19 April 2022

Attorney-General takes Collaery case to High Court to fight release of judgement

| Albert McKnight
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Bernard Collaery

Lawyer Bernard Collaery exits the High Court after hearing the application for special leave on Wednesday. Photo: Albert McKnight.

An attempt to prevent a full judgement in the case against whistleblower Bernard Collaery from being publicly released has been questioned in the High Court as potentially being the same exercise performed for a third time.

In October 2021, Mr Collaery won a victory when the ACT Court of Appeal ruled against some of an ACT Supreme Court order by Justice David Mossop that would have meant parts of his trial would be held in secret.

The Court of Appeal’s Chief Justice Helen Murrell later planned to release her court’s judgement.

On Wednesday (13 April), Solicitor-General Stephen Donaghue QC, appearing for Attorney-General Michaelia Cash, sought special leave from the High Court to overturn the decision to prevent its unredacted release.

Dr Donaghue said publication of the reasons from the Court of Appeal judgement were opposed because Ms Cash believed it would harm Australia’s national security.

“At the moment, there is an order that will release this judgement to the public unless special leave is granted,” he said.

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“In our submission, that is a powerful reason why the court should grant special leave.”

He claimed errors had been made, including being denied procedural fairness. However, he said only parts of the judgement should be redacted and he understood it was in the public interest to publish it in some form.

Bret Walker SC, appearing for Mr Collaery, argued this was not an appropriate case of special leave.

Justice James Edelman questioned whether the attempt to seek special leave meant the High Court had to perform the same exercise for the third time because the Court of Appeal and Chief Justice Murrell would have considered redactions.

After a brief adjournment, Chief Justice Susan Kiefel returned to say the matter would be stood out of the list of applications for special leave, pending the determination of other national security matters by Justice Mossop.


Protesters gather outside the High Court on Wednesday in support of Bernard Collaery. Photo: Albert McKnight.

Human Rights Law Centre’s senior lawyer Kieran Pender later said it had been six years since the Federal Government was told that federal whistleblowing law needed to be fixed.

“In that time they have approved the prosecution of Bernard Collaery and overseen the prosecution of fellow whistleblowers David McBride and Richard Boyle,” he said.

“Whoever wins the forthcoming election must immediately reform federal whistleblowing law and drop the prosecutions of Collaery, McBride and Boyle.

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“Whistleblowers play a vital role in our democracy. They should be protected, not punished.”

Earlier this year, Mr Collaery was dealt a blow when the Federal Government succeeded in its attempt to have a judge receive “court only evidence” in the case against him.

Mr Collaery was the lawyer for Witness K, who blew the whistle about Australian intelligence services bugging the Timor-Leste cabinet room during 2004 discussions over the Timor gas treaty.

He is fighting charges alleging he breached the Intelligence Services Act by providing information from the Australian Secret Intelligence Service to ABC journalists and that he conspired with his former client to give such information to the Timor-Leste Government.

Witness K was sentenced last year.

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If he broke the law he should be treated accordingly regardless of who he is

Witness K is the ‘whistleblower’ (and has been dealt with through the courts). BC was the lawyer, not the whistleblower, so let’s treat this accordingly.

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