tag:theconversation.com,2011:/us/topics/witness-k-57236/articleswitness k – The Conversation2022-11-23T05:50:40Ztag:theconversation.com,2011:article/1950192022-11-23T05:50:40Z2022-11-23T05:50:40ZHow and why Australian whistleblowing laws need an overhaul: new report<p>Recent developments in Australian whistleblowing cases have shown how critical it is to get our whistleblower protection laws back up to world standards. </p>
<p>Fortunately, there are signs the new government will press ahead with reforms – but what’s involved in truly getting these right?</p>
<p>The importance of whistleblowing has been reinforced by parliamentary debate over Australia’s new National Anti-Corruption Commission (NACC), which resumed this week. On November 10, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Anti-Corruption_Commission_Legislation/NACC/Report">Joint Select Committee</a> reviewing the government’s bill expressed unanimous support for “wider-ranging whistleblower protection reforms” to follow, including “specific” consideration of an independent whistleblower protection commission.</p>
<p><a href="https://ministers.ag.gov.au/media-centre/speeches/australian-public-sector-anti-corruption-conference-16-11-2022">Federal Attorney-General Mark Dreyfus</a> has announced reform will start within days, with some “priority amendments” to the whistleblowing law for federal public servants, even as the long awaited anti-corruption body is debated and finalised. He has also flagged there will be more to follow.</p>
<p>How much more, and why is it vital? A <a href="https://www.griffith.edu.au/__data/assets/pdf_file/0031/1657813/Protecting-Australias-Whistleblowers-The-Federal-Roadmap-2022-EMBARGOED-23NOV.pdf">new research report</a>, published today by Griffith University, the Human Rights Law Centre and Transparency International Australia, seeks to present a clear roadmap for getting these reforms right.</p>
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Read more:
<a href="https://theconversation.com/tax-office-whistleblowing-saga-points-to-reforms-needed-in-three-vital-areas-187608">Tax office whistleblowing saga points to reforms needed in three vital areas</a>
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<h2>Expectation vs reality</h2>
<p>In theory, there’s strong consensus in favour of protections for “public interest whistleblowers”. These are the insiders who play a vital role in our integrity systems by speaking up about suspected wrongdoing, usually internally but also to regulators or, if necessary, publicly.</p>
<p>However, protecting whistleblowers often becomes much more controversial in reality, depending on whose interests are affected.</p>
<p>On Monday, federal independent MP Andrew Wilkie – himself a prominent former national security whistleblower – initiated a fresh parliamentary debate in support of stronger protections. He <a href="https://www.theguardian.com/australia-news/2022/nov/21/andrew-wilkies-claims-in-parliament-of-coal-industry-concerning-resources-minister-says">claimed</a> some in the coal industry had lied about the quality of Australian exports. A mining industry whistleblower lay at the heart of the allegations.</p>
<p>Three weeks ago, former army lawyer David McBride <a href="https://www.sydneycriminallawyers.com.au/blog/the-mcbride-public-interest-defence-fiasco-shows-labor-is-also-out-to-get-the-whistleblower/">dropped</a> his attempted defence under the Public Interest Disclosure Act against criminal charges for releasing Defence information about war crimes in Afghanistan. Federal prosecutors claimed the information he sought to use was, itself, too secret to even be admitted in a closed court. This effectively rendered the whistleblower protection law null and void.</p>
<p>In June 2021, the former intelligence operative known as “Witness K” <a href="https://www.abc.net.au/news/2021-06-17/witness-k-pleads-guilty-to-conspiring-to-reveal-classified-info/100223306">pleaded guilty</a> to revealing alleged commercial espionage by Australia against our close neighbour Timor Leste. Again, the whistleblowing law failed to help because the categories of “intelligence information” that cannot be revealed under the act are so wide, they effectively mean nothing can be.</p>
<p>The attorney-general withdrew his consent for the prosecution of Witness K’s lawyer, Bernard Collaery. But he has come under <a href="https://whistleblowingnetwork.org/News-Events/News/News-Archive/Australia-Leading-NGOs-urge-end-to-criminal-prose">international pressure</a> to do more to end the prosecutions of McBride and <a href="https://theconversation.com/tax-office-whistleblowing-saga-points-to-reforms-needed-in-three-vital-areas-187608">Australian Taxation Office whistleblower Richard Boyle</a>. The latter is awaiting a decision on his public interest defence, after four damaging years of charges without even yet getting to a trial.</p>
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<h2>Why we need an overhaul of whistleblowing laws</h2>
<p>The government’s commitment to overhaul whistleblower protections is good news. But however worthwhile, the “priority amendments” recommended by a now out-of-date <a href="https://www.ag.gov.au/about-us/publications/review-public-interest-disclosure-act-2013">2016 review</a> involve few steps towards addressing the deeper defects in the laws.</p>
<p>Most of those 2016 recommendations were designed to make it easier for agencies to navigate their roles, more than improve the protections.</p>
<p>This is why having a forward plan for a full overhaul of federal whistleblowing laws in 2023 is so important.</p>
<p>High among the issues is the lack of effective machinery to enforce whistleblowers’ rights. This problem is shared not only by the public sector law, but by private sector protections in the Corporations Act 2001, <a href="https://www.transparency.org/en/blog/whistleblowing-reforms-in-australia-show-the-way">reformed as recently</a> as 2019.</p>
<p>A whistleblower protection authority was recommended by the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections">Parliamentary Joint Committee on Corporations and Financial Services</a> in 2017. Such an authority also formed part of the national integrity commission proposals put forward by independents Cathy McGowan and Helen Haines, and the Greens, before the 2019 and 2022 elections.</p>
<p>As well, our analysis shows that defective public sector protections have now spread into private sector laws, and even state laws in the case of NSW. Despite other innovations, our federal laws impose tough tests before aggrieved whistleblowers can claim civil compensation for any damage they suffer. They effectively require a criminal reprisal before this can happen.</p>
<p>These protections fall short of European or United States’ standards for when a whistleblower can claim for damage. They’re also increasingly inconsistent across different areas of federal regulation.</p>
<p>Under the Aged Care Act and National Disability Insurance Scheme Act, for example, whistleblowers can also only claim protection if deemed to have complained “in good faith”, irrespective of the truth of their information. They must also identify themselves when making any disclosure. They get no protection if they speak out publicly, even if their internal complaints have been entirely ignored.</p>
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Read more:
<a href="https://theconversation.com/why-whistleblowers-must-be-kept-confidential-just-look-at-what-happened-to-me-126403">Why whistleblowers must be kept confidential – just look at what happened to me</a>
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<p>Union whistleblowers operate under different rules again. And in many areas of federal regulation, unless they’re employees of a corporation, many whistleblowers get no protection at all.</p>
<p>In the US, whistleblower protections are split across more than 47 different pieces of regulatory legislation. Australia can avoid this nightmare of red tape, duplication, confusion and inconsistency.</p>
<p>All this is solvable if whistleblowing law reform is approached systematically, as a whole-of-government initiative – not in the rushed, piecemeal fashion that caused the problems in existing laws.</p>
<p>With trust in the new National Anti-Corruption Commission hinging on the ability of public and private employees to safely bring forward information, the need for comprehensive reform couldn’t be clearer.</p>
<p>We know what needs doing. The challenge now is how best to follow the larger roadmap for reform, beyond its first stages, and ensure this time we complete the whistleblower protection mission.</p><img src="https://counter.theconversation.com/content/195019/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>AJ Brown has received funding from the Australian Research Council and all Australian governments for research on public interest whistleblowing, integrity and anti-corruption reform through partners including Australia's federal and state Ombudsmen, Australian Securities & Investments Commission, and other regulatory agencies, parliaments, anti-corruption and private sector bodies (see most recently 'Whistling While They Work 2: Improving Managerial and Organisational Responses to Whistleblowing in the Public and Private Sectors' (<a href="https://whistlingwhiletheywork.edu.au/">https://whistlingwhiletheywork.edu.au/</a>). He was a member of the Commonwealth Ministerial Expert Panel on Whistleblowing (2017-2019), and is a board member of Transparency International, globally and in Australia. He was proposed to be called as an expert witness in the public interest defence proceedings brought by David McBride.</span></em></p>Recent developments in Australian whistleblowing cases have shown how critical it is to reform our laws - which are far from world standard.A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1931022022-10-27T23:00:52Z2022-10-27T23:00:52ZJournalists must be protected in police investigations. Here’s our five point plan for reform<p>Australia is now 39th in Reporters Sans Frontiers’ <a href="https://rsf.org/en/country/australia">World Press Freedom Index</a>, a staggering decline of 20 places since 2018. This reflects a fact acknowledged by both the Morrison and Albanese governments: Australia has a press freedom problem. </p>
<p>The <a href="https://theconversation.com/why-the-raids-on-australian-media-present-a-clear-threat-to-democracy-118334">2019 AFP raids</a> on News Corp journalist Annika Smethurst and the ABC prompted two parliamentary inquiries and as many <a href="https://theconversation.com/explainer-what-did-the-high-court-find-in-the-annika-smethurst-v-afp-case-136176">constitutional challenges</a>. Meanwhile, the <a href="https://www.hrlc.org.au/whistleblowers-on-trial-richard-boyle-and-david-mcbride">prosecutions</a> of whistleblowers David McBride, Witness K and Richard Boyle revealed the potential consequences for those who expose government wrongdoing. </p>
<p>Vast and complex <a href="https://theconversation.com/before-9-11-australia-had-no-counter-terrorism-laws-now-we-have-92-but-are-we-safer-166273">security laws</a>, set against an absence of protections unique in the Western world, have made public interest reporting a risky business for journalists and their sources.</p>
<p>These problems are well known, but we are yet to see actual law reform to support public interest journalism. </p>
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Read more:
<a href="https://theconversation.com/australia-needs-a-media-freedom-act-heres-how-it-could-work-125315">Australia needs a Media Freedom Act. Here's how it could work</a>
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<h2>A commitment to reform</h2>
