Commonwealth Director of Public Prosecutions Sarah McNaughton SC recently filed criminal charges against Canberra lawyer Bernard Collaery and his client, a former officer of the Australian Secret Intelligence Service (ASIS).
The prevents the identification of his client, who is referred to publicly only as Witness K. Collaery is a former Attorney-General of the ACT. Witness K is the former head of technical operations for ASIS.
The charges are based on Article 39 of the , which criminalises the unauthorised disclosure of certain information about ASIS. The maximum prison term for this alleged offence is two years. The first directions hearing will occur on July 25 in the ACT Magistrates Court, where Collaery has had a long and distinguished career as an advocate. He is now a defendant in his own court.
The relevant background is that three months before East Timor became an independent state in 2002, Australia鈥檚 foreign minister Alexander Downer from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal on the Law of the Sea. East Timor could not claim its right under international law to a maritime boundary halfway between the two countries鈥 coastlines. It was forced to negotiate bilaterally with Australia.
Downer then ASIS to bug East Timor鈥檚 negotiators. ASIS installed listening devices inside East Timor鈥檚 cabinet offices using the cover of a foreign aid program.
East Timor signed a treaty that denied its right to a maritime border on the median line. Secretary of the Department of Foreign Affairs and Trade Dr Ashton Calvert then retired and joined the board of directors of Woodside Petroleum. Downer with Woodside after leaving parliament in 2008.
It that Woodside鈥檚 chairperson Charles Goode 鈥渟at on the boards of top Liberal Party fundraising vehicles that generated millions of dollars in political donations鈥.
The espionage operation occurred by the Jemaah Islamiyah terrorist group, when Downer and then-Prime Minister John Howard were assuring the public that they were taking every measure against in Indonesia.
Amid rumoured disquiet inside ASIS at the diversion of scarce intelligence assets away from the war on terror and towards East Timor, and now aware of Downer鈥檚 consultancy work for Woodside, Witness K complained to the Inspector-General of Intelligence and Security (IGIS) about the East Timor operation. ASIS terminated his employment.
K obtained permission from IGIS to speak to his ASIS-approved lawyer, Collaery. After two-and-a-half years of research, Collaery determined that the espionage operation in East Timor was unlawful, and may have also been a the government of East Timor under s. 334 of the Criminal Code.
In 2013, Collaery took steps to have Witness K give evidence about the operation in a confidential overseas hearing. Australian Security Intelligence Organisation (ASIO) raided the two men鈥檚 homes, seizing documents and data, and cancelling K鈥檚 passport. In the Senate, Attorney-General George Brandis of the officer and Collaery too, for 鈥減articipation, whether as principal or accessory, in offences against the Commonwealth鈥.
No criminal charges were filed against either man for the next four-and-a-half years. But in May, just two months after Australia concluded a new treaty with East Timor, the Commonwealth Director of Public Prosecutions filed charged against them. Among the charges are conversations Collaery is said to have had with ABC journalists and producers: Emma Alberici, Peter Lloyd, Connor Duffy, Marian Wilkinson and Peter Cronau.
But, as Senator Nick McKim , it is 鈥渁bundantly curious that other media organisations and their journalists are not named鈥. This is indeed curious, since it was The Australian鈥檚 Leo Shanahan who reported the bugging of the East Timorese offices, . But Shanahan was not named on the charge sheet. McKim wondered whether 鈥渢he prosecution [is] trying to protect certain media organisations that might be sympathetic to the government鈥.
Sarah McNaughton is a former counsel to the Trade Union Royal Commission, ordered by the Abbott government. The decision to prosecute Collaery and K is made independently, but a prosecution cannot go ahead unless the Attorney-General, Christian Porter, consents. Porter .
The of the Commonwealth speaks of 鈥渙penness鈥 and 鈥渁ccountability.鈥 Those who make the decisions to prosecute can be called publicly to explain and justify their policies and actions. But so far there have been no public statements by the Commonwealth Director of Public Prosecutions (CDPP). Indeed, there are indications that the Commonwealth will apply to have the entire proceedings heard in camera.
As a case with international connections, it helps to reflect on the international legal standards for a fair trial. The landmark 1981 explained what a satisfactory prosecution system should look like. Among other things, it : 鈥淚s it open and accountable in that those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as that is consistent with protecting the interests of suspects and accused?鈥
It remains to be seen whether the media approaches the CDPP to shed light on this matter, and whether the Collaery and K trials are held in secret.
One crucial question here is whether ASIS has been used in other operations to benefit well-connected corporate entities, to the detriment of Australia鈥檚 real national security needs.
Perhaps Witness K might reveal this in court 鈥 which might be in the public interest but most unwelcome to the government, which is anxious to send a message to other unhappy ASIS officers not to speak out of turn. Perhaps a royal commission into the use and misuse of ASIS, rather than a criminal trial, is needed to resolve this question.
[Clinton Fernandes is Professor, International and Political Studies, UNSW. This article was originally published on . A rally calling for the charges against Collaery and Witness K to be dropped has been organised for Canberra on Wednesday July 25 at 4pm outside court.]