Collaery prosecution … Whistleblowing conspiracy … Fallout from Australia’s Timor Leste bugging spree … Woodside and Alexander Downer … Selective prosecution policy … Canberra’s long, slow dance with duplicity 

This is the “national security” case that arose from revelations that the Australian Security Intelligence Service arranged for installation of remote switch listening devises in Timor Leste’s cabinet room during negotiations in the Howard era over boundaries in the Timor Sea.

Attorney General “Christian” Porter had to approve prosecutions on the advice of the Commonwealth DPP, Sarah McNaughton who, it has been repeatedly reported in Crikey, was “handpicked” for the job after being “handpicked” by Dyson Heydon to be senior counsel assisting the Royal Commission into trade union corruption. 

Whatever McNaughton’s disposition, it does seem peculiar that four-and-a-half years after then attorney general Soapy Brandis floated the idea that Bernard Colleary could be charged, suddenly this worm comes out of the woodwork.  

What took the prosecutors so long? There’s the distinct possibility that the relevant agencies were waiting for the conclusion in March this year of the renegotiation of the Australia’s maritime boundaries with Timor Leste.  

A few months earlier, in order to facilitate a new maritime agreement, Timor Leste kindly dropped its case in The Hague over Australia’s illegal spying on its ministerial offices. The coast was clear. 

The attorney general’s fiat is required in other instances where sensitive prosecutorial decisions have to be made, including under the new Espionage and Foreign Interference law in relation to journalists who “deal” with government secrets. 

It is quite clear that veto power in the hands of the attorney general is not a safeguard against any excess by the DPP. The AG is a willing co-facilitator. 

Like many a good Sandgroper, Porter had his head in the sand, expecting the nation to keep quiet about the Collaery-Witness K proceedings: 

“I would also encourage any member with an interest in this case to be conscious of the fact that the priority must be to allow judicial processes to be conducted without commentary which could impact on the fairness and regularity of those proceedings.” 

Fat chance. The newspapers have been full of it, including yards of outraged letters to the editors complaining about the political taint of the charges, the fact that they are widely perceived as payback to those who exposed the government’s wrongdoing, as well as a misuse of the powers of the Intelligence Services Act. 

The fact that the prosecution is being pitched as one of “protecting Australia’s national security” and is being handled by the DPP’s “organised crime and counter terrorism” unit, indicates the extent of that misuse. 

Even so, press gallery insider and former Coalition staffer Niki Savva told the ABC on Sunday that if Porter had ignored the advice from the DPP he would have “faced a lot of grief” because Brandis had agitated for the recommendation.  

Independent MP Andrew Wilkie suggested that “someone in the government” had briefed Savva with this peculiar piece of spin.  

The Law Council of Australia and the Opposition have faithfully observed Porter’s request too keep schtum. Not a peep from the main lawyers’ lobby about the absurdity of charging Collaery and his client, Witness K. 

The ALP has sat on its hands because the Gillard government was up to its smelly armpits in attempts to cover-up the illegal bugging of the Timor Leste ministerial offices. 

While the eavesdropping of the prime minister’s rooms in Dili was facilitated by ASIS, it was ASIO that subsequently ran the raids on Collaery’s office and the home of Witness K, seizing documents, computers, and USB sticks. 

The raids and the confiscation of Witness K’s passport happened just days before a preliminary hearing in the Hague’s Permanent Court of Arbitration on Timor Leste’s petition to unstitch the tainted Timor Sea treaty – proceedings at which K was to have been a witness. 

David Irvine is at both ends of the operation. He was the head of ASIS, responsible to the then foreign minister Alexander Downer, who would have had knowledge of the bugging operation and approved it. 

Subsequently, Irvine became the director general of security under Brandis. It was not a judge who approved the ASIO-AFP raids in 2013. It was Brandis, who told the senate he was acting “in a clear case of protecting Australia’s national interest”.

Brandis’s career has been pock-marked with mendacity and duplicity and this instance is no exception. It wasn’t all that long ago we have memories of him shafting the former solicitor general, who was onto the attempt to do the ATO down as part of the Bell Group money harvesting, alt-GST scheme of the Western Australian government – in which Porter was an active co-conspirator. 

After the installation of the eavesdropping devices Witness K, and two other ASIS operatives who also participated in the operation were removed from their jobs. “Generational change” was cited as the reason. 

Witness K took his grievance about his dismissal to the Inspector General of Intelligence and Security, Ian Carnell. They met on February 26, 2008 and Carnell advised a number of options, including speaking to a private lawyer. 

It is understood, that following later communications, Collaery was approved by the inspector general to assist Witness K with his complaint. Collaery had been one of ISIS and ASIO’s panel lawyers for just these sort of cases. 

Following the raids and the seizure of property by the agencies, Collaery spoke to a number of journalists. Those he spoke to from the ABC, the government’s #1 media enemy, have been singled out in the summons, those from News Corp haven’t.  

Woodside Petroleum was the main beneficiary of the spying operation, and the company subsequently put Alexander Downer on its payroll as an “adviser”. 

The odour was evidently strong enough for former Victorian appeal judge Stephen Charles to weigh in, suggesting this unfortunate juxtaposition of events illustrated  the need for a national integrity commission. He said the behaviour of the Australian government during and after the bugging had been appalling: 

“I think it shines a light on the level of ethics and morality of parliament in Canberra that above all demonstrates we need a national integrity commission. 

A lot of people in legal circles are horrified by the government’s behaviour.” 

In a detailed response to Justinian in December 2013, following the ASIO-AFP raid, Bernard Collaery sought to trace the eavesdropping exercise with the movements of Woodside. 

“Evidently, Dr Alkatiri [Prime Minister of Timor Leste] would prepare his position with his advisers and that position would be eavesdropped on. 

Just one example related to 13 September 2004, on which date senior officials from DFAT arrived in Dili to discuss the agenda issues for a negotiation meeting scheduled for 26 September 2004 in Canberra. 

Arriving quietly the same day for talks by private jet was then Woodside chairman, Mr Volte, Mr Gary Gray and other Woodside officials. 

Research revealed extensive close contact, exchange of staff and tactical appreciations between Mr Downer and Woodside.” 

Let’s not forget the historical drama that beset Downer and Andrew Wilkie MP. Wilkie is a former army officer and an intelligence analyst with the Office of National Assessments. He opposed the invasion of Iraq, saying the claims about weapons of mass destruction were overstated and a war would lead to awful humanitarian consequences. 

In an attempt to embarrass Wilkie, a security report was illegally leaked from within the Howard government to commentator Andrew Bolt. It revealed that Wilkie had submitted a classified ONA report which, on the face of it, suggested a view of the consequences of the invasion at variance to his later statements. 

The leak of the report came from the office of Foreign Minister Downer. Downer’s staffer at the time, Josh Frydenberg, has been named in parliament as having passed the document to Bolt. 

Needless to say, the DPP and Porter are not pursuing that one.