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UPDATE ON BERNARD COLLAERY: SECRET EVIDENCE RALLIES
April 04, 2021 IN WIP
You may remember that in October last the ACT Court of Appeal upheld Collaery’s appeal regarding certain levels of secrecy required by the Attorney-General. There have been developments since. I quote from Kieran Pender’s article:
“It is at this point that the pre-trial proceedings took a turn that would be outlandish even in Franz Kafka’s The Trial. The attorney-general appealed to the High Court – not to challenge the underlying decision of the Court of Appeal, but to contest the Court’s refusal to redact parts of their written reasons. The government wants to keep a judgment that said no to secrecy itself secret…It is perversity heaped on perversity.”
I do think that we continually need to return to the genesis of this mess: Australia spied on Timor-Leste for financial gain in 2004. Time, effort and millions of taxpayer dollars are being spent to conceal this fact and its consequences.
DEMONSTRATIONS There are three hearings coming up at the end of April – 26th 27th and 28th. (There’s also one on 20th April) Demonstrations are being planned and here is the list so far:
CANBERRA Day and Time: Tuesday 26th April 9:30 a.m. Place: ACT Courts 4 Knowles Place Canberra
SYDNEY Day and Time: Thursday 28th April, 12:30 – 1:30 p.m. Place: The space at the side of the Federal Court, 175 Phillip Street.
Date Tuesday 26th April
Anyone in Melbourne who would be willing to attend and promote the action would be much appreciated. It would be great to have a big show of support in Melbourne to raise awareness of the case amongst the public both on the day and in social media posts after.
UPDATE ON BERNARD COLLAERY AND TWO TYPES OF EVIDENCE: SECRET & NORMAL
The twists and turns in the Bernard Collaery case continue. The ACT Court of Appeal upheld an appeal against the levels of secrecy proposed by the Attorney General, who responded by appealing against the full release of the Appeal Court’s judgement. Now there’s talk of two types of evidence – normal evidence that Mr Collaery can see, and “court-only” evidence that neither he nor his lawyers will be able to access. I found this article by Elizabeth Byrne to be among the best.
However, the High Court is now the scene of the AG’s appeal against the full release of the Appeal Court judgement. AG Michaelia Cash is seeking special leave to appeal and the preliminaries commence in hearings on 26th, 27th and 28th of April.
Here is something you can do!
There are serious questions about the original espionage against Timor-Leste. As the Commonwealth Director of Public Prosecutions requested the Attorney-General (then Christian Porter) to allow the prosecutions, one would expect that correct information had been obtained by the CDPP before making that request. So it is reasonable for a citizen to ask:
1.Were the activities undertaken by ASIS in Dili in 2004 lawful? Please explain the basis for your answer.
2.Was the bugging of the East Timor government’s offices discussed and approved by the National Security Committee of
Cabinet before being undertaken?
3. Did the bugging of the East Timor government’s offices receive approval from the then Minister for Foreign Affairs?
Of course, the government’s position is to “neither confirm nor deny” that the spying took place, so a straight answer is unlikely. But it is worth asking the questions. You might consider asking the CDPP and/or your local member/candidate as the election looms. Here’s the CDPP’s email address (Ms Sarah McNaughton) email@example.com
An Excellent Explainer
The following link takes you to a most helpful webpage, thanks to the Human Rights Law Centre.
AAPP – The Alliance Against Political Prosecutions (of which I am a co-convener) is worth supporting. It deals with the David McBride, Richard Boyle and Bernard Collaery matters and also that of Julian Assange. If you would like to receive update emails, please contact firstname.lastname@example.org
AAPP has been consistently mounting the demonstrations outside the ACT Courts regarding Witness K and Bernard Collaery – a monumental effort.
Yet more hearings for Bernard Collaery (from the email of Susan Connelly, 3 Nov, 2021)
My email of 6 October (30/2021) said that the appeal against the stringent secrecy earlier imposed was somewhat successful in the ACT Court of Appeal. Unfortunately, that is now not strictly the case.
The Attorney-General has sent further material to the original judge (Mossop) who again has to rule. If he accepts this material and rewrites his judgement there will probably have to be another appeal.
