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.
The Law Council of Australia and the Australian Bar Association strongly condemn the ongoing intimidation, harassment, arbitrary arrest and incommunicado detention of lawyers and judges by Myanmar’s military (the Tatmadaw) since the unlawful coup d’état on 1 February 2021.
We are concerned by credible reports of lawyers being detained for challenging the legality of their client’s detention, and for filing legitimate cases that the military considers undesirable. In addition, judges at all levels of courts have been dismissed without valid cause, and some placed under unlawful detention.
These reprisals violate Myanmar’s obligation to respect, protect and fulfil the rights to life, liberty and security of person, the right to a fair trial, and the right to not be subjected to arbitrary arrest, detention or exile.
They also violate the fundamental guarantee, contained in the United Nations Basic Principles on the Role of Lawyers, that lawyers shall not be identified with their clients or their clients causes. The Basic Principles require Myanmar’s authorities to ensure that lawyers may perform their professional functions without intimidation, hindrance, harassment or improper interference; and are not subjected to or threatened with prosecution or administrative, economic or other sanctions for performing their professional duties.
Myanmar’s lawyers are also entitled to travel and consult with their clients freely, communicate with them confidentially, and to be afforded appropriate access to information to enable them to provide effective legal assistance to their clients. They are also entitled to freedom of expression, belief, association and assembly, and have a right to participate in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.
These reprisals indicate a deliberate and coordinated effort by the Tatmadaw to impede Myanmar’s lawyers from undertaking their professional duties – at a time when the rule of law is under unprecedented assault, and the Tatmadaw and Myanmar’s law enforcement personnel are reportedly committing serious and widespread human rights violations.
It was September 2019, and exiled Indonesian human rights lawyer Veronica Koman was enjoying her final days in Australia. Her studies at the Australian National University in Canberra were almost over and all that was left was to wait for graduation day.
One afternoon, Koman’s mobile phone rang. There was an SMS message from a friend in Indonesia.
Her colleague informed her that the police had declared Koman a suspect.
Since August 17, 2019, the Papua issue had been heating up. Racist actions by rogue security personnel against Papuan students in the East Java provincial capital of Surabaya had triggered a wave of public anger.
Protest actions were held in several parts of the country, including in Papua. The government even cut internet access in Papua after several of the demonstrations ended in chaos.
In the mist of this critical situation, Koman was actively posting on Twitter, sharing information about the mass movement in Papua.
On September 4, Koman was officially declared a suspect. Police charged her under multiple articles, including the Information and Electronic Transaction (ITE) Law.
ITE law ‘is so rubbery’ Aside from the ITE Law, Koman was also indicted under Law Number 1/1946 on Criminal Regulations, Article 160 of the Criminal Code (KUHP) and Law Number 40/2008 on the Elimination of Racial and Ethnic Discrimination.
“I had thought about what articles would perhaps be used to criminalise me. I strongly suspected it would be the ITE. It turned out to be true, because the ITE is so rubbery,” explained Koman when contacted by CNN Indonesia.
Koman said that it was easy to use the ITE Law to criminalise people. Aside from the “rubber” (catchall) articles, the law does not require much evidence. A screen capture from the internet is enough, and the case can go ahead.
She believes there has been a tendency to use the ITE Law to silence activists over the last few years and she gave several examples of cases in Papua.
Australian Lawyers for Human Rights (ALHR) calls on all countries, including Australia, to ensure that lawyers are able to perform their professional obligations without fear of retribution.
On 24 January 2021, the 11th Day of the Endangered Lawyer, lawyers across the world are given a specific opportunity to reflect on the grave infringement of human rights experienced by some of our colleagues, and to advocate for systemic change in their treatment. ALHR finds it highly concerning that lawyers risk danger for upholding the human rights of others and protecting vulnerable clients.
ALHR President Kerry Weste said “ALHR gives thought to the many human rights lawyers around the world who remain in prison or are at risk for simply doing their job and attempting to carry out their duties in line with international standards. Unfortunately, this now includes Australian lawyers facing prosecution for performing their duties.
In 2021 the global focus of the Day of the Endangered Lawyer is on the experiences of lawyers in Azerbaijan. Serious human rights violations have affected Azerbaijani lawyers who represent the victims of human rights violations and have spoken up about torture and ill-treatment in police custody. Lawyers who assisted in bringing the cases of human rights defenders to the European Court of Human Rights have been disbarred or even detained on various charges. The Azerbaijani authorities have failed to respect the rights of lawyers by not adequately enabling them to perform their professional functions without intimidation, hindrance, harassment or improper interference. Furthermore, the Azerbaijani authorities have failed to take substantive steps to uphold the right to a fair trial and to guarantee that every citizen has effective access to justice and legal assistance of their choice.”
“ALHR calls on all countries to comply with the UN Basic Principles on the Role of Lawyers and ensure that lawyers can act in accordance with the law and without improper interference or persecution,” Ms Weste said.
The Australian lawyer Bernard Collaery has won a prestigious British free speech prize for his efforts exposing a secret Australian operation to bug Timor-Leste’s fledgling government during sensitive oil and gas negotiations.
Collaery is still being pursued by the Australian government through the criminal courts and, if convicted, the barrister and former ACT attorney general faces jail for allegedly sharing protected intelligence information.
The charge stems from an episode during which Collaery, who frequently acted for intelligence officers, represented an Australian spy known as Witness K, who had grown increasingly concerned about a 2004 mission to bug the government offices of Timor-Leste during commercial negotiations with Australia, an ally, to carve up the resource-rich Timor Sea.
The actions of Witness K and Collaery helped Timor-Leste, one of the world’s poorest nations, take a case to the international courts and, eventually, renegotiate a fairer deal.
Now, Collaery has been recognised with the International Blueprint for Free Speech Whistleblowing prize, which recognises the bravery and integrity of whistleblowers who have made a positive impact in the public interest. Previous winners of Blueprint for Free Speech awards include Chelsea Manning, who won while behind bars in 2016 at a maximum security prison in Kansas, and Nick Martin, the doctor who blew the whistle on Australia’s treatment of asylum seekers on Nauru.
Former Australian Defence Force lawyer David McBride is still facing five national security-related charges – that carry up to life imprisonment – for exposing the SAS “warrior culture” in Afghanistan that was leading troops to perpetrate war crimes.
McBride blew the whistle three years prior to the release of the Brereton report: the irony being that this investigation uncovered the very same issues the lawyer revealed, as it focused on Australian special forces deployments in Afghanistan over 2005 to 2016.
And the Brereton inquiry was at the behest of the federal government, with the AFP now acting upon its findings.
Since the release of the report, attorney general Christian Porter has told parliament that it would be inappropriate for the government to intervene in the McBride case now, as the Commonwealth Director of Public Prosecutions (CDPP) has already commenced proceedings.
Porter said it would be “utterly extraordinary” to apply laws which permit him to bring the prosecution to a halt, as these measures have never been used before.
But when it comes to exercising unutilised powers – as well as weighing in on CDPP matters – the nation’s chief lawmaker is a seasoned player.