Crossbench pushes for inquiry into ‘unfair’ prosecution of Bernard Collaery and Witness K

By Tony Zhang|12 July 2020
Bernard Collaery

Crossbench senators are pushing for a parliamentary inquiry into the treatment of Bernard Collaery and Witness K, while a possible appeal will be made against the ruling to hold his trial in secret.

Labor has already pressed the Attorney-General to explain his decision to approve the prosecution and enforce secrecy in the case.

Rex Patrick’s Centre Alliance, The Greens and Jacqui Lambie have all voiced support for an inquiry into the affair.

Lawyers Weekly understands shadow attorney-general Mark Dreyfus is seeking another briefing from his counterpart, Christian Porter, before negotiating with the crossbench on possible further action.

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Mr Porter has criticised the comments in Parliament, saying Labor never raised concerns about the prosecution during private briefings.

He said both Mr Dreyfus and Labor’s shadow foreign affairs minister, Penny Wong, had received briefings about Mr Collaery case directly from him, his office and the Australian government solicitor, including last week and in March.

The Centre Alliance Senator Patrick who has been vocal about the case on Twitter said the government’s pursuit of whistleblowers, the lengthy delays in the case and the cost of the prosecution were “just a few aspects that require examination”.

The Greens senator Nick McKim stated there was no need to wait for the criminal proceedings to finish before beginning such an inquiry. 

“This is one of the most shameful episodes in Australia’s recent history, yet has never been fully scrutinised or explained,” he told the media on Tuesday.

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However, a push for the parliamentary inquiry will be tough despite the combined forces in the Senate. 

One more senator is still needed, either a One Nation senator confirms their support or an LNP senator is willing to cross the floor.

An appeal against ‘trial of secrecy'

Previously, the ACT Supreme Court Justice David Mossop had ruled in the government’s favour, finding the material identified by the Attorney-General as sensitive should remain classified in Mr Collaery’s future trial.

Justice Mossop’s judgement came at the end of a closed court hearing, where lawyers argued over what evidence in the trial should be treated as classified.

The judgement upheld the national security certificate issued by Mr Porter to keep the material classified.

The ruling meant “essential elements” of the case would be held behind closed doors, according to Mr Collaery’s lawyers.

Outside court, Mr Collaery’s lawyer Christopher Flynn described the decision as favouring “restrictive laws.

“Open justice is an essential part of our legal system, the rights of defendants and of our democracy,” Mr Flynn said.

Mr Collaery’s barrister, Christopher Ward SC said that argument would be contested, and questioned how such a claim could be made when the very substance of the case concerned international relations.

Lawyers Weekly understands Mr Collaery is preparing to appeal against the decision. His legal team told the court it was “highly likely” that an appeal would be lodged, which must happen before 24 July.

Mr Collaery, a former ACT attorney-general, and Witness K, a former senior spy, are charged with revealing national secrets – specifically, allegations that Australia bugged East Timor’s government building in 2004 to gain advantage in crucial oil and gas negotiations.

Mr Collaery spoke on The Lawyers Weekly Show earlier this year about the conspiracy charges he is facing, delving into the foreign interference laws that allowed him to be prosecuted, the wider implications his experience has on the legal profession, and why he thinks Australian law is following a dangerous, repressive path.

Crossbench pushes for inquiry into ‘unfair’ prosecution of Bernard Collaery and Witness K
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