The unjust prosecution of Bernard Collaery has finally ended

For a decade, Bernard Collaery has been at the centre of an extraordinary legal diplomatic scandal in Australia.

An esteemed lawyer, Collaery had been staring down a possible jail sentence for helping to expose allegations of Australian wrongdoing in East Timor.

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Collaery’s case dropped.
Photo: RUE
A tale of spies, oil and accusations of greed.

A MAN TARGETED

Attorney-General Mark Dreyfus has finally put an end to Canberra lawyer Bernard Collaery’s criminal prosecution, closing a decades-long scandal and witch hunt that should never have been commenced.

Collaery, a former ACT Attorney-General, was prosecuted in 2018 and was facing five charges, including allegedly conspiring with his client, “Witness K”, to disclose confidential information about the Australian government’s spying operation in East Timor.

In 2004, at former Foreign Minister Alexander Downer’s behest, the Australian Secret Intelligence Service (ASIS) planted surveillance devices in the Palacio Governo — the building that housed the offices of East Timor’s Prime Minister and the national cabinet conference room.

The purpose of this intelligence-gathering enterprise was to listen in to cabinet deliberations concerning a legal dispute between the two countries over the location of the maritime boundary between them.

The outcome of that dispute would determine the share of lucrative oil and gas revenues that East Timor and Australia would each receive from prospective drilling in the Timor Sea.

Through this secret surveillance activity, the Australian government obtained crucial information regarding Timor’s case about the maritime boundary before the International Court of Justice (ICJ).

This provided Australia with an unfair advantage in the oil and gas dispute.

In the end, to evade the court’s judgement, the Australian government withdrew from its jurisdiction.

“Witness K” had been an ASIS officer involved in the surveillance operation.

He was troubled by it, so he lodged a complaint with the Inspector-General of Intelligence and Security suggesting that the surveillance may have been illegal.

The Inspector-General agreed Witness K could disclose relevant information as evidence in any related legal proceedings. Information regarding the secret surveillance operation made its way progressively into Australia’s and East Timor’s media at the time.

In 2013, East Timor sought to proceed forward with a case in regards to Australia and the maritime boundary issue in the Permanent Court of Arbitration in the Hague.

Through this process, the East Timor government briefed Collaery to represent its interests (and that of Witness K’s claim), as he had a long history of defending the interests of the country.

Then, in an extraordinary action in late 2013, the Australian Federal Police raided Witness K’s and Collaery’s homes and offices just 24 hours after Collaery had flown to East Timor to be briefed.

At Collaery’s office, the police uncovered a detailed legal memorandum containing his advice to East Timor’s government with respect to the location of the maritime boundary.

CRIMINAL PROSECUTION

Things went quiet for five years.

Then, in late 2018, out of the blue and for reasons that remain unclear, former Attorney-General Christian Porter approved the criminal prosecution of Witness K and Collaery.

Porter alleged they had ‘disclosed classified information illegally’.

Legal argument with respect to the conduct of the prosecution continued for four years, to Collaery’s great personal and financial detriment.

However, the opposite was clear, as it was highly likely the Australian government itself acted unlawfully.

First, ASIS undertook an act of criminal trespass in East Timor by planting surveillance devices to monitor the cabinet’s deliberations. As in every other country, East Timor’s cabinet deliberations are, by law, secret.

Under an international convention (the Convention on Jurisdictional Immunities of States and their Property), states and their property are immune from the domestic jurisdiction of another country.

Australia clearly broke international law by raiding Witness K’s and Collaery’s offices and confiscating documents that were the property of the government of East Timor.

In Australia, the law protects communications between lawyer and client.

By effectively stealing Collaery’s extensive legal advice to the East Timor government, ASIS transgressed the confidentiality of lawyer-client communications.

Next, Porter made application after application to the ACT Supreme Court to ensure Collaery’s trial would be conducted in secret.

The government argued that if documents revealing ASIS operations become public, foreign intelligence agencies into whose hands such documents fell may be able – when combining them with other sources of information – to construct an ‘intelligible mosaic’ of the processes and methods of Australian activities.

In this case, however, the documents in question related to a single intelligence operation conducted in a tiny country 18 years ago.

It would come as a surprise to any informed lay observer, and probably to any capable intelligence analyst, if historical methods of surveillance used in 2004 could cast even the remotest light on the technological methodology of modern practices.

A secret trial constitutes a radical attack on the fundamental principles of open justice and fair trial.

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THE SCOPE OF POWER

There was a certain Alice in Wonderland quality about all this. Everything had been turned upside down.

The two people who acted in the national interest by disclosing unlawful activity undertaken by Australia’s overseas intelligence service in bugging East Timor’s Cabinet were the defendants in the criminal case.

