posted by arthwollipot View Post
I posted it because it's an...

and I thought some people here might like to talk about it. But all you've been doing is attacking me, implying that I have some kind of alterior motive. Do you want to talk about the case or not? If not, don't.
Ulterior motive. Gotcha'!
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Old 5th December 2019, 10:32 PM   #17
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Originally Posted by Elagabalus View Post
Ulterior motive. Gotcha'!
God damn. So you did.
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Old 6th December 2019, 12:49 AM   #18
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More from the ABC about Witness J:
Quote:
The ABC has been told Witness J was infuriated by the accusation that his behaviour while overseas had made him a compromise risk. He complained internally to the head of security and a departmental psychologist back in Australia.

It was an unwise decision delivered dangerously. It is understood his complaints were communicated by email and other unsecure electronic means.

Witness J immediately found himself in the crosshairs of an organisation that had been his employer for five years.

In his complaints, he accused fellow case officers of behaviour which he believed was more egregious than his own. Worse, he identified agents who had been recruited for direction and control. These were grave, unforgivable sins in his line of work.

His employer said Witness J had breached secrecy provisions. It believed he was acting so dangerously, he was imperilling lives, national security and the very working environment of his colleagues.

According to one person, Witness J had to be "shut down".
https://www.abc.net.au/news/2019-12-...e3InkT3Ng7hNNg

This again goes to show that those who would give up freedom for security deserve neither. Unfortunately, both major parties believe in these repressive measures.
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Old 6th December 2019, 01:16 AM   #19
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Originally Posted by psionl0 View Post
More from the ABC about Witness J:

https://www.abc.net.au/news/2019-12-...e3InkT3Ng7hNNg
Thanks. This answered a lot of my questions.
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Old 6th December 2019, 01:27 AM   #20
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Originally Posted by psionl0 View Post
More from the ABC about Witness J:

https://www.abc.net.au/news/2019-12-...e3InkT3Ng7hNNg

This again goes to show that those who would give up freedom for security deserve neither. Unfortunately, both major parties believe in these repressive measures.
The thing that worries me about your stance is that you have no more idea than any other member of the public who Witness J's was, what his job was, and who he worked for, and yet you are willing to make a proclamation that how he has been treated is wrong, regardless of the circumstances, of which you know absolutely nothing.

His employer said Witness J had breached secrecy provisions. It believed he was acting so dangerously, he was imperilling lives, national security and the very working environment of his colleagues.


What if he is/was a member of the ASIO?
What if he was compromising the names of other ASIO staff?
What if what he was doing risked compromising the integrity of an ASIO undercover operation investigating a terrorist organisation or an espionage cell?
What if his actions placed the lives of those operatives in danger?

Me, I prefer to take a "wait and see" approach to this sort of thing. Its clear that this person was no ordinary citizen, that he was a military officer working for some sort of national security organisation. The staff of those organisations know what they are letting themselves in for when they go to work for such an organisation.
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Old 6th December 2019, 03:11 AM   #21
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I think we all give up some freedom for security, it just depends where you draw the line.
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Old 6th December 2019, 11:37 AM   #22
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Originally Posted by smartcooky View Post

Me, I prefer to take a "wait and see" approach to this sort of thing. Its clear that this person was no ordinary citizen, that he was a military officer working for some sort of national security organisation. The staff of those organisations know what they are letting themselves in for when they go to work for such an organisation.
Are we going to see if we wait? I thought it was implied that the secrecy is permanent.
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Old 6th December 2019, 11:50 AM   #23
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Originally Posted by theprestige View Post
Then the whole thing is rhetorical. You're posting questions to drive clicks to answers you already know. What's left to discuss? That you don't have all the answers? Okay: You don't have all the answers. So what?

Are you new here? What exactly were you expecting?
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Old 6th December 2019, 11:52 AM   #24
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We've got him and locked him up but we can't tell you who he is, what he did or how long we've locked him up for.

******* terrifying.
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Old 6th December 2019, 11:55 AM   #25
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Originally Posted by psionl0 View Post
This again goes to show that those who would give up freedom for security deserve neither.
That's not even remotely true, though. Trading freedom for security is a proven cromulent strategy for long-term survival and prosperity. It has to be done with appropriate moderation, of course.

The actual proverb you're likely thinking of is about people who trade essential freedoms for temporary safety.

