Bernard Collaery appeal seeks to overturn secrecy order for upcoming trial

Albert McKnight 17 May 2021 38
Bernard Collaery

Bernard Collaery has launched a two-day appeal in an attempt to overturn an order made to keep much of his trial secret. Photo: Collaery + Partners.

Whistleblower Bernard Colleary has launched a legal appeal to overturn orders made to hold much of his upcoming trial behind closed doors.

However, in a case that is often criticised for being shrouded in secrecy, the ACT Court of Appeal matter was closed to the public, including media, only a few minutes after it began on Monday (17 May).

Mr Collaery was the lawyer for Witness K, who blew the whistle in 2012 over Australian intelligence services bugging the Timor-Leste cabinet room during 2004 discussions over the Timor gas treaty.

The Human Rights Law Centre (HRLC) said Australia and Timor-Leste signed a revised energy treaty in 2018 after Timor-Leste began legal proceedings in the International Court of Justice and Permanent Court of Arbitration over the incident.

Mr Colleary is fighting charges relating to allegedly breaching the Intelligence Services Act. The HRLC said Witness K, an ex-intelligence officer, has indicated he will plead guilty to a summary offence.

The two whistleblowers have attracted widespread support, including from several of Canberra’s political leaders.

On Monday morning, Member for Canberra Alicia Payne, Member for Bean David Smith, Member for Fenner Andrew Leigh and ACT Senator Katy Gallagher released a joint statement objecting to the treatment of Mr Collaery and Witness K by the federal government.

Protesters gather outside the ACT Courts on Monday in support of Bernard Collaery and Witness K. Photo: Albert McKnight.

“The way in which the Morrison Government has dragged out legal proceedings in the ACT Supreme Court is unjust,” the four Labor parliamentarians said.

“They must explain why it is in the public interest to proceed with these prosecutions.

“From trying to effectively prevent Mr Collaery from choosing his own legal counsel to closed courts and delaying tactics, the Morrison Government has gone to absurd lengths to pursue these prosecutions.”


READ MORE: Canberra judge blasts ‘unfair’ federal government delay in Bernard Collaery case


In March, Ms Payne said that, so far, the prosecution of Witness K and Mr Collaery had cost taxpayers almost $4 million.

There was also in-person support for the whistleblowers outside the ACT Courts on Monday, as a large crowd gathered to protest against the government’s decision to prosecute the two.

HRLC senior lawyer Kieran Pender said the prosecutions were “wrong and unjust”, and he wanted to talk about solutions to ensure court cases like this did not happen again.

He said the Commonwealth Director of Public Prosecutions could drop the charges against the two at any moment.

“I think all of us would agree that there is no public interest in prosecuting whistleblowers such as Bernard Collaery and Witness K,” he said.

He said Australia had a long and innovative history around protecting whistleblowers but was unfortunately now “behind the eight-ball” compared to the US and European Union.

“Our laws are no longer up to global standard and they are not working in practice. It’s all well and good to have rights on paper, but they’re not translating into rights in reality,” Mr Pender said.

“We have an insane situation right now that those who speak up about corporate wrongdoing have better protections in law than those who speak up about government wrongdoing. That cannot be right.”

He said a very practical step the government could take to ensure prosecutions like those against Witness K and Mr Collaery never happened again would be to improve laws that protect those who speak up.

Protestors supporting Bernard Collaery

Protesters gather outside the ACT Courts on Monday in support of Bernard Collaery and Witness K. Photo: Albert McKnight.

Civil Liberties Australia president Dr Kristine Klugman told the protesters the two whistleblowers should not be before the criminal courts.

“They should be at Government House in Yarralumla receiving medals,” she said.

She said an overhaul of whistleblower protection laws had been promised by both Liberal and Labor politicians for years, “but when in power, neither side delivers. They become more secret, more opaque”.


READ ALSO: Prosecution of whistleblower Witness K costs taxpayers $4 million


She said Australia should introduce the qui tam laws that applied in the US.

