The Court of Appeal on October 6 unanimously ruled that Bernard Collaery could provide information in public as part of his trial. It said that requiring large parts of the Crown case against Collaery to be held behind closed doors created a real risk of “damaging public confidence in the legal system”.
Barrister and former ACT Attorney-General Collaery is facing five charges which allege he breached section 39 of the Intelligence Services Act 2001 (Cth) by communicating information to various ABC journalists that was prepared by or on behalf of the Australian Secret Intelligence Service (ASIS) in connection with its functions. Further, it is alleged he conspired with Witness K to communicate information to the government of Timor-Leste that was prepared by, or on behalf of ASIS, in connection with its functions.
Collaery is facing jail time for allegedly helping a client, the ex-Australian Security Intelligence Organisation (ASIO) agent known as Witness K, reveal information about Australia’s bugging of East Timor’s government during commercial negotiations to carve up oil and gas resources in the Timor Sea.
Collaery sought to disclose publicly some information relating to the truth of six “Identified Matters”. The Supreme Court had decided that this would pose “a risk of prejudice to national security”.
But the Court of Appeal ruled differently: it accepted that the public disclosure of information relating to the truth of the Identified Matters would involve some risk, but it said there would not be “a significant risk of prejudice to national security”.
Kathryn Kelly, co-convenor of the Alliance Against Political Prosecutions, said on October 6 that the prosecution of Bernard Collaery “should never have gone ahead, and it should be discontinued immediately”.
She welcomed the ACT Appeal Court’s decision, particularly its recognition “that the open hearing of criminal trials was important because it deterred political prosecutions”. She also said it “allowed the public to scrutinise the actions of prosecutors and permitted the public to properly assess the conduct of the accused person”.
Witness K pleaded guilty to breaching secrecy laws in June and was handed a three-month suspended sentence. Collaery decided to continue to fight the charges against him.
“The ACT judge will apparently need to assess further affidavits from the Attorney-General,” Kelly said. “However, if the government pursues this political prosecution, it risks the very thing it was trying to prevent — embarrassment … due to the disclosure of its allegedly illegal bugging of the Timor-Leste government offices in 2004.”
Kelly said that there is also “an important question” of whether Attorney-General Michaelia Cash has a conflict of interest in the case. Cash was reportedly employed by Western Australian law firm Freehills which worked with hydrocarbon exploration and production company ConocoPhillips on the Timor Sea maritime boundary question. “If this is the case, surely she should not be involved,” Kelly said.
Kieran Pender, from the Human Rights Law Centre, wrote in the October 7 Sydney Morning Herald that while Collaery’s win was positive, there is “much work to be done to ensure open justice is protected and whistleblowers can speak up about wrongdoing without fear of prosecution”.
“Most urgently, the prosecutions of Collaery, war crimes whistleblower David McBride and tax office whistleblower Richard Boyle should be dropped by the Commonwealth Director of Public Prosecutions,” Pender wrote.
“These prosecutions are not in the public interest — each whistleblower spoke up about wrongdoing and now faces jail time.” He said the Public Interest Disclosure Act 2013, which is supposed to protect public sector whistleblowers “is no longer fit for purpose” and despite belatedly accepting it needs to be reformed the federal government has “still not enacted amendments”.
Graham Droppert SC, National President of the Australian Lawyers Alliance (ALA) of which Collaery is a member, said the charges against Collaery “are an attack on the legal profession and on Collaery for acting as a lawyer within his professional rules”.
“The prosecution is a breach of the UN Basic Principles on the Role of Lawyers, adopted by the General Assembly in 1990. The principles state that lawyers have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights without suffering professional restrictions by reason of their lawful action.”
“Lawyers play a vital role in ensuring that the right to freedom of speech is protected in our democracy. We give voice to the truth when it is inconvenient and that must continue to be our role.”
The National Security Information Act must also be overhauled. It tilts the scales too far in favour of secrecy. In another recent case, that of Witness J, an ex-intelligence officer was charged and sentenced to almost three years’ imprisonment in total secret. If it was not for a series of fortunate coincidences, we might have never known about his plight. A law that permits fully secret trials has no place in our democracy," Pender concluded.
Collaery told The Guardian the Court of Appeal ruling was a “victory for justice” and a testament to the legal profession which has supported him. “For the Commonwealth to spend millions on this pursuit, you can imagine the sacrifice the lawyers supporting me have made — not just in money they could have earned, because they’re pro-bono, but in time away from their families,” he told The Guardian on October 7.
The homes of Collaery and Witness K were raided by Australian Secret Intelligence Service in 2014 as they were preparing to help the Timor-Leste government lodge its case in the international courts, alleging Australia’s spy operation meant it had negotiated in bad faith. Witness K’s passport was taken and he was prevented from leaving to give evidence.
The proceedings at The Hague were never finalised. The exposure of ASIS corrupt and illegal bugging put pressure on Australia to finally accept in 2018, a boundary treaty agreed in a facilitated conciliation process under the United Nations Convention on the Law of the Sea.
[Sign the petition Drop the charges against Bernard Collaery & Witness K.]