Lawyers for the Albanese government will maintain a push by the former attorney general to impose secrecy over parts of a key decision in the Bernard Collaery case.
Earlier this month, the attorney general Mark Dreyfus made the momentous decision to end the prosecution of Collaery for the lawyer’s role in exposing Australia’s 2004 bugging of Timor-Leste’s government, along with his client, a former Australian Secret Intelligence Service officer known only as Witness K.
Australia spied on Timor-Leste during negotiations over oil and gas reserves that were crucial to the young and impoverished nation’s future.
Despite Dreyfus’s decision, one aspect of the case remains outstanding.
In October last year, the ACT court of appeal delivered an important judgment lifting extraordinary levels of secrecy over parts of Collaery’s then looming trial. The decision was hailed as a win for open justice and transparency.
But the court was unable to publish the full reasons behind its decision, because the Morrison government believed that doing so would put Australia’s national security at risk.
The Morrison government applied for special leave to the high court to have the judgment suppressed. It still has not been published.
On Wednesday morning, lawyers for Dreyfus indicated they would seek a new hearing in the ACT courts to redact parts of the judgment.
The ACT court of appeal heard there were practical difficulties in proceeding with the last thread of the case.
Confidential evidence has been locked away in a secret room and the only person still at the court who knew the passcode was an associate for a judge who has since moved on. That associate was unsure of the legality of disclosing the passcode to anyone else, the court heard.
Tony Giugni, a lawyer acting for the commonwealth, said the government would file evidence and submissions to the court in the coming weeks, setting out its argument for the need to partially redact the judgment.
The matter will be heard by a single judge of the ACT court of appeal at a date to be set.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, said the new attorney general should discontinue the appeal and “ allow the court of appeal’s important judgment, a significant win for open justice, to finally see the light”.
“That would be a silver lining to this otherwise sorry saga,” he said.
Meanwhile, prosecutors are also seeking to impose a level of secrecy in the separate prosecution of tax office whistleblower Richard Boyle, who spoke out about the Australian Taxation Office’s aggressive use of extraordinary powers to enforce debts on families and small businesses.
Boyle was due to appear in the South Australian district court this week to argue that he should be afforded protection by Australia’s whistleblowing laws. The case has been delayed due to Covid, but a preliminary hearing about which court has jurisdiction to hear his argument is due next week.
Ahead of the hearing, a group of media outlets, including Guardian Australia, applied to view documents that Boyle filed in support of his application for whistleblower protections.
Commonwealth prosecutors are expected to oppose media access to the documents and seek to have them suppressed.
Boyle’s attempt to use the Public Interest Disclosure Act to shield himself from prosecution is viewed as a crucial test of Australia’s whistleblowing regime.
Experts view it as a test case that will influence how protections will operate for future whistleblowers.
