ERNST WILLHEIM. The saga of Bernard Collaery and Witness K continues.Aug 28, 2019
If you watched the program [ABC 4-Corners] you will already know this is a talk 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. [SPEAKING NOTES, ADDRESS TO AUSTRALIAN INSTITUTE OF INTERNATIONAL AFFAIRS. CANBERRA. 27 August 2019]
Did everyone watch Four Corners last night [Monday 27 August 2019]?
Let may make a comment about the timing of this talk.
Discussions with the Institute began in April. I was hoping to speak in May.
For various reasons no date could be fixed till July.
The arrangements for tonight were finalised and this talk was prepared, well before last night’s 4 Corners program.
In fact I was interviewed by the 4 Corners team. That was back in May.They also had a draft of this talk.
Having watched the program I haven’t had to change anything. I have added a couple of comments.
If you watched the program you will already know this is a talk 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,
-Using Australia’s overseas intelligence agency ASIS to place listening devices in the walls of the cabinet office of Australia’s neighbour, Timor Leste, in the course of bilateral treaty negotiations
-seizing the passport of a witness to prevent the witness giving damning evidence against Australia in an international arbitration
-using Australia’s domestic intelligence agency ASIO to raid the offices of the solicitor acting for Timor Leste and seize the Timor Leste brief
-and now there is every indication of a secret trial
It is also about Australia’s unwillingness to accept a rules based order, by
-withdrawing from the jurisdiction of the International Court of Justice
-obstructing international arbitration proceedings
-objecting to compulsory conciliation proceedings.
And for good measure I will touch on some important constitutional principles,
-the fundamental importance of openness in judicial proceedings and
-and the constitutional principle of 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 for John Menadue’s Pearls and Irritations. Some of you may have read it.
That article drew widespread comment including from retired judges and from former ministers.
I was told by a retired former intelligence officer who read that article that his contacts in the intelligence community were appalled by Australia’s conduct. The word they used was ‘outrageous’.
Another concern in the intelligence agencies was the diversion of resources from terrorism problems following terrorist attacks in Indonesia.
My article in Pearls and Irritations also led to talks at Manning Clark House and ANU, an interview on the ABC Drive program and a lengthy interview for a radio program in Timor Leste.
As I have said I was also interviewed at length by the 4 Corners team. The team actually made a special trip to Canberra to interview me. The producer later decided to include retired judges instead.
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 a wide range of public sources including
-the mainstream media,
-several ABC programs,
-the Canberra Times,
-and Crikey which has had a number of scathing articles.
-also Hansard (Andre Wilkie, Adam Bandt, Senator Rex Patrick, Senator McKim, Senator Di Natale)..
I draw also on some public talks.
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.
In the second part of this talk, I will be talking about a criminal trial here in Canberra which appears to be shielded from public scrutiny.
This trial involves the prosecution of a 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.
These prosecutions first became public knowledge when they were disclosed in Parliament by Andrew Wilkie.
The details of the charges are widely understood to involve an alleged conspiracy to breach s 39 of the Intelligence Services Act, in effect a conspiracy to reveal the illegal bugging of the Timor Leste Cabinet.
Interestingly, Collaery and K are not charged with an actual breach, but a conspiracy to breach. Apparently this turns on K’s affidavit for the arbitration in the Hague. More about that shortly.
It is now public knowledge that the bugging of the Timor Leste cabinet room was carried out by an Australian intelligence agency, ASIS, on behalf of the Australian Government,
It was carried out in 2004 during the course of negotiations between Australia and Timor Leste, negotiations for a treaty concerning allocation of oil and gas revenues in the area often referred to as the ‘Timor gap’.
It was carried out by ASIS operators under the cover of an aid program.
What was the aid program?- refurbishing the Timor Leste government offices.
Think about that, Australia uses an aid program, to refurbish government offices, to steal Timor Leste’s secrets, to disadvantage Timor Leste financially.
As Timor Leste’s former President Jose Ramos Horta put it on ABC radio on Sunday it was like stealing money from a child. On 4 Corners, Horta said it was one of the saddest episodes in the bilateral relationship.
According to earlier ABC news reports including an interview on the ABC’s Lateline program (Peter Galbraith), and the 4 Corners program, during the course of the treaty negotiations Timor Leste’s Cabinet discussions were beamed to a listening post and transcripts of those Cabinet discussions were being hand delivered to the Australian negotiating team.
So, as former Timor Leste President and lead negotiator Xanana Gusmao recently put it, the Australian negotiators knew Timor Leste’s bottom line. Former Prime Minister and President Jose Ramos Horta said Australia had real time access to Timor Leste’s bottom line.
Now I have been involved in numerous international negotiations, multilateral and bilateral. Many people here would have played a role in international negotiations. How can one negotiate in good faith, how can you look you counterparts in the eye, when your security services have already revealed the bottom line of the other side.
