This is a talk (on 27 February 2019 at Manning ClarkHouse, ANU )about some shameful events in Australia’s recent history.And I very much fear the shameful saga is about to continue.It is about Australian commercial espionage, bugging of the cabinet office of a friendly neighbour by an Australian intelligence agency, a raid by another Australian intelligence agency and fears of a secret trial.It is also about Australia’s failure to abide by a rules based-order, the rule of law.
And for good measure I will touch on some important constitutional principles, openness in judicial proceedings and freedom of political communications.
This is not the sort of thing I usually write or speak about. I am not an intelligence expert. I was asked to look into the issues by some very senior retired diplomats concerned about what was happening.
I wrote an article, Secret Trials, for John Menadue’s Pearls and Irritations. Some of you have read it.
The article drew widespread comment from retired judges, former ministers, even the Chancellor. I was told by a retired former intelligence officer that his contacts in the intelligence community were appalled by Australia’s conduct. The word they used was ‘outrageous’.
My article in Pearls and Irritations led to a talk at Manning Clark House with an overflow audience and this talk.Also an interview on the ABC Drive program last Monday,a request for another radio interview this afternoon even a request for an on camera interview for a film on Timor Leste
I should say something about sources.
I have no intelligence background. I have not had any access to any inside or secret information.
What I am about to say is drawn from public sources including the mainstream media, the Guardian, New Matilda . Crikey has a number of scathing articles. I draw also on some public talks including one given in the Law Theatre here in the College of Law.
When Australian read about secret trials in foreign countries we tend to content ourselves in the belief that in Australia we have an open court system and an independent judiciary. After all, freedom of speech, the rule of law and an open and independent court system are basic bulwarks of our democracy. Aren’t they? This brief talk challenges that comfortable assumption.
My Pearls and Irritations article referred carefully to foreign media reports that a prominent Australian public figure had been convicted in a Victorian court of sexual abuse offences. Now we know what that was about.
I will be talking about another criminal trial here in Canberra which appears to be shielded from public scrutiny.This trial involves the prosecution of another prominent public figure, Canberra lawyer and former ACT Attorney-General Bernard Collaery and a former ASIS agent identified only as witness K.
I don’t know who witness K is. The details of the charges have not been made public.They are widely understood to relate to disclosure of illegal bugging of the Timor Leste Cabinet,
It is now public knowledge that the bugging was carried out by an Australian intelligence agency, ASIS, on behalf of the Australian Government,
It was carried out during the course of negotiations between Australia and Timor Leste negotiations over allocation of oil and gas revenues in the area often referred to as the ‘Timor gap’.
It seems that during the whole of the period of negotiations leading to the CMATS treaty (Treaty Concerning Certain Maritime Arrangements in the Timor Sea) Australia had been intercepting the internal discussions of the Timorese Government.
It is understood that witness K, the ASIS operative apparently involved in the bugging operation, became concerned when the former Foreign Minister Alexander Downer and the former Departmental Secretary Ashton Calvert both subsequently obtained appointments with Woodside, the company which was thought to benefit financially by the bugging operations.
Witness K apparently complained to the Inspector-General of Intelligence and Security about the legality of the bugging operation.
With official approval (and that is important) K briefed Canberra lawyer Bernard Collaery. I emphasise that Witness K had official approval to brief Collaery.
Australia can hardly be proud of its conduct of the Timor Leste boundary negotiations.
International lawyers will remember that when it was thought the Timor Leste Government would seek to have the boundary issue resolved by the International Court of Justice, Australia withdrew from the jurisdiction of the Court in relation to maritime boundary matters. (2002)
Now the International Court of Justice is the normal channel for the resolution of international boundary disputes,
But Australia withdrew from the jurisdiction of the Court.
Yet Australian foreign ministers continues to assert that we support a rules based international order.
Some of you may remember the former Australian foreign minister’s criticism of China for undermining the rules-based order when China wouldn’t accept the Permanent Court of Arbitration’s ruling in its South China Sea dispute with the Philippines.
Australia’s support of a rules based order seems to depend on whether the rules suit us.
