TRANSCRIPT - PART 13

of "Secrets, Spies and Trials" at http://www.abc.net.au/4corners/secrets,-spies-and-trials/11451004

STEVE CANNANE: The Commonwealth DPP first sought consent to prosecute back in September 2015 when George Brandis was Attorney General.

For over two years he considered advice from two different CDPPs and the Solicitor General.

Brandis left office in December 2017 to become High Commissioner to London. He never provided consent to prosecute.

BRET WALKER: Well, I imagine the former attorney, Senator Brandis, didn't find this a straightforward case to say yes to.

If I may say so, as a matter of my opinion, I'm not quite sure why it ... why it wasn't a straightforward case to say no to, but that's just my opinion.

But on any view of it, that's a very long time for something to be sitting on an attorney's desk. I imagine it was not for want of thinking about it, that that time elapsed.

STEVE CANNANE: Within six months of becoming Attorney general Christian Porter consented to the prosecution, something his predecessor chose not to do in the two years and three months after he was first given advice by the DPP.

Four Corners understands the former Attorney-general George Brandis had misgivings about approving a prosecution and that there were divisions among the national security agencies about the wisdom of prosecuting Bernard Collaery and Witness K.

ANDREW WILKIE: The suggestion that the former attorney general had misgivings about pursuing witness K and Bernard Collaery, it rings true to me because there was no sensible reason for pursuing it at the time.

ALAN DUPONT, FORMER INTELLIGENCE ANALYST: Agencies would be making their case, that it's necessary to protect their methods and the confidentiality of our, people, to prevent, other potential whistle blowers like Witness K from coming forward and disclosing information, classified information about ASIS activities.

That's what they want to prevent.

STEVE CANNANE: Former intelligence analyst Alan Dupont worked as an adviser for Jose Ramos Horta for ten years. But he has little sympathy for Witness K.”

TRANSCRIPT - PART 14

"Secrets, Spies and Trials" at http://www.abc.net.au/4corners/secrets,-spies-and-trials/11451004

“ALAN DUPONT: You can't really allow people to make individual judgments about the morality of efficacy of their, of their work when they voluntarily join and then take it upon themselves to disclose information that is privileged to them because they've been working there.

So, you know, I tend to understand where the intelligence agency is coming from me and the need to protect these confidentialities because if you have everybody going out and saying, 'well, I don't agree with something', and disclosing privileged information, then you don't have an intelligence service.

CITIZENS: Drop the charges now.

STEVE CANNANE: Just weeks ago Bernard Collaery made his way into the ACT Magistrates Court. Little did his supporters know that this case was about to take a shock turn.

BERNARD COLLAERY: Well my dear friends this is a difficult day of course for myself and my family and all of my good friends.

STEVE CANNANE: Bernard Collaery had just heard in court that his former client and co-accused Witness K was intending to plead guilty.

BERNARD COLLAERY: I have great empathy for witness K and the struggle that witness K has gone through both spiritually, mentally and physically.

I can understand exactly the position after six long years witness K has found the position to be.

STEVE CANNANE: Witness K intends to plead guilty, but only if the prosecution accepts that his only breach was to prepare an affidavit for the arbitration hearings in The Hague.

BRET WALKER: That is, for an onlooker, a fascinating sharp focus to bring to, an allegation of offending by releasing that material, supposedly, that should not be released. Because the focus is on it being presented for the administration of justice.

BERNARD COLLAERY: This is a very very determined push to hide dirty political linen.

That's what this is all about, dirty political linen under the guise now of national security imperatives.

STEVE CANNANE: Bernard Collaery is vowing to fight on. But the public may never know the full story of the evidence heard against him.”

TRANSCRIPT - PART 15

of "Secrets, Spies and Trials" at http://www.abc.net.au/4corners/secrets,-spies-and-trials/11451004

“ANTHONY WHEALY QC, FORMER SUPREME COURT JUDGE: This could be, in a strange way, one of the most secretive trials in Australian history.

There are some obvious national security matters where protection is required, but where, where is the national security elsewhere in the proceedings?

Because that's being shrouded in secrecy, it becomes much more secretive than a terrorist trial or something of that nature.

STEVE CANNANE: Collaery's trial will be conducted under the National Security Information Act brought in after the 9/11 terrorist attacks.

The Act allows certain evidence to be heard in secret.

As a judge Anthony Whealy presided over Australia's longest terrorism trial heard under these laws.

ANTHONY WHEALY: I don't think they were designed for this sort of case at all. I don't think they're designed for cases involving whistleblowers, journalists, or the lawyers for whistleblowers.

For the life of me, I can't see that this legislation is really appropriate except in a very minor way where we're dealing with what are really public interest issues.

STEVE CANNANE: The Attorney General has issued a secret certificate which will likely see key details of the bugging operation suppressed in court.

But ultimately, it's up to the judge or magistrate to rule what's made public.

BRET WALKER: is a legitimate public interest in knowing what is being tried, and what are the arguments that are being deployed for and against the conviction of a person in this position.

And that's particularly so, where the whole case concerns, a supposed or alleged concern that there has been misbehaviour, maladministration or worse, by Australian authorities.

Every Australian, I imagine, is interested to know that Australian authorities will be held to account. That's difficult to do if a trial, at the pointy end, will be held secretly.

STEVE CANNANE: Stephen Charles is a former judge of the Supreme Court who as a barrister represented both ASIO and ASIS.