<p>Attorney-General Mark Dreyfus recently <a href="https://ministers.ag.gov.au/media-centre/speeches/address-national-press-club-australia-12-10-2022">assured</a> Australians his government was “going to do something” about press freedom reform.</p>
<p>Specifically, it would act on Parliamentary Joint Committee on Intelligence and Security <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress">recommendations</a> made in 2020 and <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress/Government_Response">accepted</a> by the Morrison government. </p>
<p>A central pillar of the committee’s report were reforms to federal warrant applications. </p>
<p>It recommended only senior judges have the power to grant warrants relating to journalists and media organisations. </p>
<p>It also said the “interests of public interest journalism” should be represented by a government-appointed “public interest advocate”. Otherwise, warrant applications should remain <em>ex parte</em> (meaning without the knowledge or presence of other parties, such as the affected media organisation).</p>
<p>The government has committed to these reforms. But as several overseas examples show, the proposals go nowhere near far enough to address the deficiencies in press freedom in Australia. </p>
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Read more:
<a href="https://theconversation.com/security-committee-recommends-bare-minimum-of-reform-to-protect-press-freedom-145105">Security committee recommends bare minimum of reform to protect press freedom</a>
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<h2>Learning from our allies</h2>
<p>Under US law, a blanket protection exists to prevent state access to journalistic materials, subject to strictly limited exemptions. </p>
<p>In New Zealand, as in <a href="https://www.legislation.qld.gov.au/view/html/inforce/current/act-1977-047#pt.2-div.2B">Queensland</a> and <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/ea200880/s126k.html">Victoria</a>, a journalist cannot be forced to show police materials that would identify a confidential source (unless a judge determines the public interest in the administration of justice outweighs the public interests in source confidentiality and press freedom).</p>
<p>In <a href="https://laws-lois.justice.gc.ca/eng/annualstatutes/2017_22/FullText.html">Canada</a>, only a senior judge may grant police access to information a journalist holds – and only where there is no alternative and access is justified by a robust public interest test. </p>
<p>The most compelling framework is presented by the UK <a href="https://www.legislation.gov.uk/ukpga/1984/60/contents">Police and Criminal Evidence Act</a>, which <a href="https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_115952/protection-of-journalists-sources-bill">New Zealand</a> is on the cusp of embracing.</p>
<p>UK police cannot get a warrant to see any journalistic materials such as recordings or documents (unless it is necessary to avoid seriously prejudicing an investigation).</p>
<p>Instead, UK law sets up a special process by which police apply for “production orders”, which the media gets a chance to contest. </p>
<p>Access to journalistic material will only be granted if other methods of getting the material have been tried (or would be futile) and if access is in the public interest.</p>
<p>In recognition of journalists’ ethical obligations to protect their confidential sources, police access to confidential journalistic materials is limited to terrorism investigations. Even then, strict limitations and protections apply. </p>
<p>These considerations are not taken lightly. UK courts have emphasised the high bar police must reach to obtain a production order, and the importance of rights to privacy and press freedom.</p>
<h2>A five point plan</h2>
<p>Australia remains the only liberal democracy lacking a national bill or charter of human rights, with the protections for privacy, speech and press freedom they usually entail. </p>
<p>Something would be better than nothing. But compared to international practice, the Parliamentary Joint Committee recommendations fall short.</p>
<p>Tellingly, Dreyfus and his Labor colleagues on the committee <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress/Report/section?id=committees%2freportjnt%2f024411%2f73639">noted</a> the recommendations did “not go far enough” and were “a bare minimum – a starting point – for reform.”</p>
<p>Now Dreyfus is attorney-general and can actually drive reform. There is no need to reinvent the wheel, and Australia could introduce laws shaped by the experience of our closest international partners. </p>
<p>We suggest a five point plan based on comparative research and analysis: </p>
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<li><p>create a special framework of production orders for controlling state access to <em>all</em> journalistic materials, not just confidential source information.</p></li>
<li><p>have only senior judges determine access to such material.</p></li>
<li><p>create a mechanism by which access can be contested in court prior to being executed.</p></li>
<li><p>ensure substantive protection via a clear public interest test. Investigators should only be able to access journalistic material if there is no reasonable alternative source and the public interest in the investigation of crime outweighs the public interest in press freedom.</p></li>
<li><p>in exceptional circumstances, police may be able to get a warrant (without the knowledge of the media organisation they’re targeting) instead of a production order. </p></li>
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<p>In these exceptional circumstances referred to in point five, however: </p>
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<li><p>a public interest advocate should be present to represent the public interest in press freedom</p></li>
<li><p>the warrant should be drafted as narrowly as possible, and </p></li>
<li><p>if a warrant is granted and executed, any seized material should be held by a court so media can challenge police access and, if necessary, for this to be resolved by a court. </p></li>
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<p>Police raids on Australian media have tangible effects on press freedom, but they are not the whole story. Meaningful protections should also:</p>
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<li><p>safeguard journalists’ sources through privacy law</p></li>
<li><p>enhance whistleblower protections</p></li>
<li><p>limit data surveillance, and</p></li>
<li><p>include journalism-based defences to certain criminal offences.</p></li>
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<p>With both sides of politics behind press freedom reforms, now is the time to support democracy. Australia must not slip further down in global standings.</p><img src="https://counter.theconversation.com/content/193102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh receives funding UQ Advancement funding.</span></em></p><p class="fine-print"><em><span>Jason Bosland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s press freedom problems have been acknowledged by both the Morrison and Albanese governments. However, we’re yet to see any actual law reform to support public interest journalism.Rebecca Ananian-Welsh, Associate Professor, TC Beirne School of Law, The University of QueenslandJason Bosland, Associate Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1865602022-07-12T02:25:41Z2022-07-12T02:25:41ZThe unconscionable prosecution of Bernard Collaery was an assault on the values Australia holds dear<p>Last week Attorney-General Mark Dreyfus put an end to Canberra lawyer Bernard Collaery’s criminal prosecution.</p>
<p>Collaery was prosecuted in 2018 and was facing five charges, including allegedly conspiring with his client, “Witness K”, to disclose confidential information about the Australian government’s spying operation in Timor-Leste.</p>
<p>The prosecution was a scandal and should never have been commenced.</p>
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<h2>So how did we get here?</h2>
<p>In 2004, at former foreign minister <a href="https://www.theaustralian.com.au/national-affairs/foreign-affairs/aussie-spies-accused-of-bugging-timor-cabinet/news-story/3151bbc5a41d3ac76def4b5bfacce661">Alexander Downer’s behest</a>, the Australian Secret Intelligence Service (ASIS) planted surveillance devices in the Palacio Governo, the building that housed the offices of Timor-Leste’s prime minister and the national cabinet conference room. </p>
<p>The purpose of this intelligence gathering enterprise was to listen in to Timor-Leste’s Cabinet deliberations concerning then current political and legal negotiations between the two countries concerning the location of the maritime boundary between them. Those negotiations would be decisive in determining the share of rich oil and gas revenues that Timor-Leste and Australia would receive from prospective drilling in the Timor Sea. </p>
<p>Furthermore, through this secret surveillance activity, the Australian government obtained crucial information that would have been highly likely to assist it should the government of East Timor have decided to take legal action before the International Court of Justice (ICJ). The Australian government pre-empted litigation before the ICJ by <a href="https://www.laohamutuk.org/Oil/Boundary/2019/AusParl/2019/SenateFADT/Sub%2007%20TSJF.pdf">withdrawing from its jurisdiction</a>.</p>
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Read more:
<a href="https://theconversation.com/the-shaky-case-for-prosecuting-witness-k-and-his-lawyer-in-the-timor-leste-spying-scandal-100446">The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal</a>
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<p>“Witness K” had been an ASIS officer involved in the surveillance operation. He was troubled by it, so he lodged a complaint with the Inspector-General of Intelligence and Security suggesting that the surveillance may have been illegal.</p>
<p>The Inspector-General agreed Witness K could disclose relevant information as evidence in any related legal proceedings. Information regarding the secret surveillance operation made its way progressively into Australia’s and Timor-Leste’s media.</p>
<p>In 2013, Timor-Leste <a href="https://pca-cpa.org/en/cases/37/">sought to reopen proceedings</a> with respect to the maritime boundary issue in the Permanent Court of Arbitration in the Hague. It briefed Collaery to represent its interests, as he had a <a href="https://www.mup.com.au/books/oil-under-troubled-waters-paperback-softback">long history</a> of representing the interests of the country.</p>
<p>Then, in an extraordinary action in late 2013, the Australian Federal Police raided Witness K’s and Collaery’s homes and offices.</p>
<p>At Collaery’s office, the police uncovered a detailed legal memorandum containing his advice to Timor-Leste’s government with respect to the location of the maritime boundary. </p>
<h2>Criminal prosecution</h2>
<p>Things went quiet for five years. Then, in late 2018, out of the blue and for reasons that remain unclear, former Attorney-General Christian Porter <a href="https://www.smh.com.au/politics/federal/attorney-general-christian-porter-signed-off-on-spy-charges-over-bugging-case-20180628-p4zodj.html">approved</a> the criminal prosecution of Witness K and Collaery. Porter alleged they had disclosed classified information illegally.</p>
<p>Legal argument with respect to the conduct of the prosecution continued for four years, to Collaery’s great personal and financial detriment.</p>
<p>There are several matters concerning the prosecution that warrant close consideration. </p>
<p>It’s highly likely the Australian government itself acted unlawfully. ASIS undertook an act of criminal trespass in Timor-Leste by planting surveillance devices to monitor the Timor-Leste’s Cabinet’s deliberations.</p>