The National Whistleblower Centre says qui tam allows persons and entities with evidence of fraud against federal programs or contracts to sue the wrongdoer on behalf of the United States Government.

Dr Klugman said the laws meant whistleblowers could be rewarded for speaking out.

The HRLC said Mr Collaery’s two-day appeal would be fighting an order made under the National Security Information (Criminal and Civil Proceedings) Act 2004 to hold his trial largely behind closed doors.

Witness K’s case will next appear before the courts on 3 June.


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38 Responses to Bernard Collaery appeal seeks to overturn secrecy order for upcoming trial
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user101 user101 1:15 pm 20 May 21

The 2004 spying by ASIS on Timor was illegal, banned by the ICJ.
Howard and Downer withdrew Australia’s recognition of the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal on the Law of the Sea.
The secrecy ruling against which Collaery is appealing is not primarily to conceal the spying and Collaery is not in court to represent Timor.
The government seeks a secrecy ruling to hide other deeds. But its success, if achieved, would represent a big loss to our fragile democracy. Collaery has spelled out how much is at stake here.

    chewy14 chewy14 2:02 pm 20 May 21

    User,
    Its a good thing that the Australian government is not bound by international law then, isn’t it?

    The spying wasn’t illegal under Australian law, that is what is at play.

    Nylex Nylex 3:17 pm 20 May 21

    Commercial fraud is illegal, regardless of where you commit it.

    The government’s defence – which has so far been impenetrably chaotic – seems to be that it was in “the national interest”.

    However, Australia’s reputation has been harmed; Australia’s interests have been harmed; Australia’s influence has been harmed; ASIS has been harmed and AusAid was very seriously harmed.
    On the “credit” side, the profits of this grubby affair have gone to Woodside shareholders as well as to those who’ve been paid by the beneficiary of the fraud to act as “consultants”.

    The obvious conclusion is that committing commercial fraud against our poor northern neighbours has not ben in the “national interest”, it has in fact acted against it.
    So not only was it a crime, it was also in fact and act of maladministration against the people of Australia.

    chewy14 chewy14 4:54 pm 20 May 21

    Nylex,
    You assume that a commercial fraud occurred, I disagree and I think it’s a weak argument. The court will obviously determine this point now.

    Secondly, it’s extremely rich to attempt to use the consequences of the alleged crimes of the defendants as a reason that the government’s actions were not in the national interest. If the information hadn’t been disclosed, there would have been no harm to the areas you mention.

    This is entirely the point of the prosecution here and one of the main reasons why these types of disclosures are illegal.

    Nylex Nylex 5:35 pm 21 May 21

    Chewy, it’s not illegal to reveal malfeasance when you detect it in your workplace.
    His dept was too gutless to do anything about it so they approved him taking it to the next level.
    The vast majority of Australia’s intelligence agencies and servicemen and woman do not agree with you that Alexander Downer is more credible than ‘K’, a highly-decorated and senior member of our armed forces, who quite rightly called out corruption when he became aware of it.

    astro2 astro2 5:52 pm 20 May 21

    Many of the German officials who were indicted after WW2 didn’t recognise the court during the Nuremberg trials….didn’t stop ’em getting strung up though. Just :not recognising something doesn’t give you a get out of gaol free card.

    user101 user101 6:25 pm 21 May 21

    The conspiracy to defraud was illegal under Australian law. THAT is what is ‘in play’.
    The spying is merely immoral, corrupt, in breach of bona fides and entirely reprehensible. It has wholly trashed our Foreign Aid program built over decades. Nothing that would trouble you, Chewy.

astro2 astro2 7:31 am 20 May 21

It’s not legal to break into someone else’s property and install a listening device. Think, for one moment, if the opposite had happened, i.e. someone else from a sovereign nation, China perhaps, had their spy organisation (their equivalent of ASIO spies) break in to Parliament House and install listening devices there. Legal? Nup, don’t think so. That’s why the Libs want a secret trial, they don’t want their dirty deeds exposed to the public.

    chewy14 chewy14 9:58 am 20 May 21

    Astro,
    We’re you trying to give an example to support your argument?

