Prosecution of Bernard Collaery Dropped at Attorney General's Request

May 18, 20223 min read

Updated: Dec 8, 2023

Bernard Collaery is the defence lawyer for Witness K, the pseudonym given to a former Australia Secret Intelligence Service (ASIS) agent.

Bernard Collaery, wearing a suit and looking down the camera, arms folded, with a silhouette of a male adult representing Witness K to his right. The text "Witness K and Bernard Collaery" foregrounds the image.

In early July 2022, Attorney-General, Mark Dreyfus, called on the Commonwealth to end the prosecution against Mr. Collaery:

"It is my view that the prosecution of Mr Collaery should end. I have therefore decided to exercise my power under section 71 of the Judiciary Act not to proceed with the prosecution of Mr Collaery... In taking this decision, I have had careful regard to our national security, our national interest and the proper administration of justice."

In the wake of Mr. Collaery's prosecution ceasing, there have been calls for other similar ongoing legal cases to be dropped. The Human Rights Law Centre is calling on Mr. Dreyfus to intervene also in the ongoing prosecutions of David McBride, a whistleblower who released materials into alleged war crimes committed by Australian soldiers, as well as Richard Boyle, who spoke up regarding unethical practices at the Australian Taxation Office.

Former Attorney-General and foreign minister, Gareth Evans, has also called for Witness K's conviction to be reversed and praised the decision to halt the drop the prosecution against Mr. Collaery, stating it showed: "judgement and integrity beyond anything of which the Coalition … has been capable."

Background to Witness K & Bernard Collaery

Witness K was involved in an illegal operation to bug the cabinet room of the East Timor government in 2004 during treaty negotiations with Australia regarding oil and gas in the Timor Sea. Witness K first revealed the bugging operation after learning that former Foreign Minister, Alexander Downer, had gone on to work as an adviser for Woodside Petroleum.

Woodside Petroleum were working "hand in glove" with the Australian government to reach the optimum deal with East Timor's government and significantly benefited from the outcome of the treaty.

In 2013, Mr. Collaery alleged that ASIO agents raided his Canberra office, seizing both physical and electronic evidence. Proceedings against both Bernard Collaery and Witness K began in June 2018. The proceedings took place in closed-courts as the prosecution falls under the National Security Information Act 2004.

The pair were accused of conspiring to communicate secret information with the government of Timor-Leste between 2008 and 2013, with Mr. Collaery being additionally accused of sharing information regarding the 2004 bugging operation with the ABC.

Due to the nature of the alleged offences, the Attorney-General was legally required to give consent before prosecution could commence. Mr. Brandis was first asked for this consent in September of 2015.

From this time through til his resignation as Attorney-General, he received advice on the matter but did not give consent. Mr. Brandis was succeeded in the role of Attorney-General by Christian Porter in 2017, who went on to give consent for the prosecution within 6 months.

In August 2019, Mr. Collaery pleaded not guilty to all charges, with Witness K pleading guilty to breaching the Intelligence Service Act by conspiring to reveal classified information in June of 2021. Witness K received a 3-month suspended sentence.

In 2019 a Four Corners report revealed that Mr. Brandis had “misgivings” regarding the prosecution of both Witness K & Bernard Collaery. While the initial raid against Witness K and Bernard Collaery took place in December of 2013, it wasn’t until May of 2018 that the pair were charged with any offences.

While Mr. Brandis declined to be interviewed for the Four Corners report, Bret Walker, a former lawyer for Witness K, suspected that Mr. Brandis would not have viewed it as a “straightforward” case:

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

Independent MP, Andrew Wilkie, stated that the difference in how the two respective Attorney-Generals handled the case demonstrated that it was a political decision:

"The fact that the former attorney-general did not pursue it and the current Attorney-General is pursuing it, really makes clear to everyone that this is an intensely political decision in an intensely political environment…"In other words, it's nothing to do with justice being done. It's about making a political decision, punishing someone and deterring others."

By June 2020, government legal costs related to the prosecution of Mr. Collaery and Witness K had reached more than $2 million.