Some may ask, Doesn’t everyone undertake spying?
It may be that interception of emails and phone conversations is now normal. I don’t know.
I do understand that physically bugging the cabinet office of the other side during international negotiations goes way beyond normal accepted intelligence operations.
I can say from my own experience in numerous international negotiations, multilateral and bilateral, some highly sensitive negotiations, that of course we always sought to understand the other side, that is essential in any negotiation, but we were never, ever, briefed with this sort of intelligence.
Have things changed since I retired?
Or is this a one off?
Canberra people are always interested in personalities.
It is a matter of public record that the head of ASIS at the time of the bugging operation was David Irvine. The senior legal adviser to the Department of Foreign Affairs was Chris Moraitis. Moraitis was a member of the Australian negotiating team in Dilli.
Of course I have no knowledge of their personal involvement in the bugging operation. I pass on what is on the public record.
It has been reported 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.
It has also been reported that many in the intelligence community were concerned that, at a time when the perceived intelligence priority was terrorism in Indonesia after the Bali and Marriot Hotel incidents, intelligence resources were being diverted to spying on Timor Leste.
Witness K apparently complained to the Inspector-General of Intelligence and Security about the legality of the bugging operation.
He was involved in an internal staffing issue within ASIS. He had been passed over for promotion. Apparently he was concerned about a change in culture within the organization. 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, two months before Timor Leste became an independent state (20 May 2002), when it was thought the new 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 seabed boundary delimitation disputes. (22 March2002)
Now the International Court of Justice is the normal channel for the resolution of international boundary disputes.
Many of you with international treaty negotiating experience will know that Australia used to be a strong supporter of compulsory third party settlement of international disputes, a strong supporter of the ICJ.
I, and many people here, will have been in the forefront of pushing the role of the ICJ in treaty negotiations.
Yet, when it looked as if Timor Leste might take Australia to the ICJ and Australia would lose, Australia walked away from the Court.
Bearing in mind that Australia constantly proclaims support for a rules based international order. Australia’s withdrawal from the jurisdiction of the ICJ is breathtaking. I was surprised at the time that the withdrawal attracted so little public attention.
Unable to access the Court, Timor Leste entered into negotiations with Australia. Two treaties were negotiated,
-the Timor Sea Treaty in 2002
-and in 2006 the treaty on Certain Maritime Arrangements in the Timor Sea, CMATS).
The bugging operation took place durung the negotiation of the second of these treaties, the CMATS treaty.
Those treaties made provision for revenue sharing. They did not establish maritime boundaries. In fact they specifically deferred resolution of boundaries for 50 years.
Timor Leste began to realise the outcome was unfavourable to its interests.
Unable to have the boundary dispute resolved in the ICJ, (remember Australia had withdrawn from the jurisdiction of the ICJ in relation to maritime boundaries) Timor Leste used the commercial arbitration provisions of the first of the two treaties with Australia, the 2002 Timor Sea Treaty, to take the dispute to the Permanent Court of Arbitration in the Hague. They wanted a declaration that the the second of the two treaties, 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.
Timor Leste sought a declaration that the 2006 CMATS treaty was invalid because of fraud.
The arbitration proceedings in the Hague were to be in camera. Witness K was to give evidence. That evidence was to be given in camera.
But just before K was due to leave for the Hague, ASIO raided his home and seized his passport. So Australia stopped him from giving evidence about the bugging operation.
The shameful conduct continued.
ASIO also raided the offices of the lawyer acting for Timor Leste in the boundary negotiations including the arbitration, Bernard Collaery. (3 December 2103)
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 the ANU 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 home of a witness, seized the witnesses passport and stopped the witness giving damning evidence against Australia.
Next the Australian domestic intelligence agency raided the home of the solicitor for the other side, and seized the other side’s brief.
This is just extraordinary. One side in litigation interferes with the key witness for the other side and seizes the brief for the other side.
As Brett Walker said last night, in domestic proceedings this would constitute contempt of court.
Commentators have pointed out that the same David Irvine who was head of ASIS at the time of the bugging operation was now head of ASIO at the time of the raid.
Chris Moraitis was now Deputy Secretary in DFAT.
Again I emphasise I have no knowledge of personal involvement.
Some commentators have suggested a conflict of interest. Were officials involved in the bugging operation now seeking to thwart an international arbitration relating to that same bugging?
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 Dili.
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.
Think about 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 domestic 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 on its solicitor’s office and the seizure of its brief 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 Australian 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 what is known as 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 something different, 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, the ICJ made a series of orders relating to the confidentiality of the seized documents. Most remarkably, the ICJ rejected the sufficiency of undertakings by Australia that Australia would not look at the documents ,
-the court ordered that Australia shall not interfere in any way in communications between Timor‑Leste and its legal advisers.
