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Byron Shire
February 23, 2024

Vindictive and bad faith prosecutions?

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John Howard and Alexander Downer. Photo ABC

As Bernard Collaery’s friends and supporters celebrate the dropping of the prosecution against him, it is still relevant to ask, why were Witness K and his lawyer Collaery put on trial in the first place?

The facts are not in dispute. In 2004 the Australian Secret Intelligence Service (ASIS) planted microphones in the cabinet room of the Timor-Leste government in Dili. The information derived from this hostile act against the Timorese people helped the Australian side negotiate a great advantage in the division of oil resources in the Timor Sea. The ultimate beneficiary of the crime was Woodside Petroleum.

At the time of the illegal operation against Timor-Leste, John Howard was the Prime Minister, Alexander Downer the Foreign Minister, and the late David Irvine was Head of ASIS.

When in 2012 Alexander Downer was given employment by Woodside Petroleum, Witness K, the senior intelligence officer who led the 2004 operation, went public with the story. Julia Gillard, Prime Minister at the time, and possibly misled by the spooks, denied the facts of the case outright to PM Xanana Gusmão, who then took Timor-Leste’s grievance to the Permanent Court of Arbitration in The Hague.

Barrister Bernard Collaery is defending whistleblower, Witness K, for exposing government crimes. Photo ustly.info

Soon after Tony Abbott took power, ASIS raided the home of Witness K, seizing his passport so that he could not travel to The Hague to testify. The office of Bernard Collaery was also raided and documents relating to Timor-Leste’s case were unlawfully removed and only restored, two years later, after a ruling by the International Court of Justice.

In 2018 a new treaty restored the rights that had been stolen from Timor-Leste in 2004, but of course the original architects of the crime had not been brought to justice.

Also in 2018, five years after their premises were raided, Witness K and Bernard Collaery were charged with conspiring to communicate secret information to the government of Timor-Leste. Collaery was also accused of sharing information about the bugging operation to ABC journalists.

Both trials were held in secret, with defence lawyers denied access to much of the prosecution’s case. Although Witness K pleaded guilty and received a light sentence, Collaery’s trial under Attorney- General Christian Porter was vindictively drawn out and remained unfinished when the Coalition lost office. The new government has since waived the prosecution.

A cover up?

So why were Witness K and Bernard Collaery secretly tried under unfair circumstances for revealing – eight years after the event – an illegal overreach by Australian spooks?

The obvious interpretation of this story is that Howard, Downer and the ASIS chief Irvine are simply criminals, and that both sides of politics have covered up their guilt on the basis that people who rise to that level of power are untouchable, no matter what they do. The cover up is still uncomfortable, so it has been politic to try to destroy the lives of those who inconveniently present the truth, as a warning to others similarly inclined.

An alternative interpretation would be that the advantage given to Woodside Petroleum was accidental, and arose during the perfectly legitimate surveillance of the young and inexperienced Timor-Leste government, which was then being infiltrated by terrorists and Indonesian spies.

This would explain why Collaery had to be tried in secret under the National Security Information Act, which allows the government to conceal anything that might remotely touch on national security. Thus the bugging was never about screwing the Timorese out of their oil for the benefit of a fossil fuel corporation, it was all to do with genuine spy stuff.

Not even the Murdoch press has tried that line, so we can be confident that all is as it appears, and in a just world Howard and Downer would be facing the kind of sanctions currently faced by Julian Assange in an unjust one.

Therefore, until the government creates, as promised, better safeguards for whistleblowers, institutional culture will continue to reward criminals and punish heroes.

Richard Boyle revealed unethical ATO practices. Photo ABC

As The Echo editorial noted last week, the machinery of state repression is still grinding away against other whistleblowers, including David McBride and Richard Boyle. McBride brought Australian war crimes in Afghanistan into the open, and Boyle revealed unethical practices towards small businesses within the ATO. Both men should have their prosecutions waived.

Former military lawyer David McBride. Photo Sydney Criminal Lawyers

To end on a hopeful note, the more fuss is made in public, the more politicians have to pay attention. Why not write to the Attorney-General: [email protected] urging him to do the right thing?

♦ David Lovejoy is co-founder of The Echo.