There was a hearing in the ACT Supreme Court on Tuesday November 2, with yet another directions hearing possibly this week.
Bernard Collaery’s trial is therefore to be later rather than sooner.
Please find attached a copy of the exchange between Senator Kim Carr, Senator Nick McKim, Commonwealth Director of Public Prosecutions Sarah McNaughton, and Attorney General Michaelia Cash in the Senate last week.
It is not long, but highly instructive. More to come on this one. (Click on the DPP link underlined below)
But the Attorney-General’s attempt to shroud the trial in secrecy has also been particularly egregious. On Wednesday, the ACT Court of Appeal upheld the importance of open justice. In a landmark ruling, the court decided that important parts of the trial must be open to the public.
To fully appreciate the seismic significance of this judgment, it is instructive to consider a key provision in the National Security Information Act. Buried deep within this complex law, which governs the use of evidence relevant to national security in civil and criminal cases, section 32(8) tilts the scales of justice away from transparency and towards secrecy.
The provision provides that in making orders under the National Security Information Act, the court “must give greatest weight” to the views of the Attorney-General on prejudice to national security. Such prejudice is thus given paramount significance, deemed by the legislation to be more important than the defendant’s fair trial rights, and open justice (which is not even explicitly mentioned in the provision).
It was not particularly surprising then that, mid-last year, the trial judge in Collaery’s prosecution granted the secrecy orders sought by the then-attorney-general Christian Porter. When the scales are weighted in favour of secrecy, those fighting for transparency have a mountain to climb. Collaery appealed but, given the legislative imbalance, it was hard to be optimistic.
Which makes the win for transparency today all the more remarkable. Such was the importance of open justice, said the Court of Appeal, that it overwhelmed even the “greatest weight” that was necessarily applied to the attorney-general’s views on national security. A summary of the judgment posted online noted that “the open hearing of criminal trials was important because it deterred political prosecutions”.
Collaery’s win on Wednesday is a positive step. But there remains much work to be done in Australia 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. These prosecutions are not in the public interest – each whistleblower spoke up about wrongdoing and now faces jail time. The Director possesses the authority to discontinue cases at any time – that power should be exercised.
Law reform is also urgent and long overdue. The law to protect public sector whistleblowers, the Public Interest Disclosure Act, is no longer fit for purpose. In 2016, an independent review provided the government with a road map for reform. Five years later, and despite belatedly accepting most of the recommendations in 2020, the government has still not enacted amendments.
It is unconscionable that the Morrison government is overseeing the prosecution of whistleblowers (and, in the Collaery case, gave explicit consent) yet refuses to act on whistleblowing reform.
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.
The Independent National Security Legislation Monitor is currently investigating the Witness J case, and has foreshadowed an intent to consider the entire National Security Information Act once the ongoing whistleblower prosecutions finish. Once those reviews are concluded, the government must commit to reforming the National Security Information Act to ensure it better protects the public interest in transparency and open justice.
While it is welcome news that Collaery’s prosecution will not go ahead in complete secrecy, it should not go ahead at all. Collaery’s prosecution, and those against whistleblowers McBride and Boyle, are profoundly unjust. The prosecutions should be discontinued, and the laws that gave rise to them must be reformed. Australians who speak up about wrongdoing should be protected, not punished.
Kieran Pender is a senior lawyer with the Human Rights Law Centre.
Pro-independence political activist, Victor Yeimo has been arbitrarily arrested and charged with treason for peacefully protesting against racial discrimination in Indonesia. Please join me in signing this petition demanding the Indonesian authorities grant Victor Yeimo’s immediate release or prosecute him in a fair trial.
In a few weeks, a report commissioned by 4,481 GetUp members will be released detailing how anti-democratic legislation since 9/11 has transformed Australia into one of the most secretive states in the democratic world. The explosive dossier exposes how sweeping laws by successive governments have eroded our democracy.
After relentless attempts from the Morrison Government to silence journalists, more than 6,000 GetUp members commissioned a huge press freedom mural in Sydney’s CBD.
