Timor Bugging Scandal - A test of impunity
As ex-ASIS operative, Witness K, and his lawyer, Bernard Collaery, begin to wade into the darkness of the court system, it is poignant to consider that the accountability regime has failed them.
The lighthouse, the IGIS, entrusted to spotlight submerged government operations of dubious legality or morality, has dimmed her beam and refused to investigate the bugging.
The prosecution of Witness K and Collaery for ‘revealing information about ASIS,’ has reached a tipping point.
Will the government’s efforts to stow the proceedings under ‘national security’ and cast the allegations of corruption out to sea succeed, and the names of the orchestrators be sunk to the silence of the sea floor? Or will the High Court throw them a life raft that catches waves back to shore.
Although Collaery and Witness K supporters call for the prosecutions to be dropped, a landmark case from the High Court may be, in the absence of calls for a royal commission from Parliament and an investigation from the IGIS, the only channel to reform.
It is rare that the High Court gets its hands on a case such as this, but when it has, the court has recognised that intelligence agencies do not belong in a black hole. They too, must feel the pull of the rule of law and weight of public scrutiny.
After a very public, botched hostage rescue training exercise was carried out by ASIO in 1984 at Melbourne’s Sheraton Hotel, in circumstances where ASIO failed to notify or seek permission from the hotel, the High Court issued the intelligence community a reality check– “no executive agency is above the law.”
By this stage in our intelligence agencies’ history, ASIS had only recently been acknowledged to exist, and did not exist in law. We did not know what ASIS could be used to do, whether our agents used violence, flouted our law, international law and the laws of other countries. Justice Murphy perhaps read the tealeaves when he warned that Australia was a law-abiding member of a community of nations, and no minister, whether civilian or military, could authorise another person to commit an offence against another country or international law.
Spies were sought to be silenced by non-disclosure contracts with the Government, which the High Court in the Sheraton case rejected, because they interfered with the public interest in enforcing the criminal law and the administration of justice.
ASIS was hauled into law in 2001. At the time, Alexander Downer championed the legislation a ‘historic step forward for accountability,’ for it established some, albeit vague, legal parameters on ASIS’ power. But what was also lade into the legislation was a complete gag on ASIS agents from communicating any information about ASIS to anyone, except the IGIS, which was created in the wake of the Sheraton Hotel incident. Three years later ASIS bugged the Timor-Leste cabinet.
A UK court has grappled with whether such a gag in their legislation violates Europe’s human rights treaty and freedom of expression. The court found that their right was protected because of the many avenues available to an intelligence agent in the UK to voice concerns – including to a high ranking independent civil servant, law enforcement authorities, the Parliamentary Intelligence Security Committee and a number of other integrity bodies.
This is contrasted to the single option of the IGIS in Australia, which is located within the office of the Attorney General.
Although we are not insulated by the same human rights treaty as in the UK, we do have an implied constitutional freedom of political communication, which could be compromised by a complete ban on an intelligence agent’s communication.
There are other huge legal questions that could be traversed in this case, with potentially significant reformative power. The most immediate being whether the Attorney General can successfully divert judicial power from the court to himself in deciding if case is a ‘national security’ risk and should proceed behind closed doors.
There is a public interest in the prosecutions against Witness K and Collaery proceeding- a rare opportunity for the court to test their constitutionality, and consequence reform. But grey legal questions are a gamble, and it is not fair that it has come to this.
