We can all be glad that judges constituting the ACT Court of Appeal in the Bernard Collaery case had a more liberal view of the need for open justice than the judge who had been set to hear the case. This was before the Attorney-General, Mark Dreyfus, stepped in to drop the prosecution altogether. But it is too early to come to any conclusion that the oppressive overreach of national security legislation, and its threat to the justice system is over.
One can write of this now, more than a year after the prosecution was halted. Officers of the Attorney-General's Department have concluded, largely successfully, efforts to censor the Court of Appeal judgment of 29 months ago. The redacted judgment has now been issued, along with an array of other relevant judgments which are probably, unfortunately, unappealable.
The appeal was about rulings by Justice David Mossop that the trial of Collaery would have to be conducted mostly behind closed doors. Mossop had largely agreed with all of the arguments put on behalf of the Commonwealth that the risk to national security of disclosure of the material outweighed the admitted public interest that justice should be dispensed in open court. If there was a risk to a fair trial from the fact of a closed court, it could, Mossop thought, be adequately dealt with by instructions (from him) to the jury.
The Court of Appeal was far more sceptical. Mossop, they thought, "gave too much weight to the risk of prejudice to national security, and too little weight to the interests of the administration of justice in the circumstances of this case".
"There is a respectable argument that the Neither-Confirm-Nor-Deny policy has continuing application [to the allegations about the 2004 bugging of the East Timorese cabinet by the Australian Secret Intelligence Service]," the court said. "However, the risk of prejudice to national security is low, and the consequences risked are not particularly significant. [Words redacted] makes it doubtful that there will be any significant risk of prejudice to national security if the identified matters were published.
"The evidence led by the Attorney-General [the court was referring to Christian Porter, of the Morrison government] was replete with speculation and devoid of any specific basis for concluding that significant risks to national security would materialise if the identified matters were published. It was implicit in the findings of the primary judge that it may be that no risk to national security would materialise.
"On the other hand, the risk of damage to public confidence in the administration of justice where proceedings, or parts of proceedings, are held in closed court is very real. This is particularly so in the case of criminal prosecutions. From time to time, it is necessary for proceedings, even criminal proceedings, to take place wholly or partly in closed court. It is necessary that there be a 'gatekeeper' who determines whether proceedings should be heard in closed court. The Parliament has made the court the gatekeeper for the purposes of the NSIA.
"The public accepts such decisions when made by a court because the public has confidence in the proper administration of justice in this country. That confidence springs from the general adherence to the open court principle; the public accepts that a few matters must be heard in closed court because it is confident that courts are committed to the open court principle and will only close the courts for cogent reasons.
"The decision to commence a criminal prosecution is an opaque process at the best of times."
"The open court principle stands as a bulwark against the possibility of political prosecutions by allowing public scrutiny and assessment of the actions of the respondent and the Attorney-General by reference to the evidence adduced in a criminal trial.''
Collaery was a former ACT attorney-general and continued to practise as a lawyer, the court said. "Convictions on the charges against him may raise questions of his fitness to continue in practice as a lawyer. Convictions may also cause clients, prospective clients, or others with whom the appellant has professional dealings, to question his character.
"If the orders made by the primary judge are allowed to stand and the appellant is convicted, those dealing with the appellant will have to form assessments of his character and of the significance of the convictions without important information. Those dealing with the appellant may well view the significance of any conviction differently if it is established that the appellant's statements [REDACTED] were made as an exercise of conscience as opposed to disclosing national security information for personal gain or some other dishonourable motive. The maintenance of the present orders would act as a constraint upon the appellant's prospects for rehabilitation."
The Court of Appeal judgment is good as far as it goes. Which is not very far.
Of course, more than recognising problems for the public in working out what to make of Collaery if he were convicted after a largely secret trial, there is a strong public interest for all of the public in having justice conducted in the open. It might be true, in the abstract, that the public will trust a judge rather more than a politician to decide what should be secret and what not, as the court said. And it was right to comment that there will always be cases, not necessarily national security ones, where some material might not be shared with the public.
But the wider public also has an interest in knowing not just the facts behind a prosecution, but the reasoning of a judge in conducting the trial. Judges are not so revered by ordinary citizens to the point that we are prepared to take them on trust. Wherever there is secrecy, there will be cynicism, and it is not always misplaced. There is no surer way of keeping the courts fair and just than requiring that as much as possible of their consequential work is conducted in the open, and is able to be subjected to criticism. The right of judges to say "trust us" is very limited.
If the court needed any convincing of this it could consider the popular reaction to the discovery that a man was in an ACT jail after a secret trial and a secret judgment, without even the ACT attorney-general being aware of the fact. Or by the non-stop public controversy over the Collaery and McBride trials, and the avowed lack of confidence by many people that either could get, or would get, a trial that properly balanced the need for open justice with the needs of national security.
It was not necessarily the fault of the judges, because the past two decades has seen an explosion of repressive national security legislation seriously changing the balance of rights between citizen and government. Judges have to apply such legislation, even if they must do so bearing in mind their oath about doing justice, and must draw on common law and constitutional concepts of human rights. More often than not, the new legislation, at the demand of the national security establishment, has tried, as far as it can, to legislate out any concept of overriding public interest.