It's not clear to me that this is one of those cases.
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Old 6th December 2019, 11:56 AM   #26
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Originally Posted by 3point14 View Post
Are you new here? What exactly were you expecting?
I honestly have no idea. I can only assume that everything I've posted up to this point in this thread is either an impostor, PWD, or some kind of stroke. I apologize. Carry on.
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Old 6th December 2019, 01:31 PM   #27
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Originally Posted by psionl0 View Post
More from the ABC about Witness J:

https://www.abc.net.au/news/2019-12-...e3InkT3Ng7hNNg

This again goes to show that those who would give up freedom for security deserve neither. Unfortunately, both major parties believe in these repressive measures.
Tbf, this reads like Witness J was written up for not following some protocol and then proceeded to flip out when he received the bad report, forcing poor Witness J into a stream-of-conscience rant about the stuff that poor Witness J did was absolutely trivial when compared to the substandard work of his colleagues. And he did it over standard e-mail.


Sounds like a pleasant work environment.
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Old 6th December 2019, 03:01 PM   #28
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Originally Posted by psionl0 View Post
This again goes to show that those who would give up freedom for security deserve neither.
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin


Originally Posted by arthwollipot View Post
I thought some people here might like to talk about it. But all you've been doing is attacking me, implying that I have some kind of alterior motive.
I'm with theprestige on this one. Your posts read like clickbait.

Quote:
I never post full articles, because that is against the MA. Every time I quote a news item, I post a link and the first couple of paragraphs.
Clickbait.

You could have quoted a few relevant lines to give us an overview of the case without violating the MA. But no, you had to bait us into clicking on the link to the ABC website to get enough information to comment on the case. That's an imposition at best, and some of us don't want to follow links to websites full of advertising, videos playing automatically and other distractions (yes, I know this particular web page doesn't have all that - but I had to click on it to find out!).


Quote:
I posted it because it's an...

Quote:
interesting case
If you think it's interesting you should say why, not just dump clickbait on us.
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Old 6th December 2019, 07:15 PM   #29
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Originally Posted by smartcooky View Post
The thing that worries me about your stance is that you have no more idea than any other member of the public who Witness J's was, what his job was, and who he worked for, and yet you are willing to make a proclamation that how he has been treated is wrong, regardless of the circumstances, of which you know absolutely nothing.

His employer said Witness J had breached secrecy provisions. It believed he was acting so dangerously, he was imperilling lives, national security and the very working environment of his colleagues.


What if he is/was a member of the ASIO?
What if he was compromising the names of other ASIO staff?
What if what he was doing risked compromising the integrity of an ASIO undercover operation investigating a terrorist organisation or an espionage cell?
What if his actions placed the lives of those operatives in danger?

Me, I prefer to take a "wait and see" approach to this sort of thing. Its clear that this person was no ordinary citizen, that he was a military officer working for some sort of national security organisation. The staff of those organisations know what they are letting themselves in for when they go to work for such an organisation.
You miss the point.

The military is perfectly entitled to keep court marshals and the deliberations of military tribunals in house and not divulge any details to the public.

However, once they choose to use the public legal system to place one of their members in a public jail, this secrecy should no longer apply. That is the stuff of totalitarianism.
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Old 6th December 2019, 08:44 PM   #30
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Originally Posted by psionl0 View Post
You miss the point.

The military is perfectly entitled to keep court marshals and the deliberations of military tribunals in house and not divulge any details to the public.

However, once they choose to use the public legal system to place one of their members in a public jail, this secrecy should no longer apply. That is the stuff of totalitarianism.

I generally don't do this, but I figured I'd point it out before Elagabalus did. It's "courts martial."
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Old 6th December 2019, 11:10 PM   #31
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So...

Reading between the lines.

Working as a spy in a foreign country.

While there, indulged in behaviours that could have led to extortion.

Over reacted when this was brought to supervisors' attention.

Used an insecure channel to communicate the over reaction, whilst NAMING OTHER SPIES.

Sounds like someone should have read the documents that were signed during the employment process.

Once a ****-storm like that occurs, I think we should be grateful that we live in a country that only gaols a person after a secret trial under those circumstances.
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Old 6th December 2019, 11:23 PM   #32
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Originally Posted by theprestige View Post
That's not even remotely true, though. Trading freedom for security is a proven cromulent strategy for long-term survival and prosperity. It has to be done with appropriate moderation, of course.

The actual proverb you're likely thinking of is about people who trade essential freedoms for temporary safety.

It's not clear to me that this is one of those cases.
Suppose this is one of those cases where secrecy is both justified and necessary.

Suppose this is one of those where it isn't.

How are you determining which, in this particular case?

Surely you are not merely accepting what a government tells you at face value? Right?

No way you of all people would blindly accept what any government claimed? Right?

It is not as if you are the type to blindly accept some trumped up figurehead unquestioningly? Right?
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Old 7th December 2019, 12:21 AM   #33
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Originally Posted by novaphile View Post
I think we should be grateful that we live in a country that only gaols a person after a secret trial under those circumstances.
Yes, we should be grateful we don't live in the Soviet Union or Nazi Germany. That doesn't make it ok for the legal system to act in secret.

