7 July 2022

Case dropped against whistleblower Bernard Collaery

| Claire Fenwicke
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The Attorney-General has ordered the charges against Bernard Collaery (pictured) be dropped. Photo: Collaery + Partners.

The Attorney-General has ordered five secrecy charges against Canberra lawyer Bernard Collaery be dropped.

Mr Collaery was facing five offences relating to the alleged unlawful communication of ASIS information contrary to the Intelligence Services Act 2001. He was the lawyer for Witness K, who was sentenced last year after pleading guilty to a single charge of conspiracy.

The case against Mr Collaery, a former ACT Attorney-General, involved alleged discussions with journalists regarding allegations of espionage by ASIS, Australia’s overseas secret intelligence agency, against Timor-Leste during Timor Sea oil and gas negotiations.

Earlier this year, a trial date had finally been set for 24 October.

In a statement through his legal representatives, Mr Collaery said he was “very pleased” the prosecution against him had come to an end.

“This is a good decision for the administration of justice in Australia,” he said.

“I want to thank all of the people across Australia who have supported me and worked so hard to assist me throughout this case. I am in awe of the depth of support in our community for ethical values.

“This decision will allow me to move forward with my life and legal practice.”

He was represented on a pro bono basis by Gilbert + Tobin and White + Case.

Gilbert + Tobin partner Dr Kate Harrison said the case had raised “important issues” around the degree of secrecy allowed in Australia’s courts under current laws.

“[The current legislation allows] cases involving national security matters to be dealt with behind completely closed doors, even where they involve important issues of public interest,” she said.

“The approach threatens the capacity of a defendant to receive a fair trial.”

A statement from the firm said while the decision marked the end of a “long and complex case”, it still remained a long way from completion in court.

“The ACT Supreme Court was scheduled to receive further secret evidence from the Commonwealth, in a hearing from which Collaery and his legal team were to be excluded,” it said.

“An appeal on the legitimate forensic purpose of subpoenas filed by Mr Collaery was pending, as was a hearing on public interest immunity issues in the Brief of Evidence. A Commonwealth High Court appeal over redactions in a Court of Appeal judgment is also outstanding.

“The cost of the proceedings in public funds has been extensive. It has been reported that by March 2022, the Commonwealth had spent $4.42 million on external legal costs associated with the prosecutions of Witness K and Bernard Collaery.”

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A Commonwealth Director of Public Prosecutions (CDPP) spokesperson said the department respected the Attorney-General’s determination.

“The decision of the Attorney-General was made pursuant to section 71(1) of the Judiciary Act 1903. This provision empowers the Attorney-General to discontinue the prosecution of any person committed upon a charge for a Commonwealth indictable offence,” they said.

“The decision of the Attorney-General ends the prosecution of Mr Collaery for these offences.”

Human Rights Law Centre senior lawyer Kieran Pender has labelled the move a “win for democracy”.

“Bernard Collaery should never have been prosecuted. The Attorney-General has done the right thing and should be applauded for it,” he said.

“Whistleblowers should be protected, not punished. It’s as simple as that.

“From war crimes in Afghanistan to misogyny in Parliament House, there are many important stories that would never have been told were it not for the courageous actions of those who spoke up.”

Mr Collaery’s case has gone from the ACT Supreme Court to the ACT Court of Appeal and finally the High Court, and was listed for mention tomorrow (8 July).

Protesters outside the High Court

Protesters have frequently gathered outside the High Court in Canberra in support of Bernard Collaery. Photo: Albert McKnight.

Mr Pender called for Attorney-General Dreyfus to now similarly intervene in the ongoing prosecutions of whistleblowers David McBride and Richard Boyle.

“Whistleblowers make Australia a better place. The ongoing prosecutions of David McBride and Richard Boyle are not in the public interest. Those cases should be dropped as a matter of urgency,” he said.

Former Australian Army lawyer David McBride drew attention to alleged war crimes by Australian soldiers in Afghanistan, while former debt collection officer Richard Boyle voiced concerns about alleged unethical practices at the Australian Taxation Office.

In response to the news the charges against Mr Collaery would be dropped, Mr McBride Tweeted it was “fantastic news”.

“Hopefully he will also be appropriately compensated, if not honoured!” he wrote.

“But full credit to Mark Dreyfus and Anthony Albanese. They honoured their word and stood by their values.”

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He also urged the federal government to reform the Public Interest Disclosure Act to ensure people could “safely and lawfully speak up” about alleged wrongdoing without fear of prosecution.

“The Collaery, McBride and Boyle cases are vivid illustrations of the importance of robust whistleblower protections and the damage done to the public interest when whistleblowers are prosecuted rather than protected,” Mr Pender said.

“Those robust protections do not exist in Australia today and it’s beyond time that changed.”

Region Media has contacted Attorney-General Mark Dreyfus’ office for comment.

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He found out the hard way that even he is not above the law.

The Timor bugging was an act of utter bastardry by Howard. The charging of Witness K was an act of utter bastardry by Abbott. And the continuing pursuit of Collaery was an act of utter bastardry by Abbott, Turnbull and Morrison, along with Christian (an inapt name if ever there was one) Porter and all the other assorted Attorneys-General.

Well done, Dreyfus, you have fixed something that should never have happened.

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