Many of you will have seen ABC TV footage of the ICJ hearing in the Hague, in particular the great Eli Lauterpacht’s stinging comments about Australia’s actions. Lauterpacht 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 including 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.
Timor Leste next invoked the compulsory conciliation provisions of the Law of the Sea Treaty for the dispute concerning delimitation of the exclusive economic zone and continental shelf between Australia and Timor Leste.
Australia tried to stop that also.
Australia objected to the jurisdiction of the Conciliation Commission on no less than six grounds. I have heard those grounds of objection described as frivolous and vexatious.
The Conciliation Commission rejected all six grounds of objection.
Why would Australia object to an international conciliation process?
Australia repeatedly professes support for a rules based order? I know members of the Institute all assiduously read the Institute’s journal. In the June issue of The Australian Journal of International Affairs there is an article about the rules based international order. The author writes about Australia’s support for global institutions. He refers to the 2016 Defence White paper : the term rules based order appeared 56 times.
What the White paper, and the author of the article, failed to articulate is that Australia’s support for a rules based order, Australia’s support for global institutions, apparently applies only to others, not to ourselves.
Pausing there, it seems Australia was determined to do whatever it takes to thwart fair resolution of the boundary dispute.
Whatever it takes included
-withdrawal of maritime boundary disputes from the jurisdiction of the International Court of Justice
-using Australia’s foreign intelligence agency ASIS to bug the Cabinet office of the other side in an important international negotiation
-seizing a passport to prevent a witness from giving damning in camera evidence about the bugging operation at the arbitral tribunal in the Hague
-using Australia’s domestic intelligence agency ASIO to raid the offices of Timor Leste’s lawyer and sizing the Timor Leste brief
-disputing the jurisdiction of the Conciliation Commission established under the Law of the Sea Treaty
All Australia’s efforts were ultimately unsuccessful.
The conciliation proceedings went ahead.
Finally in March 2018 Timor Leste and Australia signed a treaty settling their maritime boundaries.
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.
I turn to the prosecution of Bernard Collaery and Witness K.
One may well ask why, so many years after the illegal Timor Leste bugging operation, and years after the operation became public knowledge, the Government has chosen to proceed with the prosecution.
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.
It appears from the 4 Corners program that former Attorney-general George Brandis had reservations. He sat on the DPP’s request for consent to the prosecution for 2 over years without making a decision. Presumably Brandis was not satisfied that prosecution was in the public interest. It was his successor Christian Porter who eventually authorized the prosecution.
Timor Leste leaders have repeatedly called on the Australian Government to withdraw the prosecution.
But the prosecution proceeds.
And as we can see from the seizure of documents from lawyer Collaery’s legal office, and as we will see from the handling of the prosecution, the matter is hardly being pursued in accordance with the highest professional standards.
So how are the proceedings going?
Many Canberrans have sought, often 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 law of the sea issues. As I have said, in those days we didn’t snoop on the other side.
I also have a long standing interest the importance of openness of court proceedings and in freedom of political communication. 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 (this was the first of many directions hearings) 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 extraordinary
– 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.
I wasn’t willing to accept that.
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).
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.
It was many months and only after reminders that I received a response from the Attorney-General, claiming technical limitations.
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 court 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.
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 scurrying 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 late in the evening,
-after normal business hours,
-after the solicitors had closed for the usual Christmas-new year shut down.
The magistrates court had already closed for the normal Christmas New Year break.
I understand the time for responding was 7 days. And this was many months after the charges. (May2018)
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. He has lost his ability to practice. Some would see the way these proceedings are being dragged out as oppressive. Perhaps deliberately oppressive.
The next directions hearing was on 28 February this year. Problems persisted. Even Counsel were now publicly concerned.
In fact counsel for Mr Collaery in his submissions raised the following matters
– the matter did not appear in the Court’s daily lists
-it was not on the normal public noticeboard downstairs
-this time there was a ‘closed court’ sign lit outside the court even though no suppression order had been made
Why did these things happen?
One may reasonably ask, was the Court itself seeking to shield the matter from public scrutiny even before any suppression order has been made.
At that hearing the court was informed of a very late Attorney-General’s certificate which if upheld by the court would enable a trial to proceed on the basis of evidence which was not disclosed to the accused.
Can you believe it. The Attorney-General wanted a criminal trial to proceed in which the accused, Bernard Collaery and Witness K, and their legal representatives, wouldn’t know the evidence against them and wouldn’t be able to challenge the evidence against them.
And this is not about some threat to Australia, a threatened invasion, it is not about some potential enemy, to quote Horta again, it is not about Russia or China or North Korea.
It is about Australia having spied on little Timor Leste.