Any time an employer doesn't want their woes dragged out in public, they avoid court room trials. They engage in private settlements and sign confidentiality waivers. The military should have kept this in house.
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Old 7th December 2019, 03:03 AM   #34
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Originally Posted by psionl0 View Post
You miss the point.

The military is perfectly entitled to keep court marshals and the deliberations of military tribunals in house and not divulge any details to the public.

However, once they choose to use the public legal system to place one of their members in a public jail, this secrecy should no longer apply. That is the stuff of totalitarianism.

Originally Posted by psionl0 View Post
Yes, we should be grateful we don't live in the Soviet Union or Nazi Germany. That doesn't make it ok for the legal system to act in secret.

Any time an employer doesn't want their woes dragged out in public, they avoid court room trials. They engage in private settlements and sign confidentiality waivers. The military should have kept this in house.
The problem is that, even though it appears this person was a military officer, if he was working for the ASIO or another government security service, then his transgressions would not be under Military Jurisdiction.

To put this in perspective, if this had happened in Britain, and he was working for Defence Intelligence, then that is military jurisdiction, and he would be subject to court martial. However, if he was working for MI-5* or SIS (a.k.a. MI-6*) then he was under civilian jurisdiction, and therefore tried in a civilian court.

* Yes I know MI stands for "Military Intelligence" but they are both civilian services under the authority of the Home Secretary.
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Old 7th December 2019, 03:28 AM   #35
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ASIO.
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Old 7th December 2019, 04:45 AM   #36
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Originally Posted by psionl0 View Post
Yes, we should be grateful we don't live in the Soviet Union or Nazi Germany. That doesn't make it ok for the legal system to act in secret.

Any time an employer doesn't want their woes dragged out in public, they avoid court room trials. They engage in private settlements and sign confidentiality waivers. The military should have kept this in house.

But

1) This wasn't a case where the employer was the one at fault - it was the employee. Therefore private settlements and confidentiality waivers could never have come into it in any event.

2) The cases which end in things like private settlements and confidentiality waivers are civil cases (and almost always where the employee is suing the employer). This was a criminal case. It's the State versus the defendant, not the employer (although in this instance the employer is an agent of the state, but the point still stands).

3) As has already been noted, this was not a case which fell under the auspices or remit of the military.
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Old 7th December 2019, 04:46 AM   #37
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Originally Posted by smartcooky View Post
The problem is that, even though it appears this person was a military officer, if he was working for the ASIO or another government security service, then his transgressions would not be under Military Jurisdiction.

To put this in perspective, if this had happened in Britain, and he was working for Defence Intelligence, then that is military jurisdiction, and he would be subject to court martial. However, if he was working for MI-5* or SIS (a.k.a. MI-6*) then he was under civilian jurisdiction, and therefore tried in a civilian court.

* Yes I know MI stands for "Military Intelligence" but they are both civilian services under the authority of the Home Secretary.


To be uber-pedantic on correct names (seeing as you (correctly) named MI6 as SIS (Secret Intelligence Service)).... the correct name for MI5 is actually SS (which stands for Security Service).

And the point you made in your post is entirely correct.
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Old 7th December 2019, 04:55 AM   #38
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When I was on jury service and hanging around outside for hours we were told that there was a court case going on behind closed doors because it was top secret and involved security. I presumed terrorists. Not sure why we were told. Perhaps to explain the mild commotions going on.
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Old 7th December 2019, 01:15 PM   #39
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Originally Posted by Norman Alexander View Post
ASIO.
If that is a question, it stands for Australian Security Intelligence Organisation, roughly equivalent to Britain's MI-5 (SS)

There is also ASIS (Australian Secret Intelligence Service) roughly equivalent to Britain's MI-6 (SIS)

As per the British situation, both ASIO and ASIS are under Australian civilian jurisdiction even though they have serving military personnel working for them.

ASIS is responsible to the Minister for Foreign Affairs, while ASIO is responsible to the Department of Home Affairs. Their respective Directors General aside, the identity of all ASIO and ASIS officers is classified under the Official Secrets acts.
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Old 7th December 2019, 03:13 PM   #40
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The Reynolds case and the State Secrets Privilege

United States v. Reynolds concerned a military aircraft mishap which killed some civilians. The State Secrets Privilege was first recognized by the Supreme Court because of this lawsuit. "Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security." Wikipedia. Long after the Privilege became recognized, researchers learned that this privilege was founded on a lie: there were no valuable military secrets that might have been disclosed; instead, the government wished to cover up its own negligence. Besides the Wikipedia entries, one could also consult Charlie Savage's book, Takover: The Return of the Imperial Presidency for more information.

My point is general. Just because national security is claimed as a reason for withholding information in a trial, does not mean that there would necessarily be a breach of national security if that information were disclosed.
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