Secrecy of Bernard Collaery trial risked damaging public’s faith in administration of justice, court rules

The ACT court of appeal has found the former Coalition government’s reasons for shrouding the highly publicised trial of Bernard Collaery in secrecy were “replete with speculation and devoid of any specific basis”. A newly released judgment on Tuesday found the original Collaery ruling gave too much weight to national security – which should not trump open court justice.

The court also published a separate one detailing an attempted Albanese government intervention to prevent many of the first judgment’s details becoming public. It comes more than two years after the court handed down its landmark ruling lifting the veil on the whistleblower lawyer’s trial. ‘Witness K and Bernard Collaery are heroes’: how Australia made two men pay for its dirty secrets Read more Collaery, once an attorney general for the ACT and now a Canberra lawyer, had been charged with five counts of leaking classified information for allegedly helping his client, an ex spy known only as Witness K, reveal a mission to spy on Timor Leste , an impoverished ally, during negotiations over oil and gas reserves in the Timor Sea in 2004.

Sign up for Guardian Australia’s free morning and afternoon email newsletters for your daily news roundup While the attorney general, Mark Dreyfus, had dropped the charges against Collaery in July 2022 shortly after the federal election, the Albanese government sought redactions be applied to the judgment before its public release.

The now released court of appeals judgment determined the original decision to allow much of the trial to stay behind closed doors likely “gave too much weight to the risk of prejudice to national security and too little weight to the interests of the administration of justice in the circumstances of this case”.

The court ruled to lift many of the original secrecy provisions in Collaery’s favour after determining that “no risk to national security would materialise”. Albanese government continues push to keep parts of Bernard Collaery case secret Read more “The risk of prejudice to national security is low, and the consequences risked are not particularly significant … 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 judgment said.

The judgment said, on the other hand, the risk of damaging public confidence in the courts by holding closed trials is “very real”. “The open court principle stands as a bulwark against the possibility of political prosecutions by allowing public scrutiny and assessment of the actions of the respondent and the attorney general by reference to the evidence adduced in a criminal trial,” it said.

“We are satisfied that the interests of the proper administration of justice clearly outweigh any risk of prejudice to national security.” A separate appeal court judgment, also released on Tuesday, detailed the federal government’s attempts to further redact details behind the landmark decision.

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For more information see our Privacy Policy . We use Google reCaptcha to protect our website and the Google Privacy Policy and Terms of Service apply. after newsletter promotion Justice Helen Murrell argued the appeals judgment should be “published with as few variations as possible”. In one instance, Justice Murrell rejected the attorney general’s request to redact passages in the appeal judgment referring “in very general terms” to the case’s possible impact on international relationships.

“General statements about international relationships and hypotheses about how unspecified information might impact upon them do not fall within the descriptors of information that ‘might directly or indirectly’ reveal highlighted information, information ‘tending’ to confirm or deny the truth of highlighted information, or information that is otherwise ‘likely to prejudice national security’ in the sense that there is a real possibility of it doing so,” the judgment read.

Human Rights Law Centre senior lawyer, Kieran Pender, described the release of the documents as an “overdue end to a sorry saga”. “Open justice is a critical democratic principle, protecting the human rights of all Australians,” he said. “It is a win and an overdue end to a sorry saga for Bernard Collaery and Witness K that the court of appeal’s decision – holding that the interests of open justice and a fair trial were more important than the government’s national security concerns – is now in the public domain, more than two years later.” Pender added the Australian government should apologise to the people of Timor Leste and launch an inquiry into the affair.

As of early 2023, the federal government has spent more than $5.5m in the cases against Collaery and Witness K..