The following article appeared in Pearls and Irritations on 13 December 2021.
The trials of Witness K, a former ASIS officer who blew the whistle on the unusual activities of his organisation, and Bernard Collaery, who was briefed to represent his interests and then charged by the Commonwealth for disclosing classified information, have been a travesty of justice.
Seeking advantage in negotiations with Timor Leste over a joint maritime boundary that would give Australia greater access to oil and natural gas, Australia bugged the Timor Leste cabinet room in 2004 where confidential discussion on the issue took place.
At the time Howard was Prime Minister and Downer Foreign Minister. The present Treasurer, Josh Frydenburg worked for Howard from 2003-2005 and Dave Sharma, the member for Wentworth worked for Downer from 2004-2006. It is unlikely that both did not know about the bugging. David Irvine, AO, was Director-General of ASIS from 2003-2009. ASIS undertook the bugging. ASIS answered to Downer, as Foreign Minister, so presumably Downer authorised the bugging. A beneficiary was Woodside Petroleum. Downer became a consultant to Woodside in 2008. It was the misuse of ASIS resources to achieve an unfair advantage for Australia that motivated Witness K to blow the whistle.
As Attorney-General, George Brandis was apparently reluctant to pursue the matter, Christian Porter, who replaced him, showed no such reluctance, presumably keen to curry favour with Howard and Downer by preventing through legal process, further truths from emerging as to the role an Australian agency played in achieving unfair commercial advantage.
Porter and now Cash have argued for the trial to be held in secrecy under provisions of the National Security Information (Criminal and Civil proceedings) Act, 2004. At the time of introduction, I argued the Act had the potential to be misused to protect illegal undertakings by the state. I pointed to similar Acts in apartheid South Africa which had been used against opponents of apartheid. Now we see the NSI being used as I foresaw.
Cash has sought to further delay justice by presenting ‘additional secret evidence’, without a hearing and consideration by Collaery’s legal team. This ‘evidence’ is apparently in the form of affidavits sworn by ASIS staff to the effect that the actions of Witness K and Collaery have damaged the ability of ASIS to gather intelligence. As a former foreign service officer can I say this is nonsense. What most damages ASIS intelligence gathering is poor training, management and alcohol. Any statement obtained from serving ASIS officers can be regarded as having been obtained under duress. Their careers are on the line.
In seeking to defend the already tarnished reputations of Howard and Downer, Cash has appealed to the High Court to keep a judgement by ACT Chief Justice, Helen Murrell, that found closing the case to the public would damage confidence in the justice system. Cash is arguing to the High Court that information on that judgement is likely to prejudice national security!
The Court of Appeal earlier ruled that the case should be held in open court and sent the matter back to presiding Justice Mossop, who has struggled with the spurious issues of national security in this case and adherence to the principle of open justice.
Cash and Porter have succeeded in making the legal process in this matter messy and unfair. The AFP raided Collaery’s home and obtain evidence which was used against him and Witness K. The case stands as a significant abuse of the Australian system of Justice. It reminds me of the abuse of the South African legal system under apartheid, which I witnessed first-hand from 1976-79. That Australia now finds itself in a similar position is a terrible indictment.
In terms of the denial and perversion of justice, the prosecution and trial of Collaery and Witness K might be likened to the 1894 trial of Dreyfus in Paris, which became known as the Dreyfus Affair.
Captain Alfred Dreyfus, an artillery officer, was convicted in a closed court, on false evidence of giving French military secrets to the German Embassy in Paris. Georges Picquart, head of military counter-intelligence subsequently identified the real culprit as Major Ferdinand Esterhazy. A military court acquitted him after 2 days. Additional charges on forged evidence were brought against Dreyfus.
Dreyfus was a Jew and the French General Staff, and the court were anti-Jewish. The trial and the issues surrounding it divided France. Emile Zola was moved to write an open letter in defence of Dreyfus, called ‘J’Accuse’.
Another trial resulted from a considerable body of public opinion coming out for Dreyfus, not only in France but around the world. Again, Dreyfus was convicted in closed court on the basis of a secret dossier of forged information sent to the judges. However, it was overkill and way too much for public opinion and Dreyfus was pardoned. In 1906 he was exonerated and promoted to Major. He served in WW1, unlike most of his military accusers, and rose to Colonel. He died in 1935.
In October 2021, that great friend of Australia, President Emmanuel Macron, opened a museum dedicated to Dreyfus in the Paris suburb of Medan.
Writing in Pearls and Irritations, the Allan Myers Professor of Law at the Australian Catholic University, Spencer Zifcak said, ‘The Collaery case is, perhaps, the most important case ever brought before the Australian courts concerning the extent and limits of freedom of public and political communication in this country. The government’s determination to undermine such fundamental democratic rights is a clear indication that it is willing to act ideologically and illiberally rather than in a manner consistent with core principles underlying liberal democracy. Freedom of the press and whistleblower protections are always the first targets of a repressive state.’
And just as Dreyfus was persecuted as a Jew, Collaery and Witness K have been persecuted for defending the rights of the East Timorese against the greed of powerful individuals and organisations like Woodside Petroleum.
Bruce Haigh is a political commentator and former diplomat.