A tale of spies, oil and accusations of greed.
A MAN TARGETED
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.
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.
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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