<p>As in every other democratic country, Timor Leste’s cabinet deliberations are, by law, secret. </p>
<p>Under a <a href="https://treaties.un.org/doc/source/recenttexts/english_3_13.pdf">United Nations convention</a> (the Convention on Jurisdictional Immunities of States and their Property), states and their property are immune from the domestic jurisdiction of another country. </p>
<p>Australia clearly broke international law by raiding Witness K’s and Collaery’s offices and confiscating documents that were the property of the government of Timor-Leste.</p>
<p>In Australia, the law protects communications between lawyer and client. By effectively stealing Collaery’s extensive legal advice to the Timor-Leste government, ASIS transgressed the confidentiality of lawyer-client communications. </p>
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<p>Next, Porter made application after application to the ACT Supreme Court to ensure Collaery’s trial would be <a href="https://www.abc.net.au/news/2020-06-16/the-secret-trial-of-witness-k-and-bernard-collaery/12355348">conducted in secret</a>. </p>
<p>The government argued that should documents revealing ASIS operations become public, foreign intelligence agencies into whose hands such documents fell may be able – when combining them with other sources of information – to construct an intelligible mosaic from which the processes and methods of Australian secret surveillance activities could be ascertained. </p>
<p>In this case, however, the documents in question related to a single intelligence operation conducted in a tiny country 18 years ago. It would come as a surprise to any informed lay observer, and probably to any capable intelligence analyst, if historical methods of surveillance used in 2004 could cast even the remotest light on the technological methodology of contemporary intelligence practice. </p>
<p>A secret trial constitutes a radical attack on the fundamental principles of open justice and fair trial.</p>
<h2>Everything turned upside down</h2>
<p>There was a certain Alice in Wonderland quality about all this. Everything had been turned upside down.</p>
<p>The two people who acted in the national interest by disclosing unlawful activity undertaken by Australia’s overseas intelligence service in bugging East Timor’s Cabinet were the defendants in the criminal case.</p>
<p>Those in government who initiated the unlawful, covert operation, through their successors in government, had become the prosecutors. Something had gone very wrong.</p>
<p>Had Collaery’s case proceeded to trial, the ramifications of the case for freedom of expression, journalism and governmental accountability would have resonated through Australian law and society for years. </p>
<p>It was a direct assault on freedom of political communication, and it intimidated whistleblowers. </p>
<p>It discouraged investigative journalism, undermined press freedom, involved criminal trespass and contractual fraud, invaded legal privilege, violated UN Conventions, and denied fair trial. It was a blot on the conduct of Australia’s foreign relations and was a grievous attack on individuals of conscience. </p>
<p>Dreyfus should be highly commended for drawing this scandalous legal proceeding to a close.</p>
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<p><em>Correction: this article has been amended to clarify the border dispute between Australia and Timor-Leste never made it to court.</em></p><img src="https://counter.theconversation.com/content/186560/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Spencer Zifcak is the Chair of the Accountability Round Table. He worked with the United Nations in Timor-Leste betweem 1999 - 2004. </span></em></p>The prosecution was a scandal and should never have been commenced. It was a direct assault upon freedom of political communication, and it intimidated whistleblowers.Spencer Zifcak, Allan Myers Chair of Law/Professor of Law, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1865552022-07-07T05:35:33Z2022-07-07T05:35:33ZDreyfus ends prosecution of lawyer over alleged leaking about Australian spying in against Timor-Leste<p>The Albanese government has acted quickly to abandon the prosecution of Bernard Collaery, who was charged in relation to the leaking of information about Australia’s alleged spying in Timor-Leste. </p>
<p>Attorney-General Mark Dreyfus said that in taking this decision “I have had careful regard to our national security interest and the proper administration of justice. </p>
<p>"It is my view that the prosecution of Mr Collaery should end”. </p>
<p>He said the “decision to discontinue the prosecution was informed by the government’s commitment to protecting Australia’s national interest, including our national security and Australia’s relationships with our close neighbours.”</p>
<p>Collaery, 77, is a former ACT attorney-general. </p>
<p>He was the lawyer of the whistleblower known as Witness K, a former Australian Secret Intelligence Service (ASIS) officer.</p>
<p>Witness K received a suspended sentence in 2021 after pleading guilty to conspiring with Collaery to reveal information about the alleged spying.</p>
<p>Collaery was due to face trial in October on charges alleging breaches of the Intelligence Services Act.</p>
<p>The alleged Australian government spying was at the time of 2004 negotiations between the two countries over oil and gas reserves in the Timor Sea. The Australian Secret Intelligence Service – Australia’s foreign spy service – allegedly had listening devices in East Timor’s cabinet room in Dili.</p>
<p>Dreyfus told a news conference on Thursday this was “an exceptional case. Governments must protect secrets and our government remains steadfast in our commitment to keep Australians safe by keeping secrets out of the wrong hands. </p>
<p>"The long-standing practice of government has been to neither confirm nor deny claims made about intelligence matters and I will strictly adhere to that practice.”</p>
<p>He said prosecutions involved “a balancing of interests. The balance of interests can change over time and this is such a case. </p>
<p>"The consent of a former attorney-general was required to commence the prosecution of Mr Collaery. Having had regard to our national security, our national interest and the administration of justice, today I have determined that the
prosecution should end.”</p>
<p>The proceedings against Collaery have been surrounded by secrecy, with the former government arguing they should be heard largely in private. </p>
<p>Collaery’s home and office were raided in 2013. </p>
<p>At the time he was representing East Timor in The Hague in its action against Australia.</p>
<p>Independent Andrew Wilkie, welcoming Dreyfus’s action, said: “The fact that Mr Collaery was being prosecuted in the first place was a grave injustice and an outrageous attack on the legal profession, particularly considering he was simply a lawyer doing his job.</p>
<p>"The Australian government is the real villain in this case, having made the appalling decision to spy on East Timor which is one of the poorest countries in south-east Asia.</p>
<p>"While someone should be answering to a court, it certainly should never have been the ASIS whistle-blower and his lawyer.”</p>
<p>Crossbencher Rebekha Sharkie said: “Since I stood on the steps of the Canberra Magistrates Court in September 2018, I have been calling for the prosecution of Bernard Collaery to be abandoned.”</p>
<p>She said the decision “to pursue this politically-motivated prosecution is an embarrassment to the rule of law in Australia”.</p>
<p>“At no point during this wretched affair has there been a clear and persuasive argument for why pursuing this case is in the public interest.”</p><img src="https://counter.theconversation.com/content/186555/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Albanese government has acted quickly to abandon the prosecution of Bernard Collaery, who was charged in relation to the leaking of information about Australia’s alleged spying in Timor-Leste.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1224632020-07-02T20:15:17Z2020-07-02T20:15:17ZWhy Bernard Collaery’s case is one of the gravest threats to freedom of expression<figure><img src="https://images.theconversation.com/files/344486/original/file-20200629-155299-hrnon8.jpg?ixlib=rb-1.1.0&rect=58%2C0%2C5392%2C3567&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>After a lengthy delay due to the coronavirus pandemic, the legal case that constitutes the most significant threat to freedom of expression in this country will soon play out in the ACT Supreme Court. </p>
<p>This is the prosecution of Bernard Collaery, the former ACT attorney-general and lawyer for Witness K, the former ASIS officer turned whistleblower. </p>
<p>Both are charged under section 39 of the <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/isa2001216/s39.html">Intelligence Services Act 2001</a>, which deems it a criminal offence for a person to communicate any information that was prepared by the Australian Secret Intelligence Service in pursuit of its functions. </p>
<p>After an ACT Supreme Court ruling last week, significant parts of the trial against Collaery will <a href="https://www.theguardian.com/australia-news/2020/jun/26/court-rules-key-parts-of-bernard-collaery-trial-to-be-held-in-secret">now be held in secret</a>, but the argument put forward by the attorney-general that certain information in the case must be kept classified is extraordinarily weak. </p>
<p>Collaery’s attorney protested the move, saying</p>
<blockquote>
<p>Open justice is an essential part of our legal system, the rights of defendants and of our democracy.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1276439028334604289"}"></div></p>
<h2>Background of the case</h2>
<p>The prosecutions arose from the disclosure of information related to a covert ASIS spying operation – <a href="https://www.smh.com.au/politics/federal/east-timor-repeats-accusations-australia-bugged-leaders-in-timor-sea-resources-talks-20131128-2yazd.html">the bugging of the cabinet offices of Timor-Leste</a>. The operation was authorised by Alexander Downer, then-foreign minister, in 2004. </p>
<p>Its purpose was secretly to obtain information about Timor-Leste’s negotiating strategy before the International Court of Justice (ICJ) in a case seeking to clarify the country’s maritime boundary with Australia. This was crucial to determining the countries’ competing claims to rich oil deposits in the Timor Sea. The case ended because Australia pre-emptively withdrew from the ICJ’s jurisdiction. </p>
<p>In 2013, Timor-Leste <a href="https://pca-cpa.org/en/cases/37/">took its concerns</a> about the Australian surveillance operation – and the legal and commercial disadvantage it had suffered – to the Permanent Court of Arbitration in The Hague. It briefed Collaery to represent its interests. Witness K was invited to give evidence. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/after-a-border-dispute-and-spying-scandal-can-australia-and-timor-leste-be-good-neighbours-121553">After a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?</a>
</strong>
</em>
</p>
<hr>
<p>Australian Attorney-General George Brandis, however, <a href="https://theconversation.com/lawyer-and-witness-face-charges-under-spy-laws-raising-questions-of-openness-and-accountability-99143">ordered the confiscation of Witness K’s passport</a> to prevent him giving evidence to the court and <a href="https://www.smh.com.au/politics/federal/asio-raids-office-of-lawyer-bernard-collaery-over-east-timor-spy-claim-20131203-2yoxq.html">ordered ASIO raids</a> on the homes and offices of both K and Collaery. </p>
<p>The raid on Collaery’s premises yielded a copy of the full affidavit he had drafted summarising the case Timor-Leste was to present to the court. From a legal perspective, these raids were scandalous.</p>
