Spies, secret recordings & justice behind closed doors

Photo courtesy of Killian Cartignies

One of the things I have always loved about our court system is that (usually) anyone can walk into a courtroom sit down and watch what is going on. The ability for the public to view court proceedings in person is part of the fundamental concept of ‘open justice’ which underpins our Australian legal system. The idea is that this openness ensures that there is transparency, accountability and scrutiny of the conduct of our judges, lawyers, prosecutors and defence lawyers. Such openness engenders public confidence in our court system. As they say, ‘daylight is the best disinfectant’.

Only in exceptional circumstances should the open justice principle be departed from. If we allow a deviation from open justice then the inability to see what is happening in our courts allows abuses to occur. Closed courts and secret trials are the hallmarks of an authoritarian government that doesn’t want its conduct scrutinised.

If our courts are meant to be open and transparent, then the recent prosecutions of Australian spies have revealed that the principle of open justice is difficult to maintain in certain matters.  

Loose lips and secret recordings

I love a spy thriller, and Australia hasn’t had a great spy scandal since the Petrov Affair in the 1950s. Recently though several Australian spies have been the subject of prosecutions accusing them of disclosing confidential state secrets. The trials of these men – code named Witness J and Witness K – have been shrouded in secrecy with the public and press given either no access or limited access to the proceedings.

The largely secret prosecutions of these spies have occurred since 2018 in the ACT state courts. But a heavily redacted ruling this week by the ACT Court of Appeal has restated the importance of open justice and required that aspects of these cases be revealed to the public.

This blog article will look back at what happened with the secret prosecution of Witness K and consider how open justice can be delivered in the current pandemic conditions. If health restrictions and increased adoption of online hearings continue then there will be less members of the public sitting in our court rooms and observing justice in action. We need to consider how we can better deliver open justice in a digital age.

Witness K and the secret East Timor recordings

Witness K was a career spy who began his service for Australia as a teenage member of the Australian navy in Vietnam and finished his career working for the Australian Secret Intelligence Service (ASIS). By the time he was prosecuted in 2018 Witness K was a retired man in his 70s.

Background to the Witness K prosecution

In 2004 Australia was negotiating with East Timor over the access to the oil and gas fields in the Timor Gap, which is the body of water between northern Australia and Timor Leste.

Unbeknownst to the East Timor government, Australian spies had installed covert listening devices in a room next door to the Prime Minister of East Timor’s office in Dili.

The purpose of these bugging devices was to learn information that would assist Australia in negotiations regarding access to the Timor Gap oil and gas fields.

The covert recordings were not known publicly at the time and Australia and East Timor reached the 2006 Certain Maritime Arrangements in the Timor Sea (CMATS).  

In 2005, Witness K was overlooked for a position within ASIS and demanded an internal inquiry be undertaken into the covert recordings in East Timor. Witness K hired Bernard Collaery (former ACT Attorney-General) to act on his behalf in regard to the internal inquiry. At that time Mr Collaery was also acting for the East Timor government. It is reported that Mr Collaery sought advice regarding whether he was in a conflict of interest from the two retainers, but it is not clear from reporting what advice he received.

It is alleged that Witness K shared with his lawyer Mr Collaery confidential information regarding the alleged covert devices installed in the East Timor governmental offices. It is alleged that information was then used by Mr Collaery to assist the East Timor government with its action against the Australian government in the Permanent Court of Arbitration in the Hague. In that action East Timor claimed that the treaty it negotiated with Australia in 2004 regarding maritime arrangements on the Timor Sea was invalid because Australia had not negotiated in good faith and had engaged in espionage.  

Raids, handbags and secret documents hidden in laundry cupboards

After East Timor launched the action in the Hague in early 2013, led by Mr Collaery, this seemed to trigger alarm at ASIO & ASIS as to the basis of the allegations made by East Timor. The scandal came to ahead in December 2013 when ASIO raided Witness K’s home and Bernard Collaery’s home and discovered in Witness K’s wife’s handbag:

  • A letter of February 2013 from Mr Collaery to Witness K discussing Australia’s clandestine conduct in East Timor;
  • Copies of Letters between East Timor’s prime minister Xanana Gusmao and Australian Prime Minister Julia Gillard from 2012, in which Gusmao informed Gillard that he knew of the covert surveillance that had occurred and which impacted the validity of the Timor Sea Treaty.

The ASIO raid also discovered a camera tripod bag hidden in Witness K’s laundry cupboard which had a memory card which included several documents intended to be filed in the Hague Arbitration on behalf of East Timor, including:

  • A statement of facts (witnessed by Bernard Collaery);
  • an affidavit signed by Witness K dated 7 May 2013 using Witness K’s real name, which reiterated public statements made by Collaery. Presumably the affidavit concerned the alleged bugging by Australia of East Timor government offices in 2004 during treaty negotiations; and
  • a further affidavit signed in November 2012.

It was intended that Witness K would be a confidential witness on behalf of East Timor in the Hague Arbitration. However, the ASIO raids and confiscation of documents made this difficult and East Timor sought orders for the disclosure of the confiscated documents. In 2014 Australia was ordered by the International Court of Justice to stop spying on East Timor, but the confiscated documents were not required to be returned. East Timor’s case in the Permanent Court of Arbitration continued until 2017 when Australia and East Timor agreed to renegotiate the treaty concerning access and royalties to the Timor Gap oil and gas reserves.  

