This is a transcript of a presentation given by President Pauline Wright at a Centre for Public Integrity webinar.

There are a number of civil liberty and rule of law concerns raised by the prosecutions of Witness K and Bernard Collaery including:

• Freedom of speech in the public interest
• Open justice 
• Abuse of the notion of ‘national security’
• The rule of law – everyone is equal before the law and no-one is above the law
• Independence of the legal profession

Freedom of speech in the public interest

As we’ve heard, both Witness K and Bernard Collaery have been charged under s 39 of the Intelligence Services Act 2001, which deems it a criminal offence for a person to communicate any information that was prepared by the Australian Secret Intelligence Service in pursuit of its functions.

Here we have two people who told the truth, in the public interest, about Australia’s deplorable (and probably illegal) bugging of a friendly nation for commercial gain. Instead of the perpetrators of the initial wrongdoing, it is the individuals who exposed it who are being prosecuted. Witness K has been convicted and given a 3-month suspended sentence and a 12-month good behaviour bond while Bernard Collaery – a highly-regarded member of the legal profession who has been supported throughout this ordeal by the Law Council of Australia – potentially faces 2 years gaol. 

A law that prohibits the disclosure of an illegal act by a public authority may infringe the freedom of political communication which is implied into our Constitution. If these cases go to the High Court, it will be interesting to see whether the High Court will have anything to say about that.

NSW Council for Civil Liberties calls for a public interest defence to s39 charges where a person is disclosing information, even pertaining to national security, where that disclosure is in the public interest and especially where an apparently illegal act is being disclosed.

Open justice

Meanwhile, the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) requires these kinds of cases to be conducted behind closed doors in some circumstances. That offends the principles of open justice. It is a basic rule of the common law and a fundamental attribute of a fair trial that the administration of justice should not take place behind closed doors but must take place in an open court.

If Bernard Collaery is convicted in a closed court, where not only members of the public, but also his lawyers and the jury, are denied access to substantial parts of the evidence, then public confidence in the administration of justice will take a beating. As Richard Ackland put it “confidence is already a delicate flower. Judges and courts only have authority and community acceptance if justice is seen to be done, if reasons are explained openly and if fairness is the guiding principle.” 

And he is right. Public faith in the administration of justice requires that justice must not only be done but it must also be seen to be done. Secrecy or suppression can only ever be appropriate in carefully considered, exceptional cases. The avoidance of political embarrassment is not sufficient justification to warrant secrecy. To date, the government has given no adequate evidence of any credible threat to Australia’s national security if the cases were heard openly. 

Indeed, the ACT Court of Appeal in its October decision in the Collaery case found that while there was some risk to national security by the disclosure of information, the risk was unlikely to materialise. On the other hand, it found that “there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed."

The Australian public, if not the world public, is already aware that Australian spies are alleged to have bugged the offices of the government of Timor Leste, probably contrary to international law, in order to gain the upper hand over this relatively powerless, impoverished and friendly nation, in negotiating a lucrative oil and gas deal for commercial advantage. There has been no indication of any truly significant national security issue to be served here, other than the present Coalition government wishing to cover the Howard-era Coalition government’s tracks. 

It’s been said that if the government doesn’t want to be embarrassed about its activities, it ought not do embarrassing things!

Background 

In 2013, Timor-Leste made a complaint about the Australian surveillance operation – and the legal and commercial disadvantage it had suffered – to the Permanent Court of Arbitration in The Hague. It briefed Bernard Collaery to represent its interests and Witness K was invited to give evidence.

As he has said previously, he interviewed Witness K in the usual way, in the way that he has for his career spanning almost half a century. If interviewing a witness or client in this way for the purpose of giving lawful advice was conspiracy, it means he and many other lawyers are guilty of conspiracy for merely doing their jobs if they might receive information from privileged sources. 

The then Australian Attorney-General, George Brandis, however, ordered the confiscation of Witness K’s passport to prevent him giving evidence to the court; ASIO raids on the homes and offices of both K and Collaery followed.

The raid on Bernard Collaery’s premises yielded a copy of the full affidavit he had drafted summarising the case Timor-Leste was to present to the court. From a legal perspective, these raids were scandalous. One party abusing its executive power to obtain the upper hand in international legal proceedings. 