    The Chinese regularly try to conduct espionage in our country, we have whole areas of government aimed at trying to prevent it.

    Is that behaviour by China illegal under Australian law? Yes, no doubt. Is it illegal under Chinese law? No.

    The difference being that we have a democratically elected government, if you don’t like our laws, you can freely advocate for them to be changed. Far less easy to do that in China.

    Nylex Nylex 11:18 am 20 May 21

    What was the purpose of the listening device?
    Quid bono?
    Wasn’t Australia.
    Also, did the NSC approve either the operation itself or the handing over of the operation’s product to commercial entity for exploitation?

    astro2 astro2 5:58 pm 20 May 21

    You seem to be missing the point here (or trying not to recognise it). If you are in an overseas country you must abide by the laws of that country. In this case (and you’ll find in most countries) it is illegal to enter property that you do not have permission to be in and plant a listening device. That is illegal in most countries, including Australia.

    chewy14 chewy14 7:19 pm 20 May 21

    Astro,
    I’m not missing the point, I’m perfectly comfortable with the fact that the people involved in the espionage broke the laws of East Timor. It’s not in dispute.

    But these cases are not being conducted in East Timor and their laws are irrelevant as they have no jurisdiction or power here. That is the point.

    Our laws are what is being discussed and they are what allow these types of operations to be conducted legally under Australian law.

    Your comparison is like complaining that a player knocked the ball on in a game of Aussie Rules.

    astro2 astro2 8:49 pm 20 May 21

    That’s right, it’s illegal. The fact that the parties that committed the illegal act snuck out of the country they committed it in, doesn’t make it legal. By the way, it would also be illegal if an East Timorese official did the same thing in Australia. If the spy that committed the illegal act was caught doing it, they would be tried and probably gaoled. It’s been fortunate that we had a whistleblower to expose what was done. Unfortunately, the government doesn’t always do things legally. Sometimes, as in the case of Robodebt, they get caught out..

    chewy14 chewy14 10:20 pm 20 May 21

    Astro,
    You seem to be struggling to read what i’ve actually written and are under the misapprehension that there is some universal application of what is legal and what is illegal across the globe and all states submit their sovereignty to it.

    Only once you disabuse yourself of these incorrect notions would you be able to engage in a meaningful discussion on the merits of these cases. Whilst I have disagreed with others here, at least they understand what is actually under discussion and a reasonable debate can be had.

    The Australian government has powers to legally direct actions that would be considered crimes in other countries. Those other countries laws have no jurisdiction in Australia. It isn’t actually that hard to understand.

    astro2 astro2 7:32 am 21 May 21

    OK, let’s try to make this simple. Do you agree that, when in another country, you must abide by the laws of that country, for example, if you are in France, you must abide by French laws.

    Nylex Nylex 5:38 pm 21 May 21

    Chewy, let me boil it down for you:
    Downer directed ASIS to illegally gather commercial information from East Timor.
    Downer caused this information to be provided to Woodside.
    Woodside used the information for commercial gain.
    Downer accepted payments from Woodside.

    The only planet where that could be acceptable is the planet where Australian politicians routinely betray the trust of the Australian people in order to later get on the post-politics fossil-fuel company “consultancy” roundabout.

user101 user101 7:09 pm 19 May 21

The article addresses Collaery’s appeal to overturn the ruling regarding secret evidence. Of course, it should succeed in the public interest. Secret trials are wholly inconsistent with Australia’s culture. They would be inconsistent with any Bill of Rights, if we had one.
The “whistleblower” question goes to the charges. It is true that the story of the Australian Government’s spying on Timor L’Este’s cabinet was published by others before Collaery spoke and wrote publicly. Collaery’s contribution added much, importantly including a very competent assessment of the laws broken by Australian officials and ministers. That element, as a minimum, is whistleblowing by any definition.
It gets my respect and thanks.

    chewy14 chewy14 8:41 pm 19 May 21

    His assessment of a law (he only claims one in the ACT was broken) is flimsy at best when you consider how broad the powers given to ASIO are under the law. There was no law breached by Australian government officials under the laws applicable which are our own.

