Collaery decision shows courts unwilling to accept security masquerade

The defeat of the federal government’s efforts to keep the trial of Bernard Collaery hidden creates both immediate and longer term danger for a government that invokes national security to cover up its own embarrassment.

Bernard Collaery and Attorney-General Christian Porter (Images: AAP)

The overturning by the Supreme Court of the ACT yesterday of secrecy orders in the Bernard Collaery trial is significant in a couple of ways.

Judges Murrell, Burns and Wigney overturned trial Judge David Mossop’s decision to grant Porter’s application to hide evidence against Collaery, and witness evidence produced by Collaery, via national security orders made by Porter under the National Security Information (Criminal and Civil Proceedings) Act 2004. The appellate court ruled that

public disclosure of information relating to the truth of the identified matters would involve a risk of prejudice to national security. However, the court doubted that a significant risk of prejudice to national security would materialise. 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 court emphasised 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.

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