Brandis then indicated that Witness K and Bernard might may be prosecuted for breaches of the Intelligence Services Act but he declined to take that action. Nothing happened until 2018, when the then new Attorney-General Christian Porter decided the prosecutions should proceed – and should proceed shrouded in secrecy, invoking the provisions of the NSI Act. 

The rest, as they say, is history. Witness K decided to plead guilty, but Bernard decided to contest the charge.

There was a glimmer of hope after Michaelia Cash replaced Christian Porter as Attorney-General and her lawyers indicated in February 2021 in the Witness K case that it was not their aim to “devise a regime that would see the court automatically closed whenever sensitive information was likely to be discussed”, saying that “the Commonwealth wanted to keep proceedings as open as possible”.

But there has been no sign of a new more open approach in Bernard Collaery’s case, including at the hearing in May 2021. The Federal Government has had to be forced kicking and screaming to hold even partially open proceedings, due to the Court of Appeal decision upholding Bernard’s appeal against the non-disclosure orders made by Mossop J on 26 June 2020 on the application of former AG Christian Porter. 

It was a great relief to see Bernard winning his bid to overturn that ruling, which would have seen most of his trial shrouded in secrecy. The ACT Court of Appeal reaffirmed the importance of open justice in the deterrence of political prosecutions, allowing the public to scrutinise the actions of prosecutors, and permitting the public to properly assess the conduct of the accused person.¹

The matter will now be remitted back to the primary judge to consider the admissibility and effect of further affidavits from the Commonwealth AG, which have yet to be disclosed to Bernard’s legal team. The ruling means that, subject to any impact that these affidavits may have, there may be public disclosure of information relating to the truth of the matters identified by Bernard’s team as not requiring secrecy (Identified Matters). And there’s the rub. Depending on the primary judge’s consideration of the impact of these as yet unseen affidavits, the Identified Matters may still not be able to be disclosed. If he considers that what is in the affidavits means that disclosure of the Identified Matters will have an unacceptable impact on national security, then Bernard will be back to square one and the trial will remain secret.

Abuse of the notion of national security

This brings us to the notion of national security and how our current crop of politicians in Federal government are misusing it to suit their political agenda. Bernard Collaery and Witness K are just two of many being persecuted under some of the most draconian "anti-terrorist" security laws in the world passed in Australia post 9/1l with the support of both the Coalition and Labor. 

The misuse of anti-terrorism laws against the Friendly Jordies to deal with unwelcome journalistic probing and cynically labelling National Cabinet discussions as ‘cabinet in confidence’ to avoid scrutiny are examples of the pattern of suppressing transparency in government activities that have become common.

‘National security’ should be about our safety as a people and protecting Australians from threats such as terrorism. This notion should not be used as a means of saving face when bad behaviour by our government for commercial gain comes to light.

The bugging of Timor Leste has been dubbed ‘Australia’s Watergate’, and raises questions about how nations use spies to further their commercial interests. The misconduct complained of arose from a culture motivated entirely by commercial interests unrelated and arguably contrary to Australia’s national security interests.³  

It has been reported³ that Australia’s military have been angered or surprised by the spying operation. Admiral Chris Barrie, former chief of the Australian Defence Force who planned, directed, and commanded the operation to secure Timor Leste after widespread militia-led violence, was surprised by the decision to plant surveillance devices in their cabinet rooms, saying "It's a bit extraordinary isn't it? On one hand you conduct a security operation to establish a new country in this part of the world and then a few years later you're up to these sorts of shenanigans." 

Retired Major-General Peter Phillips, former national president of the RSL said, “In terms of bugging the Timor cabinet office, I thought that was way beyond what we would expect of our intelligence services. I can’t, still can’t see what it has to do with national security”. 

And Peter Galbraith, former American diplomat and lead negotiator for East Timor during treaty talks with Australia observed: “… what is clear is Australia was not doing this for national security reasons, it was doing it for its commercial interests, to help the oil companies and to secure additional revenue for the Treasury”. 

Under the laws applying to Australia, there is nothing that permits our government to take actions that are contrary to Australian law or the law of another country. This is consistent with the rule of law.

