Sunday 20th of June 2021

the miscreants of the howard years...

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Many of us have heard about the prosecution of Bernard Collaery on the say-so of Christian Porter. But very few know much more than that it is an almost secret trial against the former ACT Attorney-General. Unfortunately, John le Carré is no longer with us to tell this intriguing tale.

 

Witness K and Bernard Collaery

 

K was a senior ASIS officer who was tasked with bugging Timor-Leste’s most sensitive government offices for Australia to get the upper hand in negotiations over ownership of extremely valuable resources in the Timor Sea. K was given approval by the Inspector General of Intelligence and Security to get legal assistance and advice from Collaery in relation to K’s concerns. K was authorised, amongst other things, to get legal assistance from Collaery to take private legal action against the Australian Government over what he had been required to do. Collaery has long acted for members of Australia’s intelligence and security agencies with the approval of Australia’s Inspectors General of Intelligence and Security.

The Permanent Court of Arbitration

Collaery had also acted for Timor-Leste against the Australian Government over the latter’s bugging and other dirty tricks.  Collaery was instrumental in taking that dispute – which is extremely embarrassing to Australia and many of our senior government figures – to the Permanent Court of Arbitration in The Hague. Collaery favoured the Permanent Court of Arbitration to avoid Australia being publicly humiliated. Under the Permanent Court of Arbitration’s procedures, Witness K’s damning and embarrassing evidence against the Australian Government would never have been made public but for imprudent actions in Canberra – by both Labor and the Coalition. Few tribunals in the democratic world – including none in Australia – provide such a ‘private’ method of resolving international disputes.

In 2013, to initiate the action in the Permanent Court, Timor-Leste served an Arbitration Notice on Australia. Despite an agreement by Prime Minister Gillard to treat the issue in confidence, Foreign Minister Bob Carr and Attorney-General Mark Dreyfus issued a joint media release on 3 May 2013 publicly revealing – for the first time – the espionage claim. Apart from being a breach of confidence, this act was reckless, including to Australia’s reputation as a good international citizen.

Timor-Leste, acting responsibly again, appointed Lord Justice Collins, a UK Judge experienced in security matters, as its nominee to the three-member Arbitral Tribunal. Australia appointed an equally experienced representative who, with Timor-Leste’s nominee, chose the Chairperson.

However, Australia sabotaged the arbitration: in December 2013, hours after he had left Australia for The Hague, the Australian Government raided Collaery’s office and home, seizing copies of Timor-Leste’s case files. Collaery’s approved client, Witness K was also subjected to search and seizure including his passport – preventing him from going to The Hague.

Charges against Collaery

The first allegation against Collaery is that he conspired with his client K to disclose secret information, contrary to the Intelligence Services Act 2001. The remaining charges relate to Collaery’s public complaints via ABC journalists after ASIO and the AFP seized Timor-Leste’s Brief of Evidence to the Permanent Court of Arbitration in The Hague.

Witness K was given approval by the Inspector General of Intelligence and Security to get legal assistance and advice from Collaery; and was authorised, amongst other things, to get assistance from Collaery to take private legal action against the Australian Government over what he had been required to do.

Bugging by ASIS was illegal

Under the Intelligence Services Act 2001, to be lawful an overseas spying mission by ASIS must be necessary for the proper performance of a function of ASIS. From this, Collaery concluded that the bugging of Timor-Leste was illegal under Australian law.

As far back as June 2015, Collaery gave an address at the ANU to the legal profession debunking the notion that cheating an impoverished ally and antagonising a strategically placed neighbour was in the interests of Australia’s foreign relations or national security. Hence the conduct that he is now forbidden from speaking about was not a proper function of ASIS and was illegal.

What Collaery did not expand on was a third possible basis on which ASIS’ bugging operation could be authorised by the Australian Government – Australia’s economic well-being.

Helium

In his book ‘Oil Under Troubled Water’, published in 2020, Collaery revealed that a major part of the revenue from the Timor Sea is from helium gas. And no part of this revenue is passing to either Timor-Leste or Australia. The operators of gas fields are required to develop all resources for the benefit of all the parties. But in the Bayu-Undan contract – the Timor Sea Joint Venture – the worldwide definition of petroleum was surreptitiously altered to exclude helium – at enormous cost to Timor-Leste and Australia, and an astoundingly massive windfall to ConocoPhillips and Woodside.

