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Wasteful, Secret and Vicious: The Absurd Prosecution of Witness K and Bernard Collaery

This week has not been a good one for the Australian legal system. For those who feel that an open justice process requires abuses of power to be exposed and held to account, it was particularly awful. It began with the Q&A program on the national broadcaster, the ABC, which supposedly gives an airing to the vox populi. The dominant theme of the conversation between the panellists was that of secrecy and the prosecution (read persecution) of lawyer Bernard Collaery and his client, a former intelligence officer known as Witness K.

Witness K, using authorised channels, revealed his dissatisfaction of an illegal bugging operation of Timor-Leste diplomats in 2004 by Australian operatives during the course of oil and gas treaty negotiations. The exposure enabled Timor-Leste, with the assistance of Collaery, who had agreed to act as Witness K’s representative, overturn the legitimacy of those discussions and the treaty that followed. The revelations of this sordid affair was not something Australia’s national security goons were ever going to forgive.

For years, both men have been subjected to a vicious process intent on securing a conviction. It exudes a police state rationale: punishing a former intelligence officer and his legal representative by means of purported conspiracy and the unlawful disclosure of secret intelligence information. On the Q&A program, Collaery was combative. “I yearn for the day when I can defend Witness K and myself in open court. This is the democracy that my father gave his life in the war for.”

That democracy is, evidently, in a parlous state. According to the New York Times, it is certainly one of the most secretive, a point aided by two other guests on the panel: counter-terrorism wonk Jacinta Carroll and the former director-general of the Australian Security Intelligence Organisation, Dennis Richardson. Both cast long shadows of the opaque, impenetrable security establishment. Neither had much time for the niceties and nobilities of the two cases or, for that matter, broader principles at play. Democracy was for other people.

Stuck in their respective mental corridors, they had no opinion on whether the prosecutions should be taking place. “The government has neither confirmed nor denied any operation in respect of East Timor,” Richardson deflected. “Leaving that aside, if an operation was indeed carried out, it would not have been a crime.” First, neither confirm nor deny the existence of something; second, claim that such a surveillance operation mounted against the cabinet ministers of a friendly state was perfectly legal. Grotesquely, Collaery and Witness K are facing what can only regarded as druidical powers, with any potential convictions drawn on exposing what Richardson and the Morrison government might regard as a fiction.

Having added that element of absurdity to his assessment, Richardson bolted for the exit of dim reasoning known as the cop-out: “in terms of current legal proceedings, it is ultimately the court that will determine that which is privileged and that which is made public.” Transparency can go and hang.

Carroll was not much better, suggesting that all was in order regarding the court process. The question – that this prosecution farce should even be taking place – was evaded. On the court process itself, heavily loaded in favour of the views put forth by the Attorney General, Christian Porter, she was satisfied. Porter’s views constituted “expert advice” and should be given their measure. It was enough to bring Collaery back into the discussion. “The fact is that it’s not a judge balancing exercise, the [National Security Information Act] mandates and gives the attorney’s certificate the greatest weight.”

On June 26, that non-balancing act was in evidence. ACT Supreme Court justice David Mossop ruled in favour of the government submission that material deemed sensitive by the Attorney General would remain classified at trial. The door would be effectively shut. As Collaery had himself warned, the national security certificate would be given asphyxiating weight. His legal representative Christopher Flynn spoke outside the court of the need for this case to be heard in public in its entirety. “The view that national security needs this trial to be heard in secret is highly contested, even here in Canberra.” It would, he contended, be “a shame” if laws “meant to defend and protect us ended up eroding the very things that we mean to protect and defend.”

South Australian Senator Rex Patrick of the Centre Alliance was in agreement. “Justice should be done openly where anyone can come to hear the accuser, the defender and the witnesses. Openness guards against improbity and keeps the judge, whilst trying, under trial.”

Both Flynn and Patrick should not be naïve in this. National security, as a concept, is often self-referenced, contained and resistant to the light of scrutiny or common sense. The protective, paternal principle – that the people, broadly defined, must be protected – has little to do with them, and much to do with the State itself. Citing the phantasmic quality of national security facilitates such prosecutions, which seem vindictive and more than a touch imbecilic.

That has led to one of the most wasteful prosecution efforts in recent memory. As of June 3, some $2 million has been expended despite the case still being at a pre-trial stage. As Patrick put it, this amount has been spent “persecuting two Australian heroes that called out the Australian government’s immortal and unlawful conduct.” But as with other maniacal complexes that beset the tyrannical mind, such heroes must be punished rather than rewarded.

