The protracted battle over secrecy in the now defunct prosecution of lawyer Bernard Collaery is finally over, five years after he was charged with breaching national security laws.
Key points:
- Bernard Collaery was charged with helping his client to reveal details of an alleged Australian spying operation in East Timor
- Significant portions of the case were heard in secret, then after four years the case against Mr Collaery was dropped
- Now an appeal judgement has revealed a judge likely gave "too much weight" to national security when deciding if matters should be heard in open court
The end has come with the ACT's Chief Justice Lucy McCallum releasing a redacted appeal ruling and another ruling about what could be publicly released about the case.
The appeal ruling is scathing of the then government's position, but the redactions mean that material Mr Collaery had wanted in the public domain will still remain secret.
Mr Collaery had been facing four charges of revealing classified information to journalists and one of conspiring to reveal secret information with his former client Witness K.
Witness K pleaded guilty and received a suspended sentence in 2021.
But at the time, Mr Collaery decided to fight the case, pleading not guilty and wading into the mire of laws set up to protect national security information.
The alleged actions were said to have occurred between 2012 and 2014, and related to claims Australia had spied on the East Timor cabinet during sensitive oil and gas treaty negotiations.
Despite the prosecutions, the Australian government has never confirmed or denied the allegations about its conduct, as is its practice with classified information.
The charges against Mr Collaery were dropped by the new Labor government in July 2022.
Mr Collaery had agreed some of the information in the case should remain secret.
But he went into battle over six particular issues he said were not of national security importance.
He lost in the initial battle before Justice David Mossop, but won some support from three judges of the ACT Supreme Court, including the then Chief Justice, Helen Murrell.
The judges issued a summary of their judgement on the day, saying:
"In this case we are satisfied that the interests of the proper administration of justice clearly outweigh any risk of prejudice to national security."
But the full judgement was never released, because the government was still blocking it, as it fought for redactions.
That was in October 2021.
The government has resisted the release of the full judgement ever since, even preparing to take the matter to the High Court, before the charges against Mr Collaery were dropped.
The newly released, but redacted judgement revealed the court of appeal found Justice Mossop erred, giving "too much weight to the risk of prejudice to national security and too little to the interests of the administration of justice".
The appeal judges were dismissive of the government's assertions.
"The evidence led by the Attorney-General 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," the judges said.
"It was implicit 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."
Now Chief Justice McCallum has put an end to the argument between the parties, agreeing to the redactions and releasing the rest.
Mr Collaery fought against the government's application for redactions partly on the basis that he said it was an abuse of process.
Justice McCallum disagreed.
But she acknowledged there were very real tensions between open justice and the need to protect national security information.
In the end, Justice McCallum said a balance has to be struck.
"It is not heretical to hold that that manifestation of the principle of open justice, rightly hallowed as it is, might in a proper case give way to the national interest," Justice McCallum said.
She also noted her decision to allow redactions was made in the context of the charges being dropped, with no prospect of a trial, unlike the original judges who were expecting a trial.
The Human Rights Law Centre said the release of the redacted judgement had underscored the need for transparency, and reform of whistleblowing laws.
Senior lawyer for the Centre Kieren Pender described the release as a win and "an overdue end to a sorry saga for Bernard Collaery and Witness K".
"There is no place for secret trials in Australia's democracy," Mr Pender said.
"The Collaery and Witness K prosecutions have underscored significant deficiencies in Australia's national security laws, secrecy laws and whistleblower protection laws."