Top-secret evidence will be allowed in the prosecution of Bernard Collaery, the man who exposed Australian spying in East Timor, an ACT Supreme Court judge has ruled. Greg Barns examines the implications.
Here’s a test. You have been charged with serious criminal offences and are facing a trial. The prosecution says it can use secret evidence against you. Evidence you and your lawyers are unable to see. Instead the court will appoint a special advocate who can look at the secret evidence and represent your interests. Which country are we in? Russia? China? Or in the United States with its infamous Guantanamo Bay military justice system.
Wrong. It’s Australia. A nation whose political class and media spout platitudes about the rule of law and human rights but which has on its statute books the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) which allows for secret evidence to be used against an accused person.
The secret evidence laws are being applied in the case of the former ACT attorney-general Bernard Collaery who is being pursued by the Commonwealth over his role in revealing to the world information about an Australian spying operation in East Timor by the Australian Secret Intelligence Service (ASIS) in 2004, when John Howard was in government. This was a time when the world’s poorest nation was negotiating with one of the richest about oil and gas rights and revenues in the Timor Sea. Collaery’s co-accused Witness K has pleaded guilty and was given a suspended sentence and a good behaviour bond.
As the New South Wales Council of Civil Liberties has said:
Here we have two people who told the truth, in the public interest, about Australia’s deplorable (and probably illegal) bugging of a friendly nation for commercial gain.
Today the case returns to the ACT Supreme Court. This week Justice David Mossop ruled that the secret or ‘court only’ evidence which the ABC reports “is contained in a series of affidavits from past and present senior government officers, including Frances Adamson and Nick Warner”, can be used in the case, and Collaery’s interests can be protected by the appointment of a special counsel who will be able to see the evidence and advocate about its use.
That such a law exists in Australia should trouble us all. It is anathema to the rule of law and fundamental human rights. It does however represent an example of a highly disturbing trend in Australia which is towards authoritarianism and capture of governments and other political parties for that matter, by the security state.
One of the warnings which many of us who have opposed the myriad of laws passed after 9/11 and supported by both the Coalition and the ALP, is that they would be used in other contexts. The NSI Act is a good example. It has been used in cases involving accused persons charged with terrorism offences. Its introduction was, at the time, greeted with horror by most lawyers because it so fundamentally undermines the principle of the right to a fair trial, in which is embedded the concept that an accused person is entitled to know the case against them.
In 2011 the University of Wollongong’s Mark Rix observed of the NSI Act that it “leans very much towards non-disclosure of information and, in defining information so broadly that almost anything falls within the definition, it provides the government and national security agencies with a legislative basis for not releasing information and for threatening or punishing defence counsel and others who do so, even if this is done, for example, in order to give their client a better prospect of receiving a fair trial.” An apt description and one which tells you just how dangerous this law is in a democratic society.
As noted above the NSI Act was introduced as part of a flurry of illiberal so-called anti-terror laws. The NSI Act is not a law that ought to be on our statute books at all. It is a powerful tool for the security state to close down whistleblowers and to prevent Australian government dirty laundry being exposed to sunlight. And of course such a dangerous law is even more pernicious given there are no adequate human rights protections in Australia. A national human rights charter or law might allow for greater challenge to the NSI Act.
The last word on the use of the NSI Act by prosecutors in his case belongs to Collaery who last year said,
This takes the Commonwealth’s hypocritical obsession with secrecy to new heights when one considers recent events and I strongly object to the court being given and relying upon evidence we cannot see.
Greg Barns is the author of Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant Publishing 2019).
Greg graduated BA LLB from Monash University in 1984. He has been a member of the Tasmanian Bar since 2003. He is the former National Chair of the Australian Republican Movement and a director of human rights group, Rights Australia. He has written three books on Australian politics, is a Director of the Australian Lawyers Alliance, and a member of the Australian Defence Lawyers Alliance.