The request itself is obscene. It is the kind of tinpot thinking you might expect in a failing dictatorship, maybe for a show trial after the coup. The attorney-general, Michaelia Cash, wishes to introduce evidence in the prosecution of Bernard Collaery that could not be known to Collaery or his lawyers and would instead be assessed by a special counsel engaged by the Commonwealth. It would form the secret basis for a secret trial, the premise of which has already been rejected by a court.
The truth is Collaery should never have been prosecuted and certainly not under these layers of suppression. The idea that his role in exposing Australia’s wrongdoing in Timor-Leste is a threat to national security is ludicrous. He is being tried for heroism by a government too cowardly to do it in public.
“This takes the Commonwealth’s hypocritical obsession with secrecy to new heights when one considers recent events,” Collaery said outside the court. “I strongly object to the court being given and relying on evidence we can’t see. It’s a shameful mockery of open justice.”
Already the Morrison government has gone to extraordinary lengths to keep this case secret. Last month, the ACT Court of Appeal mercifully found that the bulk of evidence should be heard in open court. It noted “there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed”.
The fear of course is of a political prosecution, which is what this case is. The government has already succeeded in having a whistleblower sentenced and now it is going after his lawyer. The evidence in the earlier trial was of a process that had dragged on for years, that had terribly affected a man’s mental health, to the point that he pleaded guilty on charges that should never have
Collaery is fighting on. He has a heroic belief in the law and hopefully will be vindicated. As is well known now, he worked for a former Australian Secret Intelligence Service officer who had been instructed by his superiors to bug the offices of the Timor-Leste government during key negotiations over oil and gas reserves. The charges against Collaery relate to support he offered the whistleblower known as Witness K.
The outcome of those Timor-Leste negotiations was cynical and served only the interests of private business. It represents a dark moment in Australian political history. The actions taken by the Howard government were indefensible and obviously exploitative.
The approach the Morrison government has taken almost two decades later is just as crude. The prosecution itself should never have been approved by the attorney-general, and the secrecy sought since should never have been considered. If the bugging of those offices was standover capitalism, this
is standover law.
This article was first published in the print edition of The Saturday Paper on November 13, 2021 as "Standover law".
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