Bernard Collaery | |
|---|---|
.jpg) Collaery in 2015 | |
| 2ndDeputy Chief Minister of the Australian Capital Territory | |
| In office 7 December 1989 – 29 May 1991 | |
| Preceded by | Paul Whalan |
| Succeeded by | Wayne Berry |
| 2ndAttorney-General of the Australian Capital Territory | |
| In office 7 December 1989 – 29 May 1991 | |
| Preceded by | Rosemary Follett |
| Succeeded by | Terry Connolly |
| Member ofAustralian Capital Territory Legislative Assembly | |
| In office 4 March 1989 – 15 February 1992 | |
| Personal details | |
| Born | Bernard Joseph Edward Collaery (1944-10-12)12 October 1944 (age 80) Caversham,England, United Kingdom |
| Nationality | Australian |
| Political party | Residents Rally |
| Spouse | Ann McHugh |
| Children | 4 |
| Alma mater | Sydney Law School |
| Profession | |
Bernard Joseph Edward Collaery (born 12 October 1944) is an Australianbarrister,lawyer and formerpolitician. Collaery was a member of theAustralian Capital Territory's firstLegislative Assembly for theResidents Rally party, from 1989 to 1992. He served asDeputy Chief Minister and Attorney-General from 1989 to 1991 in theKaine Alliance Government.
In June 2018, theCommonwealth Director of Public Prosecutions charged Collaery under the National Security Information (NSI) Act with disclosing protected intelligence information. The case relates to theAustralia–East Timor spying scandal, in which the Australian government bugged Timor-Leste offices in order to gain an advantage during commercial negotiations to carve up the resource-rich Timor Sea. However, in July 2022, the charges were waived by Attorney-GeneralMark Dreyfus.
Collaery was born inCaversham,England, four months after his father, Flying Officer Edward Francis Collaery (RAAF) was killed in action.[1] Collaery arrived in Australia in 1945[2] and was educated at the Christian Brothers College inWollongong,New South Wales and at theSydney Law School at theUniversity of Sydney[3] where he graduated with aBachelor of Laws.
Prior to entering politics, Collaery was a First Secretary in theAustralian Embassy in France.[4]
Collaery was elected to the Assembly at its firstgeneral election, held in 1989[2] and was leader of the Residents Rally Party,[5] "a community-based urban green party".[6] The life of the first Assembly, a multi-member single electorateunicameral body, was characterised by ahung parliament and significant political instability. Confidence was waning in the minorityFollettLabor government. On 5 December 1989, Collaery moved a motion in the Assembly:[7]
That this Assembly no longer has confidence in the Chief Minister of the ACT and the minority Labor Government and has confidence in the ability of Mr Kaine to form a government.
— Bernard Collaery, 5 December 1989.
The vote was resolved in the affirmative (10 votes to 7 votes), andTrevor Kaine was elected asChief Minister as leader of an Alliance Government, comprising members of theLiberal Party and the Residents Rally. Collaery was subsequently appointed Deputy Chief Minister and Attorney-General in the Kaine Liberal government with responsibility for welfare and community services; housing; sport and recreation; and youth.[8]
On 29 May 1991, Kaine announced to the Assembly that members of Residents Rally had met the previous evening and decided to advise the Chief Minister that they wanted a review of some planning decisions relating to ACT Government school sites that had been taken without the involvement of Collaery as the Deputy Chief Minister and Leader of the Rally.[9] Those concerns had been conveyed to the Chief Minister in a letter delivered on 28 May 1991, which indicated that if the Chief Minister tabled variations to the plan, the Residents Rally members would be forced to vote against them.[10] That account of events was supported by comments from Rally member Dr Hector Kinloch.[11] The debate that followed showed that Collaery had been removed from his position as Deputy Chief Minister and Attorney General because he and the two remaining Rally members in the Assembly (Norm Jensen and Dr Hector Kinloch) could not support planning decisions affecting school sites.[12] Comments by Mr Duby, one of the three ministers involved in the decisions in Collaery's absence, confirmed that account of the reason for the fall of the Alliance Government.[13]
On 6 June 1991, a motion of no confidence in Kaine, as Chief Minister, was passed, with Collaery voting in favour.[14]Rosemary Follett resumed the Chief Ministership, and Collaery sat on the backbenches. He was unsuccessful in seeking re-election to the Assembly at the1992 general election.[15]
