“Open Justice Is Essential But Not Absolute”: The Decision to Withold Collaery’s Secrets

The crux of the issue regarding court transcripts relating to barrister Bernard Collaery’s 2021 attempt to remove secrecy provisions covering “six identified matters” in his since-dropped prosecution has been set out by ACT Chief Justice Lucy McCallum in her 9 January released decision.

Her Honour explained that it all boiled down to the National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth), as it seeks to address the issue relating to prosecuting an allegation of “a breach of secrecy obligations”, while “the principle of open justice calls for an open hearing”.

The NSI Act, the chief justice continued, purports to prevent the disclosure of federal secrets “likely to prejudice national security”, unless the refusal to reveal certain matters would “seriously interfere with the administration of justice”.

Collaery appealed a mid-2020 decision by ACT Justice David Mossop to uphold a 2019-issued section 26 NSI Act order that required all matters in his case be heard in secret, as he wanted this lifted in regard to “six specific matters”, and the appeals court remitted the request to the original judge.

Attorney general Mark Dreyfus then pushed for the transcript relating to Collaery’s challenge of the Mossop decision to be released in redacted form, even after he’d dropped the prosecution against the ACT barrister in July 2022. And the final decision on this has just been released.

Prevented from lifting the lid

Collaery stood charged with four counts of communicating certain Australian Security Intelligence Service information, under section 39 of the Intelligence Services Act 2001 (Cth), as well as a further count of conspiring to do this, which also triggers section 11.5 of the Criminal Code Act 1995 (Cth).

These crimes carry a maximum penalty of 10 years imprisonment. Section 11.5 maintains that when a person enters into a conspiracy with another to commit an offence carrying maximums of at least a year gaol time or a fine of $626,000, the punishment is the same as the attempted crime.

Collaery and his “fellow conspirator” ex-ASIS agent Witness K were charged in mid-2018 with revealing information relating to the alleged illegal bugging of the Timor-Leste cabinet offices in 2004 by the Howard government, with the aim of gaining the upper hand in fossil fuel negotiations.

In challenging the secrecy shrouding his case, Collaery had argued before Mossop that certain “identified matters” withheld should be revealed, and, following the rejection of this, the former ACT attorney general appealed the decision to a three member panel of the ACT Court of Appeal.

Then ACT Chief Justice Helen Murrell, former ACT Justice John Burns and Justice Micheal Wigney found that the matter should be remitted to the court to have the earlier decision reviewed by Justice Mossop, and in November 2021, Justice Murrell ruled that the appeal transcript be redacted.

Redacted release

“It remains to consider an application by the attorney general to have the two judgments of the Court of Appeal redacted on the grounds that their publication as previously contemplated would prejudice Australia’s national security,” Justice McCallum sets out in her December 2023 findings.

Published on 9 January, this ruling was made in relation to a 23 September 2022 hearing, which saw the AG apply to have the transcripts from recent hearings released in redacted form, which was opposed by Collaery, who asserted that this should be dismissed as “an abuse of process”.

Justice McCallum, however, found that the AG’s application held, and she was duty bound to determine it. And her Honour then ruled that it was “in the interest of national security” that both judgements be published in the redacted form that was sought by the nation’s chief lawmaker.

Prejudicing national security

Then attorney general Christian Porter issued a section 26 order in September 2018 to protect “sensitive information”, after he gave the greenlight to the Commonwealth Director of Public Prosecutions to pursue the Witness K and Collaery prosecutions.

This triggered an obligation of the courts to deliberate upon whether this order should hold, with Colleary requesting that six identified matters be exempt. However, Justice Mossop determined all matters should remain hidden in mid-2020, and the ACT barrister challenged this.

The appeals court found that Collaery had a right to challenge the order relating to identified matters. But it didn’t set aside Mossop’s decision, rather it remitted it to him for review, and Justice Murrell then ruled that the transcript relating to the decision be released in redacted form as well.

Following the appeal court judgement of October 2021, a summary of the decision was released to the public, and the court accepted submissions regarding how the original transcript should be redacted on release, with the AG providing recommended redactions, which Collaery opposed.

The attorney general then sought special leave to appeal the release of Collaery’s appeal of Mossop’s decision to the High Court, along with challenging the unredacted release of then Chief Justice Murrell’s determination regarding how the appeal transcript should be redacted on release.

The High Court decided not to hear the appeal for leave, putting it on hold until after Justice Mossop reviewed his original decision, which never transpired as Dreyfus determined to drop the Collaery case in mid-2022, exercising the power bestowed in section 71 of the Judiciary Act 1903 (Cth).

And Chief Justice McCallum explained that the decision to be made last September related to whether the redacted appeal transcript approved by Justice Murrell and the transcript documenting her decision should be published or withheld as potentially prejudicing Australian national security.

In the interests of national security

Dreyfus was seeking further redactions to the transcripts. However, his initial submission in this regard was withdrawn, and Collaery was challenging his resubmission of this request, as he posited it was an abuse of process, especially in light of the former Chief Justice Murrell having retired.

The chief lawmaker rejected the assertion that there was a “general rule” against revisiting interlocutory rulings. And Chief Justice McCallum agreed with him, finding his application was not a repeat as it was the same application, and even in adopting the rule, it doesn’t apply to this case.

Her Honour then determined last month that the original section 26 order, along with Justice Mossop’s upholding of it, should continue to hold as the appeal’s court order that the initial judge reconsider the original determination has never been followed.

This resulted in the chief justice finding that the AG’s recommended redactions submitted to the court, in relation to the two yet-to-be released court transcripts regarding the appeal of the Mossop decision and the determination on how to release that, be actioned and subsequently published.

The ACT chief justice added that her finding was also influenced by a number of submissions from Dreyfus that detailed “confidential affidavits”, outlining how it was in the interests of national security not to release the transcripts in the form that Collaery had attempted to secure.

And on 9 January 2024, the ACT Supreme Court released the findings of 12 December 2023, which determined that the 2021 appeal court transcript and the details of the hearing to determine how that be redacted prior to release, both be released in the manner the attorney general had sought.