It seems as though Attorney-General Christian Porter will be successful in maintaining his cover-up of the Howard government’s crime of bugging the cabinet room of Timor-Leste in 2004 to benefit political donor Woodside, with an ACT magistrate granting Porter’s application that parts of the prosecution of Bernard Collaery be held behind closed doors for national security reasons.
That also means that, in a Kafkaesque absurdity, Porter will be allowed to use documents against Collaery that Collaery and his legal term are prohibited from seeing.
ACT Supreme Court magistrate David Mossop ruled in Porter’s favour on Friday after several days of secret hearings that some media outlets have shied away from reporting. Former foreign minister Gareth Evans, former chief of the defence force Chris Barrie and former ambassador to Indonesia John McCarthy all gave evidence as part of Collaery’s case against Porter’s application.
Despite arguments from national security apologists such as Dennis Richardson that the non-disclosure certificate application process is fair, Mossop had only limited choice. Under s. 31 of the National Security Information Act, the magistrate is compelled to “give greatest weight” to the claims made by the attorney-general.
John Howard, Alexander Downer and then-ASIS head David Irvine are the most immediate beneficiaries of the ruling, given their potential embarrassment about details emerging of their ordering ASIS to bug the Timorese. Even under provisions that allow ASIS to break the law in pursuit of national security goals, the Timor-Leste bugging was clearly a criminal act.
The illegal operation also, tragically, diverted counter-terrorism resources away from stopping Islamist terrorists attacks against Australian interests in Indonesia in 2004, to supporting the commercial interests of Woodside in negotiations over resource access under the Timor Sea.
For former politicians who relentlessly exploited fears of terrorism for partisan gain, exposure of the details of how the Howard government ordered ASIS to devote its attention to commercial espionage rather than fighting terrorism threatened to be deeply humiliating. That threat has been averted by Porter’s cover-up under the pretence that national security could be affected.
The decision did, however, finally dislodge a statement on the prosecution of Collaery and Witness K from Labor shadow-attorney-general Mark Dreyfus. He would, he said in a statement on Friday, seek “an urgent briefing” because “Labor strongly supports the principle of open justice”.
Dreyfus — who played his own role in the scandal when attorney-general in 2013 — went a little further: “For reasons that still remain unclear, Christian Porter personally authorised the prosecution of Witness K and Mr Collaery. After today’s decision by the ACT Supreme Court, it is more important than ever that Mr Porter provide a detailed explanation as to why these prosecutions are in the public interest.”
In Dreyfus’ view, “the unexplained decision to prosecute Witness K and Mr Collaery is part of a broader shift towards more secrecy and less accountability in government”.
It’s a statement of the obvious, but a welcome one from Labor given it has steadfastly refused to say anything about Porter’s vexatious pursuit of Witness K and Collaery, or Porter’s deliberate tactic of dragging out the prosecution — to the point of being criticised by magistrates — presumably with the intent of wrecking Collaery’s legal career. Until now, only Labor MPs Graham Perrett and Alicia Payne — Collaery’s federal MP — have spoken out against the prosecution.
The question still remains for Labor, however: will it permit Christian Porter to continue to cover up the crime of the Howard government? A crime undertaken for base commercial reasons to help a political donor (one that is also a generous benefactor of Labor). A crime that was not merely sordid in itself, but which diverted resources away from preventing terrorist attacks aimed at Australia
It’s Australia’s biggest scandal. Labor’s reluctance to do its job is a matter of profound shame. Is it finally waking up?
Of course the magistrate stood up for the minister. Whether religion or politics, the courts will protect them. It’s what they do.
Can’t agree there Bref – the courts have to uphold the Law.
It is the creation of vexatious laws that are the problem, and Labor and the cross-benches can hang their heads in shame for waving them through.
But laws can be changed if enough people are outraged by their improper use, and the decent press do their job in holding governments up to scrutiny and exposing their lies.
