17 May 2021

MONDAY, 17 MAY 2021 

SUBJECTS: Prosecution of Witness K and Bernard Collaery; slide towards secrecy; prosecution of Witness J.
LEON DELANEY, HOST: First up today, all four of the ACT's Labor Party Federal Representatives Katy Gallaher, Andrew Leigh, Alicia Payne, and David Smith have issued a joint press release today protesting the treatment of Bernard Collaery and Witness K. As you know, the lawyers representing Bernard Collaery were back in court today, filing an appeal against the secrecy order that has been imposed. And of course, because of the secrecy order, it was held in secret. So I'm not entirely sure what we know about what happened today, or even if we know anything at all. But joining me now one of those four Labor representatives for the ACT, the Member for Canberra, Alicia Payne. Good afternoon. 


DELANEY: Thanks very much for joining us today. This has been a long and drawn out saga, and a lot of people hold very serious concerns about not only the plight of Bernard Collaery and Witness K, but about what it means for our due course, you know, due process and democratic processes in this country. Why do you hold concerns? 

PAYNE: Well absolutely, Leon, as you were just saying, the trial is in secret and they were appealing that today and we don't know what happened because it's in secret. And this is something that many Canberrans are concerned about, that our court system is being used in a way that is, you know, contravening the very most important tenets of our justice system, that people have a right to a fair and open trial. Witness K and Bernard Collaery are being prosecuted by the Commonwealth, so that is in our name. And the Attorney General, the former Attorney General Christian Porter, and the Prime Minister have failed to give any explanation of why this trial is proceeding and why it needs to be in secret. And the new Attorney General, Michaela Cash needs to give that explanation. 

DELANEY: Well the explanation that has been given for the secrecy is that national security, and that's sort of played as a trump card, which is expected to overrule all other considerations. Now, of course, national security is important, isn't it? 

PAYNE: Of course it is but I do think that in this case, or you know, more often than it should be it is being used as an excuse for a slide into secrecy and a lack of accountability from this Government. They need to be able to explain why this trial is happening, why it's worth, you know, millions of dollars of taxpayers money and why these, these two people, you know, possibly going to face jail time, being prosecuted by the Commonwealth without people even understanding why that prosecution is happening. And it's not good enough. And it does demonstrate, you know, this, this slide into secrecy that we're seeing, and many Canberrans write to me about it all the time and many people go every day to the courts to stand in solidarity with Bernard Collaery and Witness K as they go into their trial. And I've attended many of those rallies because people are very concerned about what's going on here as we should be. 

Now, my understanding is at the heart of this both Bernard Collaery and his client Witness K, have been charged with revealing classified information, essentially, I don't know what the exact wording of the charges are. But those would be fairly serious offences. And if there was classified information revealed, surely it's reasonable to expect that some of these, at least some of these proceedings would be conducted in secret. Alicia Payne MP 3:30 Well, I think the concern here is that so Witness K was a whistleblower. And whistleblowers need to be able to raise concerns about things that the Government are doing without being threatened with, you know, jail time in a secret trial. And Bernard Collaery was, you know, doing his job as a lawyer for Witness K, and he now also is being prosecuted by the Government. So while there may be things that may need to be in secret, there needs to be at least an explanation of why and what we're seeing here is a blanket rule of secrecy for this trial, which is unacceptable. 

DELANEY: The other thing that I think baffles a number of people is the fact that the lawyer representing Witness K is himself being pursued for apparently, as far as we know, doing nothing more than representing his client, or is there more to it than that? 

PAYNE: Well, exactly. And that's my question as well, Leon, and that's what we're asking, and that's what the Labor Party, Mark Dreyfus our Shadow Attorney General, have been seeking briefings and asking questions as much as we can through the Senate committee process to get some answers to these questions. We have been able to uncover that the trial has cost almost $4 million but the reasons as to why the Government seems to be going to absurd lengths to pursue these prosecutions haven't been given. 

DELANEY: And given everything that has been revealed over the last several years, the fact that Witness K was raising the alarm over the purportedly unlawful surveillance programme carried out against a friendly Government, in this case the Government of Timor Leste. We we know the important bits, don't we? What is there that we don't know? 

PAYNE: Well, I suppose that many would guess that that is the reason for the secrecy is that if the trial were public, the Government will be seen to explain whether or not they were doing the things that Witness K has said that they were doing. And that is probably the cause for, you know, secrecy, and that points to the fact that governments need to be more accountable than that. The public are entitled to know the answers around these issues. 

DELANEY: The reason for the surveillance operation that apparently was to do with trying to get some sort of competitive edge in the commercial negotiations over the oil and gas leases in the Timor Sea. Now, those negotiations had to go back to square one after these revelations. A deal has now been done. It's all ancient history, isn't it? Why people still worried about pursuing this? Why is the Federal Government still worried about this? 

PAYNE: Well, that's exactly, Leon, that is exactly why we are calling on the Government to provide those answers. 

DELANEY: So is it a case then that they're simply embarrassed by this? 

PAYNE: Well yes, possibly, you know, possibly, I don't know. And that's why we are asking. And that's why we do feel that the Attorney General or the Prime Minister need to explain why they are going to these lengths to pursue these two men, they shouldn't be scapegoated for something the Government was doing years ago and for blowing the whistle on it. And for doing in Bernard Collaery's case, his job as a lawyer. 

DELANEY: And many would argue doing a service to the nation by blowing the whistle on an inappropriate activity conducted by the Government. 

PAYNE: Exactly.

DELANEY: There is a broader issue at hand here as well, of course, it's not just about Bernard Collaery and Witness K, it's about the issue of secrecy, which has also been applied to another case, where the individual in the middle of it is known as Witness J. We know even less about that particular case. But this is a pattern here, isn't it? Where matters of sensitivity are being dealt with, in a way where pretty much everything is just being hidden away so that nobody can see any of the detail at all. What's the danger of that? 

PAYNE: Absolutely. And I also that Witness J case is incredibly concerning. That you know how little we knew about why that that man was in jail. I think, the slide into secrecy, is a concern, should be concerning to all Australians, because it is undermining our democracy, it is undermining our rights as citizens. We have a Government that doesn't like to be held accountable and just hates all dissent. And we see that in a range of ways that the Prime Minister is pursuing. But the problem is, is it erodes our rights as citizens. If the Government can prosecute people in a secret trial and put them in jail with no public explanation, where does it end? That's the question. You know, and where if whistleblowers aren't able to blow the whistle on things that the Government are doing, you know, what rights do we have as citizens? 

DELANEY: I mentioned in the introduction to the programme today, Franz Kafka. Have you read the trial? 

PAYNE: I haven't actually, Leon. 

DELANEY: I would recommend it to anybody who's concerned about these issues. The plot of the novel basically is an individual who is charged with a crime that he doesn't know even what the crime is that he's been charged with. And he's held up in the bureaucracies for so long, that he just eventually gets forgotten, and then taken off and executed for a crime that he still doesn't know what it was. 

PAYNE: Right. Well, I'll add it to my list. 

DELANEY: Right up there with 1984. Thanks for joining us today. 

PAYNE: All right. Thank you, Leon. 

DELANEY: Alicia Payne, member for Canberra.