Timor Leste then used the commercial arbitration provisions of the 2002 Timor Sea Treaty to take the dispute to the Permanent Court of Arbitration in the Hague. They wanted declaration that the 2006 CMATS treaty was invalid for fraud.
What was the fraud?
The illegal bugging operation.
Every lawyer is aware of the principle of good faith which underlies contract negotiations.
The very same principle applies to treaty negotiations.
Under the Vienna Convention on the Law of Treaties, fraud is a basis for invalidating a treaty (article 49).
Timor Leste was alleging lack of good faith, alleging fraud.
But Australia tried to stop the arbitration process by disputing jurisdiction.
The objection to jurisdiction failed.
Apparently Australia was determined to do whatever it takes to thwart fair resolution of the boundary dispute.
Whatever it takes included
- withdrawal of maritime boundary matters from the jurisdiction of the International Court of Justice
- and disputing the jurisdiction of the Permanent Court of Arbitration.
- It included also ASIS bugging the cabinet room of the other side, the Government of Timor Leste.
Australia’s neighbour, Timor Leste is a tiny country with few resources other than access to the oil and gas revenues. Many Australians treasure fond memories of support from the people of East Timor (as it then was) for Australian forces in the Second World War. Australians were also concerned about the violence that followed the Indonesian takeover of East Timor.
Some see former Foreign Minister Downer as having ‘form’: he was criticised for apparently suppressing reports of the violence in Dilli.
Australia lead a major UN peacekeeping operation after the people of East Timor voted for independence. We see Timor Leste as a small friendly neighbour deserving our support. Timor Leste is hardly a match for its giant resource rich Australian neighbour. Yet Australia apparently thought it right to spy on the Timor Leste cabinet to ascertain their negotiating position.
A lot of Canberra people are interested in personalities. The Director-General of ASIS at the time of the bugging operation was David Irvine. Many of you will know those who were in the Australian negotiating team.
The shameful conduct didn’t stop.
On the eve of the arbitral tribunal hearing in the Hague, witness K’s passport was seized.
Witness K was apparently scheduled to give evidence about the bugging operation to the Tribunal in the Hague.
Australia prevented witness K from travelling to the Hague to give damning evidence against it.
I understand from senior retired diplomats concerned about the personal injustice to K that he still wasn’t got his passport back. He can’t travel.
The shameful conduct continues.
Later on 3 December 2013, another Australian intelligence agency, ASIO, raided the offices of the lawyer acting for Timor Leste in the boundary negotiations, Bernard Collaery.
ASIO seized vast numbers of documents including Collaery’s legal advice to the Government of Timor Leste and documents relating to Timor Leste’s strategy for the arbitration. Collaery himself was in the Hague ready for a hearing the next day.
According to a speech Collaery gave in our Law Theatre on 11 June 2015, ASIO officers took the mobile phone of the sole staff member present. They refused to give her a copy of the search warrant. They seized a lap top and vast numbers of documents including Collaery’s legal advice to the Government of Timor Leste.
Think about it.
Yes the Australian domestic intelligence agency raided the solicitor for the other side, and seized the other side’s brief.
The head of ASIO was David Irvine.
Can you believe it?
Australia’s foreign intelligence agency ASIS bugs the cabinet office of the other side in an international negotiation.
Then Australia seizes a passport to stop a witness giving evidence about the bugging operation.
Then Australia uses its intelligence agency ASIO to raid the offices of the lawyer for the other side in an important international negotiation.
A number of those who contacted me after my Pearls and Irritations article asked me what the legal profession is doing about it.
Has the ACT Law Society protested?
Has the Law Council protested?
So far as I am aware, no
But not all lawyers are silent. The Australian Lawyers Alliance has awarded Mr Collaery its 2018 Civil Justice Award.
The President referred to Mr Collaery’s great courage and integrity representing East Timor and Witness K.
She also said he has been denied the right to make public comment on the administration of justice in relation to his case.
If that is so it is an outrage. It may also be unconstitutional. I will come to the constitutional issues later.
