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New Collaery court documents further evidence of flawed laws, solicitor says

Newly released court judgments that criticised the Commonwealth’s attempts to keep its pursuit of a former attorney-general behind closed doors is yet another example of why urgent national security law reforms are needed, a solicitor has argued.

user iconNaomi Neilson 11 January 2024 Big Law
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In a controversial June 2020 decision, Justice David Mossop ordered the prosecution of Canberra lawyer Bernard Collaery on national security charges would, in large part, be heard in a closed court, and evidence important to the trial would not be disclosed to the public.

This decision was overturned in the Court of Appeal in October 2021, but the government of the day turned its mind to keeping the full judgment of then-chief justice Helen Murrell, Justice John Burns and Justice Michael Wigney out of the public’s hands.

Only a summary was released on the day, notifying the public the Court of Appeal was satisfied the “proper administration of justice clearly outweighs any risk of prejudice to national security”.


The Coalition was prepared to take its fight to keep the full judgment secret to the High Court before the government changed hands, and Mr Collaery’s charges were subsequently dropped.

Following a process of redacting parts of it, Chief Justice Lucy McCallum published the October 2021 full judgment this week.

In it, the appeal judges said evidence led by the government to keep Mr Collaery’s trial a secret “was replete with speculation and devoid of any specific basis for concluding that significant risks to national security would materialise if the identified matters were published”.

“It was implied in the findings of the primary judge that it may be that no risk to national security would materialise.

“On the other hand, the risk of damage to public confidence in the administration of justice where proceedings, or parts of proceedings, are held in closed court is very real,” the judgment went on.

In a second judgment released this week, alongside the October 2021 judgment, Chief Justice McCallum said Justice Mossop erred by giving “too much weight to the risk of prejudice to national security and too little to the interests of the administration of justice”.

At the time, Mr Collaery was facing four charges of revealing information to journalists and one of conspiring to reveal secret information with his former client, known only as Witness K.

These offences related to the alleged disclosure of information about Australia’s bugging of Timor Leste’s cabinet office in the early 2000s to secure an advantage in oil and gas negotiations for the Timor Sea.

Responding to the release of the full judgment, Human Rights Law Centre’s senior lawyer, Kieran Pender, said it is a win that brought with it an “overdue end to a sorry saga” for Mr Collaery and Witness K.

“There is no place for secret trials in Australia’s democracy,” he added.

Mr Pender said the Albanese government now has a “prime opportunity” to reform the National Security Information Act, the Public Interest Disclosure Act and secrecy offences.

“The Collaery and Witness K prosecutions have underscored significant deficiencies in Australia’s national security laws, secrecy laws and whistleblower protection laws,” Mr Pender said.

“Those reforms should be pursued swiftly to ensure secretive prosecutions of whistleblowers can never happen again.”