Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Hansard source

Unfortunately, due to a lack of time, I won't be able to say quite as much as I had hoped on this—and I know Senator Green was hoping to make a contribution as well, which time will probably prevent as well. But I will say as much as I can to put a few more things on record on behalf of Labor and our position on this. I would like to thank Senator Patrick for moving this motion, as it raises a number of important matters that go to the heart of how the justice system within a robust democracy such as ours should operate. In particular, the matters addressed in this motion relate to the principle of open justice, which is a fundamental principle for all justice systems in democratic nations. It is a principle summarised in the adage that 'justice must not only be done; it must be seen to be done'. In addition, the subject matter of this motion as well as the motion itself are directly relevant to how the doctrine of separation of powers operates or should operate at a federal level.

First, let me address some of the background that led to the current situation in which two men, Mr Bernard Collaery and a former intelligence officer known only as Witness K, are being prosecuted for offences in circumstances that have caused concern to many Australians, including many members in this place. The factual background to the matter relating to events that are alleged to have occurred in 2004, during the period of the Howard government, remains a matter of contention. Given that it is relevant to the prosecutions now underway, it is not appropriate for me to revisit those matters now by discussing in detail now what has already been discussed extensively in the media over a number of years. However, Labor has been deeply concerned by the manner in which these contentious and highly sensitive matters have been mishandled by this Liberal government since shortly after they took office in 2013.

On 3 December 2013, only three months after becoming Attorney-General, in the first of a disastrous succession of failures that was the Abbott government, Senator George Brandis issued a media release proudly announcing that he had authorised ASIO to raid the offices of East Timor's lawyer based in Australia and a former Attorney-General of the ACT, Mr Bernard Collaery. Mr Collaery's files were seized during this raid. In addition, Witness K's passport was seized. This public raid and announcement occurred just two days before hearings were due to start in East Timor's case against Australia at the Permanent Court of Arbitration in The Hague. This arbitration was to settle an extremely sensitive dispute between East Timor and Australia regarding the treaty on certain maritime arrangements in the Timor Sea.

Labor expressed our concern at the time that these raids were likely to damage Australia's relationship with East Timor as well as Australia's regional and international reputation. Specifically, we expressed concern that, instead of resolving our legal dispute and helping to normalise relations with East Timor, which was already strained by the subject matter of the arbitral proceedings, the timing and ham-fisted public handling of the raids by then Senator Brandis only further exacerbated tensions.

Immediately after the raids, on 4 December 2013, Timor-Leste's then Prime Minister, Xanana Gusmao, issued a statement called on Australia to explain its actions, He said:

The actions taken by the Australian Government are counterproductive and uncooperative. Raiding the premises of a legal representative of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct. It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia.

As a consequence of these raids, in March 2014, Australia was brought before the International Court of Justice, accused by East Timor of breaching its sovereignty and related principles of international law. The Abbott government contested these allegations but the International Court of Justice ruled against Australia for the first time in our nation's history, in a comprehensive and humiliating manner. The International Court of Justice even took the rare step of refusing to accept undertakings made by former Senator Brandis regarding the materials seized from Mr Collaery in the raids, and instead made a series of orders against Australia. Not only was this embarrassing to Australia in our region and in the wider international community; it compromised Australia's hard-earned reputation as a country that conducts itself as a responsible global citizen and that respects the international rule of law.

The key matters that had been the subject of the dispute between Australia and East Timor were finally resolved, with a new treaty signed between our nations in March 2018. However, for reasons that remain unclear to this day, in June 2018—only three months after the new treaty arrangements were agreed—former Senator Brandis's replacement as Attorney-General, now the former Attorney-General, Christian Porter, personally authorised the prosecution of both Mr Collaery and witness K. While the Commonwealth DPP recommended the prosecution of Mr Collaery and witness K, because the prosecution relates to alleged breaches of section 39 of the Intelligence Services Act, a prosecution can only proceed with the approval of the Attorney-General. Labor has been calling for the Morrison government to explain why it suddenly authorised these prosecutions, given the charges relate to events alleged to have occurred in 2004 and alleged to have involved senior members of the Howard government. To date the Morrison government has refused to provide the public with an explanation for the decision by its former Attorney-General to authorise these prosecutions.

Labor has also expressed concern at reports that Mr Porter instructed his lawyers to intervene in the pre-trial proceedings against Mr Collaery on multiple occasions in order to press the court to cast a greater cloak of secrecy over the trial. This has reportedly led to considerable further delay and cost, and in so doing increased the stress and financial hardship to the accused. In June 2020 the Morrison government admitted that they had already spent over $2 million on the prosecutions, even though they had not even progressed to the trial stage. By estimates hearings in October last year the government were forced to admit that more than $3 million had been spent on these prosecutions. The figure has continued to go up and up and up; time doesn't permit me to go into great detail, but it's likely now that we are at more than $4 million of taxpayers funds—and a date for the trial has still not been set.

In estimates last month Labor senators asked a number of questions around how these prosecutions are in the public interest. We raised a number of points, such as the lack of progress in these two prosecutions; the enormous cost to the taxpayer in funding them; the fact that the prosecutions relate to events that are alleged to have occurred 17 years ago; and the fact that there has been no suggestion of either of the accused posing any threat to the public. We are still waiting for answers from this government about how these prosecutions serve the public interest.

I also want to acknowledge the concerns raised by many Australians that, far from serving the public interest, these prosecutions may in fact be contrary to the public interest. Both Mr Collaery and witness K claim to be whistleblowers. If that is in fact the case, then it is very difficult to see how the Morrison government's attempt to prosecute them can be in the public interest. To the contrary, the prosecution of whistleblowers for revealing wrongdoing is likely to intimidate those who would reveal wrongdoing, and, in so doing, can only encourage corruption and undermine transparency, accountability and the rule of law. Unfortunately, the Morrison government has a track record of responding to revelations of corruption in government by attacking those brave enough to reveal it rather than investigating the allegations and holding wrongdoers to account. We have seen this again and again as the Prime Minister has sought to sweep under the carpet scandal after scandal involving his own ministers.

In April this year former New South Wales DPP Nicholas Cowdery said that these prosecutions in fact undermine confidence in the justice system and that the Commonwealth prosecutors were wrong to deem that these prosecutions were in the public interest. He said that the wrong parties are being prosecuted. My colleague in the other place the member for Fenner has been active on this issue, and has pointed out that the government has an unexplained decision to spend millions of dollars on these prosecutions and that the trials are being conducted in secret.

Mr Collaery and the former intelligence officer known as witness K are, like all other Australians, entitled to a fair trial before a court of law. Even though we understand witness K has just today pleaded guilty, that in no way lessens his right to due process, including in relation to sentencing. Moreover, Labor strongly supports the principle of open justice, which dictates that judicial processes should be conducted in public unless the presiding magistrate or judge determines there are compelling reasons to close the court. We in Labor do not consider that embarrassing the Prime Minister or other members of the Liberal Party is a compelling reason to close the court.

Secret trials are not something the Labor Party or indeed any Australian who values our democratic values and heritage should countenance. While we acknowledge that there may be national security or privacy reasons for certain parts of a trial to be held behind closed doors, this government has shown that it seeks to act behind a cloak of secrecy at every opportunity for every scandal it is involved in. Many Australians are concerned about the prosecutions, which is why I welcome the opportunity to speak on the motion. For the reasons I have outlined today, it's more important than ever that the Morrison government provide a detailed explanation as to why the prosecutions are in the public interest.

Debate interrupted.