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  1. Who gives a fat flying f…! Your article is just a political hatchet job, with some ridiculous defense of the deceitful Julia Gillard. If it wasn’t for the Australian government under John Howard, and the Peter Cosgrove lead ADF, the Timorese would be living under the Jack-boot of Indonesia – similar to the fate of the West Papuans

    • Historical fact needed here. John Howard favoured an autonomy package for East Timor and argued in his December 19998 letter to President Habibie that he supported Indonesian sovereignty in the Territory and thought that the interests of all concerned were best served by Timor remained part of Indonesia. Every Australian PM from Whitlam onwards had grovelled to Indonesia re East Timor. Any stated opposition to the brutal regime was rare, weak and ineffective. INTERFET was led by Peter Cosgrove and comprised over 12,000 troops from many nations, 5500 of whom were Australian. They arrived two weeks after the August 1999 UN sponsored referendum in which 78.5% of Timorese voted for freedom. 1500 were murdered before INTERFET arrived. Its job was to oversee the withdrawal of the Indonesian military.
      If it wasn’t for the Timorese sense of separate identity, courage and refusal to buckle, Australia would still be supporting a rapacious regime.
      The West Papua situation is more difficult for the people, as the disgraceful “Act of Free Choice” of 1969 was held under the auspices of the UN. Australia claims, as does Indonesia, that this gives the regime legitimacy. The fact that only about 1000 people voted, and at gun-point, does not seem to hamper Australia’s continued support. Of course Papua is very rich in resources….as is the Timor Sea.

      • Wow Susan !
        Everything you say is true , and that is exceptional in this age of ‘alternative facts’ and the wonderful gift that you have managed to retain the long term- memory and focus to recall the lived reality of Australia’s shameful history of placating the monstrous actions of the Indonesian governments, is truly refreshing and reaffirming . I sometimes feel as though I’m living in an alternative reality, where what happened last week is no longer relevant.
        As George Pell was so fond of claiming “these abuses are historic”, ….last week, last year or even last decade are NOT consigned to history, they are current in the lives of all of us . The atrocities being committed in West Papua right this moment , make the English conquest of ‘Terra Australis’ look like an act of love.
        Cheers, G”)

  2. There is no great surprise that “Vindictive and bad faith prosecutions” are being employed to persecute the citizens , that is what Australian law has evolved to do. It is illegal in this country to denounce crime in ‘higher places’ and public figures , this is covered by defamation law and truth and proof are no defence against this charge.
    ‘Law’ in Australia is merely extension of convict camp and penal colony rules ( usually at the discretion of the powers that be, who were then and still are, sworn to serve the English Queen ) Australians have no ‘rights’ and the ‘law’ is used to keep the lower-classes in their place, and punish any who question the corruption at the heart of this national rort.
    The great irony, to my mind, is the wealthy have even found means to force those that they subjugate, to fund private health and private education to enable their children to continue this domination of the masses.
    Look at what they have done to poor Julian, he didn’t realise just how deep the evil permeates our politicians and public institutions.
    Cheers, G”)

  3. Terrific article! If it wasn’t for small, independent media outlets like The Echo, many more Australians would be in the dark about these and other disturbing realities.

  4. Dear Attorney,
    I offer my thanks to your administration for the termination of the vindictive persecution previously meted out to Bernard Collaery.
    The message follows the Echo article: https://www.echo.net.au/2022/07/vindictive-and-bad-faith-prosecutions/

    Vindictive and bad faith prosecutions? – The Echo
    John Howard and Alexander Downer. Photo ABC. A s Bernard Collaery’s friends and supporters celebrate the dropping of the prosecution against him, it is still relevant to ask, why were Witness K and his lawyer Collaery put on trial in the first place?. The facts are not in dispute. In 2004 the Australian Secret Intelligence Service (ASIS) planted microphones in the cabinet room of the Timor …

    It is evident to all that John Howard and Alexander Downer conspired to commit fraud in the ACT. The victims included the citizens of Timor L’Este robbed of their fair share of the oil and gas resources of the Greater Sunrise field. But the victims included also the citizens of Australia whose natural resources were given away by the conspirators whose sworn duty was to manage those natural resources in the public interest. Instead, they donated the gas, then valued at $12bn, to Woodside and Shell, foreign corporations, and the Liberal Party of Australia has received campaign donations for a generation.

    The conspiracy extended to George Brandis who contrived a bizarre scheme to create secret evidence to be used in the prosecution of Collaery. The secret evidence appears to have been intended to conceal the material which would convict Howard, Downer and Brandis of corruption on a monstrous scale. It is outrageous that the conspirators have been allowed to continue to benefit at public expense.

    For a generation, Australian prosecutors have evaded responsibility for prosecuting this corruption. It is beyond time to enquire whether they should remain in office.

    The withdrawal of charges against Collaery will not bring to an end the major scandals committed by the Howard ministers and covered up by succeeding administrations. The Rule of Law demands that crimes of the Howard ministers are promptly prosecuted and punished.
    Glen Davis

  5. Excellent article David … thank you .. the lawyers who have exposed this skullduggery are true heroes … men of the highest courage and integrity !


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