The federal government has successfully blocked Bernard Collaery from obtaining key documents about the lawfulness of the notorious spy operation against Timor-Leste, arguing that questions about its legality are irrelevant.
To aid his defence, Collaery attempted to subpoena documents from the Australian Secret Intelligence Service, the Office of National Intelligence, the Department of Prime Minister and Cabinet and the Department of Foreign Affairs and Trade which he hoped would show whether the mission was conducted unlawfully and outside of the proper functions of Asis.
He argued he would be entitled to be acquitted if a jury had any reasonable doubt about the lawfulness of Asis’s activities, making the documents relevant to his case.
But the commonwealth resisted the subpoenas, saying the material and questions about the legality of Asis’s mission – the existence of which it has steadfastly refused to confirm or deny – were irrelevant to the case.
On Monday, Justice David Mossop agreed with the federal government and set aside Collaery’s subpoenas.
He said the burden on the prosecution was only to prove that an offence had been committed by Collaery’s alleged disclosure of protected Asis information. That “does not extend to a requirement to prove compliance with every provision of the [Intelligence Services] Act relevant to the activity of Asis which gives rise to the information or matter disclosed”, Mossop said.
Indonesia must immediately stop threats, intimidation and reprisals against human rights defender Veronica Koman and her family, the UN Special Rapporteur on the situation of human rights defenders, Mary Lawlor, said today.
Koman, a human and minority rights lawyer, is in self-imposed exile in Australia. However, she still faces several charges in Indonesia for alleged incitement, spreading fake news, displaying race-based hatred and disseminating information aimed at inflicting ethnic hatred. The charges were believed to have been brought against her in retaliation to her work advocating for human rights in West Papua.
Koman was among five other human rights defenders mentioned in the UN Secretary-General’s 2021 annual report on cooperation with the United Nations, its representatives and mechanisms in the field of human rights. She has faced threats, harassment and intimidation for her reporting on West Papua and Papua provinces, for providing reports to UN human rights mechanisms, and for attending UN meetings, for which she was questioned by security forces.
“This case highlights how human rights defenders are often targeted for their cooperation with the United Nations, which is fundamental to their peaceful and legitimate work in the protection and promotion of human rights,” Lawlor said.
Acts of intimidation and threats against Koman’s family have also been reported this year, most recently on 7 November, when unidentified individuals threw two small explosive boxes inside the garage of her parents’ home in West Jakarta.
The boxes reportedly contained threatening messages, including one stating “we will scorch the earth of wherever you hide and of your protectors.” Another box addressed to Koman, delivered to the home of a family member, contained a dead chicken and a message saying that anyone hiding her “will end up like this.”
TheInternational Bar Association, through itsHuman Rights Institute, has been assisting women at risk, and other vulnerable individuals, in Afghanistan. Through our efforts, and that of a number of other non-governmental organisations, more than 100 women judges, journalists, lawyers and other human rights defenders, plus their families, have been evacuated from Afghanistan. This effort is in addition to assisting the leadership of the now-defunct Afghanistan Independent Bar Association (which the IBA, together with Afghan lawyers, established in 2008) in leaving Kabul.
The vast majority of the evacuees are now in Greece. However, 70 of the families do not yet have final destinations. The Greek authorities have provided them with temporary visas to remain in Greece for a short period. We are currently working to ensure that these families find, and are transferred to, more permanent residences as soon as possible. This is where we need assistance.
We are seeking lawyers who are willing to assist these families by advocating for them in securing passage to their ultimate location. We are not seeking financial assistance; we are looking for lawyers ready to give pro bono time to assist the families.
Please let us know if you can assist by contacting us at Afghan.Appeal@int-bar.org. We will then contact you directly as to the next steps of engagement. Thank you in advance for your support!
THE LATEST DISPORT by the Federal Government to further erode the rule of law was confirmed in court this week, with the actions of lawyers representing Attorney-General Michaelia Cash causing Justice David Mossop to describe the continued obfuscation as a “perpetual vortex”.
