The overturning by the Supreme Court of the ACT yesterday of secrecy orders in the Bernard Collaery trial is significant in a couple of ways.
Judges Murrell, Burns and Wigney overturned trial Judge David Mossop’s decision to grant Christian Porter’s application to hide evidence against Collaery, and witness evidence produced by Collaery, via national security orders made by Porter under the National Security Information (Criminal and Civil Proceedings) Act 2004. The appellate court ruled that
Public disclosure of information relating to the truth of the identified matters would involve a risk of prejudice to national security. However, the court doubted that a significant risk of prejudice to national security would materialise. On the other hand, there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed. The court emphasised that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors, and permitted the public to properly assess the conduct of the accused person.
The ruling threatens to derail the entire trial of Collaery for conspiracy and revealing information about the illegal bugging of Timor-Leste’s cabinet. Why? The strategy of then-attorney-general Christian Porter was to impose a long, grinding legal process on Witness K and Bernard Collaery, wrecking Collaery’s remaining legal career and serving as an example to anyone who might embarrass the Coalition by exposing its dirty laundry.
But the downside of the strategy was that it might further embarrass the Coalition with revelations of more detail of the decision of John Howard and Alexander Downer to bug the government of a friendly microstate. The prosecution had to be kept as secret as possible, on the pretext of national security.
That’s now in danger and will be the reason why Attorney-General Michaelia Cash will appeal the judgment, whatever the advice she receives from the Australian government solicitor.
There’s also the slight problem that, under Christian Porter’s own reasoning, the government shouldn’t be proceeding with the prosecution at all now because it will endanger national security. How would the best possible outcome for the government — a conviction and suspended sentence for Bernard Collaery — be justified by the danger to national security that it insists will result from a public trial?
The government is desperate to keep embarrassing details of the actions of the Howard government, and the Department of Foreign Affairs and Trade, out of the public eye. Under John Howard and Alexander Downer, the Australian Secret Intelligence Service illegally bugged the Timor-Leste cabinet room in an effort to secure an advantage in negotiations with the fledgling state over access to resources under the Timor Sea.
The other issue it raises is that a court has now demonstrated a willingness to push back against government national security overreach, and hold that the interests of open justice and confidence in the legal system outweigh blanket and ambit claims of national security by governments.
It creates an example that other courts might reflect on whenever they, too, are asked to accept without question government demands that secrecy be maintained out of concern for national security.
It’s well established that governments invoke national security to cover up their own embarrassment, leading to journalists being raided for revealing information embarrassing to officials and politicians, but no one suffering when government ministers, staffers and senior intelligence officials leak national security information in their own interests. Home Affairs secretary Mike Pezzullo has even boasted he has a small menagerie of tame journalists that he discusses sensitive information with.
It seems courts have taken notice that not every federal government claim about national security should be taken at face value.
Another reason why the government will be desperate to appeal the decision.
Excellent work Judges Murrell, Burns and Wigney. Thanks for a ray of light at last. We deserve to know the details of what went on under Howard and Downer. As the WP banner says, “Democracy Dies in Darkness”. And bravo Crikey for staying on this vital story.
Finally!!
So distressing that the lower courts have just ‘gone along’ with whatever national security claim is made.
This affair was and is graceful from start to finish. It is obvious why doing the dirty on E. Timor was initially concealed: not only was it intrinsically illegal and underhanded, but many WW2 veterans were still alive and could caste a vote, and who knew full-well the blood debt Australia owed to the Timorese population. They are all gone now, but now the government sees the necessity as being to conceal the concealment. So all power to this appellate court judgement to allow the exposure at least part of this festering ulcer of governmental deceit and its attendant persecution of those who are acting ethically.
There is now another generation of us, we the children of the WW11 veterans, who have both heard and understood the depths of blood debts we owe to our surrounding island nations. As the Anzac day marches grow longer, the memory is shared.
Then there are the honest and decent servicemen and women who spent a couple of years in the 90’s pulling, netting and fishing the murdered out of the wells. These people also bear witness to the perfidious behaviour of the Howard government.
The Indonesian backed and armed militia systematically attempted to sway the Independence referendum called by the United Nations, using the same techniques they deployed in West Papua. Murder the dissenters, rape the women and girls, steal the children and then leave the survivors no drinkable water or food (Dispossess them of their farms).
During this time Howard and Downer “vacillated” hoping to extract a larger share of the royalties from the massive oil and gas fields in the Timor Sea, from Indonesia for our support.
Yes, this disgusting abuse of our sovereign power for both personal gain and our government’s gain at the expense of the poorest nation on earth. really needs sunlight, lots of sunlight.
The dodgy processes of Australia withdrawing from UN treaties to enable theft and the list goes on.
The subsequent federal governments could have made this completely humiliating episode go away, by paying Timor Leste the royalties stolen, Witness K, an honorable man and his lawyer what was indeed owed to them.
Instead, the people who have been given the honorific of “honorable” have acted in disgraceful and dishonest ways and then attempted to cover their behaviours from public scrutiny with a misuse of the claim on “National Security”.
I am not the only person in Australia who is ashamed of my government’s behaviour.
Thank you to Crikey and to BK for continuing to pursue this case and the tissue of lies that the government has sought to wrap round it.
The following para is the most shameful I will read today regarding the actions of the government of my country:
The strategy of then-attorney-general Christian Porter was to impose a long, grinding legal process on Witness K and Bernard Collaery, wrecking Collaery’s remaining legal career and serving as an example to anyone who might embarrass the Coalition by exposing its dirty laundry.
There is also the matter of the huge government costs of this action – already at $4m last time I saw any figures.
It truly is a absolute disgrace to see such actions in a country we would like to call a democracy.
Isn’t it nice to see that Christian Porter’s stellar law career is flaming along through the atmosphere he created.
Along with a lot of things between heaven and earth, it is difficult to win a legal battle with the dead.
Bernard Colleary will make a fine Australian ambassador to somewhere nice, don’t you think?
When are we going to see the inditement of John Howard and his cabinet accomplices and the DFAT mandarins of that period for illegal activities? When will we see Woodside ‘divested’ of their profits and gaol time for its board members and CEO?
Drag Costello into that mix, who was it that sold off Australia’s Gold Reserve?