In the1993 federal election, Collaery was anindependent candidate for election to theAustralian Senate, representing the Australian Capital Territory, but was unsuccessful.[16]
Collaery is the principal of Collaery Lawyers, a Canberra-based law firm with an international law division embracing international maritime and treaty law, refugee and civil rights law. The civil division embraces catastrophe law, principally catastrophic personal injury cases and high level dependency claims arising from catastrophic multi-victim cases, and medical negligence. The criminal division embraces all forms of trial work including coronial law. Collaery has appeared as counsel in various jurisdictions.[17][self-published source]
As a barrister, Collaery has represented plaintiffs in a number of high-profile cases, including:
Collaery has represented the interests of the people ofTimor-Leste over a long period of time. Collaery advocated on behalf of Timor-Leste and was legal advisor to theNational Congress for Timorese Reconstruction (CNRT) in the critical period up until formal independence in 2002.[23][24] In 2013 Collaery alleged that two agents from theAustralian Security Intelligence Organisation raided his Canberra office and seized electronic and paper files. Collaery was representing a witness in a case brought by the Timor-Leste government against theAustralian Government over the bugging of the Timor-Leste cabinet offices during the negotiations for apetroleum and gas treaty in 2004. The case was before thePermanent Court of Arbitration inThe Hague in theNetherlands.[25] TheAustralian Attorney-General,George Brandis, confirmed that he authorised a request by ASIO for a search warrant on Collaery's office, to protect Australia's national security.[26]
In June 2018, the Commonwealth Director of Public Prosecutions filed criminal charges against Collaery and his client, known as "Witness K", in theAustralia–East Timor spying scandal.[27] Collaery and "Witness K" were accused of conspiring to communicate secret information to the Government of Timor-Leste some time between May 2008 and May 2013. Collaery was also accused of sharing information withABC journalists about the 2004 bugging operation. Former Victorian premier and adviser to Timor-Leste,Steve Bracks called the prosecution "political". One of Australia's most senior lawyers,Nicholas Cowdery QC, questioned whether the prosecution was in the public interest and described the long delay between the 2013 raid and the prosecution as highly unusual.[28]
In a court hearing on 6 August 2019 Collaery pleaded not guilty to all charges. "Witness K" said that he would plead guilty to breaching the Intelligence Services Act, however details of his plea were to be negotiated with the prosecution.[29]
On 26 August 2019, theABC aired aFour Corners report entitled "Secrets, Spies and Trials", which examined the Witness K trial. The report found that the cause of the delay in bringing charges against "Witness K" and Collaery was the reluctance of former attorney-generalGeorge Brandis to give consent to the prosecution. His consent was necessary due to the nature of the charges. Brandis still had not given his approval when he stood down in 2017 but his successor,Christian Porter, gave consent to prosecute within six months of taking office.[30] TheFour Corners report also contained an interview with former prime minister of Timor-Leste,Xanana Gusmão, who said he would give evidence in court on behalf of "Witness K" and Collaery if their prosecution was not a secret trial. He said his evidence would likely embarrass previous Australian governments.[31]
The prosecution of Collaery and "Witness K" is under the National Security Information (NSI) Act which was introduced in 2004 to deal with classified and sensitive material in court cases. The NSI Act allows certain evidence and information to be heard in a closed court. When the parties to a case cannot agree on what is of national security importance and what is not, a court must decide.[32] TheFour Corners report revealed that Christian Porter has issued a secret certificate limiting the disclosure of certain information and evidence in court that is considered prejudicial to national security. Collaery said that the use of the Act had interfered with his defence and ability to instruct his lawyers, as he was not sure what could be revealed in court and was restricted in what he could tell his lawyers.[31]
