What might our new Attorney do with Bernard Collaery?

by Andrew Fraser

Image: iStock A 22-year-old speech by the late, long-serving federal and ACT Judge John Gallop provides all that Attorney-General Mark Dreyfus needs to consider in the case of Bernard Collaery and Witness K.
“The most important prerogative powers of the Attorney-General as Chief Law Officer are the power to initiate and terminate criminal prosecutions, to advise on the grant of pardons …” said Justice Gallop in the 2000 Blackburn Lecture. “There has been an established convention that the Attorney-General, in exercising the prerogative discretions, should not act merely as a Minister influenced by government policy or party political considerations and compliant with Cabinet decisions, but should make the decisions in the exercise of an independent judgment.”
Dreyfus could hardly have sounded more like a mere politician in government when asked about the Collaery case on the ABC’s Law Report on June 28. Reminded that he had promised action on whistleblower protection “from Day 1” in government, he said, “I think it’s important that people bear in mind that all governments need to protect secrecy. The settings that are in place for protecting government secrets are important to democracies just as they are important to any government …”
Any government? Is our AG comparing our secrecy “settings” to those of tyrants and one-party states? Despite the awkward phrasing, let alone the wooden delivery, it seems Dreyfus is giving the Collaery case “serious consideration”.
This contrasts with his stronger stand during this year’s election campaign when he described the manifold delays in the Collaery case as “an affront to the rule of law”. But contrast that again with Collaery’s 2016 observation that it was Dreyfus, in his first incarnation as AG in 2013, who had overseen the bugging of Collaery’s chambers “along with the unlawful clandestine interception of our legally privileged communications”. Gallop’s 2000 lecture gave a forensic account of how an AG can act, using an example that some might find perverse: the failed private prosecution of Gough Whitlam and three of his ministers over the Loans Affair.
Then AG Robert Ellicott resigned in September 1977, when he did not get the support of Cabinet and Prime Minister Malcolm Fraser to take over and continue the prosecution (alleging conspiracy to deceive Governor-General Sir John Kerr). The prosecution had been launched by Sydney solicitor Danny Sankey on 20 November 1975, nine days after Whitlam’s dismissal and 23 before the election which Fraser had promised on condition of being installed PM. By 1977, many, including Fraser, believed that the prosecution had long done its job: helping achieve a Liberal landslide on 13 December 1975.
Cabinet wanted to tie up the loose end by taking over the prosecution and ending it, but Ellicott was having none of that. He quit, declaring, “There is no place where the criminal law does not run, even in the Executive Council, nor can any convention that a government should not look into the affairs of a previous government prevent inquiry for the purposes of enforcing the criminal law.”
Gallop noted that Ellicott’s view was “resoundingly supported” by the High Court, which ruled unanimously that the fact that members of the Executive Council are required to take a binding oath of secrecy does not mean that the production of State papers cannot be compelled. Gallop noted Chief Justice Harry Gibbs had “aptly described the dilemma”, saying, “If the defendants did engage in criminal conduct, and the documents are excluded, a rule of evidence designed to serve the public interest will instead become a shield to protect wrongdoing by ministers.”
Is not the prosecution of Collaery and the conviction of Witness K at least prima facie “a shield to protect wrongdoing by ministers”? The two accused talked to the media, exposing the Australian bugging of the Cabinet room of Timor Leste, not only an independent nation, but a very new and most vulnerable one.
In 2000, Gallop cited the Australian Law Journal, which found that the nature of the Sankey criminal proceedings had been inseparably connected with politics. Therefore, the Cabinet, not the Attorney-General, was the better judge of the relevant public interest, according to the journal.
He noted also that the Liberal AG in 2000, Daryl Williams, had backed right off the notion of being a fearless first law officer when he said, “It ought to be concluded that the perception that the Attorney-General exercises important functions independently of politics and in the public interest is either erroneous or, at best, eroded.”
In Britain, the Attorney-General has not been a member of Cabinet since 1928. Sir Peter [later Lord] Rawlinson, Conservative AG 1971-1974, said the AG “ought to be aloof from his colleagues in the Ministry to a quite formidable extent”. Gallop noted the Australian context has been quite different: well before Williams, Billy Hughes, Robert Menzies, Bert Evatt and Garfield Barwick had all been Attorney-General and important political, as well as legal, figures.
“They were all politicians influential in framing government policy and were often engaged in robust political controversy. Independent aloofness played no part in their careers,” Gallop said.
Whether Dreyfus decides the Collaery matter alone and aloof, or at the behest of his Cabinet colleagues, there is only one way it should end.
President Pauline Wright of the NSW Council for Civil Liberties put it best at a Centre for Public Integrity webinar: “Here we have two people who told the truth, in the public interest, about Australia’s deplorable (and probably illegal) bugging of a friendly nation for commercial gain. Instead of the perpetrators of the initial wrongdoing, it is the individuals who exposed it who are being prosecuted.”
Dreyfus may choose not to be the main man himself because, in the Commonwealth arena, the Director of Public Prosecutions is empowered to decline to proceed further in a prosecution. But as Gallop noted, “No doubt the Director is accountable to the Attorney-General and the Attorney-General is accountable to the Parliament for such decisions.”
Witness K, of course, pleaded guilty, but that’s not an end to it. How appropriate if, as Dreyfus announces the end of the Collaery prosecution, Yarralumla announces that the Governor-General – on the advice of his AG – has granted a pardon to Witness K?
In 1979, Governor-General Sir Zelman Cowan granted a free and absolute pardon to a woman on the basis of evidence she was thought to be able to give in a prosecution for alleged social-security fraud. If such were possible for a whistleblower whose evidence helped merely to consolidate the revenue, surely one can be granted to a whistleblower who exposed state-sponsored espionage?