And the Commonwealth wants people to go to jail on the basis of evidence which is supposedly so sensitive that neither the defendants nor their lawyers can know what it is.
At the next directions hearing on 6 August the Court was informed that witness K would plead guilty.
That may surprise some.
My understanding is that the guilty plea is dependent on facts being agreed with the prosecution.
The only fact to which Witness K will plead guilty is that he prepared an affidavit for the arbitration in the Hague.
There is to be a further directions hearing next Thursday, on 29 August which will take K’s guilty plea and deal with the handling of national security information.
Mr Collaery has waived his right to a committal hearing and consented to trial in the Supreme Court. Mr Collaery is reported as saying after the 6 August hearing that an open court process would reveal the disclosures were totally unrelated to national security concerns.
At a further directions hearing last week, on 22 August, orders were made for the filing of documents and there will be a further directions hearing on 26 September. As the matter is now in the Supreme Court the Attorney-General will need to issue a new certificate. Three days have been set aside from 11 December to deal with the certificate.
According to the ABC Xanana Gusmao has said he is willing to give evidence on behalf of both K and Collaery.
Mr Collaery asked that bail be dispensed with The registrar said she could only do that with prosecution consent. The prosecution did not consent.
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.
I have published a number of legal articles on the subject.
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.
I mention an interesting 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 effect of an Attorney-General’s certificate is far reaching. It can lead to proceedings in a court closed to the public. It can lead to evidence available only to the court and not disclosed to the defendant.
The court is not bound by the Attorney-General’s certificate. It must first hold a hearing to determine what orders are to be made.
But the legislation provides that this hearing, the hearing on the Attorney-General’s certificate, must itself be in secret.
The court may then make orders to in effect close the court and restrict access to evidence.
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.
Could the 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.
One of the strongest critics of the prosecution, former Prime Minister and President of Timor Leste and Nobel Laureate Jose Ramos Horte, has pointed out that Collaery and K were not passing secrets to China or North Korea or Russia.
Next, Foreign relations interests?
The bugging operation itself has undoubtedly damaged relations with Timor Leste. Timor Leste’s leaders have made that clear.
Horta has publicly proposed that Collaery be awarded Timor Leste’s highest honour, the Order of Timor Leste. The ABC has reported Xanana Gusmao is willing to give evidence on behalf of both K and Collaery.
What about national security?
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 an Attorney-General’s certificate or a secret trial.
It has been publicly contended that the bugging
-was illegal (paper by former NSW DPP, Cowdroy and by Professor Fernandes)
-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.
It may be important to preserve K’s identity.
-If his identity became public knowledge other countries may be able to trace other covert operations.
All this suggests any certificate and any court order should be very 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 challenges the Attorney-General’s certificate and any proposed 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.
Commentators describe it as disclosure of commercial espionage.
And others have analysed that the bugging operation was outside the statutory functions of ASIS (Cowdroy, Fernandes) -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
In my view, 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 an important constitutional principle, the implied 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 relevant legislation burdens political communication.
In this case the answer is obviously yes.
One must then consider whether the legislation exhibits a legitimate purpose, whether the burden on the implied freedom is justified, whether it is compatible with our system of representative and responsible government.
Protection of national security is undoubtedly a legitimate purpose. Undoubtedly there are circumstances where secrecy concerning the activities of intelligence agencies is in the national interest.
But is the burden justified? Is it compatible with our system of representative and responsible government?
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 or illegal conduct on the part public authorities, even 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.
Two final observations
First some observations about the trial
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 any of the legal argument against a closed court be in public or will all the argument be in secret?
Will the very basis of the prosecution, disclosure of alleged wrongdoing by a public authority, be challenged?
Interesting days lie ahead.
Public confidence in our judicial system is at stake.
Secondly, when the Australian Prime Minister visits Dilli in 3 days time, for the 20 year anniversary of the independence vote,
-according to the Guardian, groups in Dilli will be wearing ‘solidarity with Bernard Collaery T shirts and displaying banners supporting Collaery.
-Two of Timor Leste’s great leaders in the independence struggle, former President Xanana Gusmao and former Prime Minister and President Jose Ramos Horta, will undoubtedly be key speakers at the celebrations. Will they make statements in support of K and Collaery?
As one writer has put it, will Collaery’s ghost haunt the Prime Minister at Friday’s celebrations.
Interesting days ahead….
Ernst Willheim is a Visiting Fellow in the College of Law at the Australian National University. Before his retirement he was a senior officer in the Commonwealth Attorney-General’s Department where he headed several policy divisions, established the Office of General Counsel and was its first head, lead numerous Australian delegations to international conferences and appeared as counsel for the Commonwealth in the High Court and other appellate courts. He has published widely on international, constitutional, refugee and indigenous law matters.