Timor Leste didn’t take the raid lying down. They made an application to the International Court of Justice alleging the documents were the property of Timor Leste, they were held on behalf of Timor Leste, they were documents which Timor Leste had the right to protect under international law. Timor Leste alleged seizure of its property was a violation of international law.
They were also the subject of legal professional privilege.
Australia’s initial response was quite extraordinary. Australia contended that Timor Leste should have commenced proceedings in an Australian court. So Timor Leste as a sovereign state should place itself in the hands of an Australian court to vindicate its claim of sovereign rights to the inviolability of State documents.
The suggestion that a state must subject itself to domestic state processes to uphold its rights under international law is bordering on the absurd.
I add that since I retired the Austalian authorities seem to have developed a unique approach to the availability of international remedies for alleged breaches of international legal obligations.
Some years ago I took a case on behalf of an Aboriginal man to the UN’s Racial Discrimination Committee. I had argued the case in the Federal Court and the High Court and lost. We knew we would lose because the Australian legislation did not effectively implement the Racial Discrimination Convention. But we had to go through the Australian courts because of the exhaustion of local remedies rule.
When we petitioned the Racial Discrimination Committee alleging Australia was in breach of the Convention, the Government’s response was that we couldn’t petition the Committee because Australian courts had already held against us. Of course the legal issue was now different. We had failed to establish breach of the Australian legislation. Now in the international Committee we were alleging breach of Australia’s obligations under the Convention. The Government’s attempt to turn the exhaustion of local remedies rule on its head failed and we were successful in the international committee.
Coming back to Timor Leste, they was successful in obtaining orders for the return of the seized documents.
Many of you will have seen ABC TV footage of the ICJ hearing in particular Eli Lauterpacht’s stinging comments about Australia’s actions. He recalled his time as legal adviser to Foreign Affairs, 1975-1977, and described Australia’s conduct as falling far short of the high standards that then prevailed.
Some of you may have attended the address in the Law Theatre here in June 2105 where it was alleged that Australian counsel before the ICJ seriously breached bar rules.
I worked closely with Lauterpacht in the period when he was legal adviser and can confirm that in those days we did seek to observe the highest standards.
Some of you will be aware that in other contexts I also have expressed regret at decline in standards. I have done so publicly on a number of occasions in evidence to parliamentary committees.
And so far as we know the bugging operation has nothing to do with national security.
Timor Leste is not some kind of adversary posing a threat to Australian security.
No-one in their wildest dreams would suggest that the Timor Leste cabinet was planning to invade Australia
Bernard Keane in Crikey describes it as commercial espionage.
So far as observers can ascertain, it seems it was all about securing commercial benefit for Woodside. That is what the diplomats say.
Of course this is not the first occasion when our intelligence agencies have run amok. The official histories of ASIO especially the first volume are full of stories of illegal break-ins and illegal bugging.
Some will remember the infamous Sheraton Hotel incident when (in 1983) an ASIS operation went badly wrong.
ASIS, at that time a secret organization whose existence was not publicly known, had seriously bungled an exercise, apparently a mock rescue of a hypothetical foreign defector from a room in the Sheraton Hotel.
The exercise was so secret, ASIS had not even informed hotel staff. ASIS operatives broke down the hotel door with sledge hammers. A hotel staff member who investigated complaints about noise was bundled into a lift and surrounded by ASIS operatives carrying pistols and machine guns. ASIS operatives escaped from the hotel through a kitchen into waiting cars but when stopped by police they refused to provide identification.
At that time ASIS had been established administratively as an intelligence and counter terrorism organization but there was no statutory support.
It fell to me as a senior public servant to prepare legal advice on the incident for the Prime Minister.
I won’t go into the detail of the advice I prepared but it would be obvious to any lawyer that the legal issues were straightforward.
ASIS (and ASIS staff) had no immunity from the ordinary law.
Activities such as breaking down a hotel room door, carrying high powered weapons and breach of ordinary traffic laws could all constitute offences.
