At the tail end of the Cold War, when the supposed threat to our very way of life was communism, not terrorism, a young lawyer called Malcolm Turnbull achieved global fame as a defender of free speech in the celebrated Spycatcher case. The case has some striking parallels with the prosecution of lawyer and former ACT Attorney-General Bernard Collaery and his client, former spy Witness K, revealed sensationally yesterday under parliamentary privilege by independent Tasmanian MP Andrew Wilkie. The laying of criminal charges under Howard-era terrorism laws was approved by Attorney-General Christian Porter, and came just as the government succeeded yesterday in rushing draconian espionage and foreign influence laws through parliament. In a stirring interview this morning, Wilkie told ABC RN Breakfast that the government was flexing its legal muscle: “since 9-11 there’s been more than 60 terrorism laws pass the parliament – just this week we’ve had two more – many of them are excessive and unnecessary, and many of them go to stifling free speech”.

The AG warned against commentary on the Witness K case yesterday, so let us go to back to 1986, when Turnbull was engaged by the publisher of Spycatcher. The book was a memoir, written by former MI5 agent Peter Wright, who had moved to Australia. Wright, the whistleblower in this case, alleged all kinds of criminal conduct by members of the British security services – analogous to the allegations of illegal conduct that Witness K made against his employer, ASIS. As Turnbull wrote in his book on the case, The Spycatcher Trial, the conduct ranged “from conspiracy to murder through burgling diplomatic premises to switching number plates in breach of the English Road Traffic Act”. The most serious allegation was treason, in an MI5 operation to destabilise the government of Harold Wilson. Serious as they were, the allegations were not new: almost all were contained in previous works, including journalist Chapman Pincher’s Their Trade Is Treachery, for which Wright himself had been a key confidential source.

Wright was a paranoiac anti-communist, with extreme right-wing views, who believed the former long-time head of MI5, the late Roger Hollis, had been a Russian spy whom the British establishment conspired to protect. Wright was an admirer of Thatcher: Turnbull wrote that “his only complaint against [her] was that she was insufficiently alert to the perils of international communism”.

Margaret Thatcher’s government wanted to make an example of Wright, nonetheless, and tried to suppress publication of his memoir as a breach of the Official Secrets Act. Thatcher’s purpose was purely political, Turnbull argued, and had nothing to do with national security. As he wrote in a letter to Australia’s then attorney-general, Lionel Bowen: “In our view the British Government’s only motive for seeking to suppress the book is that information in the book is evidence that [Thatcher] … made a false statement to the House of Commons in March 1981 concerning the investigations into Sir Roger Hollis. In other words the efforts to suppress this book are essentially … to prevent political embarrassment.”

Turnbull was only 32 when he took on the British government. He had just set up his own law firm, having left the bar after becoming very unpopular with his colleagues who resented his use of the media – contrary to rules against touting – to defend his client Kerry Packer from allegations aired before the Costigan royal commission. Turnbull flatly rejected those criticisms: “While I think lawyers have their main function in the courts, if their client’s cause requires media appearances, they should not shrink from them.” Bernard Collaery would no doubt agree.

The Spycatcher case attracted global publicity and, without going into the details, Turnbull won. The trial made Turnbull’s name, and is a key reason he is prime minister today – certainly his subsequent work on the republican movement, or advising on the sale of failed insurer HIH, did not help his career in the Liberal Party. Publication of Spycatcher, which sold millions worldwide, was a victory for free speech (notwithstanding that the memoir in question was forgettable tripe), and during the trial Turnbull reflected on the nature of free speech, raising the example of maverick politician Winston Churchill who breached the Official Secrets Act in 1936 to warn of the Nazis’ rearmament:

“The public interest in free speech is not just in truthful speech, in correct speech, in fair speech, in speech one point at a time and never to be repeated. The interest is in the debate. You see, every person who has ultimately changed the course of history has started off being unpopular. When the Australian Workers’ Union was founded under a tree in the bush, when unionists were not permitted to even go on to squatters’ properties, there were plenty of people and, I am afraid to say plenty of judges, in those far off days who supported the establishment against those people. They spoke out, and they spoke again, and they said the same thing a great deal more than once and finally they changed history and there are few people today that would say the struggle of the labour movement in this country and the struggle of other people who have been unpopular – Winston Churchill if you like – was not in the public interest, because ultimately these ideas are tested in debate and it is that debate in which there is a public interest …”

Hear, hear.

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