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Trial of former Australian spy could hear evidence in secret
Associated Press - November 7, 2018
The former Australian Secret Intelligence Service spy, who cannot be identified, and his lawyer Bernard Collaery have been charged under the Intelligence Services Act with conspiracy to communicate ASIS information. ASIS is an overseas spy agency that operates out of Australian embassies.
Collaery's lawyer Chris Ward told Australian Capital Territory Chief Magistrate Lorraine Walker on Wednesday that prosecutors had told his legal team late Tuesday that Attorney General Christian Porter had been asked last week to issue a Section 24 certificate under the National Security Information Act.
Such a certificate relates to so-called national security information – which can cover international relations, defense, security, and law enforcement – likely to be disclosed in court and can lead to the court being closed.
Lawyers for Collaery and the former spy, known as Witness K, want to keep the court open and to reach agreement with prosecutors on how to manage sensitive security information.
"The information the Commonwealth claims is likely to prejudice national security is already in the public domain and therefore cannot prejudice national security if discussed in open court," Ward said.
Walker said she would rule on Friday on how the charges would proceed. She set a tentative date for the trial to be heard over three days starting Feb. 11. Prosecutor Tim Begbie said the prosecution would struggle to be ready for a trial before April.
Rex Patrick, a minor party senator who is watching the case closely, was critical of the government lawyers' late notification to the defense of their application to the attorney general.
"That's clearly a breach of model-litigant obligations on the Commonwealth," Patrick said. "You can't ambush defendants like that."
Collaery and K each face a potential two-year prison sentence if convicted. Neither appeared in court on Wednesday.
Collaery has said that he and K were victims of a vindictive prosecution by the government because they had exposed illegal spying on the East Timor government in 2004. The bugging allegedly took place while Australia and East Timor were negotiating a deal on sharing Timor Sea energy royalties, which was signed in 2006. Australia won't comment on secret service operations.
K was to testify at the International Court of Justice in The Hague in 2014 in support of East Timor's challenge to the validity of the 2006 treaty. East Timor argued the alleged espionage gave Australian negotiators an unfair advantage.
Officers from the Australian Security Intelligence Organization, the nation's main domestic spy agency better known as ASIO, raided Collaery's offices and K's home in Canberra in late 2013. They seized documents and also K's passport, preventing him from leaving the country.
As well as conspiracy to communicate, Collaery has also been also been charged with communicating ASIS information. Collaery has said he assumed ASIO had intercepted conversations he had with journalists.
Collaery has said the charges related to K complaining about the illegal bugging to the inspector-general of intelligence and security, an independent watchdog that reviews the activities of Australia's six intelligence agencies and investigates complaints against them.
East Timor last year dropped its case against Australia in the United Nations' highest court as an act of goodwill ahead of agreeing on a new resources-sharing treaty.
In March, Australia, a wealthy nation of 25 million, signed a new treaty with its neighbor, a half-island nation of 1.5 million people who are among the poorest in the world. It gives East Timor most of the revenue from the oil and gas fields under the sea between them.