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East Timor bugging scandal: Attorney General's push for secret trial diminishes us as a nation - Michael West
East Timor bugging scandal: Attorney General's push for secret trial diminishes us as a nation - Michael West
Christian Porter is waging war against Bernard Collaery and his client for revealing the widely reported, and accepted, bugging allegation.
The Attorney General is waging war against lawyer Bernard Collaery and his client in pushing the line that the sky will fall in if the Commonwealth has to admit in open court that ASIS bugged Timor-Leste. Yet the allegation has been widely noted in hundreds of reports over many years, including by the International Court of Justice, and nobody seems in any doubt it is true. Lawyer Ian Cunliffe reports on the latest judgment in the saga that has cost taxpayers nearly $2.5 million before the trial has even started.
It took a revelation in Parliament by Independent MP Andrew Wilkie in late 2018 for Australians to find out that federal Attorney-General Christian Porter had authorised a criminal prosecution against former ACT Attorney-General and Deputy Chief Minister Bernard Collaery and Witness K over the leaking of information that in 2004 Australia had bugged the Cabinet office of tiny Timor-Leste.
Australia did so to enable it to eavesdrop on the Timorese as they prepared for negotiation sessions with Australia over the massive liquid gas resources in the Timor Sea. Despite Porter’s best efforts to keep the prosecution secret, most interested Australians are now aware of this David and Goliath battle in the Supreme Court of the ACT.
To date there have been seven judgments on preliminary aspects of the case.
The most recent judgment became public in late July, a whole month after Justice David Mossop ruled for Christian Porter that essential parts of Collaery’s criminal trial would be held in secret.
Normally judgments go up on a court’s public website the day they are handed down – transparency being a key aspect of the rule of law and justice must be seen to be done and all that.
Month-long delay posting court decision
Porter had sought rulings from the Supreme Court that much of the trial should be held in secret. The month-long delay in posting the decision had apparently been a result of the prosecution vetting the judgment and saying what parts of it should not be published.
Porter has invested a great deal in prosecuting Collaery and doing so out of the public gaze. Nearly $2.5 million has been spent on legal costs yet the trial is still a long way off.
Reputationally, Porter has much on the line as well. In pushing so strongly for a largely secret trial, Porter gave evidence that disclosure of information during the trial was “likely to prejudice national security”.
He channelled Henny Penny, Ducky Lucky, Goosey Loosey, Turkey Lurkey and all the rest of the characters in Chicken Little (AKA the heads of ASIS, ASIO, the Office of National Assessments (ONA), the Department of Homeland Security, and the Department of Foreign Affairs and Trade, ASIO’s Deputy Director, and a former head of ONA) to give evidence that the sky would surely fall down if the Commonwealth had to admit in open court that ASIS bugged Timor-Leste.
This is despite the fact that the bugging allegation has been widely reported over the years. In fact, Justice Mossop noted evidence that more than 600 media reports, publications and records of the International Court of Justice referred to the allegations. Four of the five charges against Collaery are for reports broadcast on ABC programs including 7.30 and Four Corners, which are still available on the web.
Bugging allegation widely accepted
Nobody seems to be in any doubt that the allegation is true: under the guise of refurbishing the Cabinet room through an aid program, the Australian Secret Intelligence Service, with the approval of the Australian Government, bugged the aid recipients all the better to screw them in the resource negotiations.
Pleading for openness against the Chicken Little crowd was an impressive group of defence witnesses: former foreign minister and attorney-general Gareth Evans, former chief of the Australian Defence Force, Admiral Chris Barrie, former Ambassador to the US and Indonesia John McCarthy, and former NSW Supreme Court judge and ICAC commissioner Anthony Whealy QC.
Former East Timor presidents Xanana Gusmao and Jose Ramos Horta also gave evidence for Collaery’s bid for the trial to be in public. It is particularly remarkable that the judge ruled that it was too sensitive for Australians to know that Gusmao and Horta did not consider relations between Timor-Leste and Australia would be prejudiced by the world knowing Australia bugged their Cabinet room.
Yet the judge agreed with Porter’s crowd and made orders for secrecy. Open trials have always been a foundation stone of the Australian criminal justice system as they are a key way to maintain public confidence in the system.
Court’s conclusion unconvincing
Justice Mossop’s conclusion that secrecy was required seems remarkably insipid and unconvincing. He said the risk of prejudice to Australia’s national security “is neither immediate nor catastrophic”, and that it was not possible to determine “precisely how those risks will manifest themselves”.
He said that any reputational harm from the trial being largely secret would be discounted by “the general perception that Australia has an independent and fair judiciary”. Yet that very reputation is being seriously tested by Canberra’s secret trials.
