Senator Katy Gallagher’s comments in the Senate in 2021 must form a basis for a comprehensive investigation into the conduct of the prosecutions of ‘Witness K’ and Bernard Collaery.
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The Australian Senate
Legal and Constitutional Affairs References Committee Reference
Senate Hansard Wednesday 11 August 2021 page 105
‘Senator GALLAGHER (Australian Capital Territory—Manager of Opposition Business in the Senate) (18:41): Labor is not going to support this motion. We’re not in a position to support the proposed inquiry at this time. We agree that these are significant issues and they do need to be examined, but we do not believe an inquiry by the Senate Legal and Constitutional Affairs References Committee is the appropriate way to examine these issues. As Senator Patrick’s motion identifies, there are unresolved questions relating to the intelligence operation in question and to the decision of the former Attorney-General, Mr Porter, to authorise the prosecution of Witness K and Mr Collaery.
‘In considering Senator Patrick’s proposed reference, Labor investigated the possibility of the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, conducting an inquiry in the same terms as Senator Patrick has proposed. Unfortunately, that is not possible due to the limitations of the scope of the committee’s inquiry powers under the Intelligence Services Act 2001. The provisions of section 29(3) of the Intelligence Services Act mean that the PJCIS is unable to review particular operations that have been undertaken by ASIS or an aspect of the activities of ASIS that does not affect an Australian person, or to conduct inquiries into individual complaints about the activities of ASIS.
‘Labor believes the Intelligence Services Act 2001 should be amended to implement the recommendations of the 2017 Independent Intelligence Review in so far as they relate to the oversight and evaluation arrangements of the Australian intelligence community. In particular, the Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Bill 2020, introduced by Senator McAllister, would enact recommendation 23 of the 2017 review. That recommendation was that the role of the PJCIS be expanded by amending relevant legislation to include a provision enabling it to request the Inspector-General of Intelligence and Security to conduct an inquiry into the legality and propriety of particular operational activities of the national intelligence community agencies and to provide a report to the PJCIS, the Prime Minister and the responsible minister. This bill follows the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, developed by former senator John Faulkner and introduced by Senator Wong, which also proposed a series of amendments to improve the operation of the committee and to ensure that the adequacy and effectiveness of parliamentary oversight of intelligence and security agencies kept pace with the agency’s powers.
‘The inability for this matter to be referred to the PJCIS demonstrates again the need for the Intelligence Services Act 2001 to be amended, which Labor will do in government. …..
‘In government, Labor will amend the Intelligence Services Act for this matter to be referred to the PJCIS. In government, we will ensure an inquiry into the circumstances of the intelligence operation conducted by the Australian Secret Intelligence Service in Timor-Leste and the subsequent decision to prosecute Witness K and his lawyer, Mr Bernard Collaery. Further, Labor call on the Attorney-General to provide an explanation to the Senate of the public interest in continuing to prosecute Mr Collaery. For reasons that have not been publicly explained, Mr Morrison’s former Attorney-General, Mr Porter, personally authorised the prosecution of Witness K and Mr Collaery. This is despite Mr Porter’s predecessor, Mr Brandis QC, declining to provide that authorisation. Labor have been calling for Mr Porter to explain why he suddenly authorised these prosecutions, given the charges relate to events alleged to have occurred in 2004 and may have involved senior members of the Howard government. To date, neither Mr Porter nor his successor as Attorney-General, Senator Cash, have provided the public with an explanation for a decision to authorise the prosecutions or explained how the public interest is served by them.
‘Labor is also concerned by reports that Mr Porter instructed his lawyers to intervene in the pre-trial proceedings against Mr Collaery on multiple occasions in order to press the court to cast a greater cloak of secrecy over the trial. This has reportedly led to considerable further delay and cost and, in doing so, increased the stress and financial hardship faced by the accused. Under questioning from Labor in May this year, the Morrison government conceded that it had already spent over $4 million on these two prosecutions, even though they have still not progressed to the trial stage.’