Laws can be changed if enough people are wish it? You mean if a majority in parliament wish it. The two are not the same. I’m sure the majority of people want more (better?) justice for our indigenous people, but look at where we are. I’m sure most people can see the injustice being meted out to witness K and his lawyer, but the magistrate doesn’t see anything wrong with it. Just recently a jury convicted a senior cleric, but the slightest doubt about the victim’s story got the case overturned by the judges. And our Murdoch controlled press? Don’t make me laugh…
None of which will occur, least of all from”Labor” nor what is laughingly called the PUBlic.
Pub test? Yeah right!
The BIG question at the moment is mullets.
Doesn’t this case show up the shameless hypocrisy of the Morrison government. We have to be worried at every turn about Chinese behaviour in Australia but it’s okay for us to spy on Timor Leste. Go figure .
It’s not entirely to do with the well known hypocrisy of the current, and most recent, liberal government leaders.
The major imperative now is to defend the ill-deserved reputations of previous liberal political leaders – the ones whose lack of ethics caused the problem in the first place, and who should now be facing the courts for their behaviour.
These things would happen less if we could eliminate corporate donors and post-political jobs for the boys.
In case you haven’t been paying attention, or live under an, extremely large, rock “LABOR” is equally complicit.
Worse, in fact, given the proclaimed “principles” ha,ha, ha…
Richardson may have qualifications to express a view about what is a matter of “national security” but he is only one if very many. But what qualifications does he have to judge whether “the non-disclosure certificate application process is fair”?
And that is not the question. The question is whether it is fair (or even legal) to judge an accused person on evidence the accused may not see or cross-examine.
“Mossop had only limited choice. Under s. 31 of the National Security Information Act, the magistrate is compelled to “give greatest weight” to the claims made by the attorney-general.” I agree somewhat Bernard. Whether s.31 is constitutional is a question for the High Court, not the ACT Supreme Court.
But Mossop had other choices. S31 also provides:
“Factors to be considered by court
(7) The Court must, in deciding what order to make under this section, consider the following matters:
…
(b) whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;
(c) any other matter the court considers relevant. ”
This is not the place to have the legal debate. It is yet to be had.
This is the place to challenge the actions of the Attorney-General in pursuing this prosecution. Thank you Bernard for summarising the real issues for the community.
The place to question and challenge the Government’s orders, the Government’s treaties, the Government’s conflicts of interest and the Government’s concealment of criminal activity is the floor of the Parliament. If Labor does not very comprehensively do so, it must be judged complicit and tarred with the same brush.
Richardson stated on Q&A last week there was “no criminal act(?)” committed.
“Well, first of all, the government has neither confirmed nor denied any operation in respect of East Timor. Leaving that aside, if an operation was indeed carried out, it would not have been a crime.”?
If there was no “crime”, what are they moving heaven and earth to try to hide?
“Australia’s negotiating techniques and priorities – on the $tax”?
Where Australia’s “national interests” really lie?
In a dishonest – even patronising racist (imagine “us” doing something like that to a white country?) – untrustworthy broker that can’t be trusted to be fair dinkum and do the right thing by ‘the little bloke’?
Willing to do whatever it takes to swing a deal the way of one of our (tax-paying/donating) vested interest companies?
Of course it’s racist. This is the Liberal Party we’re talking about.
Good points Klewso. I think we all know the answers.
Is Richardson qualified to judge?
This analyses what laws were broken. We can thank Bernard Collaery for this, as well.
https://law.anu.edu.au/sites/all/files/events/national_security_legal_professional_privilege_and_the_bar_rules_print.pdf.
If the magistrate is compelled to give ”greatest weight” to the Attorney General’s submissions, that might call for some creative interpretation in a higher jurisdiction. It might mean “greatest consideration to” while still rejecting those submissions if they are patently unsupportable, or if the defendants are thereby denied natural justice. I really hope there is someone out there with a bit of backbone to stand up to this self serving government.
Does this not reflect upon the integrity of the shyster class?
