Australian Court Lifts Veil of Secrecy in Witness K Lawyer's Trial

Overturning a previous ruling, on 6 October the Australian Capital Territory (ACT) Court of Appeal has sided with lawyer Bernard Collaery in his bid for an open trial. Collaery, the winner of Blueprint’s International Whistleblowing Prize in 2020, faces charges of revealing national security information about Australia’s alleged bugging of East Timor's parliament building.

Prosecutors said that Collaery, formerly ACT Attorney-General, leaked classified information to ABC journalists and conspired with his accused co-witness – his client and a former member of Australia’s intelligence services identified only as Witness K.

Australia's spying operation was designed to gain advantage in crucial oil and gas negotiations with one of the poorest countries in the world. An international treaty has to be renegotiated when the operation came to light.

A previous ruling from the ACT Supreme Court had declared that a closed trial would protect the national interest. But in a unanimous judgment, the Court of Appeal said conducting most of the trial behind closed doors created a real risk of damaging public confidence in the legal system and giving the government undue sway in political prosecutions.

The ACT Supreme Court had ruled the public disclosure of certain information would have posed a real risk of undermining national security but the Appeal Court said the public's right to know and defendant rights superseded that.

The three appeal judges found that disclosure of some classified information in an open hearing, which Collaery said was crucial to his defense, would not be a “significant risk.”

“On the other hand, there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed,” the judgment summary said.

“The Court emphasizes that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinize the actions of prosecutors, and permitted the public to properly assess the conduct of the accused person.”

Collaery waited outside the court for the result and when the finding came said that, "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.

"National security is always a balance. But it has to be true national security, not issues of embarrassment or publicity - that's the real issue,” he said.

The finding was quickly hailed as a victory for openness in the justice system and a bulwark against the government trying to use national interest as a way to prosecute whistleblowers for political reasons.

Human Rights Law Centre Senior Lawyer Kieran Pender said the judgment was a “win for transparency in Australia,” but had a caveat.

“While it’s welcome news that this prosecution won’t go ahead in complete secrecy, it shouldn’t go ahead at all,” he said.

Pender said that, “This prosecution, and those against whistleblowers David McBride and Richard Boyle, are profoundly unjust. There is no public interest in punishing people for telling the truth about wrongdoing.”

Collaery has always accepted that some sensitive information should not be publicly disclosed but wanted the disclosure of six specific matters during the trial, which, if blocked, could hinder his defense.

The ACT Supreme Court in 2020 accepted former Attorney-General Christian Porter’s application to invoke the National Security Information Act which requires courts to let that office decide whether national security required cases be held in secret.

ACT's Chief Justice Helen Murrell said that, "There was a very real risk of damage to public confidence in the administration of justice if the evidence could not be publicly disclosed.”

There is some evidence being referred to as "court-only matters,” so secret they haven't even been shared with Collaery and his lawyers, leaving them in the dark and unable to respond. Supreme Court Justice David Mossop had rejected Collaery's call for some of the material to be used as evidence in the trial, finding it should remain classified. But the Appeal Court court ordered the case be returned to Justice Mossop for him to assess whether this "judge-only evidence" can be admissible.

After a protracted legal process, Witness K pleaded guilty in 2020 and was given a three-month suspended sentence. Collaery decided to fight the charges against him.

Labor’s legal affairs spokesman Mark Dreyfus said the judgment was a “humiliating rebuff” for Prime Minister Scott Morrison's government, which he said “sought to hold the entire trial in total secrecy.