    The problem is that many people simply don’t like that we were spying on a poorer neighbour, so want to disregard that the powers given to ASIO allow them to do just that for exactly the purposes they were used for.

    There are perfectly legitimate reasons to dislike those laws and to agitate for them to be changed but it doesnt give you the right to break them because of it. And it doesn’t remotely make you a “whistleblower” to ignore laws that you don’t like.

    user101 user101 10:45 pm 19 May 21

    A whistleblower publishes secret illegal acts. The spying had already been published by others. Collaery’s whistleblowing published the alleged conspiracy to defraud committed in the ACT by Director ASIS and others. Collaery’s assessment is supported by Nicholas Cowdery QC.
    The fraud alleged is not only against Timor. $12bn of Australian public resource in gas including helium was given to Woodside (foreign-owned) and partners. Woodside has been a major donor to Liberal Party campaigns. Hewson explains that Howard was desperate.
    The trial secrecy, if achieved contrary to Lange v Australian Broadcasting Corporation(1997) 189 CLR 520, 571, would conceal evidence not only of the spying. If the government were to succeeded in submitting secret evidence of graft, it would become free to hide guilt behind the judgement.
    This case is about much more than the persecution of Collaery and much more than the spying on Timor.

    user101 user101 12:30 am 20 May 21

    A whistleblower publishes secret illegal acts. The spying had already been published by others. Collaery’s whistleblowing published the alleged conspiracy to defraud committed in the ACT by Director ASIS and others. Collaery’s assessment is supported by Nicholas Cowdery QC.
    The fraud alleged is not only against Timor. $12bn of Australian public resource in gas including helium was given to Woodside (foreign-owned) and partners. Woodside has been a major donor to Liberal Party campaigns. Hewson explains that Howard was desperate.
    The trial secrecy, if achieved contrary to Lange v Australian Broadcasting Corporation(1997) 189 CLR 520, 571, would conceal evidence not only of the spying. If the government were to succeed in submitting secret evidence of graft, it would become free to hide guilt behind the the curtain drawn over poceedings. If the government were to succeed in submitting secret evidence of anything minor, it would be enabled to claim freedom to hide guilt of graft behind the secret screen.
    This case is about much more than the persecution of Collaery and much more than the spying on Timor.

    chewy14 chewy14 9:53 am 20 May 21

    User,
    I know the claims you are referencing and it’s exactly what I refer to in my opinion as a flimsy argument that they are trying to shoehorn into a defence. The point is that there was no fraud because the ASIO powers were designed to allow exactly what occurred and give protection from breaching other Australian laws to the people involved.

    And the claims around Woodside just seem to be a touchpoint for political activists to attempt to fit a conspiracy theories into their predetermined narrative. They have no basis.

    The fact that there is arguments from lawyers against this is also hardly surprising considering what they see as an attack on one of their own and their ability to operate with less restrictions.

    With regards to the secrecy issue, there are legitimate reasons to protect national security and why some evidence may be required to be kept from the public. The law specifically allows this to occur. Once again, if you don’t like the law, agitate for it to be changed.

    Nylex Nylex 11:21 am 20 May 21

    For starters, ASIO has nothing to do with this except for having a presence during the raid on the lawyer’s office to ensure the AFP didn’t set eyes on anything they shouldn’t.
    Secondly, any “broad powers” are underpinned by the necessity to show that Australia’s *National Interest* is at stake.
    Engaging in commercial fraud (which is what Downer directed ASIS to do) for the benefit of a petroleum company’s bottom line is as much “in the National Interest” as it would be for ASIS to poison the Indian cricket team to ensure the Australian cricket team won the world cup.

    chewy14 chewy14 2:19 pm 20 May 21

    Nylex,
    Firstly, i admit my mistaken use of ASIO above.

    Secondly, Your example is not even remotely comparable here.

