Contributed by Adam Carlton

Yesterday (Monday 17 May 2021),  the ACT court of appeal began a two-day hearing to consider an appeal by Bernard Collaery. He was the lawyer representing Witness K in his secret trial. This appeal is over secrecy of information relating to his own prosecution under the National Security Information Act.

He says the secrecy compromises the right to a proper defence and that the  high cost of legal proceedings makes it even worse. This denies a fair trial.

Photo by Alex Ellinghausen: Bernard Collaery

Under the Act, defendants find their normal rights in a trial are compromised. This means the cross examination witnesses for the prosecution, access to relevant information, and the presumption of innocence until proven guilty.

The Witness K case is about a former spy who disclosing information about the bugging of Timor-Leste government in 2004. The act was illegal, and the then foreign Minister, Alexander Downer, was found to have a vested interest in securing Australian control over the fledgling nation’s Timor Sea oil reserves. Downer was linked to Woodside, which was given the oil contract by the Australian government.  

Witness K was disturbed by the operation and chose to become a whistleblower, and he has been persecuted ever since. Although he is planning to plead guilty to the charges, Colleary is now fighting charges imposed on himself for his legal role as legal councel in the case.  

But the appeal is itself being held in secrecy.

Kieran Pender, a senior lawyer at the Human Rights Law Centre, said “the prosecution of Bernard Collaery, and the secrecy surrounding it, is wrong and undemocratic”.

“We should be protecting whistleblowers, not punishing them,” he said.

“Shrouding this case in secrecy only exacerbates the injustice being done. The NSI Act is broken and must be amended to better protect the public interest in transparency.

“The NSI Act makes a mockery of open justice, a vital democratic principle.”

There has been no explanation as to how mention of a conflict of interest and the illegal phone tapping of another government threatens Australia’s national security.

The persecution of Witness K and Bernard  Collaery is wrong. It is high time it was put an end to. This is not only about the mistreatment of the individuals concerned. The case sets a precedent, which if it continues, sets the scenes for more secret trial. This  is a direct threat to democratic rights in Australia.