FORMER WA premier Peter Dowding says the “disgraceful” secret trials of a whistleblowing Australian spy and his lawyer need to be examined by a royal commission or federal corruption watchdog. 

Known as Witness K, the former Australian Secret Intelligence Service officer and his lawyer Bernard Collaery were charged in 2018 with conspiring to reveal classified information over their alleged roles in exposing Australia’s bugging of its friendly and impoverished neighbour Timor-Leste during 2004 negotiations to divide the resource-abundant Timor Sea. 

In an ongoing four-year saga the federal Department of Public Prosecutions has pursued a “secret trial” against the pair, on the basis the charges were too sensitive to Australia’s security to be revealed.

“They wouldn’t give [Mr Collaery] or his lawyers documents,” Mr Dowding said.

“After two years of repeated applications the department showed him some of the material which was the basis of prosecution but his team had to fly to special offices in Sydney to read it and they were only shown selected material.”

Last month Mr Collaery had his latest application for access to more information knocked back; he’d argued the documents could have shown the spying against Timor-Leste was unlawful which would undermine the charges against him. The ACT supreme court disagreed, saying the Federal government’s actions were irrelevant to his case.

But Mr Dowding, formerly a barrister himself and a self-described “civil libertarian”, says the possibility ministers or public servants were breaking the law underlined the importance of Australia having a federal corruption watchdog, currently a hot election topic given the Morrison government promised one before the last election but failed to deliver it.

Mr Dowding believes the bugging breached international covenants which Australia was obliged to follow.

“The covenant would be that you have no right to bug private discussions of another government,” Mr Dowding said.

“But there was also the conspiracy … effectively to defraud East Timor … and in international law there is an offence in relation to that.”

Mr Dowding also criticised former attorney general Michaelia Cash for continuing the prosecution which was signed off by her predecessor Christian Porter before his fall from grace.

Senator Cash maintained she was simply following due process and any intervention would amount to political interference – a claim dismissed by Dowding as “bulldust”. 

Mr Dowding is not alone in his views, with prominent ACT lawyer Greg Stretton last year criticising the “shameful apathy” of the Australian legal community in regards to the trial. Alongside Mr Stretton is former Victorian Labor premier Steve Bracks, who likewise labelled the prosecution “political”.

Mr Dowding says the issue of security is a furphy: “If there are matters of high security, surely they can be kept to one side,” he said.  

The Morrison government spent $3.7m in legal fees prosecuting Witness K and Bernard Collaery and trying to defend its right to have secret hearings. About three months ago, still not knowing what charges he faced, Witness K, now aged in his late 70s, gave up.  

“He’d had enough, he was in a depression, he was old, he couldn’t manage it,” Mr Dowding said.

“He just said ‘whatever it is, I plead guilty’. He got a six month suspended sentence. That was it. Like a really bad traffic offence. After all of that hoo-ha.

Mr Dowding said there were other examples of the Howard government’s “perfidy” during East Timor’s fight for independence and subsequent negotiations with Australia that have never been explained.

“In its negotiations for the treaty with Timor, which was a lengthy document, there was one tiny change,” Mr Dowding said. 

“That was the definition of oil and gas. The definition included ‘inert gases’ and the Australian government removed the reference to it. As a result of that, no Australians get a benefit from the helium, an American company gets the benefit.” 

Mr Dowding says the motives and full implications of the tweak to the document are not clear, but that “it was clearly part of a really major plot which has never been properly revealed”. 

Mr Dowding says the Howard government under former foreign affairs minister Alexander Downer appeared to have acted in the interest of private enterprise instead of the Australian public and needed to be held to account.

Australia’s new attorney general Mark Dreyfus has said he’s already been briefed on the issue and there are “levers” at his disposal, he stopped short of outling what action he could take or directly addressing the substance of the case against Mr Collaery. 

But in Opposition he had spoken out strongly in support of the lawyer, saying he’d seen no evidence on how pursuing him had been in the public interest.