In addition to the tens of thousands of people who walked by, the cheeky sky-high cartoon was picked up by one of the largest youth publishers in the world, 1 reaching millions of eyeballs online.
If that wasn’t enough, members helped transform the mural into a full-page newspaper ad seen by almost a million people in the The Sydney Morning Herald and The Age.
Under the Morrison Government things have gotten worse, and public interest journalists and whistleblowers risk jail time for doing their jobs and duty. From raiding the ABC over the Afghan Files, to convicting Witness K in a secret Government trial. And now his lawyer, Bernard Colleary, is himself facing the same treatment — prompting resurged calls for an urgent inquiry into intelligence legislation.2,3
The Australian Bar Association calls on the Commonwealth to reconsider the prosecution of Bernard Collaery
28 July 2021
The Australian Bar Association shares the concerns of the ACT Bar Association in relation to the prosecution of barrister and former Deputy Chief Minister of the ACT and ACT Attorney-General, Bernard Collaery.
Mr Collaery advised the East Timor Resistance movement and represented Witness K in a legal case brought by the Timor-Leste Government against the Australian Government.
The prosecution relates to events which occurred in 2004. The prosecution was commenced at the end of May 2018 with the consent of the (former) Attorney-General, a consent which his predecessor had not granted.
The prosecution has largely taken place in secret, with much of the evidence suppressed. The basis upon which evidence needs to be suppressed is, itself, the subject of suppression. This impedes the ability of the legal profession and the public to scrutinise the administration of justice in this important case.
Further background can be found in the ACT Bar Association’s media release here.
The Council of the Australian Bar Association this week unanimously passed the following resolution:
The ABA expresses its concerns about the delays in the prosecution of Mr Collaery and the secret nature of the proceedings and suppression of much of the evidence as raising rule of law concerns going to the open and fair administration of justice.
President of the ABA, Matthew Howard SC, said, “This matter raises two, fundamental rule of law questions as to the fair and open administration of justice – the length of time it has taken to prosecute the matter, and the suppression of evidence. For the public to have confidence in the administration of justice, it is vital that prosecutions proceed in a timely manner, and that the workings of the courts be open to public scrutiny to the maximum extent possible. The public will rightly be concerned, in relation to Mr Collaery, that little is or can be known about the prosecution, and that it is continuing some 17 years after the events in question.
“The ABA urges the federal Attorney-General to reconsider the prosecution in light of these significant rule of law issues.”
About the ABA
The Australian Bar Association is the peak body representing nearly 6,000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all.
Whistleblowers: The latest on Bernard Collaery and call for a pardon and compensation for Witness K
Dear supporters of justice and democracy
We still don’t know when the decision will be brought down on Bernard’s appeal, but it could happen at short notice, so please keep an eye out for news on that. There is a date of 29 July on the court lists, but I understand that date may just be a mention. I’ll keep you posted.
Planning is well underway for a webinar on David McBride’s case, to be hosted by UQ. Panelists will be Prof and journalist Peter Greste, Law Council President Jacoba Brasch SC, Senior Lawyer, Kieran Pender from Human Rights Law Centre and Rebecca Ananian-Walsh, senior lawyer at UQ. Date to be confirmed, likely mid-late August.
We know that in these cases, national security is being used to hide the crimes of politicians and their advisers, and the surveillance legislation, over 80 pieces, has gone right over the top. See the article by Brian Toohey The rise and rise of Australian authoritarianism, The Saturday Paper, 17-23 July.
We have recently written to President Biden asking him to drop the prosecution and extradition of Julian Assange, and also wrote a letter of support to Julian Assange who recently turned 50 in prison. Stella Moris, Julian Assange’s partner, blasts the prosecution as case collapses,YouTube video, 13 July. We also wrote to Jennifer Robinson, thanking her for her work on behalf of Julian and other human rights matters.
Supporters in Queensland and SA are approaching their Bar Associations as well as letters sent by CLA to around 16 law firms in Australia, seeking more support for Bernard. The ACT Bar Assoc has put out a media release in support.
