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Judgment handed down on secrecy in Bernard Collaery prosecution
The ACT Court of Appeal has handed down its judgment on the secrecy provisions that has followed the prosecution of Bernard Collaery on conspiracy charges.
Naomi Neilson
Bernard Collaery has won his appeal to overturn a decision to keep parts of his trial in total secrecy, with the Court of Appeal unanimously ruling that open justice is important to deter political prosecutions. Although some sensitive information will remain out of the public’s reach, “six specific matters” were accepted.
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While the Court of Appeal accepted that public disclosure of these matters would involve a “risk of prejudice to national security”, it doubted that a significant risk of prejudice to national security would materialise throughout the trial.
“On the other hand, there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be properly disclosed. The court emphasised that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors and permitted the public to properly assess the conduct of the accused person,” the judgment read.
The Commonwealth is chasing the prosecution of Mr Collaery for disclosing details about the bugging of Timor-Leste government buildings in 2004, an operation that was designed to give Australia an advantage in negotiation talks for Timor Sea resources. Mr Collaery’s co-charged and client, former spy Witness K, was given a three-month suspended sentence and was ultimately spared jail time.
Mr Collaery is facing a charge involving conspiracy to breach a secrecy provision in the Intelligence Services Act with Witness K and a further four charges for breaching the provision by communicating with journalists about the Timor-Leste bugging.
Initially, the ACT Supreme Court upheld the secrecy provisions to protect information during the trial, which Mr Collaery appealed. Save for the first few minutes, the two-day appeal hearing heard in May this year was held entirely in secret due to the court’s requirements under the National Security Information Act (NSI Act).
Human Rights Law Centre (HRLC) senior lawyer Kieran Pender predicted in a series of explanatory tweets on the current trial that it is “almost certain” that the losing party in the appeal decision would take the secrecy argument to the High Court.
The Attorney-General’s department invoked the NSI Act – at the time, the position was held by former attorney-general Christian Porter – which required the court to give “greatest weight” to the government’s views about national security of a case and essentially override the important principles of open justice.
Earlier this year, a cohort of leading lawyers, including former NSW director of Public Prosecutions and immediate past president of the Law Council of Australia (LCA), slammed the Morrison government and Mr Porter for pursuing the prosecution as a way to secure the “payback for embarrassment” that the bugging reveal caused.
Barrister and former director of Public Prosecutions Nicholas Cowdery said that while crimes are prosecuted to punish those that cause harm, “here those being prosecuted are people who exposed the harm the government did in our name” and that, due to their embarrassment, “the wrong parties are being prosecuted”.
In a statement in June 2020, the LCA said it has long advocated for substantial reforms to the NSI Act to ensure that the “court maintains the interests of justice without being directed to place greater weight on any one consideration, such as national security, over other equally important considerations”.
In March 2020, Mr Collaery delved into the laws that allowed him to be prosecuted and the wider implications of this on an episode of The Lawyers Weekly Show.
