The secrecy restrictions around Bernard Collaery’s prosecution were so severe that he was forced to obtain government approval for his lawyer to view evidence against him, communicate with his legal team in-person in secure rooms chosen by the commonwealth, physically transport documents around the country at exorbitant cost and compose drafts on commonwealth laptop computers at pre-approved locations.
The national security law watchdog is currently investigating the operation and effectiveness of the National Security Information Act 2004 (NSI Act), which the federal government uses to protect sensitive information during court proceedings.
The use of the NSI Act has prompted concern in several cases in recent years, including in the Collaery case, where significant parts of his since-abandoned trial would have been hidden from the public.
In an extraordinary submission to the inquiry, Collaery’s legal team has detailed the “profound” cost and disadvantage his legal team faced as a result of the secrecy restrictions.
Collaery was forced to obtain government approval before his chosen barrister, Bret Walker SC, could view material against his client ahead of a crucial appeal. The government sat on the request for approval for four weeks, leaving Walker unable to access “any of the large amount of confidential material in the case to provide advice” until just before the hearing, conduct the judge described as “disturbing”.
Collaery’s team, spread across three cities, faced huge barriers in communicating about the case, obtaining instructions and sharing material.
Some documents could only be discussed in person, in rooms that were government-approved.
To share documents between members of the legal team, they either had to send physical copies carried by an approved lawyer between cities, or pay about $1,000 a trip for an approved courier. The documents had to be double-bagged within approved locked containers.
Some confidential documents had to be stored in locked safes and only handled in locations pre-approved by the government, and only in the absence of phones and other electronic devices, other than commonwealth equipment.
Documents containing confidential information had to be drafted on commonwealth laptop computers in approved locations and printed on a commonwealth-provided printer. They could not be copied and Collaery had to keep a secure register recording each time confidential material was handled, according to the submission.
“The loss of the ordinary efficiencies that come from use of email, the internet, and telephone and video meetings was profound,” Collaery’s lawyers told the inquiry.
“Repeated travel and in person meetings were required to obtain instructions and manage the case.
His lawyers were prevented from using the internet in some court proceedings, forcing them to print all material.
“If the need arose for an additional confidential document to be provided in court, an approved person had to return to a secure location, to connect to a secure printer from the secure laptop, print the document and transport it back to court.”
Collaery’s lawyers said they understood the need for document-handling restrictions, but said they currently posed serious practical barriers to running a case.
Meeting the costs of the requirements would also be “prohibitive” for most defendants.
They recommended the establishment of a public legal funding scheme to cover the costs of defendants involved in NSI Act cases.
That recommendation has also been made by the Law Council of Australia and the Human Rights Legal Centre (HRLC) in separate submissions to the inquiry.
“It is extremely onerous to represent a client under the NSI Act,” the HRLC said.
“Some of these requirements may be justifiable given the national security risk involved. But there is a significant risk that such burdens will lead to representatives declining to act in such matters, or the costs of such representation may increase to a position where clients cannot afford it.”
The Law Council of Australia said such a scheme should be funded by the commonwealth and “should not be means- or merits-tested”.
The attorney general, Mark Dreyfus, who intervened to end the Collaery prosecution, has already signalled he will pursue reforms to the NSI Act, but is awaiting the results of the current inquiry by the Independent National Security Legislation Monitor.