He also acknowledged there was a risk that a government might assert concerns about national security to avoid being embarrassed politically or to avoid legitimate scrutiny of its conduct. But the judge did not say why that risk should not lead to a different result on secrecy.
Wrong legal test
Yet Justice Mossop seems to have applied the wrong legal test. He stated the question was whether there would be “a risk of prejudice to national security” if the trial was held in public. But that was not the question he was required to decide. The proper question was whether openness was “likely to prejudice national security” which the judge himself acknowledged required a higher threshold.
Allowing the prosecutor a lower threshold than the Intelligence Services Act stipulates in relation to the very serious offences which Bernard Collaery is facing is likely to be an appeal point.
When Andrew Wilkie revealed the prosecution of Collaery all those years ago, Wilkie argued that senior government officials were the “real criminals — the people who ordered the illegal bugging”, and that they should be investigated by the Australian Federal Police. That appears not to have happened. Therefore Bernard Collaery and Witness K are in the dock and not Alexander Downer and John Howard.
ABOUT THE AUTHOR
Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).
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Witness K case
Witness K is in the dock but institutions vital to Australia’s democracy are on trial
Some people seem to be above the law. Those people do not include the whistle-blower and his lawyer, Bernard Collaery
Mon 17 Aug 2020 03.30 AEST
Witness K lawyer and co-defendant Bernard Collaery outside the supreme court in Canberra last year. Photograph: Lukas Coch/AAP
Timor-Leste only achieved independence in 2002. It was Asia’s poorest country and desperately needed revenue. Revenue from massive gas resources in the Timor Sea was its big hope. But it needed to negotiate a treaty with Australia on their carve-up. Australia ruthlessly exploited that fact: delays from the Australian side in negotiating a treaty for the carve-up of those resources, and repeated threats of more delays, were a constant theme of the negotiations. In November 2002 the former Australian foreign minister Alexander Downer told Timor-Leste’s prime minister, Mari Alkatiri: “We don’t have to exploit the resources. They can stay there for 20, 40, 50 years.” In late 2003 Timor-Leste requested monthly discussions. Australia claimed it could only afford two rounds a year. Poor Timor-Leste offered to fund rich Australia’s expenses. Australia didn’t accept.
Witness K and the 'outrageous' spy scandal that failed to shame Australia
The two countries had solemnly agreed to negotiate in good faith. But Australia’s realpolitik approach was rather: “Never give a sucker an even break.” Downer told Alkatiri: “We are very tough. We will not care if you give information to the media. Let me give you a tutorial in politics – not a chance.” The truly stark realpolitik bottom line: Downer was probably an invisible man at Timor-Leste’s cabinet table. The Australian Secret Intelligence Service, under the guise of renovating Timor-Leste’s cabinet room, planted bugs so the Australians could overhear the leaders’ deliberations. Downer was responsible for Asis. Downer and the Australian government have never confirmed or denied the bugging.
Fortunately, Australia’s reputation has not been more badly damaged for its grubby behaviour towards Timor-Leste, for two reasons.
First, long-suffering Timor Leste did not maximise opportunities to embarrass Australia. Perhaps Downer’s bullyboy warning to Alkatiri worked. Ever since the second world war, Australia has promoted its brand as being member No 1 of the rules-based international good citizenship club. In 2004 it was Timor-Leste which played the honourable role, not Australia.
The people who let Australia down so badly in 2004 have not been punished
Second, because the bugging was quietly outed, Australia was given the opportunity to renegotiate the treaty with Timor-Leste to a much fairer outcome, and one more in accord with international norms.
Now one of the Asis officers who did the bugging, Witness K, and his lawyer, Bernard Collaery, are being prosecuted for alleged involvement in Australia’s despicable actions becoming public.
The prosecutions of Collaery and Witness K were revealed in federal parliament more than two years ago by the independent MP Andrew Wilkie. Wilkie said senior government officials were the “real criminals – the people who ordered the illegal bugging”. Wilkie called upon the Australian federal police to launch an investigation into the bugging. Three senators – Rex Patrick, Nick McKim and Tim Storer – joined that call. Wilkie said: “We wish the police to conduct an investigation to look at who’s involved, who the senior officials are, who the government ministers were, noting all of this has been done in secret,” adding: “No one is above the law.”
The bugging was probably criminal according to the laws of both Australia and Timor-Leste, and those who authorised it were likely to have committed the common law crime of conspiracy to defraud.
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Two years after Wilkie’s parliamentary call, the AFP seems to have ignored the four members of parliament. Some people do seem to be above the law. Those people do not include Witness K and Collaery.