Please take a moment to either sign the petition for Bernard and Witness K, or if you have signed it, send the link to your friends. The petition will be closed off soon – it has nearly reached 60,000 signatures. Let’s get there and more!!
Two events that might be of ACT readers interest have flyers attached – The fundraiser dinner for MAPW with David McBride speaking has been rescheduled to 13 August (COVID permitting) and a Manning Clark house talk with former Bishop George Browning (a speaker at one of our recent rallies) speaking about his new book and rising authoritarianism in Australia on Sat 7 August. Bookings and further details on the flyers.
Don’t forget to write to the CDPP asking her to drop the cases against Bernard, David and Richard Boyle, at Sarah.Mcnaughton@cdpp.gov.au Ian Cunliffe’s articles on our June Articles website page may be of assistance. Don’t forget also to visit the aapp.ipan.org.au website for more articles, a book review of Peter Job’s A narrative of denial and videos and more!
On Friday, Witness K was sentenced to a three month suspended sentence and a 12 month good behaviour bond. While many are expressing relief that he is not facing jail, and that is a valid feeling, the fact is he should never have faced prosecution for expressing concerns about an illegal ISIS action.
See AAPP’s media release of 18 June. We thank Witness K for his courage, and will pursue a pardon and compensation for his stress and persecution over so many years.
The ISIS action has been described by a former DPP as a conspiracy to defraud, which was perpetrated not only against Timor-Leste but also the people of Australia, and which raises many questions. Who ordered the bugging? Who ordered the removal of the words, ‘and inert gases’ from the definition of petroleum thus excluding helium from it and handing windfall profits to Woodside and ConocoPhillips, and loss of rightful revenue to Timor-Leste and Australia? How has this impacted our international relations with a number of countries? Where was Australia’s good faith in these negotiations?
The need for a strong federal ICAC has never been more urgent. Christian Porter’s pathetic efforts producing such legislation must be improved on by the current AG, Michaelia Cash.
I suggest people ring and/write to Michaelia Cash and the Commonwealth DPP asking them politely to explain in detail how it is in the public interest to continue the prosecution of Bernard Collaery. And ask the AG for strong ICAC legislation! I’d urge people to also ring/write to Marise Payne, asking how it is that she is allowing our national relations with Timor-Leste to be so damaged by the prosecutions.
The Witness K hearing this week will be held on 3 and 4 June. It seems it will be a sentencing hearing.
I can guarantee that you would find the following YouTube clip very interesting. It is nearly half an hour, but is well worth viewing. Senator Kim Carr and Senator Rex Patrick engage with the Office of the Commonwealth Director of Public Prosecutions and the Attorney-General in discussing just what the “public interest” is in the cases of Bernard Collaery and Witness K.
You might consider contacting these Senators regarding their dogged pursuit of truth and justice in this matter.
The most recent hearing for Witness K was held on Monday 29th March. The demonstration was addressed by Alicia Payne, MP for Canberra, Flavia Abduraman, (https://muckrack.com/flavia-abdurahman), and Susan Connelly. A fire truck with a grand display of “Drop the Prosecutions” was provided by Ian Fraser and Ian Melrose, design by Cate Adams. On the same day, there was a demonstration outside the Australian Consulate in Auckland. Hooray for our NZ friends! Thanks to Maire Leadbeater. Click here for photos.
On Wednesday 31 March the ANU webinar was seen by 400 people, many of whom sent in questions. The speeches by Nicholas Cowdery, Rebecca Ananian-Welsh, Kieran Pender and Pauline Wright were incisive and challenging. Kim Rubenstein did a great job of moderating. Click here for the recording from the ANU. Well worth viewing – an excellent event.
Time to reconsider prosecution of Bernard Collaery
With the announcement that Christian Porter will be replaced as Commonwealth Attorney-General, the ACT Bar Association calls on incoming Attorney, The Hon. Michaelia Cash to review the prosecution of former ACT Attorney-General Bernard Collaery.
