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.
Collaery, a lawyer and one-time attorney general of the Australian Capital Territory, is awaiting trial on charges of conspiring to reveal classified information while working with his client, the former spy Witness K, in relation to a 2004 operation to bug the offices of Timor-Leste’s government during oil and gas negotiations.
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.