The ACT Court of Appeal has today published previously secret judgments to mark the end of the Bernard Collaery and Witness K saga, underscoring the need for the Albanese Government to implement transparency and whistleblowing reforms.

Five and a half years ago, Canberra lawyer Collaery and his client, former intelligence officer Witness K, were charged with offences relating to their alleged disclosure of information about Australia’s immoral espionage against neighbours Timor-Leste. Australia bugged Timor’s cabinet office in the early 2000s to gain an advantage in commercial negotiations over oil and gas under the Timor Sea.

In 2021, Witness K pleaded guilty and was given a suspended sentence. Collaery pleaded not guilty and in July 2022, following the election of the Albanese government, Attorney-General Mark Dreyfus KC discontinued the prosecution.

Both cases were shrouded in secrecy. However, in late 2021, the ACT Court of Appeal ruled that the trial of Collaery could not go ahead in largely-closed court. The federal government then applied for significant parts of that landmark decision to be redacted. Even after discontinuing the prosecution, Dreyfus sought secrecy over the Court of Appeal’s decision.

On Tuesday, Chief Justice Lucy McCallum delivered her decision agreeing to redact parts of the initial judgment, which was then published.

Quotes attributed to Kieran Pender, Senior Lawyer at the Human Rights Law Centre, said: 

“Open justice is a critical democratic principle, protecting the human rights of all Australians. It is a win and an overdue end to a sorry saga for Bernard Collaery and Witness K that the Court of Appeal’s decision – holding that the interests of open justice and a fair trial were more important than the government’s national security concerns – is now in the public domain, more than two years later.

“There is no place for secret trials in Australia’s democracy. The Collaery and Witness K prosecutions have underscored significant deficiencies in Australia’s national security laws, secrecy laws and whistleblower protection laws. This provides the Albanese Government with a prime opportunity to proceed with important reforms – including to the National Security Information Act (as recommended by the Independent National Security Legislation Monitor), the Public Interest Disclosure Act (currently under review) and secrecy offences (reviewed last year). Those reforms should be pursued swiftly, to ensure secretive prosecutions of whistleblowers can never happen again.

“It is also high-time that the Australian Government apologised to the people of Timor-Leste and proceeded with an inquiry into this sordid affair – as it rightly promised to do if elected, while in opposition.”

During the prosecutions, the Human Rights Law Centre maintained an explainer site summarising key developments.

Media Contact:
Thomas Feng
Media and Communications Manager
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au