This goes to the cant cankerous heart of our governance – connected to and complicit in past malfeasance – any wonder they want to keep it under wraps.
Love to see Wilkie bring it to a (publicised) head in parliament.
Without Andrew Wilkie most people wouldn’t know what was happening, thank you John Howard, for victimizing Andrew Wilkie when he told the truth about the postulated WMD in Iraq, until he became a politician with a spine and integrity. Own goal I think.
Sorry. the credibility of Dennis Richardson is not untarnished, he was a career public servant and I seem to remember a very questionable involvement in the “Children Overboard fallacy” and a number of other tawdry matters.
The story of spying on East Timor is pretty well known, as is the fact that the people who were moved to Ambon to do the spying were diverted from tracking a bombing suspect.
Resulting in the deaths of many at the hands of the bomber of the Australian Embassy in Jakarta.
It became obvious to Witness K, they had been spying in essence for Woodside Petroleum, another career public servant now deceased and Alexander Downer, not for Australia’s interests at all.
The question I have is “What else does the magistrate think needs to be kept secret?”
What else are we not being told about this “Pay Back” litigation and harassment.
What else has the Howard and now the Morrison government done in our name that is so shameful that we can’t be told?
Why is the Labor Party sitting on their hands, are they complicit in some malfeasance on the part of the Gillard Government? You bring shame upon yourselves if you don’t admit a mistake and actively make amends.
I’d love to see Wilkie get up in parliament and ask the magic Christian some pretty pointed, embarrassing and ticklish questions. Proper “democracy in action”.
Of course it was Wlikie’s chosen profession that Howard chose to compromise – with Saddam’s WMD’s – and it was members of that profession that chose to sell out to Howard and toe the Coalition of the Willing line. While Wilkie held the line ’til he couldn’t – and had to take a principled jump….. Imagine Richardson doing that – putting ethics first?
How much did that “public service” cost – monetarily and ISIS-wise?
Too little, too late from Labor. I now have very little choice when voting because both major parties in this country are a disgrace for different reasons.
They are indeed both a disgrace on many fronts Marilyn. On climate policy there is now barely daylight between them. But you do have a choice; there are other options available to you, both in the Reps and moreso in the Senate.
But that would require sentience, which is not wide spread.
We have one of the better (others are available) electoral systems yet most voters show all the discernment of supamart shoppers.
Have a look at the trolleys contain – and they re allowed, nay compelled – yeh, I know, just turn up… too complex – to vote.
FFS, what tripped the ModBot here?
Is “sentience” now a foribdden word?
So, not “sentience“… what is going on here?
People PAY for this?
I agree. While the LNP invent new levels of bast#*dry, Labor could have thrown this out while they were in government. If anyone disputes that, please explain to me. They didn’t. Why?
Why did the Labor party protect those pissant liberals, and keep this case going. Gillard, why?
Currently the total of $5,000,000,000 in royalties and still rising have kept this going.
The border has been agreed because Australia really didn’t want the entire world to know that we had stolen from the most impoverished nation in the world, with the highest maternal mortality rate in the world, to enrich the Woodside Petroleum shareholders, board members and “consultant” Alexander Downer.
Certainly Alexander Downer does not want the phone call he made to East Timor threatening to withdraw aid from East Timor, if they didn’t sign the original seabed border, played in public, again.
This government does not want the general public to know that they are so incompetent that we get nothing for the Helium that is produced from the oil fields.
Well payback usually misfires and Christian Porter is so full of himself that he can’t see that this prosecution and the drawn out process with the resulting publicity, is akin to performing Harakiri or Seppuka on his reputation.
Andrew Wilkie ensures that Christian Porter will not be able to drop a cone of silence on the matter.
Note to Christian Porter, the honorable man lays his gut out in an artful fashion before turning the short sword upwards. So much more disgusting than shooting oneself in both feet.
Currently you are like a polar bear on thin ice, if you don’t want a long swim, it is time to turn around and get down on your belly to even out your weight before the ice breaks beneath you.