The major beneficiary of Australia’s negotiated initial win was Woodside Petroleum, though the company says it is yet to make any profit from the Timor Sea reserves. In 2014 Downer said on ABC Four Corners that Australia had acted in Woodside’s interests in the negotiations. After leaving politics, Downer became a paid consultant to Woodside. The head of Downer’s department at the time of the bugging, the late Dr Ashton Calvert, became a director of Woodside within eight months after retiring from foreign affairs, and within a year of the bugging.
Witness K was incensed that Downer had profited by becoming a consultant to Woodside. The whistleblower complained to the inspector general of intelligence and security of a changed Asis culture. He was authorised to engage Collaery. The charges against Collaery stem from that engagement. Revelation of the bugging helped Timor-Leste overturn the deal initially negotiated, arguing that the bugging tainted “good faith” negotiations.
The people who let Australia down so badly in 2004 have not been punished. It is simply not credible that Asis undertook the bugging without the approval of Downer and the then prime minister, John Howard.
The bugging took place 16 years ago but it is not ancient history – the criminal prosecutions to “kill” the alleged messengers are in full swing. Further, although 16 years is a long time in politics, former colleagues of the guilty parties – and some of those parties themselves – are still very much on the scene.
The court case Australians are not allowed to know about: how national security is being used to bully citizens
For example, according to his parliamentary biography, the present Australian treasurer, Josh Frydenberg, was an adviser to Downer from 1999-2001, and was a senior adviser to Howard from 2003-04, the latter being the year of the bugging. Frydenberg’s Wikipedia entry says that, in Howard’s office, he specialised in “domestic security issues, border protection, justice and industrial relations”.
By 2005 Frydenberg was a director at Deutsche Bank. He was interviewed on Channel Seven’s Sunrise program from Timor-Leste in 2006. David Koch introduced Frydenberg to viewers simply as having been a former adviser to Howard and Downer – with no reference to Deutsche Bank. Frydenberg spoke to viewers as if he represented the Australian government: “Our team’s going to be led by a deputy secretary from the Department of Foreign Affairs. The Timor-Leste side is going to be led by their resources minister.” In effect, Frydenberg argued Australia’s case to the viewers, speaking knowledgeably about the resources at stake.
Collaery and Witness K are in the dock but institutions vital to Australia’s democracy are on trial: the judiciary, the director of public prosecutions and the AFP, as well as that once important guardian of the public interest – the attorney general. Each must ensure that Australia’s legal and criminal justice systems operate apolitically and are not strong-armed to protect ministers and other government officials – past and present – Andrew Wilkie’s “real criminals”.
• Ian Cunliffe is the former head of the legal section of the Department of Prime Minister and Cabinet, chief executive of the Australian Constitutional Commission and chief executive/director of research of the Australian Law Reform Commission
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Bernard Collaery trial is a highly unusual criminal prosecution
After nine months of hearings, seven judgments, and government spending of $2 million, we still know too little about the prosecutions of Bernard Collaery and Witness K.
Aug 14, 2020 – 12.00am
Nothing is usual about the ongoing criminal prosecutions of lawyer Bernard Collaery and former senior intelligence officer "Witness K" in the ACT.
After nine months of hearings and seven judgments, we recently learned for the first time that four of the five charges against Collaery are that he communicated to ABC journalists that the Australian Secret Intelligence Service had bugged Timor-Leste’s cabinet room during the negotiations with Australia over resources in the Timor sea – that revelation was broadcast on 4 Corners, 7.30 Report, Lateline, and on ABC Radio – and that the information in question “was prepared by or on behalf of ASIS in connection with its functions or related to the performance of its functions”. The fifth charge is that Collaery communicated such information to the government of Timor-Leste. best business newsroom.
There are many disturbing aspects of the Collaery prosecution. The Commonwealth has spent more than $2 million on it so far. Collaery is in his mid-seventies without access to such resources. He is not getting legal aid. The presiding judge, Justice Mossop, has reportedly called it a war between the two sides. In resource terms, that war is as one sided as those negotiations between Timor-Leste and Australia in the early 2000s.
In contending for a largely secret trial, the Attorney-General deployed his biggest guns. He certified that disclosure of information in the trial “is likely to prejudice national security”. The heads of ASIS, ASIO, the Office of National Assessments (ONA), the Department of Homeland Security, and the Department of Foreign Affairs and Trade, as well as ASIO’s Deputy Director, and a former head of ONA apparently thought so too.
The judge acknowledged that the bugging allegation has been widely reported. Is that harming our national security? The published judgement gives no transparent clue as to how or why admitting the bugging would be so damaging. But Justice Mossop did confirm that an important issue at the trial is likely to be whether the bugging allegation is true.
He took comfort that any reputational harm from the trial being largely secret would be discounted by “the general perception that Australia has an independent and fair judiciary." The judge seems unduly sanguine on that point. Australia’s reputation is being seriously tested by Canberra’s secret trials.