<p>Witness K and Collaery were then notified they could be prosecuted for breaches of the Intelligence Services Act. But nothing happened until 2018, when <a href="https://www.smh.com.au/politics/federal/attorney-general-christian-porter-signed-off-on-spy-charges-over-bugging-case-20180628-p4zodj.html">Attorney-General Christian Porter decided</a> the prosecutions should proceed.</p>
<p>Witness K gave notice last year that <a href="https://www.abc.net.au/news/2019-08-06/witness-k-to-plead-guilty-lawyer-bernard-collaery-face-trial/11387046#:%7E:text=An%20ex%2Dspy%20known%20as,in%20the%20ACT%20Supreme%20Court.&text=They%20told%20the%20court%20their%20client%20would%20plead%20guilty">he would plead guilty</a>, but Collaery decided to contest the charge. </p>
<p>There is a certain Alice in Wonderland quality about all this – everything has been turned upside down. </p>
<p>The two people who acted in the national interest by disclosing alleged unlawful activity by Australia’s intelligence service are the defendants in a criminal case. The government, which initiated the covert operation, has become the prosecutor. Something has gone very wrong. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=426&fit=crop&dpr=1 600w, https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=426&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=426&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=536&fit=crop&dpr=1 754w, https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=536&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/345237/original/file-20200702-111298-15n92k7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=536&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">East Timorese protesters outside the Australian embassy in Dili in 2013.</span>
<span class="attribution"><span class="source">ANTONIO DASIPARU/EPA</span></span>
</figcaption>
</figure>
<h2>Possible defences under the law</h2>
<p>So, what are the legal issues that are likely to arise? The real problem for Witness K and Collaery is that section 39 of the Intelligence Services Act has no public interest defence, in other words, they can’t argue that disclosing the confidential information was done in the public interest, and hence, not against the law.</p>
<p>There are two other defences available, but neither fits easily with the facts of the case. </p>
<p>One allows information to be disclosed if it has already been communicated or made available to the public with the authority of the Commonwealth. The facts of this case are widely known in the public arena owing in part to interviews Collaery gave to journalists. The Commonwealth, however, did not provide permission for this disclosure.</p>
<p>The second defence allows the disclosure of information to the <a href="https://www.igis.gov.au/">inspector-general of intelligence and security (IGIS)</a>, who monitors and oversees the activities of the intelligence agencies. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-quest-for-national-security-is-undermining-the-courts-and-could-lead-to-secretive-trials-122638">Australia's quest for national security is undermining the courts and could lead to secretive trials</a>
</strong>
</em>
</p>
<hr>
<p>Witness K requested IGIS permission to disclose information about the ASIS bugging operation for the purpose of giving evidence to the Permanent Court of Arbitration. He received permission, but the government then withdrew his passport to prevent him from travelling to The Hague. </p>
<p>Witness K and Collaery might have argued the disclosures were made in accordance with the <a href="https://www.humanservices.gov.au/organisations/about-us/our-department/public-interest-disclosure%20act#targetText=Public%20Interest%20Disclosure%20Act,in%20the%20Commonwealth%20public%20sector">Commonwealth Public Interest Disclosure Act</a>, otherwise known as the Whistleblower Act. </p>
<p>Section 41, however, <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/pida2013295/s41.html">exempts intelligence information</a> from being disclosed under this act.</p>
<h2>Has the government acted unlawfully?</h2>
<p>At this stage, it is worth reflecting on the illegal activities in which the government may have engaged. It appears likely ASIS undertook an act of criminal trespass in Timor-Leste by planting surveillance devices in its cabinet room. As in every other democratic country, Timor-Leste’s cabinet deliberations are by law secret.</p>
<p>It is customary in international law – and spelled out explicitly in the <a href="https://treaties.un.org/doc/source/RecentTexts/English_3_13.pdf">UN Convention on the Jurisdictional Immunity of States</a> – that nations and their property are immune from the domestic jurisdiction of other countries. So, Australia also transgressed international law by raiding the offices of Witness K and Collaery and confiscating documents that were clearly the property of the Timor-Leste government.</p>
<p>In addition, the law in Australia <a href="https://www.lawcouncil.asn.au/policy-agenda/regulation-of-the-profession-and-ethics/client-legal-privilege">protects legal professional privilege</a>, which guarantees that communications between a lawyer and client are confidential. </p>
<p>By, in effect, stealing Collaery’s extensive legal advice to the Timor-Leste government, ASIO violated this principle. Brandis, however, has <a href="https://www.smh.com.au/politics/federal/george-brandis-defends-asio-raids-on-lawyer-over-spy-claim-20131204-2yq98.html">said</a></p>
<blockquote>
<p>No lawyer can invoke the principles of lawyer–client privilege to excuse participation, whether as principal or accessory, in offences against the Commonwealth.</p>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/345238/original/file-20200702-111269-1s9c3zx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Supporters of Bernard Collaery and ‘Witness K’ stage a protest outside the ACT Supreme Court last August.</span>
<span class="attribution"><span class="source">LUKAS COCH/AAP</span></span>
</figcaption>
</figure>
<h2>How the High Court could view the case</h2>
<p>It is clear nothing permits the government to take actions that are contrary to Australian law or the law of another country. </p>
<p>The defendants could argue, then, that disclosing information for the sole purpose of exposing government illegality should not be prohibited by Section 39 of the Intelligence Services Act. </p>
<p>A conviction in these circumstances would be a travesty, particularly as it carries with it a maximum sentence of two years imprisonment. This is the penalty Collaery and K are facing. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-shaky-case-for-prosecuting-witness-k-and-his-lawyer-in-the-timor-leste-spying-scandal-100446">The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal</a>
</strong>
</em>
</p>
<hr>
<p>Next, it ought to be remembered the High Court has read into the constitution an implied right to freedom of political communication. </p>
<p>It is quite likely the High Court will find the relevant provisions of the Intelligence Services Act are cast so broadly as to transgress this constitutionally guaranteed freedom. If so, the government’s case will fall apart.</p>
<p>Should these arguments be successful, Witness K and Collaery will emerge as the free speech heroes they are. </p>
<p>Even more importantly, the profoundly chilling effect the imprisonment of individuals of conscience would have on political and journalistic freedom in this country will have been avoided. Australian democracy will have repelled a grievous attack.</p><img src="https://counter.theconversation.com/content/122463/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Spencer Zifcak worked with the Truth and Reconciliation Commission of Timor-Leste in 2004-5.</span></em></p>The lawyer and his client, Witness K, are accused of disclosing information related to a covert ASIS spying operation. These are the legal issues that are likely to be raised at trial.Spencer Zifcak, Allan Myers Chair of Law/Professor of Law, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1226382019-10-02T01:01:09Z2019-10-02T01:01:09ZAustralia’s quest for national security is undermining the courts and could lead to secretive trials<figure><img src="https://images.theconversation.com/files/294937/original/file-20191001-173402-1m9wqs3.jpg?ixlib=rb-1.1.0&rect=1025%2C616%2C4534%2C3084&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bernard Collaery's whistleblower trial will be a key test of the National Security Information Act and the restrictions it places on defendants and the courts.</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p><em>This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how these measures are impacting society. Read other stories in the series <a href="https://theconversation.com/au/topics/australias-security-state-77051">here</a>.</em></p>
<hr>
<p>In August, the intelligence officer known as Witness K indicated he would plead guilty to a conspiracy charge under section 39 of the <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/isa2001216/s39.html">Intelligence Services Act</a>. That section prohibits the disclosure of information acquired or prepared by the Australian Secret Intelligence Service (ASIS). </p>
<p>His lawyer, Bernard Collaery, will <a href="https://www.abc.net.au/news/2019-08-06/witness-k-to-plead-guilty-lawyer-bernard-collaery-face-trial/11387046">contest the same charge</a> in the ACT Supreme Court. </p>
<p>Concerns have been raised about the use of the <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/nsiacpa2004575/">National Security Information Act</a> (NSIA) in the Collaery trial. Anthony Whealy, a former judge who presided over several of Australia’s recent terrorism trials, <a href="https://www.abc.net.au/news/2019-08-26/xanana-gusmao-offers-to-give-evidence-in-witness-k-trial/11436286">said</a> </p>
<blockquote>
<p>This could be one of the most secretive trials in Australian history.</p>
</blockquote>
<p>Both cases will be back in court this month. A <a href="https://www.canberratimes.com.au/story/6406973/east-timor-bugging-cases-return-to-court/?cs=14329">hearing is also scheduled</a> to consider how national security information will be dealt with in the Collaery trial.</p>
<p>There has been significant media discussion around the <a href="https://www.theguardian.com/australia-news/2019/aug/10/witness-k-and-the-outrageous-spy-scandal-that-failed-to-shame-australia">ASIS bugging</a> that Witness K and Bernard Collaery exposed, but less about the NSIA. </p>
<p>So what is the National Security Information Act? Why was it introduced and how could it lead to secretive trials?</p>
<h2>Having its cake and eating it, too</h2>
<p>The purpose of the NSIA is to protect national security information while allowing it to be used in Australian courtrooms. It applies in federal court proceedings, both civil and criminal. </p>
<p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACTSC/2001/115.html">Before the NSIA</a>, prosecutors faced a difficult choice. They could prosecute someone for terrorism, national security or secrecy offences and risk having sensitive information disclosed publicly, or they could keep the information secret and possibly have the prosecution fail.</p>
<p>The act was introduced in 2004 <a href="https://theconversation.com/australia-has-enacted-82-anti-terror-laws-since-2001-but-tough-laws-alone-wont-make-us-safer-123521">as part of Australia’s vast suite of counter-terrorism laws</a>, designed specifically to help prosecutors convict people for terrorism offences. </p>
<p>Now, the government can have its cake and eat it too: it no longer needs to choose between protecting sensitive information and prosecuting someone for disclosing it.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-has-enacted-82-anti-terror-laws-since-2001-but-tough-laws-alone-cant-eliminate-terrorism-123521">Australia has enacted 82 anti-terror laws since 2001. But tough laws alone can't eliminate terrorism</a>