I have written several times on the trial of former A.C.T. Attorney-General Bernard Collaery, who has been charged over his alleged role in exposing the bugging of Timor-Lester and the current Government’s willingness to go to extraordinary lengths in order to prosecute him.
The latest in this Machiavellian piece of governance was performed on the floor of the A.C.T. Supreme Court on Wednesday when lawyers for the Attorney-General told the court they wanted to introduce updated evidence that would show there would be severe national security issues posed if the trial went ahead in the public sphere.
Despite the appeals court last month finding that there was minimal risk posed to national security in their decision to allow much of the Collaery trial to be adjudicated in the open, lawyers argued that the situation has altered dramatically in the proceeding 20 months that it has taken for Collaery’s appeal to be heard and resolved. The fact this length of time has been entirely the Government’s own doing was unsurprisingly left off the remit.
It wants to produce new evidence that only the court, not Collaery, can see. This will entail the security risks that they believe to be prevalent if the trial is to remain in the open. It also, in one of the more sinister moves, wants to appoint a special counsel – paid for by the taxpayer – to view these documents on Collaery’s behalf.
This Kafkaesque move shows a shocking lack of judgement from a government that is mired in issues of transparency and secrecy.
Activists in Indonesia on Monday condemned a series of threats against the family of a prominent human rights lawyer and urged a thorough police investigation after an explosive package was sent to her parents’ home.
Veronica Koman has been living in exile in Australia since 2019. In Indonesia she faces charges of incitement and spreading disinformation related to protests in the West Papua region in 2019 that sparked some calls for independence.
Police were called after a package that contained a threatening note exploded outside the West Jakarta home of her parents on Sunday. There were no injuries.
Local police chief Ady Wibowo told Reuters an investigation was underway and he suspected the package contained a firework. He said two suspects were seen riding on a motorcycle.
Human Rights Watch said the incident was a serious escalation in the threats and intimidation the Koman family had suffered for years.
“Indonesian human rights defenders should be able to express themselves even on sensitive subjects without having a target painted on their backs,” it said in a statement.
Koman declined to comment on Monday when contacted by Reuters.
The incident came two weeks after a flaming package was left on the fence of her parents’ home.
Sensitive details surrounding Australia’s alleged bugging operation of East Timor will be heard in public after the ACT Court of Appeal ruled that requiring large parts of the case against Bernard Collaery to be heard behind closed doors created a real risk of damaging public confidence in the legal system.
The unanimous judgment has been hailed as a “win for transparency” because it overturns a previous ruling made under national security laws which would have required large parts of the hearings into his alleged efforts to expose a secret Australian operation to bug East Timor’s government to be held behind closed doors.
Mr Collaery has always accepted that some sensitive information should not be publicly disclosed but wanted the disclosure of six specific matters during the trial.
The former lawyer for an ex-spy known as Witness K challenged an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter’s application to invoke the National Security Information Act, which governs how courts should handle sensitive information. The act requires the court to give “greatest weight” to the Attorney-General’s views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.
The ACT Supreme Court had ruled the public disclosure of certain information would have posed a real risk of undermining national security.
In their judgment handed down on Wednesday, the three judges of the ACT Court of Appeal accepted that the disclosure would involve a “risk” to national security but said they doubted it would be a “significant risk”.
“On the other hand, there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed,” the judgment summary said.
“The Court emphasises that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors, and permitted the public to properly assess the conduct of the accused person.”
Unité Magistrats FO, le barreau de Marseille et une association veulent organiser le départ de Kaboul des femmes juges et avocates, « en grand danger », selon eux.
« Si les talibans réussissent à occuper Kaboul, je crois que notre exécution à toutes est assurée. Nous avons besoin de l’aide extérieure pour éviter le pire. » Ainsi parlait Tayeba Parsa, l’une des 260 femmes juges d’Afghanistan, en poste à la division commerciale de la cour d’appel de Kaboul. C’était samedi dernier et ça semble être il y a une éternité. Depuis, prenant le monde entier de court, les talibans sont entrés dans la capitale afghane et ont proclamé leur victoire depuis le palais présidentiel, dans lequel se pavanent, aujourd’hui, les nouveaux maîtres du pays.
