The ACT Court of Appeal has ruled that the case of Witness K lawyer Bernard Collaery must be mostly heard in open court because not to do so would risk damage to public confidence in the administration of justice.
On Wednesday, the court overturned a ruling that would have allowed for evidence during Collaery’s trial to be hidden from the public and said open justice helped to prevent the threat of ‘political prosecutions’. However, some evidence will remain confidential subject to the National Security Information Act (NSI Act).
Collaery, who is a former ACT attorney-general, has been charged with five offences relating to the sharing protected intelligence about the Timor-Leste government to journalists at the ABC, and also conspiring with his (now former) client Witness K who was an Australian Secret Intelligence Service Officer.
In 2004 the disclosures of Witness K helped reveal a scandalous bugging operation organised by Australia to obtain information as part of high-stakes negotiations about the division of oil and gas resources in the Timor Sea. Timor-Leste complained to the Permanent Court of Arbitration in The Hague about Australia’s covert conduct as a result of the exposé, claiming that it had suffered a legal and commercial disadvantage — Collaery was briefed to represent the developing nation and Witness K was set to give evidence in support of their case.
In response, then Commonwealth Attorney-General George Brandis ordered that Witness K’s passport be confiscated and sent ASIO to raid the homes of the former ASIS officer and his lawyer. Both Collaery and Witness K were then notified they could be prosecuted for breaches of the Intelligence Services Act and years later, in 2018, a new Attorney-General, Christian Porter, announced that the men should be prosecuted.
Shadow attorney-general Mark Dreyfus welcomed the court’s decision on Wednesday, describing the federal government’s attempts to conduct the entire trial in secret as a ‘humiliating rebuff’. He said the government’s ongoing silence about why it decided to prosecute Collaery (as the lawyer of whistle-blower) was part of a broader shift towards more secrecy and less accountability, which had escalated on the watch of prime minister Scott Morrison.
“Labor strongly supports the principle of open justice and believes Mr Collaery, like any other Australian, has a fundamental right to a fair trial,” Dreyfus said.
“For reasons that still remain unclear, the former attorney-general, Christian Porter personally authorised the prosecution of Mr Collaery.
“After today’s decision the current attorney-general must now provide a detailed explanation as to why this prosecution remains in the public interest.”
Collaery has said that he will fight all five charges against him and has been petitioning for an open trial. According to the ABC, he told a press pack outside court on Wednesday that national security was always a balance.
“But it has to be true national security, not issues of embarrassment or publicity — that’s the real issue,” Collaery said.
“I regret we have to go this far to achieve an appropriate balance between open justice, national security and the personal interests of those who become caught in that issue,” he said.
It might seem a small victory, but this is a very important one that goes to the heart of the matter at hand – the open and fair administration of justice in this country. Read the Judgment Summary below…https://t.co/d0RpIHbrWI#stoptheprosecutions
— Bernard Collaery Supporters (@CollaeryBernard) October 6, 2021
In handing down her decision this week, ACT chief justice Helen Murrell found that open hearings of criminal trials “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.”
Dreyfus vowed that Labor would continue to scrutinise the actions of the government to ensure that the rule of law is upheld and the rights and freedoms which define what it means to be a democratic nation are not compromised under the guise of ‘keeping Australians safe’.
Collaery’s case has been sent back to the ACT Supreme Court where further arguments from the government will be heard.