The post-September 11 legislative regime has also seen the conscious politicisation of national security, and not only by politicians, whose sense of decency can hardly ever be trusted or assumed, but also by bureaucrats and intelligence officers. The public should be on its guard when they play politics, seek more power over others, and when they have a professional interest in exaggerating the need for their oppressions.
Some of the national security bureaucrats have acted as public advocates for political courses of behaviour. They cannot be assumed to be acting in a detached or fair way when they are giving evidence before the courts. Or opining in public about where the national interest lies, or about the national security situation, or risks to it. There is hardly one of them who does not pretend that their legislation is hampered by unnecessary checks and balances. Most of those supposedly protecting the public interest have been conflict shy, and not a substantial barrier to abuse and excess of power. In fact, the protections available in Australia fall well short of those provided in most other comparable jurisdictions, including Britain, Canada, New Zealand and the United States.
It is also forgotten, in the general expressions of satisfaction about the appeal decision, that there was a further whole category of evidence that the Collaery prosecution had proposed to put in closed court. This was evidence that counsel for the Attorney-General was arguing that the defendant should not be allowed to see, to know, to cross-examine about, or to refute. It is far from clear that the best-motivated judge could protect the interests of an accused person in such a case.
Mark Dreyfus's intervention in the case may have spared us that horror. But it should not be thought that this showed a want of confidence in the legislation or its checks and balances. It may have been Porter who initiated the prosecution, but it has been lawyers acting for Dreyfus and for his department who have fought tooth and nail over the past two years to suppress as much as possible of the Court of Appeal's judgment, including the publication of any details of the damage that disclosure is said to have incurred.
Dreyfus had no obligation to persist with arguments mounted by his predecessors. Actually, one can assume that custody of the arguments was a project of his department and its permanent agenda on national security matters. There was a time when the department stood for the rule of law and for human rights; it is now the most conservative, and least accountable, security institution in the Commonwealth. At least until the National Anti-Corruption Commission, which much the same officials resisted mightily under the last administration, it had never been subject to law enforcement integrity systems, or the supervision of the Inspector General of Security.
It turns out that the principle that the prosecution was attempting to uphold was the principle of neither confirming nor denying anything said about national security matters. Counsel for the Attorney-General would cheerfully admit, more or less, that the cat was largely out of the bag with ASIS's bugging of the East Timorese cabinet. Over the past decade it had been referred to in international litigation (which Australia effectively lost).
At various stages prime ministers, foreign ministers, and attorneys-general, including Mark Dreyfus, had referred to the facts in general terms. But, the Commonwealth claimed, no one had ever officially admitted which parts of the precise allegations made by Collaery and Witness K were true and which, if any, were false.
The hocus-pocus about this did not conceal a deeper truth, so much as the fear of the intelligence establishment that a breach of the policy would pretty much cause the end of civilisation as we know it. Or the end of Australian civilisation anyway, given that our allies give far more limited lip-service to the policy, without noticeable damage to their interests. As the Court of Appeal judgment quoted makes clear, the Attorney-General does not even have to claim that damage to our national security interests would occur. It is enough to say that there is a real possibility that it could occur.
Such shibboleths are wrapped in claims that our allies, including our Five Eyes partners, share information with us on the strict understanding that we will adhere to the neither-confirm-nor-deny principle. Perhaps, although the sceptic and the courts should look for real evidence, relevant to particular disclosures, rather than take such assertions on trust. But our secret information about border negotiations with East Timor was purely homegrown stuff.
The main point of the negotiations was about who would control which oil and gas in areas adjoining the borders. ASIS was tasked to bug the cabinet, under cover of an aid operation, so that Australia would know what the East Timorese were thinking. As it turned out, Australia had little to gain or lose from the outcome: the information was passed to Woodside Petroleum (not really an Australian operation) which was negotiating.
MORE WATERFORD:
This brings to bear the critical problem that no one in higher politics or the bureaucracy - or the courts - seems willing to face. Each of the two big national security scandals of the past two decades which brought criminal action against the leakers involved the abuse of national security to conceal malfeasance by Australia. It is simply impossible to say that the war crimes investigations would have occurred had it not been for McBride's disclosure to the ABC. It was, in fact, in the public interest that Australians know how the resources of the national security and the defence state were being stretched to conceal murder of innocent people by Australian soldiers.
Likewise, Collaery's crime - if crime it was - was to let the public know that no decency would stop senior officials of this nation from taking improper and unfair advantage of East Timor. In general terms, I have no problem with our spying on other countries (as long as we are not too sanctimonious about their spying on us). It's not the doing of something which is shameful and reprehensible, but the use put to the information in question. That there was a very strong public interest in the disclosure of iniquity is the key proposition the bureaucrats have made sure the law won't allow. Nor do the courts show any eagerness to use an iniquity to temper the clear oppressiveness of the law. It may be that we have to wait for a jury to show what it thinks.
Jack Waterford is a former editor of The Canberra Times.
Jack Waterford is a former editor of The Canberra Times.
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