The ACT Court of Appeal ruled on 6 October that concerns around the “very real risk of damage to public confidence in the administration of justice” trumped the “risk of prejudice to national security” in deciding to grant Bernard Collaery’s appeal against secrecy measures applied to his trial.
A shroud of silence has hung over the drawn-out process of attempting to prosecute ACT barrister Collaery over allegedly conspiring to expose the illegal acts of government, as former attorney general Christian Porter had applied a nondisclosure order to hide the details from the public.
The prosecution of Collaery and former ASIS officer Witness K was over their having revealed details of a 2004 bugging operation, which saw listening devices planted within the Timor-Leste government cabinet rooms to give our nation the upper hand in oil and gas treaty negotiations.
Witness K was set to testify to this matter at the Permanent Court of Arbitration in the Hague on behalf of Timor-Leste in 2013, with Collaery providing legal representation.
But ASIO raided both men’s Canberra premises to hamper the proceedings. And the Coalition government then waited until mid-2018 to greenlight the pressing of charges against them.
Current attorney general Michaelia Cash is expected to appeal the court’s decision, which, if it stands, is likely to threaten the continuation of proceedings against Collaery, as the details that the Liberals have so doggedly sought to conceal would be publicly revealed.
The findings of the court
ACT Chief Justice Helen Murrell and Justices John Burns and Michael Wigney agreed that the court should remain open during Collaery’s proceedings as this aspect to criminal trials deters “political prosecutions”, and allows the public to scrutinise matters, including the conduct of the accused.
Their Honours outlined that the lawyer is facing five counts of releasing ASIS information in connection with its functions, contrary to section 39 of the Intelligence Services Act 2001 (Cth).
The charges relate to communicating with ABC journalists and conspiring with K to divulge the crime to Timor-Leste.
The primary judge ruled in favour of the secrecy provisions in June 2020, after Porter had twice issued AG criminal non-disclosure certificates, under section 26 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
These certificates called on the court to conceal certain details of the case, and it was the first time these Howard-era powers had been exercised.
Following the issuing of a certificate, the court must deliberate upon whether to apply the order, with the “greatest weight” being given to the AG’s concerns. And if applied, this means that jurors, the media and members of the public are barred from the court when key evidence is divulged.
Collaery conceded that some matters relating to his trial are sensitive and should not be disclosed, but he contested that six identified matters should be open to public scrutiny and the three-justice bench accepted his argument.
An open secret
Then senior ASIS intelligence officer Witness K was ordered to oversee and carry out the bugging of the offices of the newly-formed government of the desperately impoverished nation of Timor-Leste in 2004.
This gave an advantage to the Howard government in negotiations over Timor Gap resources.
Conducted under then foreign affairs minister Alexander Downer, the covert operation benefited Australian resource company Woodside. And following his exit from federal politics, Downer took on a consultancy role with that company for a period.
Witness K went to the Inspector General of Intelligence and Security in 2008, in relation to an ASIS workplace dispute, with his complaint including the details of the Timor-Leste operation. And the inspector advised his to consult ASIS-approved lawyer Collaery about the matter.
From there, the ACT barrister determined that the ASIS operation constituted the offence of conspiracy to defraud, contrary to section 334 of the Criminal Code 2002 (ACT). The offences within this legislation can apply to matters with consequences “beyond the territorial limits of the ACT”.
However, after years of seclusion and pressure, Witness K went on to plead guilty to the charges against him in mid-2019. And in June this year, the former ASIS agent was given a three month suspended sentence, after the government had spent millions on the prosecution against him.
Oil under troubled water
“I’m not allowed to tell you the details of that breach,” he said, in relation to the 2004 bugging operation. “I’m waiting to be able to tell that in open court.”
But Collaery was able to discuss another matter raised in his book, which saw Downer signing the original Timor Gap treaty, whilst the Australian government concealed from Timor-Leste the fact that it had located helium in the gas fields involved in the negotiations.
The Howard government then cut a deal involving the secreted helium deposits with US energy corporation ConocoPhillips, which meant that not only did Timor-Leste miss out on the profits from the “massively important, but limited, resource”, but so too, did the Australian public.
“I gave frank and fearless advice, and the response was I’ve been charged with conspiracy. That probably means I’ve been conspiring with clients for 40 years. That’s what it amounts to,” Collaery said in relation to his prosecution.
“As far as I am concerned, the charge against K means that it’s a crime to report a crime. Think about it. That’s Australia at present.”
End the political prosecutions
Following its recent determination, the ACT appeals court has remitted Collaery’s matter back to the primary judge to “consider the admissibility and effect of further affidavits” that attorney general Cash has in her possession.
In response to last week’s ruling, the Alliance Against Political Prosecutions (AAPP) co-convenor Kathryn Kelly said in a statement that while her organisation welcomes the decision, Collaery’s prosecution “should never have gone ahead, and it should be discontinued immediately”.
Collaery and Witness K’s prosecutions aren’t the only politically motivated criminal cases that have recently been commenced.
Former ADF lawyer David McBride is facing charges over leaking material about SAS operations in Afghanistan, while ex-ATO officer Richard Boyle is being prosecuted for drawing public attention to questionable collection practices that were taking place at the nation’s tax office.
Kelly stated that if the government continues to pursue the Collaery prosecution it risks the very thing it was trying to prevent, that being the true details of the alleged bugging operation in Timor-Leste. And she further questioned the involvement of the current AG.
“There is an important question of whether attorney general Michaelia Cash has a conflict of interest in this case,” Kelly made clear, “since she was reportedly employed by Perth law firm Freehills, which worked with the company ConocoPhillips on Timor Sea issues.”