    The powers allow for actions in the national interest including commercial ones. Considering the value of resources that were at play and how much they would be worth to the Australian government, anyone who can’t see how the commercial reality and economics were very much in Australia’s interests is manifestly mistaken.

    And the claim that it was done for a single specific company’s benefit completely ignores those economic realities and is not supported by any reasonable evidence.

    user101 user101 2:31 pm 20 May 21

    Chewy14,
    I contest several of your points.
    “Flimsy argument” meaning the alleged conspiracy to defraud? Have you read Collaery’s book or the legal opinion of Nicholas Cowdery QC? The alleged conspiracy was years in the planning. Australia’s sudden withdrawal from the maritime jurisdiction of the ICJ and ITLOS in March 2002 is explained by one simple factor: unlike negotiations, litigation involves an independent umpire.
    Whether there was a fraud is yet to be tested in court. The regulator of ISIS was IGIS and she declined to report the incidents to Parliament. What is unarguable is that immense public resources were handed free to Woodside and pals. It was the spying which confirmed that Timor was unaware of the gas reserves and omitted to negotiate for them. Was that transaction fraudulent? At present, the highest authority we have for that is Nicholas Cowdery QC.
    ASIS’ new powers permitting surveillance were not implemented for commercial espionage but to defend against terrorism as Hansard makes clear.
    ASIO impounded Collaery’s documents (using a Brandis warrant with redactions) later returned by ICJ order, and K’s passport, preventing him from traveling to the Hague as a witness.
    The secrecy at dispute in this trial is not to protect national security (if it was, the prosecutor could best succeed by withdrawing charges), The secrecy is about covert trial. The law on that is in Lange v ABC. If this secrecy is allowed to prevail, a charge of conspiracy to defraud could not succeed because the evidence would be secret.

    chewy14 chewy14 3:44 pm 20 May 21

    User,
    Yes I have read all the material you refer to and we are going to disagree on most of what you have just posted with regards to the facts of the case and whether a fraud was committed.

    Do I believe the government acted unethically? Yes. Did they act illegally under Australian law. No.

    Now on the secrecy issues, the government’s claim is that national security IS the issue, which is why they have applied the NSI act because of significant parts of the evidence involved. The Court has already upheld that secrecy, which is now the subject of the latest appeal. So I don’t know how you can flippantly say it is not an issue, when the court has already found that it is, at least initially.

    Whether you agree with the breadth of powers available under those acts is completely separate to the laws themselves and what they allow.

54-11 54-11 12:37 pm 18 May 21

The continuing prosecution of Collaery and Witness K is an absolute disgrace, and is a stain on the character of the Liberal Party. Particularly Christian Porter, who has been like a dog with a bone over this. For more information, see https://theconversation.com/why-bernard-collaerys-case-is-one-of-the-gravest-threats-to-freedom-of-expression-122463

    chewy14 chewy14 5:49 pm 18 May 21

    Not really.

    You don’t get to break the law simply because you don’t like it.

    And the attempts by some to paint this as a “whistleblower” case simply doesn’t stack up. Even Collaery himself points out that it isn’t the case here.

    There are perfectly good reasons why the government needs to be able to protect secrecy on national security issues and the laws involved were written to allow specifically that. If you don’t like the broadness of the laws, agitate to change them.

    retep retep 10:30 pm 19 May 21

    ROFL.
    The Australian Government is supposed to represent and act on behalf of the Australian people not commercial interests. Using national bodies such as ASIO to further private commercial interests is not part of their remit. Secrecy is Morrison’s go to play and is the bane of Democracy. The Australian Government should be the defendant in this case.

    chewy14 chewy14 8:05 am 20 May 21

    Retep,
    If you are honestly that dense to not see how commercial interests can often be 100% aligned with the interests of the Australian people, then I can’t help you.

    Particularly in this case where the ownership of the resources sits with the government, making the commercial interests secondary.

    And the law itself specifically mentions those interests as a valid reason for conducting operations exactly like what occurred. It is directly part of their remit under the law.