Justice Mossop quoted the splendid exposition on the need for open trials by the former Chief Justice of Australia, Robert French: an essential characteristic of courts is that they sit in public, that to maintain public confidence, court proceedings need to be subject to public, and professional scrutiny; and that, under the Constitution, courts must at all times be and appear to be independent and impartial tribunals. However, Justice Mossop did not otherwise advert to those considerations. If they are in play in any case, they are in Collaery’s trial.
Justice French gave examples which might justify suppressing some evidence. But he said the list of exceptions will not lightly be extended, adding:
Where "exceptional and compelling considerations going to national security" require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified.
His words are very cautious and guarded –“exceptional and compelling”, “require”, “may be justified”. By stark contrast, Justice Mossop seems much more gung ho:
Where, as in this case, what is being prosecuted is an alleged unlawful disclosure of sensitive information, it would be contrary to the proper administration of justice to compel the prosecution to disclose to the world the sensitive information which the law required to be kept secret.
Justice Mossop made orders for secrecy substantially as sought by the Attorney-General. However the judge’s conclusion that secrecy was required seems remarkably insipid and unconvincing, and a quite inadequate basis for ordering a non-public trial, especially as the risk of prejudice to Australia’s national security “is neither immediate nor catastrophic”, and precisely how those risks will manifest themselves is not possible to determine based on the redacted judgment that has been released.
Justice Mossop seems to have erred legally by confounding “a risk of prejudice to Australia’s national security if disclosure occurred”, with the likelihood to prejudice national security.
Justice Mossop acknowledged “the risk that an assertion of prejudice to national security in the very broad sense that it is defined in the Act may be used as a cover to protect from disclosure in a trial material which is merely politically embarrassing to a government or to avoid legitimate scrutiny of its conduct”. Collaery’s supporters argue vehemently that that is exactly what is happening – the Government is punishing its enemies and wants to do so out of the public spotlight. Disappointingly Justice Mossop did not say anything as to why that risk did not lead him to a different conclusion on the secrecy issue.
We all know that ASIS did the bugging. If it wants Collaery’s head on a platter, the Commonwealth should be required to acknowledge its own crime in open court, and to defend its actions.
Ian Cunliffe is a former chief executive of the Australian Law Reform Commission and the Constitutional Commission, and was deputy to the secretary of Australia's first royal commission into intelligence and security in the 1970s.
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We can’t communicate with the entity except on terms dictated to us, and those terms are often weighted against us. This trend is so universal it must be deliberate. It surely increases disillusionment and even anger.
Technology should make it much easier to communicate with entities which govern our lives – entities such as Centrelink, the banks and telecommunications companies. However, barriers have been erected which prevent us from being able to communicate effectively to and with such entities.
As the lead plaintiff in the High Court case (Cunliffe v The Commonwealth (1994)182 CLR 272), which established the constitutional right of Australians to communicate to government, I am concerned as a both matter of principle and practicality.
A few examples illustrate the communication barrier problem.
You might well need a record of what communications have passed with, for example, Centrelink. I am a lawyer. I act in lots of Robodebt and analogous cases. A few years ago, I acted for a woman whom Centrelink prosecuted for fraud. She was on Austudy and had an ‘exit’ interview on graduation. Centrelink asked if she worked while studying. She had worked, and said so. ‘You were required to report that’, Centrelink said. ‘I did’, she insisted. Centrelink steadfastly maintained that it had no record. Nor did my client. Long story short, eventually through Freedom of Information we found Centrelink records confirming her statement. No non-disclosure. Prosecution ended – after a lot of reputational damage, enormous worry and considerable expense.
Centrelink often forces clients to communicate by telephone or in person. Centrelink gains the upper hand in 99% of such cases – it has a recording. The client doesn’t, and so can’t prove what was said – if they can even remember. The client might also need a record to mull over advice received, and communicate it to family and helpers. There are easy and effective technology solutions to this communication barrier.
Similarly, many large entities effectively compel a person who might want to ask a question or provide information by email to use an online form. In many cases, the outcome is that the person does not get a copy of the communication, as they would if an email were permitted. There is technology which enables you send a copy to your email address, but very few public sector organisations use it. Not infrequently, at least for me, the communication fails to send. These systems are further communications barrier created by big entities.
Centrelink and others also have a central phone number, making it very difficult to have a follow up conversation with the initial advisor. In addition, of course, is the enormous frustration (and cost) of waiting – often for hours – for the phone to be answered. Again, there is technology which enables you to be called back and not lose your place in the queue – very few organisations use it.