Comme d’autres magistrates, Tayeba Parsa a reçu il y a quelques mois des menaces et a subi à plusieurs reprises des intimidations dans sa salle d’audience, où elle a vu défiler – et condamné – hommes d’affaires véreux et escrocs en tout genre, très souvent en lien avec les talibans. Aujourd’hui, elle vit la peur au ventre. « Nous savons que les talibans visent en premier lieu les militaires, mais aussi le milieu judiciaire. Nous avons jugé et condamné certains d’entre eux, ils veulent se venger et je suis en danger, sans compter que les femmes qui occupent une place de pouvoir dans la société deviennent des cibles naturelles », craint-elle.
Cette jeune et brillante magistrate a toutes les raisons de s’inquiéter. D’abord parce qu’elle incarne tout ce qu’« ils » exècrent : une femme libre, qui défend les droits de l’homme et ceux des femmes, l’état de droit et les valeurs démocratiques. Mais aussi parce que d’autres, avant elles, l’ont payé au prix de leur vie. Le 17 janvier dernier, à Kaboul, deux femmes juges de la Cour suprême afghane ont été tuées par balle dans un attentat qui n’a pas été revendiqué, mais que les autorités de l’époque ont immédiatement attribué aux talibans. La même juridiction avait déjà été la cible, en février 2017, d’une attaque suicide visant une foule d’employés et qui avait fait au moins 20 morts et 41 blessés.
Tayeba Parsa sera sur leur liste, elle ne sera pas la seule. Le syndicat Unité magistrats FO, le barreau de Marseille et une association d’avocats, le Cercle avocats réflexion évolution (Care), ont lancé jeudi 19 août un comité de soutien pour la défense des magistrates et avocates afghanes. Au-delà des déclarations de bonnes intentions, ces professionnels de la justice veulent aider concrètement leurs collègues et consœurs menacées à fuir au plus vite leur pays, où elles sont désormais en danger de mort. « Il n’y a pas que les journalistes, les interprètes et les civils qui ont pu aider les forces militaires étrangères. Les professionnels de la justice, qui ont œuvré ces vingt dernières années dans un contexte difficile de reconstruction des institutions du pays, au service de la protection des libertés publiques et individuelles, de l’égalité des citoyens devant la loi et d’une justice indépendante, voient aujourd’hui leur vie menacée. Les femmes, en particulier, sont particulièrement visées », alerte Béatrice Brugère, secrétaire générale d’Unité Magistrats FO. L’amnistie générale et le « pardon » promis par les nouveaux chefs du régime ne trompent personne, en tout cas pas elle. « Ces promesses n’engagent que ceux qui les prononcent. En réalité, les femmes magistrates et les avocates afghanes courent un grave péril en raison des valeurs qu’elles portent au quotidien », s’inquiète Mme Brugère.
Le comité que son syndicat vient de lancer vise à établir « dans les plus brefs délais » une liste de juges et avocates en danger, de manière à la communiquer aux autorités, mais aussi à « faciliter leur départ et leur protection » dans les meilleurs délais. « Nous voulons les aider concrètement », abonde Étienne Rosenthal, avocat à Nantes et président du Care. « Le personnel judiciaire est visé au premier chef par les purges qui s’annoncent et il faut agir sans tarder », exhorte-t-il, « heureux et fier » de voir le barreau et la magistrature « travailler main dans la main ». Diplomates, membres de la diaspora afghane, cabinets d’avocats présents sur place… « Depuis lundi, nous activons tous nos réseaux pour entrer en contact avec nos consœurs menacées. Une fois identifiées, et en liaison avec les autorités françaises, nous leur apporterons une aide concrète sur le plan juridique, administratif et humain, afin de faciliter leurs démarches pour obtenir le statut de réfugié politique et organiser le plus vite possible leur départ ».
