In an extraordinary ruling yesterday, the ACT Supreme Court decided that the illegality of the Howard government’s bugging of the Timor-Leste cabinet room in 2004 was irrelevant for the proposes of the Morrison government’s political prosecution of Bernard Collaery for his role in disclosing the bugging.
It removes at a stroke a key element of Collaery’s defence — that the bugging was not done in accordance with the functions of the Australian Secret Intelligence Service — because ACT Supreme Court judge David Mossop has blocked Collaery, a former ACT attorney-general, from subpoenaing ASIS, DFAT, Prime Minister and Cabinet, and the Office of National Intelligence to provide material that would prove or disprove the bugging was not in accordance with ASIS functions.
Mossop has, outrageously, effectively declared that it doesn’t matter ASIS’ activities were outside the scope of its functions and therefore illegal — Collaery has no right to seek information that could expose that.
It’s a remarkable leg-up for the government, which throughout the trial — separate from the Commonwealth director of public prosecutions — has sought to cloak its persecution in a blanket of secrecy and delay Collaery’s trial as long as possible, under the instructions of first former attorney-general Christian Porter and then current AG Michaelia Cash.
In tortuous reasoning, Mossop decided that the Commonwealth did not have to do anything to prove that ASIS had been operating in accordance with the Intelligence Services Act despite Collaery being notionally prosecuted for revealing activities that have to be in accordance with the IS Act for the purposes of his prosecution.
Even more bizarrely, Mossop tried to disguise the ridiculous carte blanche he had given to intelligence agencies — who by his lights can commit any atrocity they like and always be able to see whistleblowers jailed for revealing them — by invoking the inspector-general of intelligence and security as some sort of check on the proper behaviour of intelligence agencies.
It was, for the record, the then inspector-general of intelligence and security who advised Witness K to pursue “private legal action” against ASIS, which is exactly what he did and why he ended up being prosecuted for revealing information.
As independent Senator Rex Patrick said today: “Never have I seen a judicial officer suggest the responsibility of judicial oversight be abandoned because a member of the executive has a measure of oversight and can report breaches of the law to the prime minister. In effect, Justice Mossop places no limits on executive power and leaves the responsibility for limited oversight exclusively to a statutory official, giving the court no role.”
It’s a shocking moment in the rotten history of independent oversight of Australia’s intelligence agencies, which unlike their Five Eyes counterparts operate with no effective parliamentary oversight and, if Mossop’s absurd ruling stands, no court oversight either. And it has passed with minimal media coverage.
Three years ago, before the 2019 election, the hope was that a change of government would see a new attorney-general revoke the authority for this malicious prosecution. Three years and endless, vindictive delays later, we’re left with the same hope.
Yet another solid reason to hope Labor win Saturday’s election & a reasonable federal A-G will call the dogs off. This ruling beggars belief.
Absolutely. A new A-G is sorely needed.
And I would also like to see Mossop’s ruling challenged because it sounds like it was a tortured path to produce such an amazing judgement.
So, in other words, you’re saying the ACT Supreme Court judge’s ruling is like the story of The Puppy Who Lost His Way. Except the puppy was a dog… but the ruling… that was a revolution.
Indeed. To exclude discovery of exculpatory evidence seems biased in favour of the perpetrators of the initial intrusion on another nation.
Agreed that this should be challenged. An external review of the decision would be interesting.
Can Mossop’s ruling be challenged?
What would be the process for that?
How much would it cost?
Who would fund it?
Couldn’t agree more. Jesus would weep.
Sounds like fishnet stockings work like a caped warriors powers
Illegality of conduct ‘irrelevant’ to a whistleblower’s defence? Who’s got this judge in their pocket? I’d like to see all those behind this vile episode prosecuted and jailed as a result of a new federal ICAC investigation (especially howard), with Mr Collaery compensated generously for the years of institutional persecution and the destruction of his career. Violating the government’s stated principle of ‘model litigancy’ should also carry a prison term for those who decide to defy it.
Am I missing something? Isn’t it the illegal and obnoxious behaviour that triggers the whistleblower’s action?
Yes.
I do have to question the competence of this judge. He is not serving justice.
Agree 100% Australian governments both Labour and Liberal should hang their heads in shame over the treatment of the Timor Leste nation .
In WW2 Many Australians owed their lives to the then Timorese and in response to this help were slaughtered by the Japanese. This was the same treatment the Timorese received when the Labour government abanded them to the Indonesians as a continuation of the Marshall Green initiatives.
And now men in stockings steal their oil
Could this be why Pacific Islanders mistrust us ? We have much to be ashamed of . To many of our recent leaders appear to make decisions based on their own back pockets or political ambitions .
Give up after three attempts must be a touchy subject .Think I smell something
I appreciate your position as a publisher and the possibility of a reaction
Four Awaitings ?
Can I say I lived in the islands to our north?
Can I say we were not the flavor of the month?
Could I go as far as saying not trusted?
Can I say the reason was obvious?
Can I ask would you trust a robber?
Fairly obvious why we stink off shore
What an absolute disgrace. Keep up the pressure Bernard!
Thanks Bernard for the resolute pursuit of this travesty.
We need Labor’s Federal Integrity Commission to be able to go back 20 years if necessary – 15 won’t be quite enough to have Howard, Downer, Woodside et al explain what they were up in East Timor in 2004.
The Inspector-General of Intelligence and Security, a position that can now be abolished, it is now no longer relevant under a Coalition Government. Why are the Coalition so worried about this matter, obviously because of the High Ranking heads that will roll if and when a full and open commission is held. This Government is the most corrupt since ASIS was formed nearly 70 years ago. I thought Gough Whitlam did the most damage to ASIS , in my time, but now it is the current Federal Government that holds the record. It is also apparent that Bernard Collaery did a lot to upset the Liberals when he was A-G of the ACT, they have waited a long while for their revenge.