</strong>
</em>
</p>
<hr>
<h2>What does the NSIA do?</h2>
<p>The NSIA creates special procedures by which national security information can be protected while still being used as evidence. </p>
<p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s8.html">National security information</a> is defined broadly under the act as any information relating to </p>
<blockquote>
<p>Australia’s defence, security, international relations or law enforcement interests.</p>
</blockquote>
<p>There are two circumstances in which the NSIA procedures can be triggered. The first is <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s24.html">when the parties know in advance</a> they are likely to reveal national security information during the trial. The parties must notify the attorney-general of this, or face <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s42.html">two years in prison</a>.</p>
<p>The second set of circumstances relates to when <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s25.html">a witness is being questioned</a> on the stand and an answer has the potential to reveal national security information. If a lawyer or the defendant knows this could happen, he or she must stop the witness from answering and notify the court, or the same penalty applies.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-an-australian-charter-of-rights-is-a-matter-of-national-urgency-121411">Why an Australian charter of rights is a matter of national urgency</a>
</strong>
</em>
</p>
<hr>
<p>In either of these circumstances, the attorney-general can issue a <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s26.html">non-disclosure certificate</a> that prohibits the information from being revealed or allows it to be revealed in summary or redacted form. The court then holds a <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s29.html">closed hearing</a> in which the judge will determine whether and how the information may be used.</p>
<p>In a closed hearing, not only are journalists and members of the public barred from attending, but also the jury. The judge may even <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s29.html">exclude the defendant</a>, the defendant’s lawyer or a court official if revealing the information to them would be likely to compromise national security.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/295135/original/file-20191002-173347-1mz9dqz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Supporters of Bernard Collaery and Witness K protesting outside Supreme Court in Canberra in August.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
</figcaption>
</figure>
<h2>Withholding information from defendants</h2>
<p>That the legislation permits closed hearings is not necessarily the main issue, though this certainly undermines the principles of <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/10-fair-trial/open-justice/">open justice</a>. However, closed hearings are an option in other sensitive cases, such as those involving child victims of sexual assault. </p>
<p>The main problem with the NSIA is that it creates a situation in which national security information can be used in a courtroom without the defendant, jury, media or general public knowing the details of that information. </p>
<p>Producing evidence in summary or redacted form means that the gist of the information is provided, but key details are kept secret. In fact, it is not even clear under Australian law that something approximating a gist needs to be given.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/from-richard-boyle-and-witness-k-to-media-raids-its-time-whistleblowers-had-better-protection-121555">From Richard Boyle and Witness K to media raids: it’s time whistleblowers had better protection</a>
</strong>
</em>
</p>
<hr>
<p>This undermines the defendant’s ability to argue their innocence. A core aspect of <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/14-procedural-fairness-2/procedural-fairness-the-duty-and-its-content/">procedural fairness</a> and the right to a fair trial is that defendants must know the case against them. This allows their lawyers to contest the veracity of the evidence through cross-examination. </p>
<p>Without knowing when or how the prosecution’s evidence was collected, or even the precise claims the evidence is making, lawyers cannot adequately defend their clients. They are fighting with one hand tied behind their backs.</p>
<h2>Weighing national security vs a fair trial</h2>
<p>Moreover, in deciding how potentially sensitive information can be used in court, judges <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/nsiacpa2004575/s31.html">must give greater weight to national security</a> than the defendant’s right to receive a fair hearing.</p>
<p>In other words, the NSIA does not require a judge to balance national security and a fair trial equally. More weight must be given to the former under the law.</p>
<p>It may be that <a href="https://www.biicl.org/files/5038_terrorism_and_the_right_to_a_fair_trial__2_.pdf">judges can still strike an appropriate balance</a> so defendants receive a fair hearing in cases like these. But if a contest between national security and a fair trial needs to be decided, it is clear which one wins. </p>
<p>Using the NSIA in the Collaery trial is also significant because the accused is a whistleblowing lawyer and not someone accused of terrorism. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1166265041487724544"}"></div></p>
<p>After the recent police raids on the <a href="https://www.abc.net.au/news/2019-07-15/abc-raids-australian-federal-police-press-freedom/11309810">ABC headquarters</a>, the <a href="https://www.smh.com.au/politics/federal/afp-raid-home-of-news-corp-journalist-over-national-security-reporting-20190604-p51ub0.html">home of a News Corp journalist</a> and the <a href="https://www.theguardian.com/australia-news/2019/sep/04/australian-federal-police-raid-home-of-commonwealth-official-in-canberra">home of an Australian Signals Directorate officer</a>, the Australian media will be watching this trial closely. </p>
<p>It is likely, given the sensitive nature of the ASIS bugging scandal, that information will be withheld from Collaery’s defence team for national security reasons. This is a significant test case for whether whistleblowers can receive a fair trial in the current climate of government secrecy.</p><img src="https://counter.theconversation.com/content/122638/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keiran Hardy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The purpose of the NSIA is to protect national security information from being disclosed in courts. But this can undermine a defendant’s ability to argue his or her innocence.Keiran Hardy, Postdoctoral Research Fellow, Griffith Criminology Institute, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1215532019-08-27T20:12:35Z2019-08-27T20:12:35ZAfter a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?<figure><img src="https://images.theconversation.com/files/289566/original/file-20190827-184196-71poi1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters outside the Australian embassy in Dili, Timor-Leste, in 2016, demanding a settlement of the border dispute between the nations.</span> <span class="attribution"><span class="source">Antonio Dasiparu/EPA</span></span></figcaption></figure><p><em>On August 30, Timor-Leste will celebrate the referendum that gave it independence from Indonesia. For the people of this small island, it has been a long battle - and one that continues today. You can read our companion story on the island nation’s struggle for independence <a href="https://theconversation.com/twenty-years-after-independence-timor-leste-continues-its-epic-struggle-121631">here</a>.</em></p>
<hr>
<p>This Friday marks the 20-year anniversary of the day the East Timorese people voted overwhelmingly for independence from Indonesia after a 24-year occupation. </p>
<p>Another significant anniversary comes next month, on September 20. That was the day of the arrival of the <a href="https://nautilus.org/publications/books/australian-forces-abroad/east-timor/international-force-east-timor-interfet/">INTERFET mission</a>, the Australian-led multinational force that brought an end to the violence that wracked Timor-Leste after the independence vote. </p>
<p>In the intervening three weeks, <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/TimorLeste">1,500 Timorese were killed</a> in the violence, which had been orchestrated by the Indonesian military and its proxy militias. Over 250,000 were forcibly displaced to West Timor and some 80% of the infrastructure was destroyed. </p>
<p>Many Australians are rightly proud of their contribution to Timor-Leste’s independence, which served as a historical corrective to Australia’s longstanding support for Indonesian’s invasion and forced integration of East Timor in 1975-76. The more than <a href="https://www.aspistrategist.org.au/australias-1999-mission-to-east-timor-part-1-the-decision-to-intervene/">5,000 Australian soldiers</a> in the INTERFET mission marked the nation’s <a href="https://www.smh.com.au/opinion/seventeen-years-on-east-timor-intervention-remains-a-success-20160919-grjjqi.html">largest military deployment</a> since the Vietnam War.</p>
<p>Yet despite the goodwill the mission engendered in Timor-Leste for the Australian people, relations between the two nations have repeatedly been undermined by contentious negotiations over control of the lucrative oil and gas fields in the Timor Sea.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-and-timor-leste-settle-maritime-boundary-after-45-years-of-bickering-92834">Australia and Timor Leste settle maritime boundary after 45 years of bickering</a>
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<p>A <a href="https://theconversation.com/australia-and-timor-leste-settle-maritime-boundary-after-45-years-of-bickering-92834">treaty signed last March</a> created a maritime boundary between the states for the first time. The border is expected to <a href="https://macauhub.com.mo/2019/06/25/pt-timor-leste-e-australia-querem-ratificar-tratado-de-fronteiras-a-30-de-agosto/">come into force this week</a> following its ratification by both parliaments – another momentous milestone in Timor-Leste’s history. </p>
<p>But other thorny issues remain. When Prime Minister Scott Morrison arrives in Dili for the anniversary on Friday, <a href="https://www.smh.com.au/world/asia/morrison-flies-into-a-storm-in-east-timor-over-witness-k-prosecution-20190828-p52lmc.html">he will likely face calls</a> for Australia to drop its prosecution of a whistleblower who revealed an Australian spying operation against Timor-Leste.</p>
<p>As former Timor-Leste leader Jose Ramos Horta said,</p>
<blockquote>
<p>If Australia doesn’t show political leadership, moral leadership on this issue, every time we talk to Australian leaders I will wonder if they have a tape recorder in their pocket [or] if my office has been bugged.</p>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=500&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=500&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=500&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=628&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=628&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289577/original/file-20190827-184211-wdvp35.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=628&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australian soldiers conducting an operation to flush out militia fighters in Timor-Leste in September, 1999.</span>
<span class="attribution"><span class="source">Jon Hargest/AAP</span></span>
</figcaption>
</figure>
<h2>Conflict over oil and gas</h2>