The Australian Bar Association shares the concerns of the ACT Bar Association in relation to the prosecution of barrister and former Deputy Chief Minister of the ACT and ACT Attorney-General, Bernard Collaery.
Mr Collaery advised the East Timor Resistance movement and represented Witness K in a legal case brought by the Timor-Leste Government against the Australian Government.
The prosecution relates to events which occurred in 2004. The prosecution was commenced at the end of May 2018 with the consent of the (former) Attorney-General, a consent which his predecessor had not granted.
The prosecution has largely taken place in secret, with much of the evidence suppressed. The basis upon which evidence needs to be suppressed is, itself, the subject of suppression. This impedes the ability of the legal profession and the public to scrutinise the administration of justice in this important case.
Further background can be found in the ACT Bar Association’s media release here.
The Council of the Australian Bar Association this week unanimously passed the following resolution:
The ABA expresses its concerns about the delays in the prosecution of Mr Collaery and the secret nature of the proceedings and suppression of much of the evidence as raising rule of law concerns going to the open and fair administration of justice.
A two-day court hearing into an appeal brought by Witness K’s former lawyer Bernard Collaery challenging a secrecy order is being held behind closed doors after his lawyer didn’t challenge holding the appeal in secret.
The hearing in the ACT Court of Appeal was open to the public for about three minutes on Monday morning. ACT Chief Justice Helen Murrell noted there was an application by Mr Collaery’s legal team to lead further evidence and then asked if there was any challenge to the hearing being held in secret.
Barrister Bret Walker, acting for Mr Collaery, conceded it was regrettable the court had to be closed but he was not challenging it, as it was required by the National Security Information Act.
“We do regret the appearance of that, but we can’t see any other way around it,” Mr Walker said.
The decision means most or all of the two-day hearing will be held in secret. A ruling on Mr Collaery’s challenge likely won’t be handed down for months. If it doesn’t go his way, Mr Collaery could then appeal to the High Court, which would further delay his trial.
Mr Collaery is challenging an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter’s application to invoke the NSI Act, which governs how courts should handle sensitive information. The NSI Act requires the court to give “greatest weight” to the Attorney-General’s views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.
Human Rights Law Centre senior lawyer Kieran Pender said the secrecy surrounding the prosecution of Mr Collaery was “wrong and undemocratic”.
“We should be protecting whistleblowers, not punishing them. Shrouding this case in secrecy only exacerbates the injustice being done,” he said.
Lawyers acting for Bernard Collaery will next week challenge a court order requiring large parts of his trial to be held in secret as the long-running case continues into his alleged efforts to expose a secret Australian operation to bug East Timor’s government.
The ACT Court of Appeal will hold a two-day hearing on Monday and Tuesday into an order made under national security laws to hold the trial largely behind closed doors.
Mr Collaery, the former lawyer for an ex-spy known as Witness K, is challenging an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter’s application to invoke the National Security Information Act, which governs how courts should handle sensitive information. The NSI Act requires the court to give “greatest weight” to the Attorney-General’s views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.
Witness K, a former intelligence officer for the Australian Secret Intelligence Service, has indicated he will plead guilty to breaching secrecy laws by revealing Australia’s spying on East Timor, but Mr Collaery is continuing to fight the charges against him. The Witness K case is being held up by disagreements over whether he can access his affidavit that was used by East Timor in international proceedings in the Hague, which his lawyers argue need to be before the court for his sentencing.
Mr Collaery is charged with offences relating to the alleged disclosure of information to both the East Timor government and the Australian media.
After East Timor commenced legal proceedings in the International Court of Justice and Permanent Court of Arbitration, the two nations signed a revised energy treaty in 2018 dividing the Greater Sunrise oil and gas fields.
Human Rights Law Centre senior lawyer Kieran Pender said there was no public interest in prosecuting Mr Collaery and Witness K.