The Bernard Collaery situation

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.

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13 Responses to The Bernard Collaery situation

  1. stackja

    Lindy, George now Bernard.

  2. Nob

    I didn’t know about this case buti do know that the “David and Goliath” myth of Timor Leste vs Australia was mightily overplayed.

    They were getting the same deal Indonesia had had on the fields in the Zoca before it became jointly theirs. Now they get 90% of the royalties.

    It’s all on the Australian continental shelf which trumps any “halfway split” precedent for offshore Economic Exploitation Areas where nations share a shelf, like Norway and UK in the North Sea.

    They had Galbraith junior and his UN cronies on their side, too. Plenty of big guns. Australia lost out on that deal.

  3. Rockdoctor

    Agree with Nob on this one. Been there on business purposes a while back. Endemic corruption is an understatement, while the population has got nothing. I have never seen anthing like it in Asia anyway. Never been to Africa but the discriptions remind me of that. Let us not forget the close ties between the former Fretlin types & the left too. As I remember was a handy cudgel used against the Liberals while the original agreement with Indonesia conveniently discounted.

    If the money went to combatting the endemic poverty I could be more sympathetic but it won’t. Alkatiri, Ruak & their ilk will fritter it away to Zurich.

  4. Bruce of Newcastle

    East Timor can get stuffed.
    We were their greatest friends and helpers and they now do this sort of crap.

  5. Suburban Boy

    The supposed “whistleblower” was alleging activities which are not illegal in Australian law – which makes him a leaker (and, in these circumstances, a criminal in Australian law), not a whisteblower.

    As for legal professional privilege, it is (at best) a doubtful concept when it comes to litigation in a non-Australian jurisdiction. If the government of East Timor was dumb enough to have its case in The Hague handled by a lawyer resident in the opposing jurisdiction (Australia) then they deserve no sympathy but only scorn.

  6. C.L.

    It isn’t illegal to bug embassies in Australia?

    If the government of East Timor was dumb enough to have its case in The Hague handled by a lawyer resident in the opposing jurisdiction (Australia) then they deserve no sympathy but only scorn.

    The government is involved in litigation of all sorts all the time. Are you saying they can use ASIO to break into lawyers’ offices whenever they like?

  7. H B Bear

    You would hope the High Court declares legal professional privilege to be absolute. It won’t last long otherwise. The merits or otherwise of the East Timor case are irrelevant.

    It is very difficult if a claim of “national interest” is made justiciable as it goes to to the heart of the separation of powers. But you do not want to give the government a free pass either. Likewise “commercial in confidence” is used to cover a multitude of sins at every level of government.

    In saying who do you trust more – the courts or the government? Maybe the courts, just.

  8. Suburban Boy

    C.L., the bugging was of a government office in East Timor. Not a crime under Australian law, at least when done by an Australian Government operative whose role is to do such things.

    Can ASIO execute a warrant on a lawyer’s office? Sure, if the office contains evidence of a crime against Australian law (leaking classified information). It is doubtful that any legal professional privilege applies (see my previous post) – but that will most likely be a strongly argued point in court.

  9. billie

    C.L. It isn’t illegal to bug embassies in Australia?

    Embassies are sovereign territories of the country they represent, how on earth would anyone from Australia get access to do such a thing!

    goodness gracious!

    listening devices and recording conversations is illegal on Australian soil under the Telecommunications Act, yes

  10. Pyrmonter

    Rarely do I wholly agree with CL, but on this: done.

    Recall that Brandis must also have sanctioned the scandalous Securency super-injunction.

  11. Entropy

    Brandis involved: automatic suspicion

  12. jupes

    There is another difference between Oakes and Colleary.

    The targets of Oakes breaking the Official Secrets Act are from the lower ranks of the army. Who gives a fuck about those plebs?

    The target of Colleary breaking the Official Secrets Act is at government level. Most likely the buck stops at the Minister for Foreign Affairs. Who was that in 2004? Alexander Downer.

    The deep state looks after its own.

  13. Behind Enemy Lines

    People who get cute with official secrets bring it on themselves. Plus, this particular complaint has struck me as misguided nonsense from the start. I’m all out of sympathy, given that our self-appointed whistleblowers never seem to have their crises of conscience when it would inconvenience a left-wing administration. The real problem isn’t that one of them gets jammed up for it on occasion; the problem is how many get away with it.

    Which brings us to the related topic: in cases like this, should we cut a great road through the law to get at the Devil? Well, the answer to that is that the great road is already long-since cut. If any of us normal people pop our heads up then we’ll catch it hot. In cases like the present, then, I’m happy to see someone on the other side of politics get it for once.

    The government’s making an example of a chicken to scare the monkeys. Because the public service is still running wild with ’em.

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