Bernard Collaery who, for more than 30 years, had advised the East Timor Resistance movement and leading figures involved in the push for independence, represented Witness K in a legal case brought by the Timor-Leste Government against the Australian Government before the Permanent Court of Arbitration in The Hague in the Netherlands. Witness K was accused of disclosing secret information related to an operation conducted by Australia’s foreign intelligence agency, ASIS, to bug the office of Timor-Leste’s prime minister during oil and gas treaty negotiations in 2004.
In December 2013, ASIO and the AFP raided the homes of Witness K and Bernard Collaery. Almost 4½ years passed before, on 30 May 2018, both were charged under section 39 of the Intelligence Services Act 2001.
The maximum penalty for this offence is 2 years imprisonment – the same maximum penalty for failing to pay for a restaurant meal.
Because of the nature of the allegations, the charges brought against Bernard Collaery can only be pursued with the consent of the Attorney-General. Consent to prosecute was first sought from then Attorney-General George Brandis in September 2015. Having obtained advice from two Commonwealth DPPs and the Solicitor-General Mr Stephen Donaghue SC, by the time Mr Brandis was replaced by Mr Porter in December 2017, no consent was forthcoming.
Mr Bret Walker SC, the former independent monitor of Australia’s national security legislation, and now representing Mr Collaery, told ABC Four Corners in 2019 “I imagine the former attorney, Senator Brandis, didn’t find this a straightforward case to say yes to. That’s a very long time for something to be sitting on an attorney’s desk. I imagine it was not for want of thinking about it, that that time elapsed.”
However, within a few months of taking over the portfolio, Christian Porter gave his consent to prosecute the matter in what was criticised by many, including independent MP Andrew Wilkie and former Victorian Premier Steve Bracks, as a political decision.
The ongoing prosecution of Bernard Collaery has drawn criticism from many quarters, including retired judicial officers and academics.
The prosecution itself has been marked by further controversary with the secret nature of the proceedings and the suppression of much of the evidence that might be given in the case.
In June 2020, Justice David Mossop of the ACT Supreme Court ruled that material identified by the Attorney-General Christian Porter should be suppressed under the provisions of the National Security Information Act. That ruling was based upon a secret certificate issued by Christian Porter certifying the material as prejudicial to national security. How, and in what respect, that material is said to be sensitive is itself suppressed.
Bernard Collaery is a 76-year-old man who came to Australia as a boy. He has spent his entire adult life serving the people of Australia. He has served as a First Secretary in the Australian Embassy in France, as the first Attorney-General of the Australian Capital Territory Legislative Assembly and has had a long and honorable career both in politics and in private practice as a lawyer. Bernard Collaery has over decades helped, either for free or at greatly reduced charges, many clients.
There is an available perception that Bernard Collaery is being prosecuted by the Government for his involvement in acting for a man who brought to light allegations of improper and illegal behaviour by the Government.
It is difficult to identify any public, as opposed to political, interest in continuing this prosecution. It is now eight years since the AFP raided Mr Collaery’s home, and 17 years since the alleged bugging operation. In the interim, the Commonwealth Government has now spent in excess of $3 million pursuing Mr Collaery for his role in acting for Witness K.
With the swearing in of our new Attorney-General Michaelia Cash, an opportunity arises to review the prosecution and, to withdraw consent for it to continue.
The Bar Association of the Australian Capital Territory earnestly calls on the incoming Attorney to undertake such a review.
As we reach the end of 2020, four individuals – Bernard Collaery, Witness K, David McBride and Richard Boyle – are being prosecuted by our government. These whistleblowers spoke up in the public interest, and now face the very real prospect of jail time. If we want to live in a transparent, accountable democracy, that should trouble us all.
Collaery and Witness K revealed that Australia bugged Timor-Leste’s cabinet, to help our government in ripping off an impoverished neighbour during tense oil and gas negotiations. McBride blew the whistle on the alleged actions of Australian special forces in Afghanistan – conduct characterised as potential war crimes by the Inspector-General. Boyle called out aggressive debt recovery practices by the Australian Taxation Office, which deliberately targeted vulnerable small businesses.
In each case, these whistleblowers raised their concerns internally first. Witness K articulated their misgivings with the Inspector-General for Intelligence and Security, in consultation with his Intelligence-approved lawyer, Collaery. McBride went to the police. Boyle lodged an internal disclosure. In each case, they were sidelined or ignored.