Secret prosecutions & closed courts

At the time of the 2013 raids of Collaery and Witness K, George Brandis was the Attorney General and he decided not to press charges against the pair at that time. It was not until 2018, when Christian Porter was Attorney General that charges were brought against Witness K and Collaery alleging breaches of the Intelligence Services Act 2001.

Between 2018 and 2021 there have been multiple hearings and determinations under the National Security Information (Criminal and Civil Proceedings) Act (NSI), about how and whether the prosecutions should proceed in a secret manner to protect sensitive national security information. The AG has sought orders under the NSI that significant parts of the trial against Mr Collaery and Witness K occur in secret and that all persons involved in the trial be subject to non-disclosure obligations that would last long after the trial.   

The NSI provides courts with broad powers to make ‘such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information’ (s19). The breadth of these powers appears to entitle a court to order that the entire proceeding be conducted in secret. Section 26 of the NSI Act allows the AG to issue a certificate declaring that certain information that may given by a witness would amount to disclosure that would prejudice national security.

In the Witness K & Collaery prosecution, the AG issued such a s26 certificate in September 2019. Collaery contested the certificate and sought to lead evidence from various politicians and career diplomats – including former Attorney General Gareth Evans, two former prime ministers of East Timor, Xanana Gusmao and Jose Ramos-Horta – to contest the suggestion this information would prejudice Australia’s national security. The court accepted that Collaery could contest the certification of secrecy, and the hearings on this point were scheduled for 2019 and then delayed to 2020.

All of these preliminary hearings were conducted in secret under the ‘closed hearing requirements’ of the NSI which meant that only authorised persons were allowed to attend and certainly no press. The hearings concerning whether the proceedings should be secret for fear of disclosure of national security occurred on 25 to 29 May 2020 before Justice Mossop of the ACT Supreme Court. Several witnesses were cross-examined, including Gareth Evans, but largely the evidence was on affidavit. Mossop J handed down his ruling in R v Collaery (No 7) [2020] ACTSC 165 on 26 June 2020 and found that the prosecutions of Witness K and Collaery should proceed in secret, pursuant to s31 of the NSI.

Witness K pleads guilty behind a blackened security screen

In June 2021, Witness K ultimately pleaded guilty to charges brought against him, before the matter proceeded to trial. It was reported that the spy was charged and pleaded guilty in an ACT court behind large black screens which concealed his identity and where the glass doors were blacked out. He pleaded guilty to the charges alleging breach of the Intelligence Services Act 2001 and was sentenced to a 3-month suspended sentence.

ACT Court of Appeal rules Collaery trial to be “open”

Mr Collaery appealed the ruling of Justice Mossop of June 2020 to the ACT Court of Appeal. On 5 October 2021, the ACT Court of appeal handed down its decision in the appeal. We don’t yet have the ability to read the court’s appeal decision as it has not yet been published. The decision was provided to the parties in full in a sealed bag, with each party to determine what sections needed to be redacted before publication! So we will know more once a redacted version of the ruling is published.

However, it has been reported that the Court of Appeal ruled that the disclosure of the material could involve a risk of prejudice to national security but it did not expect that to materialise. The risk of this was outweighed by other concerns. The court ruled that:

“Open hearings of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise actions of prosecutors and permitted the public to properly assess the conduct of the accused person.”

However some information in the trial is so secretive it Is deemed “court-only matters” – not even shared with the accused or their lawyers. The matter was referred back to Justice Mossop for his determination.

The ruling (once we are able read the redacted version) of the Court of Appeal appears to be a win for transparency and open justice, that should require the trial of Bernard Collaery to be conducted in a more open manner to enable public scrutiny of the allegations against him.

I suspect that enabling greater public scrutiny of the case and increased exposure of Australia’s use of spies to obtain a commercial advantage in trade negotiations with a foreign power will lessen the government’s appetite for proceeding with the case against Mr Collaery.  

Providing open justice in a pandemic and the future of digital courts

Many of our local Victorian courts are currently closed to the public due to the health risks of the pandemic. This means the usual ability of people to roam into court rooms and watch what is happening is restricted. Alas, watching a hearing to uphold the necessity of open justice is not one of the ‘five reasons to leave your home’ allowed under lockdown rules! Some of our court rooms are not being used at all, with most hearings proceeding via an online format via Microsoft Teams, Webex or Zoom, in which the judge appears virtually from their chambers or home.  

It is likely that the use of online hearings will continue long after the pandemic restrictions have eased.

I suspect that most members of the public have no idea that they are able to ask for access to view these online hearings from the relevant judge’s associate. From my discussions with non-lawyers, many people are surprised to learn they can ask to watch these online hearings even though they are not involved in the dispute. It seems the ‘gateway’ step of seeking permission from a judge’s associate for a Zoom or Webex link to a hearing is a step that many members of the public:

  • do not realise exists; or
  • do not consider themselves within the group of persons who is entitled to be provided access.  

To preserve the principles of open justice I consider it would be helpful to streamline access for the public to online hearings by providing a live stream of each hearing in our state courts via Vimeo or Youtube stream, with immediate access from the Supreme Court website. There is no need for the online streaming of hearings to only be provided during the height of the pandemic. Our world is increasingly online and embracing this technology could and should be maintained on an ongoing basis to provide increased openness and access to the courts for more people.

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