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‘Landmark win’: Human rights lawyer responds to Collaery’s secrecy victory
Under the new Court of Appeal ruling, the secrecy provisions in Bernard Collaery’s trial on conspiracy charges will be partly removed to allow Australians some visibility into the controversial case. Although considered a “landmark win” for transparency, the Human Rights Law Centre said there is still an argument for major law reform.
Naomi Neilson
On Wednesday, 6 October, high-profile lawyer Bernard Collaery won his appeal to overturn a decision to keep the majority of his trial in total secrecy. The ACT Court of Appeal ruled that there was a “very real risk” of damage to public confidence in the administration of justice if the matter continued entirely behind closed doors.
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“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 Court of Appeal judgment noted.
The Commonwealth is chasing the prosecution of Mr Collaery for disclosing the bugging of Timor-Leste government buildings in 2004, an operation designed to give Australia an advantage in negotiation talks for Timor Sea resources. Mr Collaery’s co-accused and then-client, former spy Witness K, was given a three-month suspended sentence for his charges and was ultimately spared jail time.
Human Rights Law Centre (HRLC) senior lawyer Kieran Pender said Mr Collaery’s victory in the Court of Appeal was a “landmark win for transparency” in Australia that will allow the public some visibility into the prosecution. However, while Mr Pender said it was a welcome victory, the prosecution “shouldn’t go ahead at all”.
“The prosecution – and those against whistleblowers David McBride and Richard Boyle – are profoundly unjust. There is no public interest in punishing people for telling the truth about wrongdoing,” Mr Pender commented.
HRLC is urging the Commonwealth Director of Public Prosecutions (DPP) to exercise its discretion to discontinue the case given the lack of public interest in prosecuting whistleblowers, and said “the prosecution of [Mr] Collaery and other whistleblowers highlights the urgent need for law reform”.
Former attorney-general Christian Porter invoked the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) in an attempt to prevent Mr Collaery’s case from being heard in public. Under the act, the court must give the “greatest weight” to the government’s views on national security over public interest.
Mr Pender explained that five years ago, an independent review informed the government that whistleblower laws needed to be fixed. Half a decade later, he said, “the government has been happy to green-light whistleblower prosecutions but has failed to fix the law to make it easier for people to do the right thing”.
“The Morrison government urgently needs to reform Australia’s whistleblowing law. People who speak up about wrongdoing should be protected, not punished.”