<p>Since its independence, Timor-Leste’s relations with Australia have been overshadowed by one major factor: the oil and gas fields on its contested maritime border. </p>
<p>Relations hit rocky waters in 2012 when Timor-Leste challenged the <a href="https://theconversation.com/whats-behind-timor-leste-terminating-its-maritime-treaty-with-australia-71002">Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS)</a>, which had been signed by the two countries in 2006. This <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/CMATS/Report_168_-_Certain_Maritime_Arrangements_-_Timor-Leste/section?id=committees%2Freportjnt%2F024051%2F24472">treaty had established</a> a 50-year moratorium on maritime boundary negotiations, or five years after exploitation of the Greater Sunrise gas field ended, whichever occurred first.</p>
<p>Allegations then emerged in 2013 from a former ASIS agent (now known as Witness K) that <a href="https://thediplomat.com/2013/12/east-timor-australia-spying-scandal/">Australia had spied on Timorese officials</a> during the negotiations over the CMATS treaty. This led Timor-Leste to <a href="https://www.theaustralian.com.au/nation/foreign-affairs/australian-spy-case-dropped-by-east-timor/news-story/85dde7f9f10cc065d4dd08f0d7216274">launch a case</a> in The Hague challenging the treaty for want of good faith. </p>
<p>Australia was embarrassed by the exposure, but determined to maintain the countries’ ongoing treaty arrangements and focus instead on revenue-sharing agreements. However, Timor-Leste argued that the bulk of the oil and gas fields in the Timor Sea would lie on their side of a median line and pushed for a permanent boundary to be drawn between the countries. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-and-timor-leste-reach-a-deal-on-the-timor-sea-but-much-remains-unknown-83432">Australia and Timor Leste reach a deal on the Timor Sea – but much remains unknown</a>
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<p>As relations deteriorated, ministerial visits ceased for almost five years.</p>
<p>Because Australia had abandoned the international courts as a means of resolving the maritime boundary in 2002, Timor-Leste had only one option left. In 2016, it <a href="https://academic.oup.com/jids/article-abstract/10/1/126/5142413?redirectedFrom=fulltext">pioneered the use</a> of the UN Convention on the Law of the Sea (UNCLOS) compulsory conciliation process: a non-binding but mandatory mediation between nations on maritime disputes.</p>
<p>The conciliation panel of five judges <a href="https://thediplomat.com/2016/09/the-precedent-setting-timor-leste-and-australia-unclos-case/#!#targetText=UNCLOS%20entered%20into%20force%20as,Leste%20on%20February%202,%202013.">found</a> the CMATS treaty’s moratorium on defining a maritime boundary was invalid. This dealt a fatal blow to decades of Australian foreign policy focused on maintaining its continental shelf claim in the <a href="https://www.lowyinstitute.org/the-interpreter/timor-gap-boundary-yet-disputes-linger">Timor Gap</a> in line with the <a href="http://www.internationalaffairs.org.au/australianoutlook/renegotiating-the-indonesia-australia-maritime-boundary-agreement/">1972 Australia-Indonesia border treaty</a>. </p>
<p>Australia could have attempted to tough it out since the tribunal’s finding was non-binding. But by this point, the Labor opposition was <a href="http://www.tanyaplibersek.com/opinion_piece_a_permanent_maritime_boundary_between_australia_and_timor_leste_tuesday_16_february_2016">arguing</a> the maritime boundary with Timor-Leste should be renegotiated in line with international law, putting additional pressure on the government to resolve the dispute. </p>
<p>A separate dispute over China’s claims in the South China Sea, <a href="https://www.cfr.org/councilofcouncils/global_memos/p38227">also settled in 2016</a>, made Australia’s position increasingly untenable, as well. The world was urging China to respect an international tribunal’s maritime ruling, so it would be difficult for Australia not to do the same.</p>
<h2>A new boundary finally set in the sea</h2>
<p>Once the UNCLOS opening decision came down, the two sides began negotiating a border in good faith. <a href="https://www.abc.net.au/news/2017-01-24/east-timor-drops-its-spying-case-against-australia/8209400">Timor-Leste dropped its espionage case</a> against Australia in the Permanent Court of Arbitration in The Hague, and <a href="https://www.abc.net.au/news/2017-01-09/east-timor-tears-up-oil-and-gas-treaty-with-australia/8170476">later terminated the CMATS treaty</a>, without Australian objection. </p>
<p>Announcement of the new maritime border treaty followed in March 2018. It was a major diplomatic breakthrough and soon led to the resumption of ministerial visits.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289575/original/file-20190827-184240-lzvoo3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The new maritime boundary between Australia and Timor-Leste.</span>
<span class="attribution"><span class="source">Department of Foreign Affairs and Trade</span></span>
</figcaption>
</figure>
<p>The treaty created a median-line boundary in the former Timor Gap, placing the wells in the former <a href="https://www.abc.net.au/news/2018-03-06/map-of-joint-petroleum-development-area-within-the-timor-sea.jpg/9515894">Joint Petroleum Development Area</a> (JPDA) in Timor-Leste’s sovereign waters. </p>
<p>The Timorese believe there is another A$1.5 billion of oil reserves in this area, but as these fields near the end of their life, the greater game lies in the as-yet-untapped Greater Sunrise field. This field straddles the eastern side of the new boundary and is believed to be worth in <a href="https://theconversation.com/what-you-need-to-know-about-timor-leste-and-australias-sea-border-fight-67377">excess of US$40 billion</a>.</p>
<p>Timor-Leste also achieved a <a href="https://insidestory.org.au/timor-leste-architect-of-its-own-sunrise/">major increase in royalties</a> from the future development of this field, up from 50% under the CMATS treaty to 70-80%, depending on whether the pipeline eventually goes to Timor or Darwin.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/for-timor-leste-another-election-and-hopes-for-an-end-to-crippling-deadlock-96203">For Timor-Leste, another election and hopes for an end to crippling deadlock</a>
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</p>
<hr>
<h2>China’s potential role in development</h2>
<p>Since then, Timor-Leste’s focus has shifted to negotiations with its commercial partners over its ambitious plans for the Tasi Mane oil and gas megaproject on its southern coast. </p>
<p>This project could bring additional challenges for the relationship with Australia. The East Timorese government estimates that external financing will provide some <a href="https://insidestory.org.au/in-timor-leste-an-eventful-year-ends-in-tension-2/">80%</a> of the estimated US$10.5-12 billion funding for the project. And Timor-Leste’s ambassador to Australia has already <a href="https://www.afr.com/companies/energy/timorleste-sees-china-as-option-for-lng-capital-20190312-h1c9wz">stated</a> that if funding partners cannot be found among Timor-Leste’s friends in Australia, the United States, Japan or South Korea, then Chinese capital would be a clear alternative. </p>
<p>Timor-Leste has <a href="https://www.theguardian.com/world/2019/jun/26/timor-leste-rejects-report-it-is-taking-16bn-loan-from-chinas-exim-bank-for-gas-project">rejected reports</a> that China’s Exim bank offered a A$16 billion loan to finance the megaproject, though it acknowledges both countries have expressed <a href="https://www.scmp.com/week-asia/geopolitics/article/3023973/us16-billion-hoax-reports-chinese-loan-east-timor-gas-project">willingness to cooperate</a> over the separate development of Timor-Leste’s petrochemical industry. </p>
<p>It is also notable that China this month donated some <a href="https://defesa.gov.tl/tt/2019/08/14/china-entrega-ekipamentus-militar-ba-governu-tl">US$3-5 million in defence materiel</a> requested by the Timorese government.</p>
<p>Even though China might be seen as a <a href="https://www.scmp.com/week-asia/geopolitics/article/3021223/east-timor-wants-tap-oil-and-gas-near-australia-so-why-it">logical partner</a> for developing Timor-Leste’s oil and gas processing capabilities, Beijing’s involvement would certainly complicate relations with Australia. </p>
<p>Timor-Leste has generally sought to balance its relationships with key regional powers, in part to prevent the dominant influence of any single nation. The country’s foreign minister recently emphasised that discussions on the Tasi Mane project are ongoing with potential partners in Australia, the US, Europe and Asia. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289578/original/file-20190827-184217-wv6y5b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Foreign Minister Julie Bishop meets with her Timor-Leste counterpart, Dionisio Soares, in Dili in 2018. She was the first Australian government minister to visit Timor-Leste in five years.</span>
<span class="attribution"><span class="source">Greg Roberts/AAP</span></span>
</figcaption>
</figure>
<h2>Remaining obstacles to closer ties</h2>
<p>Despite the major improvement in bilateral ties between the two countries, there are some remaining points of contention.</p>
<p>The prosecutions of Witness K and his lawyer Bernard Collaery in the espionage whistleblower case have been criticised by Horta and another former Timor-Leste leader, Xanana Gusmão. This week, Gusmão <a href="https://www.abc.net.au/radio/programs/am/xanana-gusmao-speaks-out-in-support-of-witness-k,-collaery/11447042">indicated he would appear as a witness</a> to give evidence on behalf of the two, raising the potential for further embarrassment for Australia. </p>
<p>Some political activists in both Australia and Timor-Leste have also called for Canberra to <a href="https://www.theguardian.com/world/2019/apr/16/australia-accused-of-siphoning-millions-in-timor-leste-oil-revenue">pay back oil and gas revenues</a> it has received from the JPDA since the border treaty was signed in 2018, and accused Australia of delays in ratification.</p>
<p>While these accusations have made headlines, Timor-Leste’s parliament had not ratified the treaty either until last month. In any case, Timorese NGOs point to the far larger question of <a href="https://federalnewsnetwork.com/government-news/2019/07/australian-parliament-approves-treaty-with-east-timor/">up to US$5 billion</a> in revenues that Australia has received dating back to 2002, when revenue-sharing agreements began. </p>
<p>But it appears there is no appetite in either country to consider repayment of historical royalties.</p>
<p>As Australia and Timor-Leste prepare to celebrate the anniversary of the independence referendum – as well as the recent restoration of good bilateral relations – it’s worth keeping in mind that new hurdles potentially lie ahead, with implications for the wider region.</p><img src="https://counter.theconversation.com/content/121553/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Leach has previously received funding from the Australia Research Council.</span></em></p>Since Timor-Leste’s independence, relations with Australia have been undermined by contentious negotiations over oil and gas fields. But a new maritime border may mean brighter days ahead.Michael Leach, Professor, Politics & International Relations, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1215552019-08-12T19:57:23Z2019-08-12T19:57:23ZFrom Richard Boyle and Witness K to media raids: it’s time whistleblowers had better protection<p>Never has the case for law reform to properly protect public-interest whistleblowers been so stark.</p>