In desperation, they spoke up. But for these principled people, we might never have known about the misdeeds – potentially illegal, or, at the very least, improper – done in our name. It is only thanks to Collaery, Witness K, McBride and Boyle that we can demand corrective action and take steps to ensure they are never repeated.
We should be praising these whistleblowers. Instead, the Morrison government is prosecuting them. Orwellian? Kafkaesque? Take your pick.
Whether or not Collaery, McBride or Boyle succeed in their defences (Witness K has indicated a willingness to enter a plea of guilty to a single charge of breaching the Intelligence Services Act, subject to a plea bargain), the chilling effect of the prosecutions is severe. What potential whistleblower – having seen the reality faced by the current quartet – would accept these risks and speak up? Staring down the barrel of psychological trauma, professional ruin and financial oblivion, how many prospective truth-tellers will stay silent?
What wrongdoing might be occurring right now that Australians will never know about, because those who witnessed it remain mute? The cost of courage has become too high a price to pay.
It did not have to be like this. In 2013, the Labor government introduced protections for public servant whistleblowers. The Public Interest Disclosure (PID) Act provided a comprehensive regime for the disclosure and investigation of wrongdoing and protections for those who speak up. But while on paper the law was a step in the right direction, it has proven ineffective in practice – no more than a cardboard shield.
In 2016, an independent review by Philip Moss found that “the experience of whistleblowers under the PID Act is not a happy one”. Last year, a Federal Court judge lambasted the law as “technical, obtuse and intractable” and “largely impenetrable”.
On Wednesday, Attorney-General Christian Porter announced that the government was accepting, in part or in whole, 30 of the 33 recommendations made by Moss. This is welcome news, but it is long overdue. Porter and his colleagues have sat on this reform for four and a half years. In the meantime, homes have been raided, charges laid against whistleblowers and secretive trials commenced.
The Attorney-General must reform the PID Act as a matter of urgency. In the government’s official response, it flagged that it intends to go further than the Moss review. This is welcome, although the devil will be in the detail – detail which, for now, remains absent. If Porter is serious about promoting transparency and probity within our democracy, he should commit to legislating stronger protections for government whistleblowers in early 2021. Wednesday’s announcement is a positive step, yet until these changes become law, whistleblowers will continue to suffer.
Recent amendments to the laws protecting Australia’s private sector whistleblowers only underscore Porter’s inaction on public sector reform. Currently, those exposing corporate corruption are better protected than those exposing government misfeasance. That cannot be right. Public servants who speak up deserve protections equal to their private sector counterparts.
Meanwhile, the government has doubled-down on secrecy laws to penalise unauthorised disclosure of official information. It terminates the employment of public servants who dare criticise it online and cuts funding to accountability agencies that were established to keep the government in check. Our freedom of information regime is in tatters. Collectively, these measures guarantee a culture of silence within our public service and make external oversight even harder.
Australia was once a world leader in the field of whistleblower protections. When the first whistleblowing laws were introduced in this country, in 1993, the United States was the only jurisdiction with comparable protections. But as nations across the globe have found innovative ways to protect and empower whistleblowers, Australia has lagged behind. We have failed to shake off the words of a former police commissioner, who once observed that “nobody in Australia much likes whistleblowers”.
Yet any one of us could become a whistleblower. I have met dozens of individuals who have spoken up against wrongdoing. Almost unanimously, they say: “I did not intend to become a whistleblower.”
Many shun the label entirely. They are simply people who did what they believed was right – people who saw cruelty, corruption or abuse of power, and felt morally compelled to do something about it. In their shoes, would we not all hope for the courage to do the same?
Whistleblowers perform a vital democratic function in Australia. They are the canary in the coalmine that is Australian democracy. We must hear their call, not lock them up. The government’s recently-announced commitment to reform the PID Act is welcome, but actions speak louder than words.
Kieran Pender is a senior lawyer with the Human Rights Law Centre, and leads the centre’s work on whistleblower protections.