Spies Like Us: how natsec and Attorneys-G meddle with justice, whistleblower David McBride

by Rex Patrick | Aug 13, 2023 | Comment & Analysis, Latest Posts

“National security claims” too easily trump the actual delivery of justice in our courts and tribunals. Rex Patrick looks at tampering by our national security agencies, backed by successive Attorney-Generals, in the delivery of justice in Australia, and how that tampering will probably result in a grave injustice for Afghan war crimes whistleblower David McBride.

Attorney-General Interference in the AAT

In July last year, I stood outside an Administrative Appeals Tribunal (AAT) room in Melbourne where my application for access to 22-year-old Timor-Leste sea boundary negotiations documents was being heard. I was not allowed to enter the room to listen to and rebut the Government’s argument against their release.

On May 3 2022 Attorney-General Michaelia Cash had issued what is known as an (AAT) Act Section 36 certificate.

Section 36 Certificate issued by Attorney-General Cash

The Attorney-General issues a certificate such as this on the basis of security advice from Australian’s national security agencies – the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service, other intelligence agencies, the Department of Defence and, in this particular case, the Department of Foreign Affairs and Trade. 

The effect of these certificates is to prevent an applicant and the public from seeing evidence and arguments presented to the Tribunal by the Government. It’s the national security wildcard that can be dropped onto the table whenever our national security agencies think their interests are coming under too much scrutiny. It turns an open trial into a secret trial.

The certificate is conclusive. The Tribunal has no power to check on the validity of the claims upon which the certificate is based. It is powerless and must just go along, as does the applicant to the proceedings.

I considered it fortunate that between when the certificate was issued and when the proposed hearing into the matter was to be held, there was an election in which the Government was changed. 

The Dreyfus rule

On June 1 Mark Dreyfus MP KC was appointed the new Attorney-General.

On the same day, with a sparkle of hope and with the aim of getting to Dreyfus before the security clique did, I wrote to him asking him to revisit the issuing of the certificate. He undertook to do so.

24 June 2022 Mark Dreyfus Considering Overturning Michaelia Cash’s Decision

The Tribunal, adjourned the matter to allow time for Dreyfus.

In Opposition, Dreyfus had expressed much disquiet about excessive secrecy within the former Government, but once in office the spooks got to him. They captured him, and they misled him (or he allowed himself to be misled). Told that the sky would fall in if long stale secrets about Australia’s relations with Indonesia were ever revealed, Dreyfus endorsed the certificate.

I lost the case.

It’s hard enough winning an FOI fight when you don’t get to see the content of the documents, let alone when you’re not allowed to see or hear the arguments from the Government.

Tribunal bombshell

But two weeks ago, I was back in the AAT on another matter, arguing with the Government’s lawyers about some proposed confidential Government evidence when the Tribunal’s Deputy President dropped a bombshell.

He advised, that in the previous matter (above), “that much of the so-called confidential material seemed to provide, perhaps by way of background for example, material that really wasn’t confidential. And yet it was the subject of a section 36 certificate.”

The Deputy President went on to say, “And in that sense, Mr Patrick, you probably would have argued at that point that the section 36 was an overreach. Because it was covering material that was only background and clearly not confidential.”

This was direct from the Tribunal member who had seen both the certificate and the information to which it related.  

Dreyfus had endorsed a certificate claiming material was confidential when it was “clearly not confidential”. In a country where the principle of open courts and tribunals should be departed from only in rare cases, Australia’s first law officer had overreached and thereby recklessly tampered with the process of justice.

At the very best, he failed in the exercise of his judgement.

Attorney-General interference in parliamentary process

Attorney-General blindly following the advice of the security apparatus is more common that one might otherwise think.

On September 6 2018, the Auditor-General completed an audit report into Defence’s acquisition of a fleet of vehicles described as ‘protected mobility vehicles – light’ and known as the Hawkei. 

The full report was not tabled in the Parliament. On advice from Defence (who had self-interest in the content of the report being suppressed) then Attorney-General Christian Porter issued another conclusive certificate – an Auditor-General Act section 37 certificate – to censor the report. Even the Parliament was powerless to press for disclosure.

I FOI’ed the full report and, after a long battle, the AAT found that the redacted material – that went to the fact that the acquisition was not value-for-money – was not confidential and full report was released to me (which I then tabled in the Parliament).

A bogus claim of national security harm had been used in an attempt to cover up Defence procurement bungling. 

