Bernard Collaery — Trial by The National Subterfuge Information Act (NSIA)

How a single trial could threaten the democratic integrity of an entire country.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”, begins the 6th Amendment to the United States Constitution — the amendment outlining the basic requirements for judicial proceedings, and enshrined within the revered United States Bill of Rights; a document celebrated globally for its guarantee and protection of the innate rights of its citizens (those also shared by all humans): life, liberty and the pursuit of happiness. Perhaps, these governing principles declared in the Bills of Rights are responsible for generations of Americans defending their civil rights so fervently, while holding their faith in government so dubiously.

Unfortunately, in Australia, we lacked the wisdom to declare our self-evident rights in such a document; which would, with the aid of the judiciary, deter, and to a degree prevent, governments from infringing upon our rights. Witness K and Bernard Collaery, who are in the midst of trials which will define this nation, are a few of the many bearing the consequences of such an omission.

The National Security Information (2004) Act (NSIA), which has been invoked in the trial of Collaery by Attorney-General Christian Porter, permits “national security information likely to prejudice national security” to be inadmissible entirely, or presented in certain “permitted circumstances” — circumstances which are generally stipulated by the Attorney General in the form of a non-disclosure certificate — such as the concealment of court proceedings from the public. Now, one would normally presume an act of this nature is important in safeguarding the national security of Australia; and would be exercised with the greatest care and caution, and only in truly exceptional circumstances which warranted such an infringement on judicial process; these circumstances being defined in the NSIA as, “if there is a real, not a merely remote, possibility that it [the disclosure of the information at question] will prejudice national security”. This presumption would be wrong; Bernard Collaery is being subjected to the judicial infringements of this act based on his involvement, not in a plot of subversion or terrorism, but merely in the uncovering of the clandestine East Timor espionage operation conducted by the Australian Secret Intelligence Service (ASIS) – an operation leading to an outcome, for those unfamiliar, analogous to a prosperous school-ground bully stealing a famished student’s lunch; and then justifying his actions by saying “he was acting in his best interest”.

The NSIA is playing a key part in this trial, and has led to the decision that parts of the trial will be required to proceed behind closed doors. Though, one can not solely criticise the Judge for their decision in ruling that parts of the trial are to be held in secrecy; the Judge, ultimately being constrained by the provisions of the act, which give the “greatest weight” to the Attorney-General’s non-disclosure certificate — a document identifying the information at question, and the degree it may be disclosed to — in favour of the defendants right to receive a fair hearing; to the extent the non-disclosure (or in this case conditional disclosure) of the evidence would simply have to be considered by the Judge as not having a “substantial” or “adverse” impact on the defendants ability to receive a fair hearing. Thus, the decision to prohibit or restrict the disclosure of the information may be allowed to have a noticeable, significant, or perhaps even detrimental impact on Collaerys ability to receive a fair hearing; and would still be acceptable and considered legal under this act.

Now, what is the national security information at question? Other than secrecy, what are the restrictions that were placed on the disclosure of this information e.g. were there redactions? These are questions we may never receive the answers to. Though, we can ask, and reasonably expect an answer to a simple question: on what basis did the Attorney General conclude that the unrestricted disclosure of the information at question, would present a real possibility of prejudice to national security? Simply leaving such a discretionary and consequential judgement to a single person, who is left unaccountable for their decision, is a great threat to the integrity of our democracy and the rights which — while not enshrined in our constitution — are treasured and regularly exercised by citizens of this country. If we don’t ask this question, and fervently demand an answer; I fear the gates to unfettered judicial interventions by the government will open, and lead to the persecution of innocent people with greater impunity — people, who simply believe in the notion that governments should be held accountable to the citizens they represent.

We all have a duty to remember a fundamental democratic principle, and regularly remind ourselves of its importance: we elect and pay the salaries of these officials; by doing so, we grant them permission to govern our society; to use legislative and executive powers responsibly to assist in that governance. We shouldn’t, and can not tolerate the lives and rights of our fellow Australians being threatened so egregiously and with such impunity, that could only conceivably signal the governments disregard for our rights. Witness K and Bernard Collaery are not only on trial — this nation is. It’s time we get the answers to these questions, as is our democratic right.

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