He believes key evidence about the Dili spying operation is in the public interest and should be heard in open court.”

TRANSCRIPT - PART 16

"Secrets, Spies and Trials" at http://www.abc.net.au/4corners/secrets,-spies-and-trials/11451004

"STEPHEN CHARLES: It is a fundamental aspect of the rule of law that proceedings take place in public. It is difficult to imagine any justification for these proceedings taking place in secret.

Everyone who reads the newspapers is aware that ASIS officers entered and bugged the Timorese cabinet premises.

Everyone is aware that the result of bugging those premises was that Australia got a huge and very unfair advantage in the negotiations being carried out between Timor and Australia.

STEVE CANNANE: Attorney General Christian Porter declined to be interviewed.

In a statement he said he has confidence the court will strike the right balance between national security and the principle of open and transparent proceedings.

And that 'as far as possible, any legal proceedings in this matter should be conducted in open court'.

But Bernard Collaery says the NSI Act is already impacting on his defence

BERNARD COLLAERY: I don't know what I'm going to be allowed to say in court.

I've only just been allowed to speak to my lawyers after 18 months, or whatever it is.

I'm now able to speak to my lawyers, but I'm circumscribed even in what I can tell my own lawyers.

It's amazing. It's an amazing experience.

STEVE CANNANE: The NSI Act is one of over 70 laws in the name of national security which have passed since the 9/11 terrorist attacks.

And many of them interfere with democratic rights and freedoms.

STEVE CANANNE: As Australia's security state has expanded in response to the war on terror, so too has Australia's state of secrecy. More government documents are being classified, more journalists are being monitored, more whistle blowers are being charged.

JEREMY FERNANDEZ, ABC NEWS : Tonight the ABC's Sydney headquarters raided by the Federal Police. Officers seize thousands of items related to news reports from 2017.

This is the second media organisation to be targeted after the home of a News Ltd journalist was raided yesterday."

TRANSCRIPT - PART 17

"Secrets, Spies and Trials" at http://www.abc.net.au/4corners/secrets,-spies-and-trials/11451004

“ANDREW WILKIE: I feel we're living in very dangerous times here in Australia, there is clearly a reduction in civil liberties. Whistleblowers are being pursued in the courts, journalists are being raided, I would characterise it as being in a pre-police state, which left unchecked will get even worse, and one day we'll wake up and wonder how on earth we got here.

BERNARD COLLAERY: Laws have been passed that can make any work you do affecting Australia's economic activities espionage, sabotage, conspiracy. There are new laws that have quietly slipped through, basically unquestioned by the opposition.

BRET WALKER: The country generally should have a good hard look, with no preconceptions, about just what is the scope of information about government, that should be kept secret from the people, for how long, and why?

I think that for far too long, there has been this notion that, very few people will decide what's good for us to know, and what's good for us not to know.

And I, for one, am not prepared to give them a blank cheque.

STEVE BRACKS: I've got no doubt that if the public of Australia believed that the national security legislation which has been passed into law would be utilised in this way, to raid the ABC, to raid News Limited, to take action against a tax office whistle blower and to also in this case, in Bernard Collaery and Witness K, to take action for people who, in all conscience, were ensuring that our democracy was upheld, I don't think people would accept it. And nor should they.

STEVE CANNANE: Senator Rex Patrick and MP Andrew Wilkie are pushing for greater oversight of intelligence agencies and legal protection for whistleblowers.

SENATOR REX PATRICK: Some of the changes we'd like to see is the ability for someone to blow the whistle anonymously.”

We'd also like to see changes where, if nothing is done after the whistle has been blown, people can go to either the media or to a politician."

TRANSCRIPT - PART 18

"Secrets, Spies and Trials" at http://www.abc.net.au/4corners/secrets,-spies-and-trials/11451004

“ANDREW WILKIE: You know, it's way beyond time for a government to go back and revisit this, and to create effective whistleblower protections, so that insiders, including security insiders, if they are genuinely witness to misconduct, they can speak up. And if need be they can go to the media.

STEVE CANNANE: BERNARD COLLAERY will face court again later this year...in what could be a long trial. If found guilty he faces up to 2 years in prison.

SISTER SUSAN CONNELLY: The prosecution or the persecution of Witness K and Bernard Collaery, should be discontinued immediately because it is not right, under any law, to pursue people and charge them, when all they have done is told the truth.

Those two men told the truth about what we have done.

The people who did the fraud, the illegal fraud, the spying, the low down action against Timor, they've got away with it.

They're not being charged with anything and they should be, and here we have two truth tellers who are now being charged.

STEVE CANNANE: Timor-Leste's former prime minister Xanana Gusmao wants the Australian government to drop the prosecution.

If it goes ahead he says he will come to Canberra and give evidence in court on behalf of Witness K and Bernard Collaery.

XANANA GUSMAO: My message is only an appeal. Please, drop the issue. Please. Because I will always be on their side.

That's why I already promised to them, if it was not a secret trail, I will go to witness, to be their witness.

STEVE CANAANE: And what kind of evidence would you give?

XANANA GUSMAO: All the information that I know.

STEVE CANAANE: And is that evidence that the Australian government may not want to hear in court?

XANANA GUSMAO: Maybe.

STEVE CANAANE: So you're saying some secrets that may embarrass previous governments?

XANANA GUSMAO: I believe so."