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Bernard Collaery speaks about being charged with breaching intelligence services act

Source
ABC News - July 12, 2018

Unprecedented legal action against two men for allegedly breaching the intelligence services act has sparked fierce debate about the balance between national security and the public's right to know.

Transcript

Ellen Fanning, presenter: Unprecedented legal action against two men for allegedly breaching the Intelligence Services Act has sparked fierce debate about the balance between national security and the public's right to know.

It's claimed the pair revealed allegations that Australia bugged East Timor's government offices in 2004 to gain the upper hand in oil and gas negotiations.

At the heart of the case is a former spy known as Witness K, who allegedly oversaw the bugging operation – and his outspoken lawyer.

Michael Vincent reports.

(Footage of Canberra, fogbound, at dawn)

Andrew Wilkie, Independent MP for Denison: I would describe this current legal action against Witness K and Bernard Collaery as, frankly, an act of bastardry.

(Footage of George Brandis addressing the Senate, December 2013)

George Brandis, Federal Attorney-General 2013-2017 (2013): The search warrants were issued on the advice and at the request of ASIO to protect Australia's national security.

(Footage ends)

Michael Vincent, reporter: It's a case that pits the protection of the nation's secrets against those who chose to reveal them.

Peter Galbraith, Former US diplomat: It seems vindictive to have filed these charges; almost a perversion of justice to have done it 14 years after the event.

Christian Porter, Federal Attorney-General: The matter will be tried before the courts and the prosecution will be heard before the court. And that has to run its course.

Michael Vincent: Australian lawyer Bernard Collaery spends much of his time in the UK. He is preparing to defend multiple charges under the Intelligence Services Act, including conspiracy to share secret information.

Bernard Collaery, lawyer: The law is my life. Professing the law and bringing justice is my life.

People say, "When are you going to retire?" I say, "Well, I'll drop dead in court, maybe." And I intend to see out my life pursuing justice and the rule of law.

Michael Vincent: It's the first time any Australian has been prosecuted under these laws. The former legal adviser to East Timor now faces a potential two years in jail for revealing the alleged bugging of Australia's close neighbour.

Bernard Collaery: Heartbreaking though it is to me and my family, I need to adjust to where I am at.

Michael Vincent: When Australians think of the nation's network of spies, what comes to mind is protecting Australians and preventing adversaries from stealing secrets.

But Australia's foreign spy service, ASIS, also has the power to act in the interests of Australia's economic wellbeing.

(Footage of aid worker serving bowls of food to impoverished children, archive)

Michael Vincent (voiceover): So, as Australia was publicly giving millions of dollars in aid to East Timor to help the fledgling nation get on its feet, it's alleged it was covertly acting to prevent East Timor from getting billions of dollars in oil and gas revenues from the Timor Sea.

In 2004, as negotiations over a new maritime boundary stalled, ASIS officers allegedly posed as aid workers to bug East Timor's government offices for information relating to the talks.

(Footage of Andrew Wilkie addressing parliamentary committee, 28 June)

Andrew Wilkie (Jun.): Australia, one of the richest countries in the world, forced East Timor, the poorest country in Asia, to sign a treaty which stopped them obtaining their fair share of the oil and gas revenues – and that's simply unconscionable.

(Footage ends)

Michael Vincent: Bernard Collaery, then working as a Canberra-based lawyer, was approached by an ASIS officer, now known as Witness K. He wanted Collaery to represent him, as he complained about the bugging operation through official channels.

It wasn't until May 2013 that the allegations of the Australian bugging first surfaced publicly. Then-foreign minister Bob Carr and attorney-general Mark Dreyfus neither confirmed nor denied the allegations of espionage.

East Timor declared Australia had acted in bad faith and determined it would renegotiate the Timor Sea deal through the International Court in The Hague. Those confidential hearings were then thrown into chaos at the end of 2013.

ASIO raided Bernard Collaery's office here in Canberra and seized the passport of Witness K, preventing him giving confidential evidence on behalf of East Timor.

Eventually, in March this year, a maritime boundary agreement was struck, soon after the charges were laid against Bernard Collaery and Witness K by the DPP (the Office of the Commonwealth Director of Public Prosecutions). Those charges, however, remained secret until this statement to the Parliament:

(Footage of Andrew Wilkie addressing parliamentary committee, 28 June)

Andrew Wilkie (Jun.): The Turnbull Government has now moved to prosecute the intelligence officer who blew the whistle on this secret operation.