What amused me was that as I dictated my advice those instructing me kept on insisting that I must not mention the name of the organization, ASIS, as its very existence was supposed to be secret. My protestations that details of the incident including identification of ASIS had been published on the front page of the National Times were of no avail. Inappropriate secrecy about improper intelligence activities continues.
One may well ask why, some years after the illegal Timor Leste bugging operation, Government has chosen to proceed with prosecution of Collaery and witness K for disclosure.
One might have thought that the Government would be so embarrassed by the activities of its intelligence agencies that it would prefer to have everything quietly forgotten.
But the prosecution proceeds.
And as we can see from the seizure of documents from lawyer Collaery’s legal office, the matter is hardly being pursued in accordance with the highest professional standards.
So how are the proceedings going?
Many Canberrans have sought, unsuccessfully to follow the proceedings.
My own interest arises in part out of my participation as the legal member of the Australian delegation in several rounds of Timor Gap boundary negotiations between Australia and Indonesia, conducted in both Canberra and Djakarta. I have a longstanding interest in the legal issues. I add that in those days we didn’t snoop on the other side.
After my talk at Manning Clark House some asked me doesn’t everyone spy on the other side. Well in my long public service career I led many delegations to diplomatic conferences and participated in many bilateral negotiations, some on highly sensitive matters.
On no occasion was there any hint of intelligence obtained by spying on the other side.
I also have a long standing interest in freedom of information and the importance of openness of court proceedings. I have written and lectured about them.
When it became know that the prosecution of Collaery and Witness K was to be dealt with in the ACT Magistrate’s Court on 12 September 2018 I sought to find out where and when the matter was to be heard.
The Magistrate’s Court publishes, on line, a list of all matters to be heard including the date.
Well I thought it was a list of all matters.
But I was mistaken.
The Collaery and Witness K matter did not appear on the Court’s list.
So the day before the expected hearing, 11 September, I telephoned the Court, I asked about the time and location of the hearing and whether it would be open to the public.
The response from the court clerk who took the call was that no information could be provided.
No information at all.
My protestations that surely I could be provided with basic information such as the time and place of the hearing and whether it would be open to the public were of no avail.
Frustrated, I wrote to the Court, repeating my request and drawing to attention that openness in judicial proceedings is an important constitutional principle well established in English and Australian law.
I also wrote to the ACT Attorney-General drawing his attention to the important constitutional principle that courts are open (in the ACT, court staff are departmental officers, ultimately under the control of the Attorney-General, the ACT has never adopted the reforms adopted at Commonwealth level, transferring administrative responsibility for court staff from the executive government to the relevant Chief Justice).
Several months and despite a reminder I have not received a response from the Attorney-General.
Eventually I did receive a response from the Court, the matter would be heard at 4.15pm on 12 September. The relevant information was eventually obtained.
Nevertheless one may reasonably ask
-why was this matter not included in the court’s daily list of matters and
-why did the court clerk initially reply that no information could be provided.
Was the court seeking to shield this matter from public scrutiny at a time when the court had not made any relevant non disclosure orders?
I and many others attended.
In fact the courtroom was full, with many standing in the aisles.
As is common for directions hearings, the proceedings were brief. Counsel handed up draft orders to be made by consent and the presiding magistrate signed them.
The magistrate did not read out the orders.
I repeat the magistrate did not read out the orders.
I do not know whether it is practice in the magistrates court to read out consent orders
My appearances have been in the High Court and other appellate courts, I have never appeared in a magistrates court.
But having regard to the obvious public interest and the packed public galleries reading out the orders would have done much to assuage public concern over the perceived secrecy of the hearing arrangements.
I gather there was another hearing in November.
Again the matter did not appear in the Court’s list. According to one report, journalists and even counsel were scurring around trying to find where the hearing would be.
So what next? The media reported the prosecution served its brief of evidence on the defence on 21 December 2018.
Yes 21 December.
That was the Friday before Christmas.
Apparently it was served in the evening, after the solicitors had closed for the usual Christmas-new year shut down.
I understand the time for responding was 7 days. And this was months after the charges. (May)
The Commonwealth claims to be a model litigant. Judge for yourselves.