Indicative of the frustration that clients feel when they need to interact with Centrelink is the message when you phone asking that the caller respect the person who will eventually answer, and warning that if you are rude or aggressive Centrelink might just hang up. The message says that Centrelink will treat the caller with respect. I confess that, more than once, I have futilely and frustratedly said to the loud, incessant, irritating recorded music: ‘Treat me with respect! Don’t keep me hanging on the line for an hour before you answer!’
Centrelink’s so-called “Self Service Line” – a machine – actually hangs up on the caller if it can’t get the information it seems to want: There is no warning, just: ‘Thanks for calling. Goodbye, clunk!’ That happened twice. On a third attempt, on behalf of my wife, who is legally blind, as soon as I have stated her customer reference, the automatic voice correctly repeated it back, and then said: ‘Your access to Self Service has been suspended: clunk!’ No opportunity to get a reason or to argue the toss! It’s not so good for self-respect to be dealt with so peremptorily by a machine. (My wife overheard the exchange, and remarked: ‘But it is quite funny!’ Perhaps she has a better sense of humour than me. Or perhaps she subscribes to the philosophy of a golfing mate of mine when someone has bad luck. He says: “Still, it could have been worse – it could have happened to me.”)
I have also recently chipped people from both Centrelink and Fines Victoria because each has responded to my stated problem by saying: ‘You did the wrong thing by …’. (In each case, I quickly concluded, for good reasons, that their diagnosis was incorrect). I have responded: ‘Hold on there. You ask that I treat you with respect. Please don’t go accusing me of being in the wrong just because I can’t make your technology work’. To big entities, the customer seems always to be wrong!
Private sector entities, including privatised ex-government ones such a Telstra, have systems which have very bad communications effects on customers. They have offshore call centres with workers whose accented English is difficult for Australians to understand. Not infrequently, callers have the frustration of describing a problem or issue to one person, only to be forwarded to another and having to start from scratch.
Phone menus are ubiquitous when communicating with big entities: ‘If your call is about X, then press 1’. Often there is menu after menu: after pressing 1, you hear another menu, and sometimes another. It can often take five minutes just to get the phone to ring at the end of the sequence of menu selections.
The ultimate frustration is when none of the menu items fit the case, and there is no open ended menu item. To hang up is the only option. I previously worked at such an entity. I needed to speak to someone there but didn’t have their direct number.
Sometimes, however, entities leave chinks in their armour. One of my daughters had an issue with her bank. She couldn’t find a phone number, but recalled receiving a bank sales brochure. The brochure had a phone number of the marketing person. It was a way in.
Centrelink doesn’t publish email addresses even on correspondence. Centrelink obviously prefers to channel communications differently – and so has erected a communications barrier to email. Getting a response to snail mail addressed to the postal address for Centrelink – in Canberra – is slow. Centrelink has a well-known public spokesman. I went to the ‘media’ section of Centrelink’s website; his email address was on media releases. I have used it many times since, asking: ‘please forward’.
Recently I have effectively been compelled to get a MyGov account, because many of my ex-refugee clients are fighting Robo Debt. Centrelink insists on corresponding about them via MyGov. That has proved to be a communications barrier against me – and so my clients.
For a septuagenarian, my computer skills are reasonable, but I make errors – I forget passwords, especially when they change frequently, and I mis-enter them because my fingers are fat and arthritic, and my eyesight is not as good as the year we are in. Recently MyGov suspended me for two hours apparently because I got a password incorrect. When my suspension was up, I tried – and failed – again. The result was permanent suspension.
I spent more than a fortnight trying to have the problem fixed. I spent hours on the phone with quite pleasant people. Twice I was assured that, by the following morning, it would be fixed. But no. Finally, I got my local MHR on the job – MPs seem to have means of access which are denied to lesser mortals. After another week, nothing. Frustratingly, as if to tease me, I still got ordinary emails from Centrelink saying that I had MyGov messages. They might be important and even impose deadlines, so the lockout jeopardised my clients’ interests.
“You are responsible for reading all your notifications and MyGov messages in a timely manner.
By creating a MyGov account, you are agreeing to receive all correspondence a Member Service decides it wants to send to you via the MyGov Inbox.
We are not responsible for:
There was a time when I might have looked to the Ombudsman to redress some of these issues. (When that office was first established, it came under the Department of Prime Minister and Cabinet. I was the point of contact of the Office of the Ombudsman in PM&C). In recent times, I have, unfortunately, lost faith in the Ombudsman and his Office, as I have in the Office of the Australian Information Commissioner.
In 2020, many large entities seem to assume that everybody is computer literate and connected to the web. Significant sections of the public are not. These include many migrants, low income individuals and families, and older people. Often, even an average level of familiarity with computers and their communications is not enough.
