Bernard Collaery likens his prosecution by Australia to a ‘Moscow show trial’

by Christopher Knaus
Witness K’s lawyer gives first speech since case against him was dropped, argues for reform of the National Security Information Act

Bernard Collaery has likened his prosecution to a “Moscow show trial” and said the Coalition pursued him and former spy Witness K in an attempt to hide the “dirty linen” of its dealings in Timor-Leste.

In his first speech since the case against him was dropped, Collaery on Wednesday night gave an excoriating assessment of the protracted, secretive prosecution that he said caused immense turmoil for him, his family and friends, and his legal team.

“Without the pro bono efforts of the partners and staff of a stellar law firm, Gilbert + Tobin, and a troupe of brilliant pro bono barristers, I would not have survived the Coalition’s attempt to hide its dirty linen,” Collaery said in a lecture for the Queensland Council for Civil Liberties on Wednesday.

“The worry is that while the Coalition government has been defeated at the polls, elements that supported poor policy decision making remain within the bureaucracy.”

Collaery, a lawyer, and his client, former intelligence officer Witness K, were prosecuted for their role in exposing a secret Australian mission to bug the government offices of Timor-Leste during 2004 talks to carve up the lucrative oil and gas reserves in the Timor Sea.

In his address, Collaery said prosecutors should have realised their case was unlikely to succeed, because there was no lawful basis to direct the Australian Secret Intelligence Service to spy on Timor-Leste’s government during the oil and gas negotiations.

“Instead of facing up to this, the prosecution aided the Coalition in a cruel four-year long attempt to hide dirty linen and punish Witness K and myself for speaking up for Australian values,” he said.

Collaery chose to fight the allegations, but the case was bogged down for years by repeated Coalition interventions to impose secrecy on the proceedings using the National Security Information Act (NSI Act).

Collaery said the NSI Act – introduced in the years after September 11 to protect sensitive national security information during court proceedings – needed to be reformed.

Collaery said he was the first to face the “full panoply of oppressive NIS Act provisions”. At times, the laws were used to hide evidence from Collaery’s own legal team.

The laws were also used to enable intelligence officials to give evidence behind closed doors to argue the case for greater secrecy in Collaery’s prosecution.

Collaery described that as “a chilling reminder of images of the 1936-37 Moscow show trials”.

“When the NIS Act is used to protect lawbreakers from facing judgment and the public from knowledge of that activity, something is wrong with the rule of law in Australia,” Collaery said.

Collaery said he was “enormously grateful” to both the attorney-general, Mark Dreyfus, and also the foreign minister, Penny Wong, for their efforts to halt his prosecution.

He said any inquiry into the affair should examine the extraordinary volume of warrants issued as part of the commonwealth’s pursuit of him and Witness K.

“The warrants monitoring my team likely intruded into the activity of members of Parliament, journalists, collegiate members of the legal profession in Australia and abroad and other Australian citizens,” he said.

Collaery described Australia’s actions as a tragedy and a shameful chapter in regional foreign policy. He said Australia was motivated by a greed for oil, which was shared by foreign corporations.

The former government’s conduct had made it more difficult for Australia to preach about a rules-based international order, he said.

“Refusing to admit to oppressive and wrongful international conduct brings us into compact with China’s system and further away from establishing, in the New Zealand manner, a values-based place in our region,” Collaery said. “We should admit to a deplorable former foreign policy approach within our region, apologise, and move on, to bigger things.”