(Footage ends)

Michael Vincent: That forced the Attorney-General to publicly acknowledge the case.

Christian Porter: The decision to prosecute was an independent decision, made by the (Office of the) Commonwealth Director of Public Prosecutions, based on their consideration of the evidence, the law and their prosecution policy and guidelines.

Andrew Wilkie: There is no good reason why the Government would be doing this right now: except for political reasons; and to punish people in an unwarranted way; and to silence those who might follow them.

Peter Galbraith: Certainly it makes no sense to be prosecuting those who exposed the criminal act that Australia engaged in.

Michael Vincent: Peter Galbraith is a former American diplomat. He was appointed by the United Nations (UN) to help East Timor in its early days and was the lead negotiator on the maritime boundary discussions, when the East Timorese offices were alleged to have been bugged.

Peter Galbraith: I certainly think it was a bridge too far and I must say: I wouldn't think that it was appropriate to use an intelligence agency for economic purposes, especially against an impoverished neighbour who is dependent on Australia and who is a great friend of Australia.

Michael Vincent: Alexander Downer was foreign minister at the time. Several years after leaving Parliament in 2008, he worked briefly as a consultant for Woodside.

In a later interview with Four Corners he dismissed any concerns that the Australian government was too close to Woodside:

(Excerpt from Four Corners, 17 March 2014)

Alexander Downer, Foreign Minister 1996-2007 (2014): Of course, when we are involved in negotiations we maintain contact with Australian companies. The Australian Government unashamedly should be should be trying to advance the interests of Australian companies.

One former insider claims that governments of both persuasions use ASIS for the nation's financial gain – much more than the public may realise.

Clinton Fernandes, professor, University of NSW: I would say that about half or more of those clandestine activities occur for economic purposes.

Michael Vincent: Former Defence intelligence officer Clinton Fernandes is writing a new book about Australian foreign policy.

Clinton Fernandes: The ASIS operation which occurred in October 2004 occurred within the portfolio of the minister for foreign affairs, Alexander Downer. I believe, therefore, Alexander Downer ordered the bugging of the Timorese.

Michael Vincent: The former foreign minister wouldn't answer specific questions about the bugging claims, nor would he confirm or deny that he had ordered any such operation.

"Those who have run or worked in intelligence agencies never respond to specific claims," he told 7.30 in a statement.

Mr Downer said he was solely motivated by a desire to maintain the integrity of Australia's borders. Regarding Bernard Collaery and Witness K, Mr Downer said: "Employees of intelligence agencies are not above the law."

He added: "Our courts are independent and if anyone is charged, the court will determine their innocence or guilt, not ministers or members of the media."

Clinton Fernandes is now at the University of New South Wales. He argues the alleged bugging cannot be justified under Australian law.

Clinton Fernandes: Section 11 of the Intelligence Services Act talks about national economic wellbeing. And what I'm saying to you is that the case that it's a national economic wellbeing – as opposed to the wellbeing of a particular corporation, which then offers consultancies and directorships – can't be confused with the national economic wellbeing.

Michael Vincent: Some legal observers argue ASIS has such broad powers, any alleged bugging would have been lawful. But Peter Galbraith believes taking this matter to court now may backfire.

Peter Galbraith: You would think that it's time to put this in the past and to move on. And yet now the Australian Government – or Prosecutor's Office – is creating a new and unnecessary controversy.

Bernard Collaery: I won't accept the notion that I am against the government. I am against an element in the government. I haven't been able to identify precisely that element. But it's certainly involved with corporate trade issues.

Michael Vincent: As Bernard Collaery prepares his defence, he says he's getting support from unexpected quarters because of the charges he is facing.

Bernard Collaery: I have had enormous expressions of support from, interestingly, the defence and intelligence community. There's no doubt at all that there is a vast difference of opinion on this issue.

Ellen Fanning: That report by Michael Vincent.

Source: http://www.abc.net.au/news/2018-07-11/bernard-collaery-speaks-about-being-charged-with/9982448?pfmredir=sm&section=business

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