Collaery is a well known Canberra litigation lawyer.
He did have a substantial criminal practice.
For obvious reasons he cannot appear as counsel in a jury trial when he is himself facing criminal proceedings. I assume he has lost his ability to practice. Some would see the way these proceedings are being dragged out as oppressive. Perhaps deliberately oppressive.
I have an email from the court that the next hearing day is to-morrow and no closure order has been made.
As of mid morning to-day it is not in the Court’s daily list.
One may reasonably ask, is the the Court itself is seeking to shield the matter from public scrutiny even before any suppression order has been made.
I come to the important public law issues
Can the hearing proceed in secret?
The prosecution has a substantial hurdle if that is its preferred course.
The principle that judicial proceedings are open to the public is well established.
I have had a longstanding interest in the importance openness in judicial proceedings
Some of you may have read my influential article Are Our Courts Truly Open published in the Public Law Review some years ago.
My first chapter in Professor Rubenstein’s latest book, The Court as Archive also deals with some of the issues (now available for free download from ANU Press).
Justice Alan Robertson in his address yesterday evening said the importance of openness in judicial proceedings was not sufficiently appreciated.
Justice Robertson referred to the House of Lords decision in Scott v Scott.
We also have High Court authority.
Some will remember the endeavours of that great reforming Attorney-General Lionel Murphy, to provide for family law disputes to be determined in a dignified, quiet, manner away from public scrutiny. Murphy’s objective was to stop the daily lurid publication in the tabloid press of the previous day’s divorce proceedings. Notwithstanding the obvious social policy objectives in support of family matters being resolved in private, in Russell v Russell the High Court ruled that the provision was unconstitutional. ‘The fact that courts of law are held openly and not in secret is an essential aspect of their character’.
Openness of judicial proceedings is not some abstract legal principle.
It is fundamental to the rule of law.
It is the hallmark of our judicial system.
Open hearings are fundamental to accountability. This is especially so in proceedings where the government or a government agency is a party. It is especially so where wrongdoing on the part of government or a government agency may be in issue.
Litigation, civil and criminal, between the state and its citizens, must be open to public scrutiny.
The rule of law, the national interest and public confidence in our judicial system require no less.
As one eminent High Court Justice has written, the maintenance of public confidence in the independence and impartiality of the judiciary is diminished if the judiciary is involved in secret procedures.
Only a couple of weeks ago the Chief Justice of New South Wales in his address to the Opening of the Law term Dinner said that to facilitate scrutiny courts must operate as transparently as possible. In that way they become accountable to the public.
It is not just an Australian principle.
Article 14 of the International Covenant on Civil and Political Rights, to which Australia is a party, establishes an entitlement to a ‘fair and public hearing by an independent and impartial tribunal established by law’.
By exposing the judicial process to public scrutiny, courts are publicly accountable. Openness is a prerequisite for public confidence in the integrity of the judicial system.
So how could the proceedings be in secret?
Commonwealth legislation enables the Attorney-General to issue a certificate to protect national security (defined to include defence, security and international relations interest).
(There is a series of provisions relating to documents, evidence, witnesses and so on)
The court may then make orders to in effect close the court and restrict access to evidence.
The court is not bound by the Attorney-General’s certificate.
It must give weight to a number of factors including whether an order would have a substantial adverse effect on the defendant’s right to a fair hearing.
Critically, the court must give greatest weight to the risk of prejudice national security.
Curiously, in my view, the public interest in open justice is not identified as one of the criteria.
There seems to be an assumption that the Attorney-General has issued or will issue a certificate, although I haven’t been able to find any public announcement. Those who have followed Attorney-General Chrisitian Porter’s recent activities will have little confidence that this Attorney-General will agree to the proceedings going ahead in public.
Could an Attorney-General’s certificate withstand challenge?
Think of the criteria for the issue of a certificate .
First, to protect Defence interests ?
Presumably Australia’s defence interests are not relevant.
Next, Foreign relations interests?
