What We Know About The Secret Trial Of Bernard Collaery

Kieran Adair

June 5, 2020

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Last week, there was a secret hearing in Canberra that you and I are not allowed to know about.

It involves spies, ministers, diplomats, and high profile lawyers – but the public has been barred from knowing any details about what’s been said in court.

This is the case of Bernard Collaery, who is being prosecuted by the Australian Government over his alleged role in exposing the Howard Government’s illegal bugging operation in Timor-Leste in 2004.

While little is known about what has been said in court, we have prepared a short explainer on the background of the case for those who want to know more about what has been said publicly.

1. Who is Bernard Collaery

Bernard Collaery is an Australian barrister, lawyer and former politician.

Collaery was a member of the Australian Capital Territory’s first Legislative Assembly, and served as the Deputy Chief Minister and Attorney-General from 1989 to 1991.

As a barrister and lawyer, he represented plaintiffs in a number of high-profile cases, including:

  • 1997 Thredbo landslide – Coronial inquiry – representing the families of the deceased

  • 2003 Canberra bushfires – ACT Supreme Court compensation – representing various landholders.

  • Royal Canberra Hospital implosion – damages claim on behalf of the family of the deceased.

  • Compensation case where a man suffering a psychotic episode was shot by police and as a result became quadraplegic.

Alongside his work in Australia, Collaery has a long association with the people of Timor-Leste. Collaery advocated on behalf of Timor-Leste and was legal advisor to the National Congress for Timorese Reconstruction (CNRT) in the critical period up until formal independence in 2002.

Read more: Bernard Collaery (Wikipedia)

2. Why Has Bernard Collaery Been Charged

In June 2018, the Commonwealth Director of Public Prosecutions filed criminal charges against Collaery and his client known as “Witness K” for their role in exposing the Australia–East Timor spying scandal.

The Australia–East Timor spying scandal began in 2004 when the Australian Secret Intelligence Service (ASIS) clandestinely planted listening devices in a room adjacent to the Timor-Leste Prime Minister’s Office at Dili.

The action was authorised by the Howard Government, with the aim of obtaining information that gave it the upper hand in commercial negotiations with the Timor-Leste Government over the boundary lines for the rich oil and gas fields in the Timor Gap.

Collaery and “Witness K” are accused of conspiring to communicate details of the bugging operation to the Government of Timor-Leste, a factor which may have led to their Government challenging the legitimacy of the negotiations through the International Permanent Court of Arbitration.

Read more: Explainer: Australia and Timor Leste in The Hague (The Conversation)

3. Who Benefited From The ASIS Operation

The oil and gas fields in the Timor Gap are worth an estimated $40 billion.

The ASIS bugging operation was just one of the many high-pressure tactics used by the Howard Government to push the cash-strapped Timor-Leste government into a premature and disadvantageous agreement over access to them.

The major beneficiaries of this negotiation were Australian petroleum exploration and producer Woodside and American multinational ConocoPhillips, who gained advantageous access to the profitable fields.

While neither the Australian or Timor-Leste people have gained much from these arrangements, several key players from the Howard Government went on to land lucrative positions at Woodside shortly after.

In 2005, DFAT Secretary, Dr Ashton Calvert, who oversaw the negotiations with Timor-Leste, was appointed to the Woodside board.

In 2012, former-Foreign Minister Alexander Downer was also appointed as an advisor to Woodside Petroleum.

Read more: Since when is it a crime to report a crime? Bernard Collaery exposes the Timor Sea betrayal (Michael West Media)

4. Why Can’t The Press Report On Bernard Collaery’s Trial

The Attorney-General, Christian Porter, who bought the charges against Collaery has also used his powers to ensure the public stays in the dark about the case. Since 2018, there have been over 30 scheduled hearings into the charges – most of them have been conducted in secret.

To do this, Porter has used a section of the National Security Information Act (NSIA) which allows him to prohibit information related to ‘national security’ from being revealed in court.

The NSIA was introduced in 2004, as part of a suite of counter-terrorism laws, designed to help prosecutors convict people for terrorism offences.

It creates a special procedure, in which the Attorney-General can issue a non-disclosure certificate that prohibits information from being revealed if they believe it will compromise ‘national security.’

Courts have traditionally excluded some information from being published but rarely under the cover of a closed court. The key difference here is the party deciding to withhold is a member of the cabinet – the Attorney General.

Read more: How National Security Laws Are Being Used To Prosecute Whistleblowers In Secret (Xenophon Davis)

5. What Others Have Said About Bernard Collaery’s Trial

Last year, Four Corners interviewed a number of high profile Australians on Collaery’s trial. This is what they said.

Andrew Wilkie, Independent MP: I feel we’re living in very dangerous times here in Australia, there is clearly a reduction in civil liberties. Whistleblowers are being pursued in the courts, journalists are being raided, I would characterise it as being in a pre-police state, which left unchecked will get even worse, and one day we’ll wake up and wonder how on earth we got here.

Bret Walker, Independent National Security Legislation Monitor: The country generally should have a good hard look, with no preconceptions, about just what is the scope of information about government, that should be kept secret from the people, for how long, and why? I think that for far too long, there has been this notion that, very few people will decide what’s good for us to know, and what’s good for us not to know. And I, for one, am not prepared to give them a blank cheque.

Steve Bracks, Former Premier of Victoria: It would be nice to know why the attorney general Christian Porter thought it was in the public interest to proceed on these matters against Witness K and Bernard Collaery. I mean if it was right and proper to proceed, they would have proceeded the point at which they had this material, which was several years ago.

Stephen Charles QC, Former Supreme Court Judge: It’s intimidation, intimidation of ASIS agents, intimidation of journalists against, matters of this kind. It’s an act of vengeance directed at the people who chose to expose Australia’s appalling behaviour.

Read more: Secrets, Spies and Trials (ABC)

6. What Bernard Collaery Has Said About His Trial

Last week, Bernard Collaery provided the following statement to journalists.

“I have spent a great part of my life in the law serving our legal system.”

“The law has been my life. I’m now an accused in a court I have long regarded as my second home.”

“I am unable to say much and you are unable to report much. This is the state of our now fragile democracy.”

“I want to say this today to those people within the system who I know objected to what was going on: I salute you for standing up to be counted. You are not alone.”

“I hope that there will be a royal commission in my lifetime and you will be recognised for being true in your service to our country.”

Read more: ‘Sad times’: Bernard Collaery laments ‘now fragile democracy’ as pre-trial hearing held in secret (Canberra Times)

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Written By Kieran Adair

Kieran Adair is a reporter for Xenophon Davis, covering government accountability, civil liberties, and whistleblower trials. He has previously written for the Michael West, Guardian Australia, and Sydney Criminal Lawyers. Twitter: @kieranadair_

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