<p>Today, the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress">public hearings</a> into press freedom begin, following the “<a href="https://www.abc.net.au/news/2019-06-07/ita-buttrose-statement-in-full-on-afp-raids-on-abc/11189266">seismic</a>” raids on media organisations in early June.</p>
<p>A broader <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom">Senate inquiry</a> into protecting public whistleblowing is hot on its heels. This builds on a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections/Report">2017 parliamentary inquiry</a>, which recommended reforms only partially implemented.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dutton-directive-gives-journalists-more-breathing-space-but-not-whistleblowers-121730">Dutton directive gives journalists more breathing space, but not whistleblowers</a>
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<p>Yesterday, a <a href="https://www.abc.net.au/news/2019-08-12/ato-whistleblower-richard-boyle-to-launch-crowdfunding-campaign/11387694">crowdfunding campaign</a> for Richard Boyle’s legal defence was launched. Boyle is charged with 66 offences for disclosing concerns about oppressive debt collection by the Australian Taxation Office in Adelaide.</p>
<p>What’s more, the unknown Australian Secret Intelligence Service agent “Witness K” last week <a href="https://www.theguardian.com/australia-news/2019/aug/06/witness-k-to-plead-guilty-in-timor-leste-spying-case-but-lawyer-to-fight-charges">pleaded guilty</a> to exposing secrets by revealing Australia bugged Timor Leste government buildings during treaty negotiations in 2004. </p>
<p>Witness K’s legal advisor, Bernard Collaery – still fighting his own charges – <a href="https://www.theguardian.com/australia-news/2019/aug/10/witness-k-and-the-outrageous-spy-scandal-that-failed-to-shame-australia">described the prosecution</a> as:</p>
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<p>a very determined push to hide dirty political linen […] under the guise of national security imperatives.</p>
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<p>The trouble is, Australian laws make it inevitable for whistleblowers to be charged whenever national security <em>might</em> be involved – even when, in theory, they’re intended to protect public interest whistleblowing.</p>
<h2>Most whistleblowers don’t go public</h2>
<p><a href="https://news.griffith.edu.au/2019/08/07/worlds-largest-whistleblowing-project-throws-weight-behind-reforms/">New research</a> – the world’s largest on whistleblowing – demonstrates the importance of whistleblower protection to public integrity and regulatory systems like never before.</p>
<p>Released last week, our <a href="http://www.whistlingwhiletheywork.edu.au/?p=1029">Clean As A Whistle</a> study reports on whistleblowing policies in 699 public and private sector organisations, and the experience of 17,778 employees in 46 of them. This includes 5,055 who raised concerns about wrongdoing, internally and outside their organisation.</p>
<p>The study confirms just how rare <em>public</em> whistleblowing is, even though whistleblowing <em>within</em> organisations is the lifeblood of integrity. In fact, whistleblowing is ranked as the single most important way wrongdoing is brought to light, leading to action or reform more than 60% of the time.</p>
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Read more:
<a href="https://theconversation.com/parliamentary-press-freedom-inquiry-letting-the-fox-guard-the-henhouse-119820">Parliamentary press freedom inquiry: letting the fox guard the henhouse</a>
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<p>In our study, 98% of whistleblowers raised their concerns internally. Only 2% went outside their organisations in the first instance. Even when whistleblowers feel forced to go outside, it is rarely directly to the media. In fact,</p>
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<li>only 16% of reporters ever went to an external regulatory body</li>
<li>of the 20% of reporters who ever went public, 19% went to a union, professional association or industry body. Only 1% of whistleblowers ever went directly to a journalist, media organisation or public website.</li>
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<p>These data show there’s hardly a crisis of leaking and external disclosure of information in Australian institutions.</p>
<p>As our research highlights, Australia’s whistleblowing laws need many reforms to make protections real – including a properly resourced whistleblower protection authority. But reform of public disclosure rules is especially critical.</p>
<h2>The latest laws to protect whistleblowers don’t go far enough</h2>
<p>The government’s <a href="https://theconversation.com/its-a-new-era-for-australias-whistleblowers-in-the-private-sector-119596">latest improvements</a> to whistleblower protection laws, for the private sector, try to recognise the principle that whistleblowers should remain protected if they need to go public.</p>
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Read more:
<a href="https://theconversation.com/its-a-new-era-for-australias-whistleblowers-in-the-private-sector-119596">It's a new era for Australia's whistleblowers – in the private sector</a>
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<p>The improvements include a “three-tiered” approach to protect internal, regulatory and public disclosures. Pioneered in NSW, and expanded in the UK, this is now reflected in seven of Australia’s nine public sector whistleblowing laws, as well as amendments to the <a href="https://www.legislation.gov.au/Details/C2019C00216">Corporations Act</a>.</p>
<p><a href="https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_767_homepage.html">Legislation</a> from Western Australia uses a simple test to determine when public whistleblowing should be protected. Protection applies wherever an agency has refused to investigate, has not completed an investigation within six months, or has investigated but failed to recommend action. </p>
<p>But the equivalent federal law has been crippled by blanket prohibitions on certain types of information, especially anything connected with national security or “intelligence”, since inception in 2013.</p>
<p>Now, these <a href="https://theconversation.com/four-laws-that-need-urgent-reform-to-protect-both-national-security-and-press-freedom-118994">fundamental flaws</a> in our laws are embarrassing everyone from the AFP to the government itself, triggering criminal investigations and charges against whistleblowers, irrespective of the public interest.</p>
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Read more:
<a href="https://theconversation.com/four-laws-that-need-urgent-reform-to-protect-both-national-security-and-press-freedom-118994">Four laws that need urgent reform to protect both national security and press freedom</a>
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<h2>Punishment for revealing any intelligence information, any at all</h2>
<p>These flaws mean fraud, corruption or criminal behaviour in any activity vaguely touched by intelligence agency functions cannot be revealed to the public, even when the same disclosure about any other agency would be protected.</p>
<p>The key problem is section 41 of the <a href="https://www.legislation.gov.au/Details/C2019C00026">Public Interest Disclosure Act 2013</a> (PID Act). It says protection can never be given to someone who revealed “intelligence information” to the public. This is defined as anything which “has originated with, or has been received from, an intelligence agency”. </p>
<p>It doesn’t matter how grievous the wrongdoing was – or even that revealing it would not actually harm any security or intelligence interests. If it is connected in any way to the agency, the whistleblower will still be punished.</p>
<p>The same is true of the poorly-named exclusion of “inherently harmful information” from disclosure under sections 121 and 122 of the <a href="https://www.legislation.gov.au/Details/C2019C00043/Html/Volume_1">Criminal Code</a>. </p>
<p>Contrary to its name, the information excluded from whistleblower protection doesn’t necessarily need to be harmful. Instead, it refers to any information with security classification, or, like the PID act, any record “obtained by, or made by or on behalf of” an intelligence agency.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-are-the-media-companies-challenges-to-the-afp-raids-about-119382">Explainer: what are the media companies' challenges to the AFP raids about?</a>
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<p>The inappropriateness of these blanket exclusions was vividly confirmed last week. <a href="https://www.smh.com.au/politics/federal/peter-dutton-orders-afp-to-lift-the-bar-for-investigating-journalists-ahead-of-major-inquiry-20190809-p52fos.html">Peter Dutton directed the AFP</a> to only investigate secrecy breaches by journalists when the case includes:</p>
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<p>a harm statement indicating the extent to which the disclosure is expected to significantly compromise Australia’s national security.</p>
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<p>But why is this “harm test” not already the basis of the law in the first place?</p>
<p>Unless we extend the protections applying to public whistleblowing, we cannot expect the public to take the rest of our whistleblowing regimes seriously. And the effect will be chilling on all reporting of wrongdoing on which public integrity daily depends.</p><img src="https://counter.theconversation.com/content/121555/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>A J Brown and his research team receives funding from the Australian Research Council and many other partner organisations including the Commonwealth Ombudsman and Australian Securities and Investments Commission (see <a href="http://www.whistlingwhiletheywork.edu.au">www.whistlingwhiletheywork.edu.au</a>). He is also a boardmember of Transparency International and Transparency International Australia, and was a member of the Commonwealth Government's Ministerial Expert Advisory Panel on Whistleblowing (2017-2019). </span></em></p>Australian laws make it inevitable for whistleblowers to be charged whenever national security might be involved, even when the information is in the public interest.A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1031642018-09-13T07:17:42Z2018-09-13T07:17:42ZAs Witness K trial opens, questions over how much of Timor-Leste spying case to keep secret from public<figure><img src="https://images.theconversation.com/files/236146/original/file-20180913-133904-92wnq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Witness K and his lawyer are accused of conspiring to reveal that Australia's former foreign minister ordered an espionage operation against East Timor's government.</span> <span class="attribution"><span class="source">Antonio Dasiparu/EPA</span></span></figcaption></figure><p>The <a href="http://www.abc.net.au/news/2018-09-12/witness-k-bernard-colleary-spy-case-reaches-court/10237860">first step</a> in the trial of the former Australian spy known only as Witness K and his lawyer Bernard Collaery has taken place in the ACT Magistrates Court. </p>
<p>The two are accused of conspiring to reveal that former Foreign Minister Alexander Downer <a href="https://www.theaustralian.com.au/national-affairs/foreign-affairs/aussie-spies-accused-of-bugging-timor-cabinet/news-story/3151bbc5a41d3ac76def4b5bfacce661">ordered an espionage operation</a> against the government of East Timor in 2004 in order to gain an advantage in oil and gas negotiations with the newly independent state. Lawyers for both defendants faced off against the prosecution in a small courtroom presided over by Chief Magistrate Lorraine Walker. </p>
<p>Although the directions hearing lasted only 15 minutes and covered preliminary formalities, enough was said to shed light on what is at stake in the case ahead.
