Kim Carr (Victoria, Australian Labor Party) Share this | Hansard source

This question today gives rise to serious conversation about what we mean by our international reputation and what we mean by our concern when we provide advice to the world about our moral standards when it comes to human rights and our attitudes when it comes to the rules based order. We are only too happy and very quick off the mark to offer advice to authoritarian regimes about our moral superiority in international relations. Therefore, if we are to do that, I think that we have to ensure that in our own activity—that is, Australia's activity—such as the matters that have just been referred to by Senator Fawcett in terms of questions of trust, matters about questions of integrity, questions that go to the deep partnerships with our allies, we have to actually demonstrate those things in practice ourselves. It strikes me that the circumstances that have arisen in regard to Witness K and the prosecution of Witness K's lawyer, Bernard Collaery, raise serious doubts about just what levels of legal protection are, in fact, available to officers that draw attention to what they believe to be the inadequacies of our diplomacy and our international behaviour in terms of those benchmarks.

The allegations that ASIS had bugged the East Timor government's cabinet room in 2004 have, in fact, outraged many Australians, and so they should. But so should the prosecution of two men who revealed what I think, if true, is nothing short of shameful conduct. These prosecutions have been largely conducted in secret. They are prosecutions of people who claim to be whistleblowers, people who thought they had the protection of the legal mechanisms that Senator Fawcett has referred to, making allegations of serious misconduct which involved criminal behaviour not just by Australian government agencies but possibly by senior ministers in the Howard government as well. The possibility of that involvement by ministers might explain why the Morrison government has insisted on a cloak of secrecy around these very prosecutions even though the offence that Witness K and Mr Collaery have alleged occurred 17 years ago.

We don't know why the former Attorney-General, Christian Porter, has actually authorised the prosecutions. I want to emphasise that—he's authorised the prosecutions. What we do know is that his predecessor, George Brandis, on several occasions declined to do so. Nor do we know why it is, as publicly explained, Mr Porter has instructed his lawyers to intervene in the pre-trial proceedings against Mr Collaery on several occasions to seek even greater secrecy on the way in which the trial is conducted.

Mr Porter had always refused to explain why it was in the public interest to prosecute these men, who had revealed what was, in their minds, shameful conduct by the Australian government. Mr Porter's successor, Senator Cash, who's here today, hasn't provided any explanation either. In fact, she said in question time, as I understood her, that this was a matter of independent action by the CDPP. This has at all times been a highly political trial, and at all times it has involved the actions of the Attorney-General. We don't know why the Commonwealth has gone to such extraordinary lengths and such incredible expense to conduct these secret prosecutions. From the letter to me from the Attorney-General's Department, we now find out it's in excess of $4 million, for a prosecution against two men whose real offence is to reveal some very, very dark aspects of Australian diplomacy.

The claim about the bugging by Australia of a friendly government, that of one our poorest neighbours, is a very serious claim. The Howard government was very proud to be able to make, finally, the assertion that it had helped that country obtain its independence. Australia played a very positive role, particularly in leading an international peacekeeping force there in September 1999. We'd like to think that Australia and East Timor did have a special relationship. The Howard government was very keen to encourage us all to say so. Well, it is extraordinary that that special relationship did not preclude spying on that country's cabinet, and I find that remarkable given that what was at stake was international commercial negotiations about resource allocation and how to carve up an extraordinarily lucrative oil and gas resource in the Timor Sea. It would appear that the Howard government wanted to ensure that the newly independent, impoverished nation of Timor-Leste received as small a share of that resource as was possible. We know that an equitable division of the Greater Sunrise oil and gas field happened only after East Timor commenced proceedings in the International Court of Justice and the Permanent Court of Arbitration. A revised treaty on the oil and gas fields was signed in 2018. That's when Australia behaved honourably.

This shameful behaviour was revealed by Witness K and later shared with the media by, it would seem, Mr Collaery. This has led a former President of East Timor to describe Witness K and Mr Collaery as heroes, as I think has been pointed out. Mr Ramos-Horta said:

The people of Timor owe a massive debt to Witness K.

In this country, however, the government has chosen to prosecute these men. The activity of these men did not involve a matter of national security. East Timor is hardly a threat to Australia. What these men alleged to have occurred was not espionage directed at a hostile nation; it was an attempt to obtain an unfair advantage in a commercial negotiation. Nothing in this does credit to Australia. With regard to the secret prosecution of witness K and Bernard Collaery, I can't see how any of it does credit to Australia either.

It has been said, 'Oh, well, it's not really secret; it's just that portions of the proceedings are not in public.' That's the sort of line that we get from the A-G's department. It's the classic Sir Humphrey answer. The fact is that portions of the proceedings that the Australian public would wish to know have been closed. In plain English: the proceedings have been largely kept in secret. And we don't know why they're in secret. It means that an integral part of justice is not being done in a way that can be seen to be done.

I have often said that I am no lawyer, but what I do understand is this: our judicial system is distinguished from many others in so far as it is open and it is clearly different from the way in which authoritarian regimes operate. All governments in Australia have clearly been trying to distinguish themselves as the bearers of democracy. How can we do that if we behave in this manner? How can we offer ourselves as a moral authority from a rules based model when we invade people's civil liberties, invade lawyers' offices in the way that we have and in the way in which we treat people in these types of arrangements?

Of course, it's understood that witness K may well be pleading guilty to part of these proceedings. But in regard to other matters, Mr Collaery has taken the matter up through the various parts of the court. Mr Collaery is contesting the charges laid against him and, in fact, needs access to the information so that the courts can actually proceed to assess his claim. He is prevented from doing that. I remind senators that Mr Collaery is 76 years of age and that he has had a distinguished legal career. He is a former deputy chief minister and A-G, if I have that right, of the Australian Capital Territory. This is the man who we are prosecuting. I just can't see what is in the public interest and, more importantly what is in the national interest, to prosecute this man in this way. The officers before the Senate estimates committee could not explain that to us either.

The zeal with which the government is pursuing him is evident from the proceedings in the Australian Capital Territory's Court of Appeal. Lawyers acting for Mr Collaery challenged the order made last year in the ACT Supreme Court to accept an application by the then Attorney-General, Mr Porter, to invoke the National Security Information Act. That act, of course, prevents access to the information. The act requires courts to give greater sway to the A-G's views on the security implications of a case. It just highlights the problem here: the act is being used to undermine transparency and open justice in Australian courts. We have no indication of what the national security information might be and we don't have any indication as to what the national interest is that is being served by this prosecution.

The longer the Australian public is kept in the dark about this matter then the more questions are being raised here and internationally about the role of the Howard government and ministers in the events of 2004. Those questions will not go away no matter how much effort is put into the suppression of information concerning witness K and Mr Collaery. The proceedings that we have before us in the courts in the Australian Capital Territory are highlighting a very dangerous shift towards greater and greater emphasis on security over accountability in the government of this country. We've seen a rapid escalation in the misuse of the legal system to suppress people's rights, and I can only suggest that this is a stark reminder of how far this government will go to destroy the credibility of whistleblowers and undermine open justice. This whole matter ought to be reviewed by the new Attorney-General, and we should go back to the position that Senator Brandis presented when he was in that post.