Those in government who initiated the unlawful, covert operation, through their successors in government, had become the prosecutors. Something had gone very wrong.

An astounding process to witness in a ‘free’ Western country.

Had Collaery’s case proceeded to trial, the ramifications of the case for freedom of expression, journalism and governmental accountability would have resonated through Australian law and society for years.

It was a direct assault on freedom of political communication, and it intimidated whistleblowers.

It discouraged investigative journalism, undermined press freedom, involved criminal trespass and contractual fraud, invaded legal privilege, violated international treaties, and denied fair trial.

It was a blot on the conduct of Australia’s foreign relations and was a grievous attack on individuals of conscience. Remember, Collaery was simply an advisor in this cross-country mess.

Dreyfus should be commended for drawing this scandalous legal proceeding to a close, but we may never know the extent to which the cost of this witch hunt has taken on Collaery.

Witness K received a suspended sentence in 2021 after pleading guilty to conspiring with Collaery to reveal information about the alleged spying.

There are now calls for his sentence to be overturned in the wake of this decision.


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3 comments on “The unjust prosecution of Bernard Collaery has finally ended”

  1. A very timely article. Many people have no idea about how they are being monitored at the moment via various methods. Thank you.

  2. Australian ‘Law / Morality & Operations’ – What? Now – &, OR previously – the Australian Government/s, – A ‘DIRECT English Derived System’ , IS expected to have some form of ‘Ordered Civilisation’ & observation of Decency? How’s the ‘Happy Division & Co Operative Timor/ Gap Treaty panning out for the ‘Struggling- RESOURCELESS’ Australian/ Indo Governments, that Collectively they feel that they have to STEAL a small Neighbours ‘Assets’?? How’s the Balibo 5 incident travelling?
    That’s because the Amoral Australian govt, & Political Witches & Warlocks therein (Been ‘Equal opportunity’ for some while now}, have a History of Righteous Ethics (LOL) & NON flinching ‘Support’, from the Rum Corps Class styling beginnings (and Still), morphing thru Eureka Stockade parameters, Thru ‘Bypassing’ THE locally scribed Constitution by ALL means necessary AND Intentional strategic design – By the same Australian Public Purse ‘Sponsored’ ‘Ship of Political Also-rans’ & their Collective Major party Inputs & Outcomes- Always producing Solutions of FOOLS (Focused Official Outcomes Latex Scenarios – & associated Rubbery figures). Thru recognitions of regimes such as Pol Pot (Current COVID ‘Killing Fields’ STILL in ‘FULL program deployment’ – Against ALL Global Citizens – ALL ages), Saddam Hussein – (The same ‘Installed’ Guy he EVER WAS), ALL the U.S./ U.K./Euro/Sino /U.N./UAE & Israeli ‘Gang A Stars’ Thru time Administrations – & the associated ‘Vacuums’ of Needless Global Conflicts for ‘OTHERS’ Control OF, or, OVER, other Groups or Nations. Thru to the Current Euro Clown World Primo contestant & focal UKR lacky – President Zelenskyy, & his HUMBLE Regime.
    HUMBLE for Witches & Warlocks = Hype Up My Butchering Legit Entourage.
    Australian History is NO different to any other Nation, Short or Not! The Grist for war or Civil consumption or Corruption, is ‘Supplied’ by Non responsible/ Non Answerable Govt-Corporate ‘Agencies’ or entities therein, who use OUR ‘Public Monies’ at will, for their own ‘Personal quests’ of retribution or fantasies of power – empire building, leaving generally wholesome ‘Community Contributing’ folks as discarded fodder for the Crows and foraging rats – Without support or Compensation for their Persecution! AND, should these ‘Victims’ be ‘Compensated’ (Not taking into account Psychological trauma & timeless damage), NO blame is accounted for Against the SAME ‘PerpetraItors’ of such Charges or actions, in ‘Reputation NOR Financial’! = The ‘Gloss of Govt.’
    “GOD SAVE THE KING! ER Queen! in THEIR name we conduct our business of TRUE JUSTICE!” – ‘Official Sources’ – apparently, Er allegedly, or is that EIR Allegedly?
    – And in the Continuity of TRUE Comedy, bring forth the Next ‘UNrequired UNvaxxed’ ‘Snow White’ politician or ‘Judge’!
    Somewhere @ a Court House near You, He, She, They, Us, Vaughn;
    Judge; “CLERK OF THE COURT? Can you PLEASE go outside & get THAT WOMAN, to stand STRAIGHT! It appears that the ‘Scales ARE TILTED!’
    Clerk; “Yes my lord! But SHE, IS standing straight! And THE Scales, ARE TILTED!’
    Needless to say, ‘MS & Social Media’, have ‘Got ALL this covered’, as Usual?? (LOL)
    Wellness

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