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The Australian Bar Association calls on the Commonwealth to reconsider the prosecution of Bernard Collaery

August 18, 2021 IN WIP
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UPDATE from Susan Connelly

Dear All,

We continue to await the outcome of Bernard Collaery’s appeal challenging a ruling to hold his trial largely in secret under national security laws.
As soon as I know anything, I will pass the information on.
There are many other matters which concern us all. Here are a few:
Democracy
Here is a link to DEMOCRACY DOSSIER: Secrecy and Power in Australia’s National Security State.  
https://cdn.getup.org.au/2836-GetUp-Democracy-Dossier.pdf  This is fairly harrowing, but necessary to read.
Bernard Collaery is shown as an example of how our democratic values have been undermined by counter- terrorism powers and a growing culture of government secrecy.  I highly recommend it.  
Also recommended is Clinton Fernandes’s “Rules-based Order”. Well worth reading, pondering and acting on.  https://arena.org.au/the-rules-based-order/
 
Afghanistan
Many people across Australia are working very hard to address the plight of Afghani people. A new group across the Christian churches has recently formed:  Christians United for Afghanistan  https://www.unitedforafghanistan.com/  There’s the Catholic Alliance for People Seeking Asylum (CAPSA) https://capsa.org.au/ And Jesuit Refugee Services https://mailchi.mp/jrs.org.au/updates-from-the-frontlines?e=837b6bed72
I’ve attached a letter I wrote to the Sydney Morning Herald at the end of August.

René Girard

René Girard’s  remarkable insights are helping many people to reflect on the violence in our world.
Here are four documents either 20 or 4 pages in length, with illustrations and other links:  https://justly.info/rene-girard/
Some of the ideas posed are about desire, imitation, rivalry, scapegoating and violence.

I find Girard’s work extremely useful when considering the state of the world.

Here’s an article by Dr Joel Hodge where he  discusses the concept of “jihardism” using Girard’s approach. https://www.thedefensepost.com/2021/09/07/lessons-jihadists-afghanistan/

West Papua

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. 

https://action.amnesty.org.au/act-now/indonesia-release-peaceful-anti-racism-protester-victor-yeimo?fbclid=IwAR2b1u52J7ARaOH8WkzQoFu3m8kzP_sYVFjTSBXgdx4hBcXl6BC8hdV24i0

Very best wishes to all,

Susan

Sister Susan Connelly
14 Yerrick Road

Communication from GetUp:

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

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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.

MEDIA ENQUIRIES: media@austbar.asn.au or call Elizabeth Gray on 0401 561 554.

https://austbar.asn.au/news-media/the-australian-bar-association-calls-on-the-commonwealth-to-reconsider-the-prosecution-of-bernard-collaery

 

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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.
We are calling for a pardon for Witness K and compensation for the years of stress he has been put through. Here’s a recent article: Albert McNight, Witness K: redacted documents reveal the life of spy and whistleblower, The RiotACT, 11 July 2021.
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!
For justice and democracy
Kathryn Kelly
Co-Convenor of AAPP
__________________________________________________________________
Dear supporters of justice and democracy
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?
See the important articles by Ian Cunliffe here for more details on the bugging and helium and also on the CDPP’s prosecution policy.
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.
AG Michaelia Cash   08-9226 2000  or 6277 7300  Senator.Cash@aph.gov.au
FM Marise Payne  02-9687 8755 or 6277 7500  Senator.Payne@aph.gov.au
CDPP     (0)2 9321 1240      Sarah.McNaughton@cdpp.gov.au
Christian Porter was unfit to be AG and his legacy with his appalling judgement in approving these prosecutions, including that of David McBride, should not continue one minute longer.
Meanwhile we await the decision on Bernard’s appeal and David McBride’s public interest defence hearing on 20 September.
Don’t miss the MAPW Fundraising dinner, 6.30pm Fri 9 July at Ainslie FC with speaker, David McBride, tickets $75!  Flyer attached with further details.
For Justice and Democracy
Kathryn Kelly, Co-convenor of the Alliance Against Political Prosecutions
Thanks to Ian Melrose of OpticalSuperstores for funding the Canberra Times ad on Tuesday.
Thanks to Gilbert + Tobin, Bernard’s lawyers for their invaluable work.
 
Photos from Parliament House rally 17 June 2021, thanks to people who donned the bags!  Photos by, and thanks to, Leo Bild

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Dear All,

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.

https://www.youtube.com/watch?v=OWzKOWjlKgg

I’ll contact you again after the Witness K Hearing.

Best wishes to all

Susan

Timor Sea Justice Forum Facebook

Twitter:  https://twitter.com/TSJForum

Bernard Collaery – Go Fund Me

Petition: Drop the Prosecutions of Witness K and Bernard Collaery

Sister Susan Connelly

14 Yerrick Road

Lakemba NSW 2195

0498 473 341

www.justly.info

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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.

Here are two newspaper reports on the Webinar:

Guilty parties remain free in ‘chilling’ Witness K prosecution

Commonwealth prosecutors wrong on Witness K case, former NSW DPP says    

The ACT  Bar Association has sent out a superb media release: Time to Reconsider the Prosecution of Bernard Collaery

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.

https://www.abc.net.au/news/2019-08-26/brandis-had-misgivings-about-prosecuting-witness-k-and-collaery/11449758

End
1 April 2021

Media contact:

Andrew Muller
President ACT Bar Association

Joanne Dean-Ritchie
Executive Officer
0439 990 305

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Another Webinar to Come:

Trashing Democratic Rights in Australia – Discussion and Q&A with Bernard Collaery and Greg Barnes SC, online 6.30pm (AEST) Tuesday April 20th,  Register here.

____________________________________________________________________________________
By Kieran Pender

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.

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