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  1. paul walter

    How do folk feel about Judge Mossop’s decison?

    Apparently I must not hold forth because it said to be not nice to opine on the ancestry of members of the judiciary.

    Death of habeas corpus is the stiletto through the heart of what’s left of democracy, couldn’t see the forest for the trees and wilfully myopic or do we just go with incompetence.

  2. Anthony Shorter

    This is an egregious misuse of dubious legislation rammed into being by a paranoid government denying the public’s right to know.
    If justice was served in all honesty, this case should be thrown out of court and Downer and Howard should be prosecuted in the international criminal court for crimes against a sovereign allied country.

  3. Bruce White

    Willful criminality on the part of Porter.

  4. king1394

    People like Carroll and Richardson always exude the certainty that there are inimical forces at work, which if known about by the citizenry, would bring on some kind of terrible disaster, war and terrorism. This is confirmed and underpinned by certain members of the judiciary and politicians who can use secrecy as an instrument to conceal corrupt and illegal activities,

  5. Baby Jewels

    “Vicious.” Describes it exactly.

  6. John Lord

    That has led to one of the most wasteful prosecution efforts in recent memory. Absolutely.

  7. Jaq

    What a bunch of bastards. I hope that the plight of Witness K and Colleary are know the world over. What a swamp this country has become.

  8. Terence Mills

    This government and the current Attorney General are thumbing their noses at the Australian people and the international rule of law.

    I was just reading the speech by Andrew Wilkie that brought this whole issue to the notice of the Australian people, under parliamentary privilege :

    I’m not sure where we go from here but, if ever there was cause for instituting a Royal Commission, this is it .

  9. Josephus

    Reminds me a bit , proportionality respected, of the fact that it was a serious crime during the Third Reich to mention the ongoing exterminations . Or China, Burma…. we keep good company.
    Seems profit before fairness every time. Fair go? What a farce.

  10. Alc

    Julian Assange also comes to mind.

  11. TuffGuy

    As far as I am concerned all the dirty laundry has already been aired so there is no real point or reason for further secrecy. Shutting the gate after the horse has bolted as it were. As I see it the only reason for secrecy at this point is so the government can manipulate the trial for the verdict they want which is something they can’t do with a full public trial. Given how long the government have been burning the flame for this, and how they do not like to be criticised or ridiculed, they are desperate for a guilty verdict here to justify themselves.

  12. Lambchop Simnel

    Let us not forget what this is about.

    This is about our country, operating for the gain of offshore TNC oil corporations, embarked on a scam to rip off one the poorest countries on earth.

    You have to think of the Orwellian Baghdad gunship massacre that ruined Manning and Assange for the disclosing thereof.

    Who should be on trial here?

  13. Terence Mills


    If the government do get a guilty verdict, will this confirm that it was in fact they who are guilty ?

    As mentioned by former Victorian Premier this morning on ABC RN. There is a strong public interesting in knowing the reasons for these prosecutions which involve attempts by the defendants to expose wrongdoing by the Australian government. Open court proceedings are vital to public confidence in the criminal justice system and suppression orders should not be used to protect governments from embarrassment.

    This matter has a way to go before justice is achieved.

  14. Paul

    It was never about ‘witness K’ or any other letter of the alphabet for that matter.
    This was about broad based intimidation of anyone who dared even countenance the though of whisteblowing on Government activities.

    The current Government has no respect whatsoever for the general electorate and is totally consumed by it’s own self importance.

    I don’t recall accountability ever being found more wanting that in this particular lot.

    Where to from here…..

  15. James

    “Sometimes, she said they threaten you with something- something you can’t stand up to- can’t even think about. And then you say, Don’t do it to me do it to somebody else, do it to so-and-so.

    And perhaps you might pretend afterwards, that it was only a trick that you just said it to make them stop and didn’t really mean it. But that isn’t true. At the time when it happens you do mean it. You think there’s no other way of saving yourself, and you’re quite ready to save yourself that way. You want it to happen to the other person. You don’t give a damn what they suffer. All you care about is yourself”

    George Orwell, 1984

    That’s the game here in the international corporate penal quarry, the fake, the sham descration ‘demonocracy’ called Australia. Seeker. Keeper & Maker the shibboleths muttered by irrefutably vile murderous creepy nightmares in zombie skin. None claim to not know what they of this continent endured and continue to suffer at the clawing hands of the insatiable greedy and sadistic: Australia’s white fellah brutal bankstah corporate RULIN CLASS.

    Have a happy October job seekers. You voted for the pollie rabble.

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