Michael Pelly – The unprecedented decision by Attorney-General Mark Dreyfus to discontinue the prosecution of former ACT attorney-general Bernard Collaery over national security leaks could lead to a substantial bill for the Commonwealth.
Mr Collaery, 77, was due to face trial in October over his role in exposing a 2004 espionage mission against East Timor ahead of oil and gas negotiations until Mr Dreyfus intervened on Thursday, citing "exceptional circumstances".
It is the first time a Commonwealth attorney-general has ever used the power under section 71 of the Judiciary Act, which says they "may decline to proceed further" against any person charged with "an indictable offence against the laws of the Commonwealth".
A spokesman for Mr Dreyfus on Friday dismissed suggestions that the authority of the Commonwealth Director of Public Prosecutions, Sarah McNaughton, SC had been undermined by the historic step: "Not at all. The Attorney-General totally respects the independence of the CDPP.
"The Attorney-General decided to end Mr Collaery's prosecution after careful consideration of our national security, our national interest, and the proper administration of justice."
He said Mr Dreyfus had informed Dr McNaughton before the decision was announced and had consulted Foreign Affairs Minister Penny Wong and other government ministers and agencies.
In October 2021, Dr McNaughton told Senate estimates that she believed the case was in the public interest, a requirement on any prosecution. She also said the evidence she had seen and the seriousness of the alleged conduct warranted the continued prosecution of Mr Collaery.
The shadow attorney-general, Julian Lesser, said Mr Dreyfus "must explain why he has chosen to undermine the good work of Australia's national security agencies".
However, East Timor president Juan Ramos-Horta said the decision had ended a bitter rift between the countries.
"What happened in the past on the part of Australia, with the bugging of our offices, the spy (sic) on our government, during negotiations on... oil revenues, maritime boundary, the talks, all of that, we leave behind," Dr Ramos-Horta said.
The matter returned to the ACT Supreme Court on Friday before Justice David Mossop, who made orders vacating a pre-trial hearing over secret evidence in August and also the trial itself, which was due to begin on October 24 and run for five weeks.
Lawyers for Mr Collaery, who is travelling overseas, gave notice that they may apply for costs when the matter returns to court next Friday.
Justice Mossop said costs were not usually awarded in criminal cases and asked that they quickly make a decision. "I'm not going to allow the matter to linger," he said.
In 2018, Mr Collaery was charged under the National Security Information Act with helping his client, the intelligence operative known as Witness K, to reveal a mission to bug the government offices of East Timor (also known as Timor-Leste) in Dili.
Witness K pleaded guilty and was handed a three-month suspended sentence in 2021. Mr Collaery opted to fight the charges and the secrecy the government sought to impose on the proceedings via an order of former attorney-general Christian Porter.
There have been 10 separate hearings and 13 judgments in the ACT Supreme Court, and appeals to the ACT Court of Appeal and the High Court. The Commonwealth has spent $4.42 million on external legal costs associated with the prosecutions of Mr Collaery and Witness K.
Mr Dreyfus's spokesman said that "no further agreements or undertakings" had been made to Mr Collaery's lawyers when they were notified of the decision on Thursday.
Mr Collaery was represented by leading law firm Gilbert+Tobin. Barristers who represented him at hearings included Bret Walker, SC, Phillip Boulten, SC, and Chris Ward, SC.
"This is a good decision for the administration of justice in Australia," Mr Collaery said in statement issued by Gilbert+Tobin. "The decision will allow me to move forward with my life and legal practice."
Before the election, Mr Dreyfus said he was "yet to hear a cogent explanation of how the public interest is served by the ongoing attempts to prosecute Mr Collaery, a former attorney-general of the ACT, who is now well over 70, in relation to an allegation of disclosure of events alleged to have occurred almost 20 years ago".
Mr Collaery and Witness K faced up to two years in prison, but the penalty for the same offence has since been increased to 10 years.
[Michael Pelly is the legal editor, based in our Sydney newsroom. He has been a senior adviser to federal and state attorneys-general and written two books, one a biography of former High Court Chief Justice Murray Gleeson.]