Collaery believes that even some senior DFAT negotiators were left in the dark about the helium. The final deal was struck in Parliament House while DFAT and Timor-Leste officials believed in good faith they were talking about helium as well as LNG. The significance of the change was not disclosed to the Australian Parliament or Timor-Leste. Why did this happen?

This theft of multi-billions in revenue would be rich pickings for an Australian ICAC. Running at over $200 million per annum since 2009, the loss to Australia and Timor-Leste from this surreptitious change to the definition now nears $3 billion in gross revenue. At the time, the Timorese and Australian people were being sold the lie that the Timor Sea resources were being developed for the mutual benefit of the two countries. The massive helium resource benefitted only foreign-owned corporations and foreign powers.

Now the Australian Government is going to unprecedented, Stalinist-style lengths to prevent Collaery’s trial from being open to public scrutiny.

Since 1945 helium has been listed by Australia as a fully imported critical defence commodity. Clearly, Collaery knows a lot more. If given a public hearing, he is likely to expand on his helium revelations: as to how the foreign corporations who benefitted were responding to entreaties by China and Japan – both anxious to secure a stable source of helium for their nuclear plants and electronic industries.

At the time the contract was signed, China had strategic concerns to secure helium supply. China was dependent at that time on the United States, Qatar and Algeria. It knew that Australia and Timor-Leste would not permit it to acquire a direct stake in the Timor Sea Joint Venture. Beijing had to work around the edges. ConocoPhillips executives made frequent trips to Beijing to tie up the sale of LNG and helium. Japan had similar strategic concerns to secure helium. Japan had joined the helium hunt by using its National Oil Office in Sydney to assist Tokyo listed Inpex Sahul Ltd as a 21.2 % shareholder in the Bayu-Undan project.

To reiterate, Witness K was given approval by the Inspector General of Intelligence and Security to get legal assistance and advice from Collaery. It beggars belief that Witness K would have been approved to consult Collaery, who was well known to be Timor-Leste’s long-standing legal adviser if the IGIS had understood the context of this helium heist.

What would Australia’s defence community, including Defence Minister Robert Hill, have said about the gifting of the helium to foreign corporations to on-sell to China and Japan? And what would Tony Abbott as Minister for Health and Ageing have said about Australians having to buy the gifted helium back at great cost for every MRI performed in Australia?

K was unwitting. ConocoPhillips wanted to know if Timor-Leste had woken up to the helium which would define the field’s economics. Corrupt Australian officials obliged.

How can this corrupt saga possibly be said to advance Australia’s economic interests? Why aren’t the parties who corruptly negotiated it in the dock rather than K and Collaery? It is time the Australian people learnt the truth, including as to what individuals benefited from this grubby, treasonous episode.

What next?

Collaery says he has recently, for the first time, seen the Brief of Evidence against him. Bound to silence, all Collaery could tell an audience of Judges, Magistrates and other lawyers in Melbourne recently was that he “skipped out of his lawyer’s office” after reading the prosecution Brief. Collaery seems to believe he is on strong ground.

But there is no sign that the true miscreants will be called to account.

 

Read more:

https://johnmenadue.com/who-just-gives-away-billions-is-this-what-the-collaery-case-is-all-about/

heroes in timor-leste...

 

By Ian Cunliffe

 

Following the Bernard Collaery and Witness K matters, occasionally there are little glimpses into the strange Stalinist world within which the Commonwealth beavers away to discredit two distinguished Australians. The Senate Estimates hearing on 29 May provided such an opportunity.  

Mr Scott Bruckard, a public servant of 35 years, who is apparently the acting head of the office of the Commonwealth Department of Public Prosecutions (CDPP), showed that he is a dab hand at not answering questions. Yet still, some very interesting information did escape under questioning by Labor veteran, Senator Kim Carr, and independent Senator Rex Patrick.

While evasive on the question, it seemed from Mr Bruckard’s non-answers that the CDPP has not considered the impact of prosecuting Collaery and K on Australia’s relations with Timor-Leste. Senator Patrick told the hearing that he had visited Timor-Leste a number of times and that Collaery and K are regarded as heroes there. Senator Patrick also remarked on the very prominent public works that the Chinese Government is constructing in Timor-Leste.

