UNLIKE the ABC’s Dan Oakes, barrister Bernard Collaery doesn’t have a billion dollar institution behind him to pay bills and publicise his cause. The 76 year-old has a trillion dollar institution in front of him – slashing at his livelihood (now destroyed), ruining his health, threatening to jail him until death and ordering his trial to be held in camera. It all seems to come down to the embarrassment his client caused by revealing that Australian “intelligence” operatives bugged Timor-Leste government offices to get the better of the micro-nation during oil and gas negotiations in 2004. Or is there more to it than that? And does it even matter 16 years after the event and seven to 12 years after the alleged crimes of Collaery and Witness K? The Law Council’s condemnation of the “secrecy” of Mr Collaery’s trial is a welcome intervention by Australia’s peak law body but its statement does not – and cannot – speak to all of the complexities involved. This is a confounding case to approach as a purist because we don’t have enough information. Red flags flutter around it, however – discernible to libertarians, conservatives and Lionel Murphy leftists alike.
First, there is the basic principle that a lawyer and his client have certain rights to privileged communication. From this it follows that when a party opposing that client raids the files of a barrister – as ASIO did in relation to Timor-Leste’s lawsuit against the Australian government in The Hague over allegations of bugging (about which “K” was slated to give evidence) – it is alarming. If you or I organised that to best a troublesome litigant, we would be unceremoniously prosecuted and imprisoned. Second, not only are the public and the media excluded from hearing the evidence; pursuant to the National Security Intelligence Act, the jury itself may be obliged to reach a verdict for or against Mr Collaery without seeing all of it. Already delayed, justice administered according to these rules no longer resembles traditional Australian justice at all. It resembles a police state sham where a powerless citizen will be liquidated by the state as quietly and neatly as possible. No loose ends – like an assassination. This is a peculiar contrast to the good sport ticket of leave Federal authorities gave to the ABC’s Oakes for publishing the stolen and classified “Afghan Files.”
It will come as little surprise to learn that the person chiefly responsible for the Collaery & K Affair becoming a slow-burning debacle of Victorian proportions was the garrulous but philosophically flighty George Brandis. In Dry macho mode, the then Attorney-General authorised the 2013 raid on Mr Collaery’s rooms; in Wet Hamlet mode, he spent four years being exquisitely reluctant to sanction a prosecution. Nothing had been done to move forward with the case by the time he left Parliament to become High Commissioner to the United Kingdom. A cynic might speculate that Brandis was sufficiently desirous for that position to avoid associating himself on the way out with a case widely seen as thuggery in two arenas: international relations and the law.
What about what we don’t know? Could all or some of the unknown unknowns justify the NSI blowtorch fired up so willingly by Brandis’s successor, Christian Porter? For example, we don’t know if a third nation – guess who – might have been sniping in the background during those Timor Sea resource talks. Australia’s national interest may have been best served by conducting surveillance of a kind already being conducted by that power. We don’t know anything about “K” – whether, how and by whom he may have been used, for example. Collaery himself had a long record of passionate support for the people and interests of Timor-Leste before he ever met “K”. Did he cross the line between professional representation and joining a cause? The government says yes. That is the essence of its charge: that he and “K” conspired to divulge official secrets.
There are questions here that only the High Court can resolve once and for all. Foremost of these are: 1) Can a lawyer representing a whistleblower (alleging possibly illegal government acts), himself be prosecuted for how he intended to represent his client in an international court? 2) Are foreign spies – and the government whose orders they were following – literally above the law? Finally, in a dangerous world where all nations maintain spy agencies and conduct espionage ‘in the national interest,’ is there any such thing as a “whistleblower”? Or – knowing what they signed up for – is a spook with a conscience just a traitor and a hypocrite? I can’t answer these questions but what I do know for certain is this: it’s our country and it’s our law, not the government’s. If hard questions have to be asked and answered, we can handle it.