The bugging operation itself has undoubtedly damaged relations with Timor Leste.
But the bugging operation is already in the public domain. It has been the subject of proceedings in an international tribunal.
So disclosure of the fact of the bugging operation in these proceedings could scarcely justify and Attorney-General’s certificate.
What about national security?
It has been publicly contended that the bugging
-was illegal (paper by former NSW DPP, Cowdroy)
-had nothing to do with national security,
-nothing to do with any foreign relations issue,
-it was all about advancing corporate interests. (Collaery in address to NT Law Society).
What may not be in the public domain and what may be prejudicial to security interests is how the bugging operation was carried out.
Who did it?
What techniques did they use.
That suggests any certificate and any court order should be narrowly confined.
The legislation makes further provisions relating to legal representatives. Legal representatives who have not been security cleared may not have access to security information in the prosecution case. Security clearances can take months, perhaps years. I do not know whether members of the defence legal team have sought or obtained security clearances. I think it unlikely.
If Collaery and Witness K were to challenge any Attorney-General’s certificate and any consequential orders to close the court the outcome could be interesting.
And what about the validity of the prosecution itself?
In my view, and I emphasise this is a personal view, I have no knowledge of the defence plans, the defence may be able to mount a challenge that disclosure of the bugging operation is protected by a very important constitutional principle, the constitutional principle of freedom of political communication.
Let’s reflect on what this prosecution is about.
The alleged disclosure apparently relates to
-an unlawful bugging operation
-undertaken by an Australian public authority(authority)
-apparently undertaken advance the commercial interests of Woodside.
It is disclosure of commercial espionage.
And others have analysed that the bugging operation was outside the statutory functions of ASIS (Cowdroy) -that is why I refer to it as illegal.
We now know that Australian holders of public office at the time of the operation were subsequently employed by Woodside.
We also know that it was News Corporation which first disclosed the bugging operation
Legislation that would purport to prohibit disclosure
-in the public interest
-of illegal activities on the part of Australian authorities
—apparently conducted to benefit a large business corporation
-may impermissibly burden the freedom of political communication and be unconstitutional.
The starting point for applying the tests established by the High Court for constitutional validity is whether the legislation burdens political communication.
The answer is obviously yes.
One must then consider whether the burden on the implied freedom is justified, whether it is compatible with our system of responsible government.
There may well be circumstances where secrecy concerning the activities of intelligence agencies is in the national interest.
But secrecy cannot be absolute.
Secrecy must not be allowed to protect wrongdoing.
There is obviously enormous public interest in knowing about improper activities undertaken by Australian authorities to advance commercial interests.
Surely citizens should not be at risk of criminal prosecution for exposing improper conduct on the part of security agencies.
So I think there is a case for challenging the constitutional validity of the prosecution.
Any constitutional challenge to this prosecution would need to be mounted in the High Court. Given the attitude of the Commonwealth so far, it is hardly likely that the Commonwealth would provide any legal assistance.
The defence may not have the financial resources to pursue a High Court challenge. But personal liberty is at stake. The offence carries a substantial jail term. Every available defence should be pursued.
In conclusion I ask:
- Will Australians be able to find out when and where these proceedings will be heard?
- How much of these proceedings, if any will be open to the public?
- Will be we able to hear evidence of illegal bugging operations?
- Will we hear evidence of the circumstances in which the bugging was disclosed and why?
- Will the case for a closed court be argued in public or in secret?
- Will the very basis of the prosecution be challenged? Interesting days lie ahead.
- Public confidence in our judicial system is at stake.
A presentation by Ernst Willheim at Manning Clark House, ANU on 27 February 2019
On 30 May Ernst Willheim commented further ‘One might have expected that in view of the concerns previously raised with the Court and the Attorney General,court staff would make a special effort to ensure the public would be properly informed of the hearing. Far from it. Counsel for one of the defendants actually raised his concerns with the Court. Counsel drew to attention that once again the matter had not appeared in the Court lists,nor was it on the public board downstairs and the Court had a closed Court sign lit on the entry to the Court.What inference should one draw?…John Menadue