Radical bypass surgery is needed to the systems by which Australians can communicate with our public – and private – sector entities.
If ever there was a topic on which there should be good standards to protect the community, it is here. The Australian Standards Organisation says on its website:
‘Standards … set out specifications, procedures and guidelines that aim to ensure products, services, and systems are safe, consistent, and reliable.
They cover a variety of subjects, including consumer products and services, the environment, construction, energy and water utilities, and more.’
We have standards on just about everything that you can think of – except this. There are more than 9,000 sets of standards applying in Australia. There should be standards which mandate what must be done to make it much easier for us all to communicate with entities such as Centrelink and Fines Victoria.
Unless we do something serious, don’t expect the natives to get less restless any time soon.
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The life and times of Robodebt and its victims
By IAN CUNLIFFE | On 5 August 2020
On 4 August, my article described the surprising criminal law traps which lie in wait for anyone who is robust towards Centrelink in their defence of Robodebt victims.
Until researching the Commonwealth Criminal Code recently in relation to so-called national security offences, I had no idea of the existence or scope of those traps. But, of course, ignorance of the law is no defence.
Robodebt and its victims was the subject of a tense and gripping exchange between the head of the Department of Social Services, Kathryn Campbell and Labor Senator, Deborah O’Neill in the Senate Committee on Community Affairs on the last day of July.
According to the ABC, in February last year Ms Campbell’s Department told the Committee that more than 2,000 people died after receiving Robodebt letters. It is not clear how many were suicides, but – according to the report, the Department revealed that roughly a fifth were under 35, and nearly a third had been classified as “vulnerable”.
Gordon Legal, which is running a class action for Robodebt clients, says that at least 600,000 Robodebts have been raised. Ms Campbell’s Department said last year that it sent more than 900,000 debt letters in the period 1 July 2016 to 31 October 2018.
The tense exchange between Senator O’Neill and Ms Campbell began when Ms Campbell said she did not know what “Robodebt” means – apparently because it is not a term of art, nor is it a term used by her Department.
Senator O’Neill responded: “People have died over Robodebt, and you don’t even acknowledge the word!” Ms Campbell vehemently denied the accusation but seemed unable to bring herself to use the word suicide in her denial: “I do not accept those assertions that are being made. They are not correct. … I do not accept that people have died over Robodebt.”
But then she added: “We know that suicide is a very difficult subject. We know mental health issues are very difficult. We have apologised for the hurt and harm; none of us can imagine what goes on in individuals’ lives.” Who could disagree? Ms Campbell added: “So I do not accept that” – presumably meaning, I do not accept that people have suicided over Robodebt
Ms Campbell came across as a stone-hearted bureaucrat. However, it seemed to me that that reading was not entirely accurate. More likely she is deeply troubled by the fact that the unlawful revenue-raising Robodebt scheme for which she has a large responsibility backfired so badly. She told Senator O’Neill that it was her view “when we introduced this, that it was legal. … Clearly, I was wrong.”
The weight of lives lost lives – whatever the number of suicides was – is a heavy one. Bureaucrats are human. Ms Campbell and other officers deserve some compassion. However the Commonwealth has been extremely cruel and reckless at best with its Robodebt scheme, and its actions deserve condemnation.
There is an issue as to what “Robodebt” means. An ABC report on the exchange between Ms Campbell and Senator O’Neill described Robodebt as a scheme under which notices are automatically issued to welfare recipients having debts identified by income averaging – comparing a person’s reported income with income information collected by the Australian Tax Office.
To me, Robodebt is wider than that: under Robodebt, Centrelink issued letters of demand for money to hundreds of thousands of people, many of whom had no conceivable ability to pay the amount demanded. The letters were generated automatically – without the tempering hand of human judgment. Many were based on the iniquitous practice of income-averaging – assuming that if a person earned $1,000 in one week of a year, they must have received $52,000 for the full year. But that was not the only such assumption made by the robot. For example, a random deposit into a bank account is assumed to be income; gross receipts are taken as net receipts, and so on.
These latter assumptions are still being defended by Centrelink in the courts and the Administrative Appeals Tribunal. If Robodebt is defined as going beyond income-averaging to these other assumptions, Robodebt is robustly alive.
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True crime confessions – being rude to Centrelink
By IAN CUNLIFFE | On 4 August 2020
Last year, a Senate inquiry into RoboDebt was told that more than 2000 people died after receiving their initial RoboDebt letter, many apparently by suicide. I act for numerous RoboDebt clients.
To take one example, a refugee RoboDebt client was clearly seriously impacted mentally by getting a RoboDebt letter saying that she owed in excess of $135,000 – to be repaid from the earnings of her taxi-driver husband while they support seven young children. She received the news that she owed $95,000 while in bed having just delivered her last born – twins.
