“Witness K” had been an ASIS officer involved in the surveillance operation. He was concerned, so he filed a complaint with the Inspector General of Intelligence and Security in which he suggested that surveillance could have been illegal.
The inspector general agreed that witness K could disclose relevant information as evidence in any related legal proceedings. Information regarding the covert surveillance operation gradually reached the media in Australia and Timor-Leste.
Attorney General Mark Dreyfus.Credit: Alex Ellinghausen
In 2013, Timor-Leste attempted to reopen proceedings on the issue of the maritime boundary at the Permanent Court of Arbitration in The Hague. He informed Collaery to represent his interests, as he had a long history of representing the interests of the country.
Then, in an extraordinary action in late 2013, Australian federal police stormed the homes and offices of Witnesses K and Collaery.
At the Collaery office, police discovered a detailed legal memorandum containing their advice to the Timor-Leste government regarding the location of the maritime border.
Things remained silent for five years. Then, at the end of 2018, unexpectedly and for reasons that are not yet clear, former Attorney General Christian Porter approved the criminal prosecution of Witness K and Collaery. Porter alleged that they had disclosed illegally classified information.
Former Attorney General Christian Porter.Credit: Alex Ellinghausen
The legal argument regarding the prosecution’s conduct continued for four years, to the great personal and financial detriment of Collaery.
There are several issues related to the prosecution that deserve careful consideration.
It is very likely that the Australian government itself has acted illegally. ASIS committed an act of criminal intrusion in Timor-Leste by installing surveillance devices to monitor the deliberations of the Timor-Leste cabinet.
As in any other democratic country, the deliberations of the East Timorese cabinet are, by law, secret.
Under a United Nations convention (the Convention on the Jurisdictional Immunities of States and their Property), States and their property have immunity from the domestic jurisdiction of another country.
Australia clearly broke international law by assaulting the offices of Witness K and Collaery and confiscating documents that were owned by the Timor-Leste government.
In Australia, the law protects communications between the lawyer and the client. By effectively stealing Collaery’s extensive legal advice from the Timor-Leste government, ASIS violated the confidentiality of communications between the lawyer and the client.
Porter then filed an application following the application to the ACT Supreme Court to ensure that Collaery’s trial would be conducted in secret.
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The government argued that if the documents revealing ASIS operations become public, the foreign intelligence agencies in whose hands these documents fell could be able, by combining them with other sources of information. ‘information, to build an intelligible mosaic from which the processes and methods of Australian secret surveillance activities. it could be ascertained.
In this case, however, the documents in question refer to a single intelligence operation carried out in a small country 18 years ago. It would come as a surprise to any informed observer, and probably to any able intelligence analyst, that the historical methods of surveillance used in 2004 could shed even the most remote light on the technological methodology of contemporary practice. intelligence.
A secret trial is a radical attack on the fundamental principles of open justice and fair trial.
There was a certain quality of Alice in Wonderland in all of this. Everything had been turned upside down.
The two people who acted in the national interest in revealing the illegal activity carried out by the Australian intelligence service abroad in disturbing the East Timor cabinet were the defendants in the criminal case.
Those in government who initiated the illegal and covert operation, through their successors in government, had become prosecutors. Something had gone very wrong.
Had Collaery’s case gone to trial, the ramifications of the case for freedom of expression, journalism and government responsibility would have resonated through Australian law and society for years.
It was a direct attack on political freedom of communication and intimidated whistleblowers.
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It discouraged investigative journalism, undermined freedom of the press, involved criminal invasion and contract fraud, invaded legal privilege, violated UN conventions, and denied a fair trial. It was a stain on the conduct of Australia’s foreign relations and was a serious attack on people of conscience.
Dreyfus should be highly praised for closing this outrageous legal proceeding.
Spencer Zifcak is Professor of Allan Myers Law and Professor of Law at the Catholic University of Australia. This article is republished from The Conversation.