It is likely that ASIS was committing a criminal trespass in a friendly nation and regional ally, Timor Leste, when it bugged their cabinet meetings – which are by law secret as in every other democracy. And in raiding Bernard Collaery’s office and seizing documents, ASIO were in fact confiscating documents belonging to another nation, contrary to international law. The UN Convention on the Jurisdictional Immunity of States explicitly provides that nations and their property are immune from the domestic jurisdiction of other countries. By confiscating Bernard Collaery’s legal advice to the Timor-Leste government, Australia violated this principle quite apart from egregiously breaching the principle of legal professional privilege. 

This cannot be in Australia’s long term national interest – whether in terms of security or commerce. We will not be considered a trustworthy nation to deal with if we are prepared to engage in secret surveillance of friendly nations for no other reason than to gain commercial advantage. This reputation of being an untrustworthy nation can only be exacerbated when our government, without notice, tears up trillion-dollar contracts with allied nations as we have seen more recently with France. 

The rule of law – everyone is equal before the law and no one is above the law

Australia’s once proud reputation as a standard bearer for the rule of law and civil rights and freedoms has suffered some serious blows in the past 20 years – our treatment of people seeking asylum on Australian shores, and the appalling justice gap for First Nations peoples being notable. And these prosecutions have not gone unnoticed. If our nation wishes to be heard internationally on human rights breaches in our region or further afield, we must regain and then maintain our reputation as a good international citizen. 

That everyone is equal before the law and no one is above the law is fundamental to the rule of law. It’s arguable that those who authorised the bugging of Timor Leste committed the common law crime of conspiracy to defraud. 

The then Attorney-General’s exercise of discretion to prosecute ought to have gone in their favour given the public interest in exposing wrongdoing. But Witness K and Bernard Collaery are facing criminal proceedings, while those who authorised, and those who benefited from, the covert surveillance remain untouched – above the law. 

Independence of the legal profession

A free and independent legal profession is essential to the operation of the rule of law. People must be able to prosecute their rights and defend themselves in a fair trial. 

Attacks by the state on individual lawyers doing their jobs is a dangerous threat to that fundamental tenet. If lawyers are prosecuted when they act for clients who have offended the government of the day, then an important means of holding government to account is lost.

The principles of legal professional privilege provide that communications between a lawyer and client are confidential. This is fundamental to the proper operation of the justice system in a liberal democracy – people must be able to speak frankly and fearlessly to their legal representatives. Yet George Brandis, former Federal Attorney-General has said “no lawyer can invoke the principles of lawyer-client privilege to excuse participation, whether as principal or accessory, in offences against the Commonwealth”⁴.

At present the NSI Act is tilted too far in favour of national security and against the rights of accused people. The legal profession, including the Law Council, has advocated for law reform, including a public interest defence, and the appointment of “contradictors”, or special advocates, who speak on behalf of any party forced to leave a courtroom before confidential material is canvassed.

If the government acted illegally, then disclosing information for the sole purpose of exposing that illegality should not be prohibited by Section 39 of the Intelligence Services Act. There is an urgent need for a public interest defence here, allowing an accused person to argue that disclosure of the confidential information was in the public interest, and for that reason it was not against the law.

Reform is needed to recalibrate the balance between the requirements of open justice and protecting the community in terms of national security.

1. Collaery v The Queen (No 2) [2021] ACTCA 28 https://www.courts.act.gov.au/__data/assets/pdf_file/0004/1870627/Collaery-v-The-Queen-Judgment-Summary.pdf
2. Peter Boyle, ‘The real threat to free speech’ Green Left Weekly (Web Page, 8 August 2019) https://www.greenleft.org.au/content/real-threat-free-speech
3. Steve Cannane, Sashka Koloff and Brigid Andersen, ‘Top Lawyer says Australia has criminal case to answer over East Timor spying scandal’ ABC News Lateline (Web Page, 26 November 2015) https://www.abc.net.au/news/2015-11-26/australia-has-case-to-answer-over-east-timor-spying-cowdery/6973920
4. Spencer Zifcaf, ‘Why Bernard Collaery’s case is one of the gravest threats to freedom of expression’ The Conversation (Web Page, 3 July 2020) https://theconversation.com/why-bernard-collaerys-case-is-one-of-the-gravest-threats-to-freedom-of-expression-122463