There has been no suggestion that those who designed and implemented RoboDebt will be criminally or even civilly punished. I don’t mean to suggest that they should go to gaol. However, the Commonwealth has been extremely cruel and reckless at best with its RoboDebt scheme and deserves condemnation.
As light relief from such battles, I have been reading through the Commonwealth Criminal Code which was substantially amended two years ago and made much more authoritarian.
That Code makes it a very serious offence – carrying up to 13 years imprisonment – to cause harm to a Commonwealth public official. In a prosecution, absolute liability applies to many of the elements of the offence – greatly reducing an accused person’s chances of being found not guilty.
‘Harm’ is defined to include harm to a person’s mental health (whether temporary or permanent). The Code says that a person’s conduct is taken to cause harm if it substantially contributes to harm.
It is also an offence to threaten to cause serious harm to a Commonwealth public official if the accused person is reckless as to the threat causing serious harm. Even if no harm actually results, this offence would be made out. The maximum penalty is nine years.
The accused is regarded as having the intention to cause harm to an official’s mental health if s/he means to bring that result about or is aware that it will occur in the ordinary course of events.
The accused is reckless as to that result if s/he is aware of a substantial risk that serious harm will occur; and, it is unjustifiable to take the risk.
In the case of my client who was told that she owed in excess of $135,000, I confess that I did give Centrelink’s lawyer a hard time when she seemed to be reneging on a hard-won agreement that the Commonwealth had made to write off a large part of the debt. I threatened to make a very big fuss and accused the lawyer of acting inappropriately and callously. Perhaps I put her into a depressive funk. That was not my aim, but I did want to make a passionately stinging point that she would long remember.
Even if my words did not make me liable for the 13-year penalty, it could certainly be argued that I was reckless, because my comments could have caused serious harm. The offence seems to be established even if no harm actually resulted – just that it could have. That is very unusual: You don’t get convicted for manslaughter just for being reckless – your recklessness has to actually cause death.
These provisions are pretty well silent about the accused person’s justification. The law in Australia, as in other comparable countries, has shied away from punishing people – even civilly – for saying things that inflict mental distress. Should public officials be a protected species in this regard?
I regard myself as quite justified in taking a robust line with officials in such an extreme case. But will that save me? Under the Criminal Code it is largely irrelevant whether the accused person was justified in what they did.
My conduct might also have exposed me to two years imprisonment for ‘Obstruction of Commonwealth public officials’. That would apply if I ‘obstructed, hindered or intimidated’ Centrelink’s in-house lawyer. Those expressions are not defined. They will be interpreted to mean what the Macquarie Dictionary says they mean – what they mean in ordinary parlance.
They are very broad terms and could well be interpreted to cover my attempt to shame the lawyer into what I saw as a more compassionate, fairer approach of not reinstating to my client’s record of indebtedness a crushing, large whack of the money that had just been written off.
These are bad provisions. Like much of the Criminal Code they go much too far.
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1975 and all that
By IAN CUNLIFFE | On 22 July 2020
45 years have passed since the most controversial crisis in Australian political history – the dismissal of the Whitlam Government by the Governor-General on 11 November 1975. But it was not the first dismissal of an elected government by a vice-regal figure in Australia.
The Great Depression was a turbulent time in Australia. The peak of that turbulence was on 13 May 1932 when NSW Governor, Sir Philip Game dismissed NSW Labor Premier, the firebrand Jack Lang. Lang later became a political father-figure to two Australian Prime Ministers – one from either side of politics – Paul Keating and Malcolm Turnbull.
I gained a fascinating insight into the Lang dismissal in the aftermath of another major upheaval in Australian political and public life – the bombing of Sydney’s Hilton Hotel on 13 February 1978. I worked on the Protective Security Review (PSR) which inquired into issues that emerged from the bombing. Justice Robert Hope conducted the PSR.
A bomb had exploded outside the hotel, where the Commonwealth Heads of Governments were meeting – involving Prime Ministers and Presidents from many of the countries of the British Commonwealth. Three people were killed by the blast. The most popular speculation was that the bomb was planted by a religious sect and targeted at the Indian Prime Minister.
After the Hilton Bombing, the Army was called in to evacuate the Conference to Bowral in rural NSW. There were no Australian precedents for that action and serious questions were asked about, for example, what the legalities would have been if a soldier had shot someone: the law regarding police shootings is tolerably clear, but not for soldiers in such situations. Similar issues arise in relation to the power to make arrests.