Astute observers have remarked that Timor-Leste is potentially Australia’s Cuba. From a strategic military and intelligence perspective, there is little doubt that China would be very keen to have a presence in Timor-Leste. If it were to do so, the Australian Government would very likely need to respond. Senator Patrick remarked that the response would likely cost billions of dollars.

He did not say so, but that scenario would put Australia in a much worse position than having a friendly Timor-Leste on our doorstep.

The CDPP proclaims that in taking decisions whether or not to prosecute, one of the two factors it considers is the public interest – the other is whether there is sufficient evidence of guilt. Mr Bruckard told the hearing the public interest test is a continuing one – the CDPP applies that test not only before deciding whether to prosecute and keeps it under review.

It beggars belief that prosecuting Collaery and K can be in the public interest if for no other reason than its impact on Australia’s relations with Timor-Leste.

In an article on Pearls and Irritations on 23 October last year, I analysed the CDPP’s policy on when to prosecute in relation to the cases of Collaery and K and journalist Dan Oakes. The Commonwealth had just decided to abandon its prosecution of Mr Oakes for bringing to the Australian public’s attention that our Special Forces military had murdered numerous people in Afghanistan.

I sent that article to the CDPP, Ms Sarah McNaughton, calling for the prosecutions of Collaery and K to be similarly abandoned. I received no reply nor even an acknowledgment.

The CDPP’s website includes the “Prosecution Policy of the Commonwealth” (the Prosecution Policy) which it says “underpins all of the decisions made by the CDPP throughout the prosecution process”.  The Policy says that the pivotal test is whether “the public interest requires a prosecution to be pursued”.

The Policy also speaks of the importance of not undermining the confidence of the community in the criminal justice system.  No prosecutions in the more than half-century since I graduated from law school have had such a damaging effect on confidence in the criminal justice system than Collaery and K.

Numerous other factors which the Policy lists as relevant are heavily in favour of dropping these prosecutions. These include:

  • the alleged offender’s antecedents and background;
  • the passage of time since the alleged offence;
  • whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute;
  • whether the alleged offence is of considerable public concern;
  • the likely length and expense of a trial; and
  • the necessity to maintain public confidence in the rule of law and the administration of justice through the institutions of democratic governance including the Parliament and the courts.

Crikey has described Collaery’s prosecution as a vexatious pursuit of Collaery by then Attorney-General Christian Porter, reporting “bizarre secrecy orders [sought by the Commonwealth] that would see Collaery prosecuted, with the risk of jail, using documents that neither he nor his legal team, nor the jury, would even be allowed to see”.

In order to prosecute K and Collaery, the prosecution is resorting to approaches that, in the view of many credible and even conservative observers, involve serious attacks on the Rule of Law and on the deeply entrenched Australian tradition of fairness in the conduct of criminal trials. These approaches seriously affect the reputation of the CDPP into disrepute, and seriously risk also bringing the courts in which the prosecutions are being conducted into disrepute.

These matters collectively have a real potential to very seriously and adversely affect community harmony and public confidence in the administration of justice, and to bring the law into disrepute, particularly in a prosecution that is seen by many to be politically motivated. Because of the secrecy of the trials, we know virtually nothing of the obstacles being put in K’s path. We get limited glimpses of what is happening in Collaery’s proceedings. Those glimpses include that the charges against Collaery don’t identify – even to Collaery himself – what secret he is alleged to have disclosed.

It seems that we have nearly reached the point when the immense pressure over years on K has broken his will to fight on. He is apparently about to tap the mat. Collaery meanwhile, with his much superior knowledge of the law, is fighting on. To the extent that it is possible with these Stalinist prosecutions, I have considered whether a halfway fair prosecution of Collaery could possibly succeed. I am firmly of the view that it could not.

K might be well-advised to seek a stay to his prosecution until the Siamese-twin prosecution of Collaery is completed. If, as I predict, Collaery is acquitted, that should flow through to K as well.

 

Ian Cunliffe, Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

 

Read more:

https://johnmenadue.com/stalinist-style-prosecutions-of-witness-k-and-bernard-collaery/

 

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