Attorney-General interference in court rooms

In the criminal prosecution of whistleblower Bernard Collaery, a National Security Information Act certificate was issues relating to come evidence that the Court of Appeal in the ACT ultimately determined was not information that should be heard in closed court.

Then there was the prosecution of ‘Witness J’. Consent of Attorney General Porter was required before that prosecution could proceed. Consent was given, no doubt on the advice of the security estate, which then saw Witness J being charged, arraigned, convicted, sentenced and serving his sentence in secret. Here, in Australia!

Attorney-General interference in international arbitration

On December 3 2013, the ASIO and the Federal Police executed a search warrant at the premises of Bernard Collaery, a lawyer acting on behalf of Timor Leste, and ceased documents related to proceedings that were on-foot in the Permanent Court of Arbitration in the Hague between the two countries. The documents were the property of Timor-Leste.

That raid led to the proceedings in the International Court of Justice, which ultimately saw the Australian Government slinking away, international reputation damaged, with its tail between its legs.

The raid was carried out on a warrant issued by then Attorney-General George Brandis.

To his credit, Brandis appeared to learn from that mistake and later refused to authorise the prosecution of Collaery. 

The security establishment just waited Brandis out and got Porter to grant permission to proceed.

Captured

Security concerns are important, and there can be a time and a place for secrecy. But in the exercise of a power to suppress information in the Parliament or courts and tribunals, that power must be exercised with extreme care, and only in the rarest of cases.

That’s not the practice that’s developed in recent years.  

Dreyfus, Cash, Porter, Brandis; all are guilty of being wrongfully persuaded, or recklessly indifferent to their responsibilities as the Attorney-General to exercise care and properly uphold the principle of open justice. Sadly, they have been captured by the very entities whom they are supposed to exercise independent judgement over.

Trouble for David McBride

And that leads me to David McBride. McBride blew the whistle on war crimes that took place in Afghanistan.

Ironically McBride, the whistleblower, is to become the first person in Australia to be prosecuted in connection with unlawful killings in a Afghanistan. But he’s not one of the murderers.

McBride was an Army lawyer serving in the Middle East area of operations, partially responsible for dealing with unlawful actions in the field. He became concerned when minor issues were being enthusiastically called out in the face of major issues, which were being ignored by senior command.

No one in government or opposition wants to get offside with the secret state

After failing to get anyone inside the Government interested in his concerns (including then Attorney-General Brandis) he blew the whistle publicly. He called out the crimes.

The response was not “thanks,” rather “Mr McBride, you are hereby charged with …”.

Even if you are calling out a crime, if it’s official information, then in the eyes of the security establishment, it must be dealt with the heaviest of hands. That means a rear-guard action where secrecy has breached, to send the strongest message to the next potential whistleblower that it’s simply not worth it.

Already the establishment, reportedly not with Dreyfus’ involvement, has managed to prevent McBride from being able to put his full criminal defence; repeat, is not able to put his full criminal defence.

McBride will probably go to jail? 

Dreyfus seems content with an unfair prosecution, and one that is infected by improper motive. He seems quite happy for a court, deprived of context and adjudicating to the strict letter of the law – that the Attorney-General himself has said was not fit for purpose – to find McBride guilty.

It’s within his authority to do so. The public interest in halting the prosecution is clear. But sadly, the Attorney’s been captured by the security apparatus. The AAT Deputy President’s revelation two weeks ago proves that. 

Dreyfus is willing to rubber stamp a confidentiality order that improperly tilts the adjudication in favour of the security establishment. He’s unwilling to correct an injustice that would cross the path of that same establishment,

In this, Dreyfus is like many of our senior Labor and Coalition politicians. Over more than two decades, they’ve poured hundreds of billions into the national security apparatus, which is now bigger, more powerful and influential than it has ever been. 

In Parliament, applause is regularly showered on our spies, police and security bureaucrats. They can apparently do no wrong. But privately the politicians are fearful. They fear what might happen to their secrets if they aren’t totally supportive of “national security”. No one in government or opposition wants to get offside with the secret state.  

Of course, that doesn’t absolve Dreyfus. Of all our Federal Ministers, he’s the one with specific responsibility as first law officer to uphold the integrity of our legal system, especially the vital principle of open justice.  

He’s failing to do his duty because he’s weak in the face of Australia’s national security apparatus. He lacks the moral fortitude to sit in the Attorney-General’s seat. 

As a result of this ministerial cowardice, a good man will go to jail and, at the same time, democratic integrity will suffer.

Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.

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