8 July 2022

'A truly momentous occasion': Collaery case formally scrapped in ACT Supreme Court

| Claire Fenwicke
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Bernard Collaery

After four years and millions of dollars in legal expenses, the case against Canberra whistleblower Bernard Collaery has formally ended. Photo: Albert McKnight.

An army of lawyers descended on the ACT Supreme Court today (8 July) for the pre-trial hearing for Canberra lawyer Bernard Collaery.

Mr Collaery’s legal team from Gilbert + Tobin filled their side of the courtroom and spilled into seats usually reserved for defendants on bail.

But rather than giving submissions before a trial, this was a procedural wrap-up of a case that has been fought for the past four years.

Senior counsel for the Attorney-General’s Department Perry Herzfeld SC joked it presented as if the case was continuing.

“It’s a metaphysical question if the case has been vacated, given we’re all here,” he said.

However, questions remained over what would be done with material relating to the case being held by the court.

“There is a range of classified material which is currently being stored by the court,” Mr Herzfeld said.

“The parties need some time to discuss what should happen to that material.

“Our preference is we should retrieve it from the court, but that is not, at this point, the agreed position.”

READ ALSO Case dropped against whistleblower Bernard Collaery

Justice David Mossop said he wasn’t going to allow the matter “to just linger” and noted he preferred if the material did not stay in the court’s possession.

“The practicalities of the court storing [the material] for an eternity … that is an unattractive one,” he said.

Mr Collaery’s barrister, Dr Christopher Ward SC, did not outline exactly what his team was seeking but said the records of the court were usually “kept complete”.

He also alluded Mr Collaery would seek costs related to National Security Information applications made for the cases in the Supreme Court.

“[This involved] a very, very substantial amount of legal resources over many years,” Dr Ward said.

Justice Mossop ordered any application for costs to be made by 15 July.

He also vacated future listings and subpoenas relating to matters in the ACT Supreme Court.

The case was still active in the Court of Appeal and High Court until similar applications could be made.

Human Rights Law Centre senior lawyer Kieran Pender described the moment as a “truly momentous occasion”.

“At long last, after four years, more than a dozen court judgements, over 50 court hearings and millions of dollars in legal fees, the prosecution of Bernard Collaery is over,” he said.

“Australia is a better place because this unjust prosecution of a brave whistleblower has finally been dropped.”

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In light of the case, the Law Council of Australia has called for a review and reform of official secrecy offences and the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act).

Law Council president Tass Liveris said it was needed to ensure there were “adequate protections” for whistleblowers and their legal advisers who were concerned about “potential matters of illegality”.

“The NSI Act also requires reform to recalibrate the balance between the principle of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security,” he said.

“The Law Council has long advocated for significant reforms to the NSI Act to ensure that the court maintains the interests of justice without being directed to place greater weight on any one consideration, such as national security, over other equally important considerations.”

He said the Law Council believed that the NSI Act currently favoured the interests of protecting national security “at the expense of the rights of the accused” and argued it was not a proportionate response to addressing the risk that information prejudicial to national security could be released.

“It is the belief of the Law Council that courts should be empowered to identify the relevant considerations and the degree of weight to be placed on each of them,” Mr Liveris said.

“The discontinuation of the prosecution of Mr Collaery presents an opportunity to review and reform both the elements of official secrecy offences with respect to their application to whistleblowers and the application of the NSI Act to the prosecution of such offences.”

The Parliamentary Joint Committee on Intelligence and Security in 2018 recommended the Attorney-General begin a review of existing secrecy offences.

Mr Liveris argued this reform should balance the “tensions” between national security and open justice.

“Public faith in the administration of justice requires that justice must not only be done, but it must also be seen to be done,” he said.

“Secrecy or suppression is only ever appropriate in those rare cases where the exceptions to open justice have been appropriately considered and applied.”

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Attorney-General Mark Dreyfus ordered the prosecution against Mr Collaery to be dropped yesterday (7 July).

“My decision was informed by the Government’s commitment to Australia’s national security and our relations with our neighbours,” he said.

“This is an exceptional case. Governments must protect secrets, and this government remains steadfast in our commitment to keep Australians safe by keeping secrets out of the wrong hands.

“The long-standing practice of government has been to neither confirm nor deny claims made about intelligence matters, and I will strictly adhere to that practice.”

Mr Collaery did not appear in court today (8 July).

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