    Although thanks for giving me a perfect example of what I was talking about above, what you want the law to be, does not somehow negate what the law actually is in reality.

    As above, if you don’t like the law, agitate for it to be changed. If you think ASIO’s powers are too broad, make the case for reducing them.

    But you don’t get to ignore the law, simply because you don’t like it.

    Nylex Nylex 11:24 am 20 May 21

    Witness K didn’t break the law.
    He went through all the proper internal procedures before his employer referred him to a lawyer.
    He offered to plead guilty last year and even the Magistrate was puzzled about how he could accept the plea when the prosecution was such an incomprehensible shambles.

    chewy14 chewy14 2:22 pm 20 May 21

    Nylex,
    Wait. So your argument is someone that has freely pleaded guilty was actually innocent despite admitting their guilt?

    Going through proper processes initially doesn’t preclude Witness K breaking the law and the simple facts are he has plead guilty.

    Nylex Nylex 3:25 pm 20 May 21

    For Witness K, the process was intended, by some grubby people covering up some very dirty deeds, to be the punishment, and he decided he’d rather cop the insignificant penalty relevant to this issue, and move on with what’s left of his life.
    But when he indicated he would plead guilty, the Magistrate responded that he didn’t see how that plea could be accepted by the Court, when the Prosecution was keeping everything secret, and the Court would have no way of knowing what the plea related to.
    It’s not unusual for people to weigh up the effort of litigation against the cost of an early settlement and to choose the latter – the insurance industry does it every day of the week.

    Your insistence on sticking up for this corrupt dog act by Australia against East Timor isn’t doing you too many favours.

    chewy14 chewy14 5:05 pm 20 May 21

    Nylex,
    The funny thing is I’m not sticking up for the acts of the government, I think they behaved unethically previously and have clearly let political factors influence the timing of the prosecutions more recently. I don’t support them. However, that doesn’t change the law, nor the facts on this issue.

    The main thing I dislike about this whole issue is the emotional responses by so many people who want to disregard laws because they dont like them or disagree with this prosecution simply because they think that the Australian government acted badly towards a poor neighbour.

    Nylex Nylex 5:48 pm 21 May 21

    You are sticking up for the government and their cover-up of an act of corruption.
    You don’t know the facts and clearly don’t know the law either.
    If the law were on their side, the Government wouldn’t need to try keeping any of this secret, which it doesn’t need to be seeing as there are precisely zero matters of National security at stake.
    You know what happened at the same time Downer was using Australian intelligence resources to make a buck for Woodside?
    https://en.wikipedia.org/wiki/Australian_Embassy_bombing_in_Jakarta
    At least one senior Australian serviceman had the guts to call it, even if some don’t have the guts to listen.

    user101 user101 6:57 pm 21 May 21

    Chewy,
    You have jambed your thumb on the transmit button when your comprehension of the issues is skin deep.
    The government’s offense is not spying because they ducked the international jurisdiction on that action. Its biggest offense is collusion to defraud.
    The victim is not just Timor. Australians have been robbed of $12bn (in 2004 prices).
    Woodside is foreign-owned. The beneficiary pays insignificantly-low Australian tax. There is no national benefit derived from this fraud.
    Australia has been deprived of its natural resource. The beneficiary is the recipient of Woodside’s political donations.
    I hope you can put your energy into joining the outrage.

    chewy14 chewy14 8:52 pm 21 May 21

    User,
    My argument as above is that there was no conspiracy to defraud. I know what your argument is and what the defence is claiming. And it’s the exact position that im saying is not supported by the evidence.

    The idea that there was a conspiracy within the government mainly designed for commercial gain to Woodside is ridiculous.

    astro2 astro2 7:20 pm 20 May 21

    “Simple facts” yep “simple” – ever heard of “verballing”?

    astro2 astro2 5:55 pm 20 May 21

    The “perfectly good reasons” i this case being that we got caught breaking the law in a sovereign country and we don’t want anyone to know about it.

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