The Anglo-Australian legal system has much to answer for. While robed lawyers and solemn justices proclaim an adherence to the rule of law, the rule remains more fetish than reality.
Had the farcical prosecution of former ACT Attorney-General Bernard Collaery gone on, all suspicions about a legal system slanted in favour of the national security state would have been answered.
Collaery, a well-practised legal figure, has been the subject of interest under Section 39 of the Intelligence Services Act 2001, which covers conspiracies to reveal classified information.
It all began when he was consulted by former intelligence officer Witness K, who had been convicted for revealing the existence of a 2004 spying operation, conducted by the Australian Secret Intelligence Service (ASIS), to bug the Timor-Leste government’s cabinet offices.
The operation was instigated at the behest of corporate interests.
Canberra was involved at the time in treaty negotiations with Timor-Leste on accessing oil and gas reserves. Timor-Leste's crushing poverty and its need for hard cash did not interest Australia’s resource companies and bureaucrats.
Both men in 2013 lent their services to the East Timorese cause before the Permanent Court of Arbitration in The Hague. Australia’s illegal operation was finally going to make it into international law proceedings, thereby invalidating the original agreement reached between Dili and Canberra.
Alarm bells sounded, and raids in Canberra were made, although nothing stirred the prosecutors until 2018.
Wishing to stake his claim to protecting national security, Attorney-General Christian Porter, in contrast to his predecessor, thought it appropriate to begin legal proceedings against Collaery and Witness K.
As matters proceeded, Porter’s fascination and obsession with secrecy became evident. There were attempts to hold the trials in complete secrecy, away from any public scrutiny.
Porter also imposed a national security order that prevented the parties from divulging details of the prosecution.
With Witness K’s conviction, Collaery was left to counter five charges alleging he gave information prepared by, or on behalf of, ASIS to various ABC journalists and allegedly conspired with Witness K to give that same information to the government of Timor-Leste.
Porter was keen to draw out proceedings and fritter away accountability: his efforts against Collaery began to resemble those of a smug and doltish inquisition.
There were efforts to restrict Collaery from seeing the evidence that might be used against him in trial. There were attempts to prevent the full published reasons of the ACT Appeals Court being released. It found that various “identified matters” in the Commonwealth case against Collaery should be made available to the public.
Lawyers and others noted how the proceedings against the barrister had descended into a charade. Kieran Pender of the Human Rights Law Centre compared it to a “lottery — would I be permitted into court today, or would the secrecy shrouding the case win out?”
A change of approach came with new Attorney-General Mark Dreyfus deciding to call an end to matters. “I have had careful regard to our national security interest and the proper administration of justice,” he said announcing the decision.
The “decision to discontinue the prosecution was informed by the government’s commitment to protecting Australia’s national interest, including our national security and Australia’s relationships with our close neighbours”.
However, Dreyfus suggested this was not a sign of future leniency to whistleblowers: it was “an exceptional case”.
“Governments must protect secrets and our government remains steadfast in our commitment to keep Australians safe by keeping secrets out of the wrong hands,” he said.
Independent MPs who had protested Collaery’s treatment expressed relief. Rebekha Sharkie condemned the previous attorney-general for pursuing a “politically-motivated prosecution” which was “an embarrassment to the rule of law in Australia”.
East Timorese public figures were relieved by the decision. Former East Timor President and Prime Minister Xanana Gusmão, commended the decision to discontinue the prosecution. Collaery had been “prosecuted for alleged breaches of Australian national security laws by disclosing that the Australian intelligence services bugged Timor-Leste’s cabinet room during oil and gas negotiations”. Such bugging for commercial purposes, he said, had been “illegal and unconscionable”.
The Dreyfus decision does not end the matter, however. Prosecutions against whistleblowers in Australia, encouraged by weak and vague protections, remain current fare.
Whistleblower David McBride, who revealed the extent of alleged war crimes by Australian special forces in Afghanistan, still faces the prosecutor’s brief, as does Richard Boyle, who revealed ill-doings at the Australian Tax Office.
The HRLC’s Pender suggested these prosecutions should also be dropped. For the sake of the rule of law, his arguments are hard to fault.
[Binoy Kampmark lectures at RMIT University.]