Attempts to prosecute lawyer Bernard Collaery are neither fair nor just, and undermine the value of Australia’s legal profession, according to the Australian Lawyers Alliance.
The former ACT attorney-general, as well as his client – a former spy known only as “Witness K” to the media – had criminal charges filed against them last year, which allege the pair conspired to reveal details of a covert operation to the public.
The charges are understood to relate to allegations that Australian government officials bugged the cabinet room of East Timor during the time the countries were holding sensitive negotiations pertaining to oil and gas.
Lawyers Weekly understands “Witness K” is set to plead guilty to one count of conspiring to share information protected by Section 39 of the Intelligence Services Act, however Mr Collaery will fight the same charge, pleading not guilty.
Australian Lawyers Alliance (ALA) said the legal processes being employed to prosecute Mr Collaery are “not fair or just” as the details surrounding the charges filed against him have still not yet been fully disclosed, despite him having to appear in the ACT Supreme Court this week to front them.
“We are very disappointed that this prosecution is proceeding. It is very concerning to see Mr Collaery back in court facing charges that have still not been fully disclosed to him and being prevented from discussing the evidence with his own lawyers,” said Greg Barns, criminal justice spokesperson, ALA.
“A key element of a fair trial is the ability to have disclosure of the prosecution case so that defendants can respond to allegations against them and instruct their legal representatives appropriately.
“It would appear that national security laws are being used in this case to prevent Mr Collaery being able to fairly defend himself against the charges. This shroud of secrecy means there is no accountability.”
In a statement, ALA said it believes that the charges against Mr Collaery are “an attack on the legal profession and on Mr Collaery for acting as a lawyer within his professional rules”.
“Lawyers must be able to defend their clients in accordance with their professional standards without fear of state prosecution,” Mr Barns added, noting the prosecution is a breach of the UN Basic Principles on the Role of Lawyers, adopted by the General Assembly in 1990.
The principles, Mr Barns explained, state that lawyers have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights without suffering professional restrictions by reason of their lawful action.
“Many lawyers around Australia, acting in the best interests of their clients and justice, make available materials that may embarrass governments or expose wrongdoing. It is right and proper that they continue to do so when circumstances require,” he said.
“Lawyers play a vital role in ensuring that the right to freedom of speech is protected in our democracy. We give voice to the truth when it is inconvenient and that must continue to be our role.”
CORRECTION: An earlier version of this article incorrectly stated the charges against Mr Collaery and "Witness K" allege the pair bugged the East Timor cabinet room, rather than they are alleged to have disclosed the nature of the bugging that was allegedly carried out by Australian government officials.