Executive Incompetence Will Place Witness K and Collaery's Liberty Further Into Jeopardy

9 November 2018

Centre Alliance Senator Rex Patrick has expressed serious concern for the fate of Witness K and Bernard Collaery after the ACT Magistrates Court ruled that, should the Attorney-General determine that the Commonwealth's brief of evidence contains national security information, then this determination will take precedent over any efforts by the parties to negotiate what is and what is not sensitive.

"While I fully respect the ruling of the Court, the Court is unfortunately unaware of the failed track record of the Executive and Attorney-General in making national security determinations," said Rex.

There have been a number of occasions* where the Executive has made national security claims in relation to Senate Orders for Production and FOI requests that have subsequently been proven to be wrong.

  • On 7 September 2017 the Government claimed that the release of Future Frigate tender documents would be harmful to national security. The claim was later found to be erroneous under FOI and the documents were released to the Senate.
  • On 15 February 2018 the Government claimed that the release of an Australian Industry Capability Plan document would be harmful to national security and international relations (harmful to international relations is a criteria that the Attorney-General can use in the issuing of a National Security Information Act certificate). The claim was later found to be erroneous under pressure of an FOI review and the document was released to the Senate.
  • In 2016 the Government denied the release of the Commonwealth's total legals costs of the Philip Morris Plain Packaging ISDS case on the grounds its release would be harmful to international relations. The Government's determination was found to be in error by the Australian Information Commissioner in February this year. The Government appealed the decision but then withdrew from the appeal.
  • The Attorney-General released a certificate under Section 37 of the Auditor General's Act earlier this year preventing the Auditor-General from including national security information in an audit report to the Parliament. This decision, which overrode the Auditor-General who is adamant that the offending information was not harmful to national security, is subject to Parliamentary Inquiry and is also under contest by Senator Patrick in the FOI domain.

"The Government has demonstrated incompetence in relation to its national security judgement, often wrapping embarrassing, but unclassified, information in the national flag," said Rex.

"While the Attorney-General's certificate will be subject to judicial scrutiny, the fact that Witness K or Bernard Collaery, and possibly even some of their legal representatives, will be unable to see the information over which a national security claim is being made will substantially prejudice them in the case".

"I am seeking legal advice as to whether I can bring the Executive's incompetence to the Court's attention," said Rex.

Senator Patrick has also written to the Office of Legal Services Coordination to complain about the fact that Witness K and Bernard Collaery's lawyers were ambushed on Wednesday with the news that the prosecution was seeking the Attorney-General's intervention.** The conduct of the Commonwealth's legal team is inconsistent with its model litigant obligation under the Legal Services Directions 2017.

** Further examples of erroneous executive claims can be provided upon request.
** Letter to the Office of Legal Services Coordination is available upon request.

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