Wit­ness K lawyers in fight to head off closed court hear­ing

The Guardian Australia - - News - Paul Karp

Lawyers for the whistle­blower Wit­ness K and lawyer Bernard Col­laery have pushed the ACT mag­is­trates court to make a rul­ing about na­tional se­cu­rity in­for­ma­tion in a bid to head off a pos­si­ble closed court hear­ing.

Af­ter weeks of ne­go­ti­a­tions, Wit­ness K and Col­laery failed to come to a com­pre­hen­sive agree­ment with the com­mon­wealth about han­dling of pro­tected in­for­ma­tion in the prose­cu­tion of the pair for dis­clos­ing the fact Aus­tralia spied on Ti­mor-Leste.

The direc­tor of pub­lic pros­e­cu­tions has given no­tice the crown’s brief of ev­i­dence in the case is ex­pected to dis­close na­tional se­cu­rity in­for­ma­tion. That no­tice is likely to trig­ger the at­tor­ney gen­eral, Chris­tian Porter, to is­sue a cer­tifi­cate of non-dis­clo­sure for in­for­ma­tion he judges is likely to prej­u­dice na­tional se­cu­rity.

Wit­ness K and Col­laery have ap­plied to the ACT mag­is­trates court to hold a hear­ing “as soon as pos­si­ble” on na­tional se­cu­rity in­for­ma­tion, be­fore Porter can is­sue the cer­tifi­cate which would trig­ger a closed court hearingon the is­sue.

On Wed­nes­day coun­sel for Wit­ness K, Haydn Carmichael, told the court if it held a hear­ing on na­tional se­cu­rity in­for­ma­tion the at­tor­ney gen­eral “ought not feel any con­cern or need” to is­sue a non-dis­clo­sure cer­tifi­cate.

Carmichael sub­mit­ted the ACT chief mag­is­trate Lor­raine Walker is en­ti­tled to make an in­de­pen­dent judg­ment about whether dis­clo­sure of pro­tected in­for­ma­tion is likely to prej­u­dice na­tional se­cu­rity.

He said the pos­si­bil­ity of a nondis­clo­sure cer­tifi­cate process “must not and can­not” by­pass the “al­ter­nate route” of the court hold­ing a hear­ing to de­ter­mine the is­sue of na­tional se­cu­rity in­for­ma­tion for it­self.

Coun­sel for Col­laery, Christo­pher Ward, warned against a closed court hear­ing be­cause le­gal rep­re­sen­ta­tives who had not ob­tained a se­cu­rity clear­ance to re­ceive pro­tected in­for­ma­tion – such as him­self – would not be present.

He said this was a “pow­er­ful rea­son” not to set in train a process that would lead to a closed-court hear­ing, be­cause it would cause an “al­most ir­repara­ble” level of prej­u­dice to Col­laery.

Ward said the ap­par­ent in­ten­tion of the prose­cu­tion to pro­vide him with a redacted brief of prose­cu­tion and the in­abil­ity of Col­laery to brief him with­out dis­clos­ing pro­tected in­for­ma­tion was “se­ri­ously ham­per­ing” the con­duct of the de­fence.

Coun­sel for the at­tor­ney gen­eral, Tim Beg­bie, sub­mit­ted that the gen­eral pow­ers of the court do not dis­place the spe­cific “manda­tory regime” set in train by the prose­cu­tors giv­ing no­tice of ex­pected dis­clo­sure of pro­tected in­for­ma­tion.

Beg­bie said a hear­ing un­der sec­tion 21 of the Na­tional Se­cu­rity In­for­ma­tion Act – re­quested by Wit­ness K and Col­laery – would deal with the same is­sues as one trig­gered by a non-dis­clo­sure cer­tifi­cate. It would be “in­utile” – or point­less - to have sep­a­rate hear­ings, he said.

Chief mag­is­trate Walker noted that there is a process for le­gal rep­re­sen­ta­tives to ob­tain se­cu­rity clear­ance but it was likely to fur­ther de­lay the case.

She said she would de­ter­mine the ap­pli­ca­tion for an ur­gent hear­ing on na­tional se­cu­rity in­for­ma­tion on Fri­day, and in­di­cated the full case was likely to be heard on 11-13 Fe­bru­ary.

Pho­to­graph: Mike Bow­ers for the Guardian

Bernard Col­laery (pic­tured) and Wit­ness K ap­plied to the ACT mag­is­trates court to hold a hear­ing ‘as soon as pos­si­ble’ on na­tional se­cu­rity in­for­ma­tion.

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