Collaery, a Canberra lawyer and former ACT Attorney-General, was being prosecuted in the ACT Supreme Court by federal authorities for his alleged role in raising awareness about Australia’s wrongdoing in Timor-Leste in the 2000s. At a time when our neighbours were recovering from decades of Indonesian repression, trying to build a new nation, Australian spies were allegedly bugging Timor’s cabinet to give Australia the upper hand in oil and gas negotiations. This conduct was profoundly immoral and possibly even contrary to international law.

Since Australia’s spying against Timor came to light, the Australian government has refused to admit to the conduct and failed to apologise. Instead, the government expressly consented to the prosecution of two whistleblowers – Witness K, a former intelligence officer, and his lawyer, Collaery. In June 2020, Witness K was given a suspended sentence after pleading guilty. Collaery has pleaded not guilty; his prosecution was ongoing, until the new Attorney-General, Mark Dreyfus QC, elected to discontinue the case using his power under the Judiciary Act 1903 in early July 2022.

The case against Collaery was shrouded in secrecy and mired in procedural battles, with many preliminary hearings held in closed court. The Human Rights Law Centre developed this explainer page to help people track developments in the case. We will retain it for the historical record and to aid understanding of a significant, unjust moment in Australian history.

While the end to the prosecution is welcome, two other whistleblowers remain on trial - Richard Boyle, who spoke up about misconduct at the tax office, and David McBride, who blew the whistle on atrocities allegedly committed by Australian forces in Afghanistan. Both Boyle and McBride are pleading a defence under federal whistleblowing law; their cases are expected to be heard in late 2022. These prosecutions are also unjust and contrary to the public interest; they too should be discontinued.

Law reform and stronger institutional structures are also essential. The Public Interest Disclosure Act 2013 is out of date - reform has been required for six years, since an independent review in 2016 found that the experience of whistlelowers under the law was not a happy one. Yet it remains unamended. There are also growing calls for a whistleblower protection commissioner or authority to enforce whistleblowing laws and provide practical support to whistleblowers.

The ending of the Collaery prosecution is a positive step. But more remains to be done by the Albanese government to ensure whistleblowers in Australia are protected, not punished, and certainly not prosecuted.

The case of Bernard Collaery

In July 2022, the Attorney-General, Mark Dreyfus QC, discontinued the prosecution of Bernard Collaery. However, the case is not entirely over. The prior government has sought to shroud the case in secrecy, and some of that secrecy still lingers. In October 2021, the Court of Appeal delivered a landmark judgment upholding open justice and ordering that Collaery's trial go ahead in open court. The then-Attorney General sought redactions to the Court of Appeal's judgment; when this application was largely refused, the government sought special leave to appeal to the High Court.

After discontinuing the prosecution, Dreyfus also withdrew the High Court appeal over the level of redactions to be applied to the Court of Appeal's judgment. However, the Attorney-General has applied for the Court of Appeal to reconsider the redaction question. The issue has been listed for hearing on 23 September 2022.

Collaery was facing five charges relating to his role in allegedly publicising Australia’s wrongdoing against Timor-Leste. One alleged conspiracy to breach s 39 of the Intelligence Services Act 2001, alleged to have been entered into with Witness K. The other four alleged breaches of s 39, in relation to communication with various ABC journalists.

Until the recent discontinuance, the Attorney-General had used the National Security Information (Criminal and Civil Proceedings) Act to shroud much of the case to date in secrecy. The Attorney-General’s consistent position had been that the trial should be largely held in closed court (ie not open to the public).   

To successfully prosecute Collaery, the federal government would have needed to admit during the trial that Australia spied on Timor-Leste. Publicly, it has not done so. Accordingly, as Justice Mossop explained, ’[b]y this mechanism [the NSI Act] the Attorney-General hopes to maintain a position of ‘neither confirm nor deny’ (NCND) in relation to the subject matter of the [redacted].’

In June 2020, the Attorney-General succeeded in an application in the Supreme Court for the trial to be held in secret (the NSI Act provides that the court must give ‘greatest weight’ to the Attorney-General’s position). However, in October 2021, the Court of Appeal overturned that decision, on the basis 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.’ 

The question of whether or not the trial should be help in open court or in secret was then remitted to the Supreme Court for consideration of an application by the Attorney-General for the court to accept secret, court-only evidence. The federal government wanted to add new secret evidence before the trial judge, that Collaery and his lawyers would not be allowed to see, to overturn the Court of Appeal’s judgment saying no to a secret trial. Ultimately, these issues were never resolved.

The Collaery saga currently has three fronts. First, following the ACT Court of Appeal’s decision that said no to a secret trial, the issue was remitted to Justice Mossop of the ACT Supreme Court to consider:

1. whether the Court should accept secret, judge-only evidence in relation to the secret trial battle; and

2. if yes, whether that evidence is sufficient to outweigh the factors that saw the Court of Appeal refuse to grant a secret trial.

In March, Mossop J agreed to consider the secret evidence, and appointed a special advocate to make arguments on behalf of Collaery. Resolution of the second issue remains outstanding.

Second, to keep parts of the ACT Court of Appeal's decision secret, the Attorney-General sought special leave to appeal to the High Court over level of redactions applied to that judgment. In mid-April, the High Court heard the special leave application, but agreed to pause the application while the secret evidence issue is resolved.

Finally, Collaery is seeking to subpoena information and documents from the government. It is understood that the documents sought go to the lawful authorisation (or otherwise) of the alleged espionage operation in Timor-Leste. The Attorney-General is resisting disclosure. In late April, Mossop J heard argument about the subpoena issue, in largely-closed court.

The Collaery saga currently has two fronts. Following the Court of Appeal’s decision that said no to a secret trial, the Attorney-General applied for parts of that judgment to be redacted. The Court rejected parts of that application. The Attorney-General has now sought special leave to appeal in the High Court, in relation to the redactions. A decision on special leave is expected in mid-April 2022; if the Attorney-General is granted leave, a full hearing in the High Court will take place later in the year. If leave is denied, the Court of Appeal’s judgment – saying no to a secret trial – will finally be made public, months after it was delivered.

As part of that judgment, the Court of Appeal remitted the matter back to Justice Mossop of the Supreme Court. His Honour was required to consider whether to accept new secret, judge-only evidence, and, if so, whether this new evidence is enough to overturn the Court of Appeal’s decision that the trial should be largely held in open court. In mid-March, Mossop J determined the first question, agreeing to consider the secret evidence and appointing a special advocate to represent the interests of Collaery. In the coming months, Mossop J will decide whether, having considered this evidence, the trial should go ahead in closed court.

In the news

Timeline

There have been over 50 interlocutory hearings in the Collaery case to date, with over a dozen judgments.

Documents

Application for Special Leave – Attorney General 

Response to Application for Special Leave – Bernard Collaery  

Reply to Response – Attorney-General