In June 2020, theACT Supreme Court held a week-long closed hearing to determine which material would be considered classified during the trial. Justice David Mossop ruled in the government's favour and decided that the material identified by the Attorney-General as sensitive should remain classified in Collaery's future trial. As a result, part of Collaery's trial will take place insecret.[32]
Attorney-General Porter revealed in Parliament that "[a]s at 3 June 2020, external legal costs incurred by the Commonwealth in the prosecutions of Witness K and Mr Bernard Collaery total approximately $2,063,442.86".[32]
In June 2021, Witness K pleaded guilty to a charge of conspiring to reveal classified information and was given a three month suspended sentence.[33][34] Gregory Stretton SC, a senior ACT barrister, said that the legal profession had displayed "shameful apathy" about Collaery's prosecution.[35]
Collaery appealed against the June 2020 decision of the ACT Supreme Court to hear some matters in a closed court. In October 2021, the ACT Court of Appeal ruled that those matters should be heard in open court. Chief JusticeHelen Murrell said that the risk that disclosure would damage national security was outweighed by the "very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed". Murrell said "the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors, and permitted the public to properly assess the conduct of the accused person". Collaery's appeal also involved some "judge-only evidence" which Collaery and his lawyers had not seen due to secrecy status. The Court of Appeal asked Justice Mossop to determine whether to accept this material as part of the trial.[36] The Australian government asked that the Court of Appeal's reasons be redacted prior to being released to the public. The government also asked to be allowed to introduce into the eventual trial evidence that Collaery would not be allowed to see.[33] When Chief Justice Helen Murrell declined the Australian government's request that some of the reasons for the judgement be redacted, the government asked the High Court for special leave to appeal against that decision.[37]
Collaery's lawyers who included Bret Walker SC, Phillip Bolton SC, Chris Ward SC instructed by Gilbert & Tobin subpoenaed documents from ASIS, theOffice of National Intelligence, theDepartment of Prime Minister and Cabinet and theDepartment of Foreign Affairs and Trade. The Commonwealth opposed the release of the documents and in May 2022, Justice Mossop set aside Collaery's subpoenas after deciding that the legality of the ASIS operation was irrelevant to the case.[38]
Before Justice Mossop's decision could be tested on appeal the indictments against Collaery were dropped on 7 July 2022 by new Attorney-GeneralMark Dreyfus SC using his reserve powers in the Judiciary Act 1903. Four years had been taken up on pre-trial hearings about the level of secrecy that would apply to his trial.[39]
The ACT Court of Appeal published previously secret judgments in the case, with some redactions, in January 2024.[40]
Collaery has written a book,Oil Under Troubled Water: Australia's Timor Sea Intrigue published byMelbourne University Publishing in 2020.[41] Its subject is Australia's relations with Timor-Leste since World War II. According to the publisher and CEO of Melbourne University Publishing, Dr Nathan Hollier, it raises important questions about "the integrity of systems of government in Australia". TheAustralian Government Solicitor sent Collaery a letter dated 2 March 2018 in which it provided a warning that, if he disclosed secret information about theAustralian Secret Intelligence Service (ASIS) in his book, he could face "a maximum penalty of 10 years' imprisonment". The letter points out that Collaery is bound by the provisions of the Intelligence Services Act (2001) due to his arrangement with ASIS that was made in order for him to represent "Witness K". The letter was sent at the request of the Director-General of ASIS.[28][42] MUP went ahead with publication without challenge from the Commonwealth.
| Australian Capital Territory Legislative Assembly | ||
|---|---|---|
| New title | Member of theACT Legislative Assembly 1989–1992 Served alongside:Berry,Connolly,Duby,Follett,Grassby,Humphries,Jensen, Kaine,Kinloch,Maher,Moore,Nolan,Prowse,Stefaniak,Stevenson,Wood,Whalan | Multi-member constituency |
| Political offices | ||
| Preceded by | Deputy Chief Minister of the Australian Capital Territory 1989–1991 | Succeeded by |
| Preceded by | Attorney-General of the Australian Capital Territory 1989–1991 | Succeeded by |
| Preceded by | Minister for Housing and Community Services 1989–1991 | |