There is no place for secret trials in Australia
OPINION | Democratic Freedoms
The prosecution of Bernard Collaery, which returns to the ACT Court of Appeal today, is about right and wrong.
By Kieran Pender
Senior Lawyer
Human Rights Law Centre
It was wrong for the Australian government to spy on our neighbour Timor-Leste for commercial gain. The people who spoke up about it did the right thing. It is wrong to punish them for doing so. And it is especially wrong - indeed, dangerously undemocratic - for our government to shroud their prosecution in secrecy and seek to deceive the Australian people about what actually happened.
The protracted and opaque prosecution of Collaery has made it difficult for even the most diligent observer to keep track. But if we peer through the complexity, we can see injustice with crystal clarity.
Collaery is a lawyer and a former attorney-general of the ACT. He and his client, a former intelligence officer known as Witness K, were arrested and charged in 2018 with breaching secrecy laws. Collaery has been charged with conspiring with Witness K to unlawfully disclose information to the government of Timor-Leste, and unlawfully communicating information to various journalists at the ABC.
It is alleged that the information disclosed related to Australia planting listening devices in the office of Timor-Leste's cabinet during oil and gas negotiations in the early 2000s. At the time, Timor-Leste was newly independent, impoverished and rebuilding after a brutal conflict with Indonesia. In our neighbour's hour of need, the Australian government spied on them to get the upper hand in commercial negotiations.
It is arguable that this conduct was illegal under international law. At minimum, it was morally bankrupt. Yet instead of apologising to our Timor-Leste friends, successive Australian governments have refused to acknowledge the wrongdoing and persecuted those who exposed it.
In the subsequent three years, the Collaery case has slowly worked its way through the ACT court system. There have been at least 11 interim judgments, and possibly more that are not public. Most are littered with the term "[redacted]".
Last June, Justice David Mossop granted secrecy orders sought by the Morrison government under the National Security Information Act. He had little choice: the NSI Act insists that the courts give "greatest weight" to the view of the Attorney-General on such matters. Mossop's orders will mean that most of the trial will be heard in closed court, unless Collaery succeeds this week in appealing against them, an appeal which is itself being held behind closed doors.
Then-attorney-general Christian Porter had applied for the secrecy orders to resolve a dilemma. The Morrison government refuses to admit that Australia spied on Timor-Leste. But to successfully prosecute Collaery, prosecutors will have to prove in court that we did. The dilemma was crisply captured in an exchange between Senator Rex Patrick and a senior government official during a parliamentary hearing last year. "I presume most criminal cases are not launched on the basis of a fictitious operation?" Patrick asked of the ongoing prosecution. The official's curt reply spoke volumes: "I would hope not."
This, then, is the deception. Australia spied on Timor. As much will likely be conceded in court. But the Morrison government won't admit this wrongdoing to the Australian people. And it wants a secrecy order to square this circle. As Justice Mossop put it: "by this mechanism the Attorney-General hopes to maintain a position of 'neither confirm nor deny' (NCND) in relation to the subject matter of the [redacted]."
This deception, and the secrecy that enables it, has no place in our democracy.
Three things should be done as a matter of urgency. First, the Commonwealth Director of Public Prosecutions (CDPP) should discontinue the prosecutions of Collaery and Witness K, along with those of defence whistleblower David McBride and tax office whistleblower Richard Boyle. There is no public interest in any of these prosecutions, and they have a dangerous chilling effect on others who might speak up about wrongdoing. The CDPP has the power to drop these trials at any moment; they should do so, immediately.
Second, the NSI Act should be overhauled. The legislation was rushed through Parliament by the Howard government in 2004, in defiance of an inquiry it had initiated on such matters (which was due to report only a few days later). The law favours secrecy over transparency and effectively ties the hands of our courts. As we have seen in another case, that of Witness J, the NSI Act even enables prosecutions to be held in complete secret. There is no place for secret trials in Australia.
Finally, the Public Interest Disclosure Act, our federal whistleblowing law, needs to be urgently reformed. The government was told as much by an independent review in 2016, which found that the experience of whistleblowers was "not a happy one". The fact that Collaery, Witness K, McBride and Boyle can be prosecuted in the first place is proof that the PID Act has failed.
Whistleblowers play a vital democratic role, revealing wrongdoing and holding wrongdoers to account. Whistleblowers do the right thing and make Australia a better place. They should be protected, not punished.
Kieran Pender works in the Democratic Freedoms team at the Human Rights Law Centre. You can learn more about the team's work here.