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Bernard Collaery prosecution breaching rule of law, ABA says

With little progress and next to no public scrutiny, the Australian Bar Association has called on Attorney-General Michaelia Cash to urgently reconsider the prosecution of Bernard Collaery in the interest of preserving confidence in the justice system.  

user iconNaomi Neilson 29 July 2021 Big Law
Bernard Collaery prosecution breaching rule of law
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Mirroring a statement from the ACT Bar Association, the Australian Bar Association (ABA) has requested that Attorney-General Michaelia Cash withdraw the consent given by her predecessor Christian Porter and put an immediate end to the highly secret prosecution of Bernard Collaery before the public’s concern turns into mistrust in the court system. 

Over 17 years since the alleged bugging of Timor-Leste and eight years since the Australian Federal Police raided Mr Collaery’s home, ABA has unanimously passed a resolution expressing its concerns about “the delays in the prosecution… and the secret nature of the proceedings and suppression of much of the evidence”. 


ABA president Matthew Howard SC said Mr Collaery’s matter raises fundamental rule of law questions as to the fair and open administration of justice – the length of time it has taken to prosecute and the suppression of evidence. 

“For the public to have confidence in the administration of justice, it is vital that prosecutions proceed in a timely manner and that the workings of the courts be open to public scrutiny to the maximum extent possible,” Mr Howard commented. “The public will be rightly concerned, in relation to Mr Collaery, that little is or can be known about the prosecution and that is continuing some 17 years after the events.”

Co-accused and former spy Witness K recently pleaded guilty to his charge but was spared jail time for conspiring to reveal classified information about the alleged spying by the Australian government. Instead, he was handed down a three-month suspended sentence with the court ultimately exercising “judicial mercy”. 

Human Rights Law Centre (HRLC) senior lawyer Kieran Pender said it was a “dark day for democracy in Australia” and cautioned that it could mean setting a precedent for punishing whistleblowers who would otherwise “speak up about wrongdoing”. 

The remaining prosecution of Mr Collaery is continuing, still firmly behind closed doors and despite Mr Porter’s predecessor opting out of giving consent. The basis upon which the evidence needs to be suppressed is itself the subject of suppression, which further impedes the ability of the legal profession and the public to rightly scrutinise the administration of justice “in such an important case”. 

“The ABA urges the federal Attorney-General to reconsider the prosecution in light of these significant rule of law issues,” Mr Howard said.