Anthony Galloway – Sensitive details surrounding Australia's alleged bugging operation of East Timor will be heard in public after the ACT Court of Appeal ruled that requiring large parts of the case against Bernard Collaery to be held behind closed doors created a real risk of damaging public confidence in the legal system.
The unanimous judgment has been hailed as a "win for transparency" because it overturns a previous ruling made under national security laws which would have required large parts of the hearings into his alleged efforts to expose a secret Australian operation to bug East Timor's government to be held behind closed doors.
Mr Collaery has always accepted that some sensitive information should not be publicly disclosed but wanted the disclosure of six specific matters during the trial.
The former lawyer for an ex-spy known as Witness K challenged an order made by the ACT Supreme Court last year to accept former attorney-general Christian Porter's application to invoke the National Security Information Act, which governs how courts should handle sensitive information. The act requires the court to give "greatest weight" to the Attorney-General's views about the national security implications of a case, which has resulted in large portions of the hearings being held in secret.
The ACT Supreme Court had ruled the public disclosure of certain information would have posed a real risk of undermining national security.
In their judgment handed down on Wednesday, the three judges of the ACT Court of Appeal accepted that the disclosure would involve a "risk" to national security but said they doubted it would be a "significant risk".
"On the other hand, 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 judgment summary said.
"The Court emphasises that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors, and permitted the public to properly assess the conduct of the accused person."
Human Rights Law Centre senior lawyer Kieran Pender said the judgment was a "win for transparency in Australia".
"While it's welcome news that this prosecution won't go ahead in complete secrecy, it shouldn't go ahead at all," he said.
"This prosecution, and those against whistleblowers David McBride and Richard Boyle, are profoundly unjust. There is no public interest in punishing people for telling the truth about wrongdoing."
Labor's legal affairs spokesman Mark Dreyfus said the judgment was a "humiliating rebuff to the Morrison Government, which sought to hold the entire trial in total secrecy".
"Labor strongly supports the principle of open justice and believes Mr Collaery, like any other Australian, has a fundamental right to a fair trial," he said.
"For reasons that still remain unclear, the former Attorney-General, Christian Porter personally authorised the prosecution of Mr Collaery. After today's decision the current Attorney-General must now provide a detailed explanation as to why this prosecution remains in the public interest."
Mr Collaery has been charged with five counts of leaking classified information and conspiring with Witness K.
While Witness K was in June handed a three-month suspended sentence Mr Colleary has decided to fight the charges against him.