The secret prosecution of Witness K and Bernard Collaery

The prosecution of Witness K and Bernard Collaery has sparked national debate on issues relating to national security, government accountability, freedom of speech, the rule of law and open access to justice.

With public discourse surrounding the prosecutions intensifying, this post serves to summarise and highlight key features of the background of the case ahead of the public forum to be held at Brisbane City Hall on 29 October 2019.

Background

In 2004, Australia and Timor-Leste had commenced treaty negotiations in relation to oil and gas deposits in the Timor Sea.  It was during these negotiations that Australia’s Secret Intelligence Service (ASIS) bugged the walls of Timor-Leste’s cabinet offices under the guise of a foreign aid program. This action gave Australia’s negotiators an unfair advantage in relation to the overall negotiations of the treaty.

Witness K is a former ASIS operative who had firsthand knowledge of the spying operation on Timor-Leste’s treaty negotiations.  He later became aware that high Australian officials involved in the spying were lobbying for an Australian oil company with interest in the area. He complained through proper channels about the illegality of the bugging and obtained permission to speak to his ASIS-approved lawyer, Bernard Collaery.

After learning of the espionage, Timor-Leste initiated international arbitration proceedings against Australia, alleging that the bugging had rendered the treaty void as the negotiation was not made in good faith.  Collaery, representing Timor-Leste, was intending to call Witness K as a confidential witness in the proceedings.

In December 2013, the homes and office of both Witness K and Collaery were raided by ASIO and Australian Federal Police. Documents and data were seized, including Collaery’s legal advice to the Timor Leste Government relating to its strategy for arbitration, and Witness K’s passport was cancelled preventing him from testifying at The Hague.

Four and a half years later, the Commonwealth filed criminal charges against Witness K and Bernard Collaery.

The prosecutions

The charges against Witness K and Collaery are pursuant to Article 39 of the Intelligence Services Act which criminalises the unauthorised disclosure of certain information about ASIS.

Witness K announced in August of this year that he will plead guilty to the charge, with Collaery facing trial separately.

Collaery’s trial will be conducted in partial secrecy under the provisions of the National Security Information Act 2004 (NSI Act). The principle that judicial proceedings are open to the public is well established, however the NSI Act is designed to prevent prejudicing national security.  It is unclear just how much of Collaery’s trial will be kept secret from the public, and from Collaery himself.

This case touches on and challenges numerous long-standing principles grounding Australia’s legal system.  The public forum to be held on 29 October 2019 will involve a discussion of the prosecution of Witness K and Bernard Collaery through the lens of highly qualified speakers.

Robertson O’Gorman is hosting East Timor Prosecutions Public Forum: The secret prosecution of Witness K and Bernard Collaery for national security offences at Brisbane City Hall on 29 October 2019. Spaces are limited. Tickets are available here.