The prosecution wants as much of the case as possible to be heard in secret; the defence wants to keep secret only what’s necessary to protect Australia’s national security. </p>
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<strong>
Read more:
<a href="https://theconversation.com/when-whistleblowers-are-prosecuted-it-has-a-chilling-effect-on-press-freedom-in-australia-100008">When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia</a>
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<p>The prosecution offered “proposed orders” for the magistrate to sign that would effectively ensure a closed trial. </p>
<p>Witness K’s lawyer, Haydn Carmichael, responded by supporting the ongoing suppression of K’s real name. He said that such “anonymity is desired by him and is also a practical solution to possible questions that might arise as to national security.” </p>
<p>To understand the importance of this, it’s worth remembering that the Australian Secret Intelligence Service requires a high degree of operational secrecy. It needs to reassure its agents overseas that it will never reveal their identities. If foreign governments were to learn K’s real name, they might be able to identify his agents in their countries and take countermeasures against them. </p>
<p>Such governments might also be able to take reprisals against K or his family if the opportunity arose. Failure to keep K’s identity secret would also affect ASIS’s credibility in its other operations. People who betray their country would no longer dare risk their safety by dealing with Australia’s spies. </p>
<p>The opening phase of the trial showed both Collaery and Witness K are fully committed to keeping these key pieces of information secret. </p>
<p>However, Carmichael added that anything on the charge sheet apart from K’s real name “is not subject to a claim of national security classification.”</p>
<h2>Public interest vs national security</h2>
<p>The more expansive secrecy desired by the prosecution is another matter altogether. If granted, it would prevent the public from hearing defence evidence that the 2004 bugging operation could itself be considered a crime – a conspiracy to defraud the government of East Timor under <a href="https://law.anu.edu.au/sites/all/files/events/national_security_legal_professional_privilege_and_the_bar_rules_print.pdf">Section 334 of the Criminal Code of the ACT</a>. The defence would be unable to put forth evidence that the operation was planned and ordered in the ACT, as well. </p>
<p>This is a much more powerful legal argument than a moral argument against spying for economic purposes. </p>
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Read more:
<a href="https://theconversation.com/the-shaky-case-for-prosecuting-witness-k-and-his-lawyer-in-the-timor-leste-spying-scandal-100446">The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal</a>
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<p>This is the background of the case: Australia and East Timor met as joint venture partners with consequent mutual fiduciary duties under the 2002 Timor Sea Treaty. They negotiated production sharing contracts, supposedly in good faith. </p>
<p>The espionage operation occurred before and after the October 2004 round of negotiations, when East Timor’s Prime Minister Mari Alkatiri and Secretary of State Jose Teixeira briefed their cabinet colleagues about their negotiating position. Their briefings were bugged – an action that is alleged to have given Australia’s negotiators an unfair advantage. </p>
<p>Cheating or attempting to cheat a joint venture partner in this way is an offence that would carry heavy civil and criminal penalties under the laws of the ACT. </p>
<p>A court order to prevent the public from hearing this would avoid embarrassing the Australian government, but it is arguably irrelevant to national security. </p>
<p>Witness K’s lawyer also urged the magistrate to exercise her “independent function” in determining what constitutes grounds for national security exemptions, and not to accept the prosecution’s claims at face value. </p>
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Read more:
<a href="https://theconversation.com/lawyer-and-witness-face-charges-under-spy-laws-raising-questions-of-openness-and-accountability-99143">Lawyer and witness face charges under spy laws, raising questions of openness and accountability</a>
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<p>Underpinning this request is a <a href="http://eresources.hcourt.gov.au/showbyHandle/1/12378">1982 case</a> between the Church of Scientology and the Australian Security Intelligence Organisation. In this case, the High Court was asked to determine whether it could prevent ASIO from investigating the church in circumstances where it claimed it did not pose a risk to security. </p>
<p>The High Court found against the church but added:</p>
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<p>The court is not bound by the organization’s (ASIO’s) opinion as to what constitutes security or what is relevant to it.</p>
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<p>Despite claims that intelligence and national security are too complex to be understood outside the intelligence community, courts routinely evaluate far more complex evidence in other areas: elaborate taxation schemes, labyrinthine trust arrangements, recondite mergers and acquisitions, sophisticated forensic evidence in criminal trials, and so on. </p>
<p>According to the defence’s argument, the ACT Magistrates Court is within its power to form its own opinion and not defer reflexively to the prosecution’s view of what constitutes national security. </p>
<p>The case has been adjourned until 29th October.</p><img src="https://counter.theconversation.com/content/103164/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clinton Fernandes receives funding from the Australian Research Council.</span></em></p>The prosecution wants a closed trial, while the defence wants to keep secret only what’s necessary to protect Australia’s national security.Clinton Fernandes, Professor, International and Political Studies, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1004462018-07-24T04:39:27Z2018-07-24T04:39:27ZThe shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal<p>Much of the <a href="https://www.smh.com.au/politics/federal/prosecution-of-witness-k-and-his-lawyer-is-a-disgraceful-act-of-revenge-20180701-p4zou5.html">media commentary</a> on the government prosecution of Witness K and his lawyer Bernard Collaery has focused on government duplicity in suppressing the trial until it had its oil and gas treaty signed with Timor-Leste. </p>
<p>But this focus on government hypocrisy has neglected the accountability of the director of public prosecutions, Sarah McNaughton. The <a href="https://www.cdpp.gov.au/prosecution-process/prosecution-policy">prosecution policy of the Commonwealth</a> says:</p>
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<p>The decision to prosecute must not be influenced by any political advantage or disadvantage to the government. </p>
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<p>McNaughton’s job is to be the key politically independent actor in the process. She must be a check on state political revenge. </p>
<p>This is why the case should of course be in open court, so the public can see how the DPP justifies its independence in the case. </p>
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<strong>
Read more:
<a href="https://theconversation.com/when-whistleblowers-are-prosecuted-it-has-a-chilling-effect-on-press-freedom-in-australia-100008">When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia</a>
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<p>The reason people are worried about the case is that it has <a href="http://www.chicagotribune.com/sns-bc-as--australia-spy-charged-20180629-story.html">the appearance of state revenge</a> against Witness K, who complained through proper channels about the illegality of the bugging he was asked to do, but a decade on served the public interest by blowing the whistle. </p>
<p>Alexander Downer was foreign minister when our international intelligence services were moved away from their counter-terrorism work to focus on commercial espionage on behalf of oil magnates who later <a href="https://www.internationalaffairs.org.au/australianoutlook/the-story-of-the-shameful-timor-prosecution/">offered him a lucrative consultancy</a>. Witness K went public after Downer started working for the consultancy.</p>
<p>So, let the public see in open court whether this is, or is not, a coin-for-the-crown-case that rightly provoked a whistleblower, and not a political revenge case. </p>
<h2>Public confidence has been shaken</h2>
<p>An even greater concern is that K’s lawyer, Collaery, has been swept up in the government’s prosecution. </p>
<p>From assault to complex commercial crimes, it is common for both sides to make allegations of criminality against the other. We expect the DPP to show independence in assessing who is the greatest victim of crime in complex cases like this. That person will be the least likely to be prosecuted. </p>
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<p>The prosecution policy of the Commonwealth also requires the DPP to take into account the views of crime victims in deciding how to manage its deliberations, not only about whether to prosecute. In this case, the public needs to see what kind of victim support services are being provided to Collaery. </p>
<p>For example, the DPP should be asking the government as one of the alleged offenders to make one very public announcement. This is that Australia will continue to abide by the spirit of the <a href="http://www.abc.net.au/news/2014-03-04/icj-orders-australia-to-keep-east-timor-files-sealed/5296444">International Court of Justice order</a> that the government keep sealed the documents it seized from Collaery’s office in 2013. </p>
<p>The Commonwealth should also assure the public that it will continue to desist from spying on Collaery’s legal work and any bugging or invasion of Collaery’s office. </p>
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Read more:
<a href="https://theconversation.com/lawyer-and-witness-face-charges-under-spy-laws-raising-questions-of-openness-and-accountability-99143">Lawyer and witness face charges under spy laws, raising questions of openness and accountability</a>
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<p>Further, the prosecution policy says the government should avoid cases that “undermine the confidence of the community in the criminal justice system”. </p>
<p>That confidence has already been shaken by this case. It will be further shaken if much of it were heard in secret. “Openness” and “accountability” are specified in the policy, binding the DPP to “maintain the confidence of the public it serves”. </p>
<p>Citizen confidence that counter-terrorism laws would not be used against civilians is a public issue. It seems these laws are now hanging over Witness K and Collaery, who most Australians view as patriots rather than terrorists. </p>
<h2>Question of resources and timeliness</h2>
<p>Lastly, the prosecution policy emphasises that prosecutorial resources are limited. Only those cases most worthy of prosecution should go forward. </p>
<p>Banking and insurance crimes are a real threat to the security of our financial system. These are the kinds of cases where the “public interest” test demands more focused resources, not cases against public-spirited civil servants. </p>
<p>Another element of the prosecution policy is that the passage of time since the alleged offence occurred should also be taken into account. </p>
<p>In this prosecution, the passage of time has been taken into account in the wrong way, delaying prosecution until a political interest of the government has been realised. </p>
<p>Rarely have the courts in our country faced such a moment of truth for our justice values.</p><img src="https://counter.theconversation.com/content/100446/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Braithwaite does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Prosecuting whistleblowers has the potential to further shake public confidence in Australia’s criminal justice system.John Braithwaite, Professor, School of Regulation and Global Governance, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.