News & Current Affairs
The time and trials of Bernard Collaery
On 7 June 2022, Australia’s Attorney-General Mark Dreyfus ordered that the Commonwealth drop the prosecution of lawyer Bernard Collaery. Mr Collaery’s trial was due to commence in the Supreme Court of the Australian Capital Territory on 24 October 2022.
The prosecution of Mr Collaery has been shrouded in secrecy since it first commenced in 2018, with black curtains often seen hanging over the glass panels in doors at the Magistrates and Supreme Court of the Australian Capital Territory, and the preliminary hearings being conducted in closed Court.
Who is Bernard Collaery?
Mr Collaery is an Australian lawyer and former politician. Mr Collaery was a member of the Australian Capital Territory’s first Legislative Assembly as the leader of the Residents Rally Party. Mr Collaery served as the deputy Chief Minister from 1989 to 1991.
Mr Collaery was appointed as the Attorney-General of the Australian Capital Territory in 1989 and served in that role until 1991.
Mr Collaery is the principal of Collaery Lawyers, a Canberra based law firm. Mr Collaery has practiced for over 40 years, and has acted in various prominent matters, such as the 1997 Thredbo landslide, the 1997 Royal Canberra Hospital implosion tragedy and the 1999 Glenbrook Rail accident.
What was Mr Collaery charged with?
Mr Collaery was charged with four counts of unlawfully communicating classified information in media interviews and a single conspiracy charge. These charges fall under the Intelligence Services Act 2001 (Cth), and the applicable penalties meant that Mr Collaery was facing the prospects of jail.
The charges specifically related to an alleged plot between Mr Collaery and his former client only known as Witness K, to reveal classified information to the government of Timor-Leste. Given the secretive nature of the way the proceedings were conducted, there is limited information regarding the specifics of what occurred, but a brief timeline of events is as follows:
In 2004 Witness K, a spy in the Australian Secret Intelligence Service, oversaw bugging operations in Timor-Leste ordered by Australia to gain an advantage during negotiation over oil reserves and gas in the region. 
It was alleged that Mr Collaery and Witness K plotted to reveal information about the bugging operation to the government of Timor-Leste. Witness K had allegedly sought out Mr Collaery to act for him in a complaint against ASIS.
In 2012, Timor-Leste’s prime minister informed Australia that they knew about the bugging operation, presumably done in an attempt to gain an unfair advantage over the negotiations.
In 2013, Timor-Leste appointed Mr Collaery to represent the country in The Hague in a bid to have the treaty between the two countries end.
Also in 2013, Mr Collaery’s home was raided whilst he was in The Hague, preparing to represent East Timor in the Permanent Court of Arbitration as it took action against Australia over the unfair tactic placing bugs to gain an unfair advantage. A threat of prosecution was then hanging over Mr Collaery’s head for a number of years, until he was issued a summons to appear in the Magistrates Court of the Australian Capital Territory in September 2018.
Since 2018, Mr Collaery’s matter has spent extensive time before the Courts. The matter has been before the Supreme Court of the Australian Capital Territory on 10 separate occasions, and an application to the High Court of Australia was made by the Commonwealth in a bid to keep aspects of the matter out of the public domain.
Why all the secrecy? Don’t we have an open justice system?
A fundamental cornerstone of Australia’s common law system is open justice. The High Court of Australia has said that “the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances”.
Ordinarily, proceedings are to be conducted publicly and in open view. However, the principle of open justice is not absolute, and it has been recognised that it needs to be limited where it is “necessary to secure the proper administration of justice” or where it is in the public interest.
The common law has recognised a number of cases in which the principle of open justice may be limited, for example to protect:
- Secret technical processes;
- An anticipated breach of confidence;
- The name of a blackmailer’s victim;
- The name of a police informant or the identity of an undercover police officer; and
- National security.
The matter has been conducted in secret due to concerns regarding national security. This is governed by section 3 and 6 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), the object of which is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.
In October 2021, the Court of Appeal found that the matter should not be conducted in closed court on the basis that “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 Commonwealth subsequently made application to the High Court of Australia to consider whether the matter should be heard in open or closed Court.
How can the Attorney-General order that the prosecution be dropped?
After an extensive amount of time and resources has been spent on the prosecution of Mr Collaery, the Attorney-General has exercised their discretion under section 71 of the Judiciary Act 1903 (Cth) and ordered that the Commonwealth drop the prosecution of Mr Collaery.
Section 71 of the Judiciary Act 1903 (Cth) states:
- When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General or such other person as the Governor-General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his or her hand direct the discharge of the person from custody, and he or she shall be discharged accordingly.
- Nothing in subsection(1):
- affects the power under subsection9(4) of the Director of Public Prosecutions Act 1983 of the Director of Public Prosecutions; or
- affects, or shall be taken to have affected, the power under subsection8(2) of the Special Prosecutors Act 1982 of a Special Prosecutor.
In making the announcement, Mr Dreyfus said “having regard to our national security, our national interest and the proper administration of justice, today I have determined that this prosecution should end”.
What about Witness K?
Witness K plead guilty to all charges on around 17 June 2021.
On 18 June 2021, Magistrate Glenn Theakston convicted Witness K and gave him a three-month fully suspended sentence and ordered Witness K be of good behaviour for 12 months and pay security of $1000.
In his sentencing remarks, Magistrate Theakston said that it was not up to intelligence officials to unilaterally decide when to depart from their obligations of strict security. Magistrate Theakston also noted that Witness K’s actions were not for personal or financial gain, nor to compromise Australia’s national security interest, but rather for a sense of justice.
Very little is known publicly about who Witness K is, other than that he is male and above the age of 70. His defence barrister, Robert Richter QC informed the Court at sentencing that Witness K was elderly and suffered from a number of mental health conditions. Mr Richter QC argued that his moral culpability should therefore be reduced, as he was suffering from those conditions at the time of the offending, and the extensive delay in hearing the matter had exacerbated those conditions. Ultimately Magistrate Theakston agreed that Witness K was suffering from mental health conditions at the time, and he “can’t help but make a finding that his moral culpability is reduced”.
What happens now?
Mr Collaery’s legal team indicated to the Supreme Court of the Australian Capital Territory on 8 July 2022 that they were considering making an application for costs.  Justice David Mossop indicated that there was not normally an avenue for costs in a criminal prosecution before the Supreme Court but has allowed Mr Collaery’s lawyers a short period of time (approximately a week) to make a decision. Justice Mossop has vacated the trial dates and any other dates in connection with the Supreme Court proceedings.
Lawyers will also need to make separate applications to various other Courts to have the matter come to a complete close, including a paused High Court application regarding a separate appeal in this case.
Mr Collaery was in France at the time of receiving the news of the matter being dropped but has publicly welcomed the decision to abandon the prosecution, stating that the decision was good for the administration of justice in Australia.
 Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378 .
 Russell v Russell (9176) 134 CLR 495 at 520.
 Hogan v Hinch (2011) 243 CLR 506 .
 Hogan v Hinch (2011) 243 CLR 506 .
 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), section 3.