Accordingly, various issues about military law were important in the PSR. Australia’s leading authority on such issues was Sir Victor Windeyer. Sir Victor was probably the most distinguished member of one of Australian history’s most distinguished judicial families. He had been a High Court justice. Earlier, Sir Victor was Counsel Assisting the Petrov Royal Commission, established by Prime Minister Robert Menzies to his great political advantage. Earlier still, Sir Victor rose to the rank of Major General, and saw action during the Second World War, including in the siege of Tobruk and in New Guinea.
Hope sought out Sir Victor for his insights. I remember Hope’s excitement after the meeting. I was reasonably aware of the fracturing of Australian politics around the time of the Great Depression. Probably the best known incident of the time was when New Guard member Francis de Groot pre-empted Premier Lang to ride in on horseback with his sword and cut the ribbon for the opening of the Sydney Harbour Bridge on 19 March 1932. The New Guard was a proto-fascist group on the extreme right.
The picture of extremism in Australia on both the right and the left was also seen in the UK, the US and France. It was a time of extreme polarisation: fascist parties and their fellow travellers against Communists and their ilk. Of course, in Germany, Italy and Spain the fascists won out by taking government.
According to Hope, Windeyer told Hope that he, Windeyer, had been a member of the Old Guard during the Great Depression – a much more establishment group than the New Guard. According to the entry on Sir Victor in the Australian Dictionary of Biography, “Windeyer took command in 1930 of a platoon in the Old Guard, an organisation not to be confused with the more public and more extreme New Guard. Its objects—to assist in ‘the maintenance of law and order’ and to uphold ‘the Constitution under which we work and live’—were focused on the politics of J. T. Lang and the activities of the New Guard.”
Windeyer told Hope that on 13 May 1932, he and other members of the Old Guard had been called to “drill” inside Customs House in Sydney. At that time, Windeyer was also a Major in the Sydney University Regiment, which may best be described as an officer-training regiment of the Australian Army Reserve.
After waiting in Customs House for some hours until late in the day, the commander of the Old Guard contingent had told them that Lang had been dismissed by the Governor, and that Lang had accepted his dismissal. The Old Guard members were no longer required to remain.
According to the same entry in the Australian Dictionary of Biography, the Old Guard dissolved after Game dismissed Lang.
Lang’s dismissal followed a bitter dispute between the Commonwealth and NSW Governments. The federal Government was totally opposed to Lang’s plan to as to how best to fight the Great Depression – by taking a repayment holiday to overseas bond holders.
Customs House was a Commonwealth Government facility. Presumably, the Old Guard had permission to drill there. Presumably there was a plan of action for the contingency that Lang refused to go.
I gained another fascinating insight – into the events of 1975 – from former great High Court advocate, Sir Maurice Byers. Sir Maurice was Commonwealth Solicitor General at the time of Whitlam’s dismissal.
Sir Maurice told me that he was confident that he could successfully have challenged the dismissal of the Whitlam Government by the Governor General if, instead of Whitlam going directly home from Government House to the Lodge to enjoy a steak for lunch, he had instructed Byers to appear immediately in the High Court. Those proceedings would have been by way of judicial review.
I doubted that Sir Maurice would have succeeded – despite his renowned enormous ability to win over the High Court. (As a fairly junior official, I was not so bold as to express my doubt to one of the High Court’s greatest ever advocates). My view was that the High Court would regard interfering in dealings between the Queen’s representative and the Prime Minister and Leader of the Opposition as many bridges too far: the issues were what lawyers call “non-justiciable”.
Byers would not have known at the time of the Dismissal that two of the seven judges of the High Court had had been advising the Governor-General in the lead up to the Whitlam sacking and Kerr commissioning Opposition Leader Malcolm Fraser to become Prime Minister. Chief Justice Sir Garfield Barwick was outed soon after 1975. Sir Anthony Mason, then a puisne justice of the High Court was revealed much later
The two justices should certainly have disqualified themselves if the case had been litigated. Would they have?
I reflected back on the possible role for the Court in 1975 by what Britain’s top court, the Supreme Court did in 2018. In the fight over Brexit, the Queen had acted on the advice of Prime Minister Boris Johnston to prorogue (suspend) the British Parliament at a critical time. The UK Supreme Court overturned the Queen’s prorogation. The Court was unanimous – 11 judges to nil. The Leader of the Commons, Jacob Rees-Mogg reportedly told a meeting of cabinet that the action by the court had amounted to a “constitutional coup”.
Many describe 1975 as a coup. Was there a contingency plan on 11 November 1975 as there was in 1932? What was it?
While, together with so many others, I was shattered by Whitlam’s dismissal, even then I was relieved that he did not refuse to go. Ever the stickler for legality and convention, Whitlam went – albeit far from quietly. But nor did he challenge his dismissal in the courts.
It would be better for the courts to determine the legal issues which arose in 1932 and 1975 than to risk the outcome being determined through the barrel of a gun.
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