Collaery v The Queen (No 3)
[2021] ACTCA 34
•5 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Collaery v The Queen (No 3) |
| Citation: | [2021] ACTCA 34 |
| Hearing Date(s): | 2 November 2021 |
| Decision Date: | 5 November 2021 |
| Before: | Murrell CJ |
| Decision: | The judgment is varied in accordance with the table to these reasons |
Catchwords: | JURISDICTION, PRACTICE AND PROCEDURE - Request to vary statement of reasons pursuant to section 32 of the National Security Information (Criminal and Civil Proceedings)Act 2004 (Cth) - where information is the subject of a certificate under section 26 - consideration of applicable general principles - whether information in the statement directly or indirectly reveals protected information - whether information in the statement tends to confirm or deny protected information - consideration of extent of interference with the administration of justice |
Legislation cited: | Intelligence Services Act 2001 (Cth) s 39 |
Cases cited: | R v Collaery(No 7) [2020] ACTSC 165 |
| Parties: | Bernard Collaery (Appellant) Attorney-General (Cth) (Intervenor) |
| Representation: | Counsel L Crowley QC (Respondent) |
| Solicitors Gilbert + Tobin (Appellant) Commonwealth Director of Public Prosecutions (Respondent) Australian Government Solicitor (Intervenor) | |
| File Number(s): | ACTCA 27 of 2020 |
| Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 26 June 2020 Case Title: R v Collaery (No 7) Citation: [2020] ACTSC 165 |
MURRELL CJ:
The applications
In relation to the public disclosure of information in the criminal trial of the appellant, the Court of Appeal has decided that, subject to the primary judge's consideration of further material, at the trial there should be public disclosure of information relating to the truth of six specific matters (the Identified Matters).
The Attorney-General requested that, pending the primary judge's consideration of the further material, the proposed reasons of the Court of Appeal (AJ) be varied, predominantly by redaction.
Further, in relation to a limited part of the proposed reasons (AJ [85], [86] and [92]), by a separate application the Attorney-General sought orders under s 19(1A) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSIA) to the effect that details of the information in those paragraphs be disclosed only to persons immediately connected with the trial.
History of the proceedings
The appellant is awaiting trial on four charges of breaching s 39 of the Intelligence Services Act 2001 (Cth) (the ISA) and one charge of conspiring with another person (referred to as Witness K) to breach s 39 of the ISA.
The charges concern media statements made by the appellant in 2012-2014 alleging that Australia had engaged in an espionage operation affecting Timor-Leste.
Pursuant to s 26 of the NSIA, the Attorney-General issued a certificate defining "sensitive information" by reference to highlighted portions of the prosecution brief of evidence, which the Attorney-General said should not be publicly disclosed. The Attorney-General's certificate prohibited public disclosure of:
(a)the information highlighted in yellow in the prosecution brief;
(b)information which "might directly or indirectly" reveal the highlighted information; and
(c)information that "tended" to confirm or deny the highlighted information.
That certificate remains conclusive evidence that disclosure of the information identified in the certificate is "likely to prejudice national security" until the court orders otherwise under s 31 of the NSIA and the period to appeal the court order has expired or any appeal has been finally determined: ss 27(1), 34 and 20 NSIA. It is an offence to disclose information contrary to a s 26 certificate: s 43 NSIA.
Once·a s 26 certificate has been given, the court must hold a hearing to decide whether to make an order under s 31 in relation to disclosure of the information: s 27(3) NSIA.
In this case, the s 27(3) hearing came before Mossop J (the primary judge). The closed court hearing requirements set out in s 29 of the NSIA applied, governing who could be present and who could receive a record of the hearing: s 27(5) NSIA. Section 29(5) required that a record be kept of the hearing.
The issue before the primary judge was what order should be made under s 31 of the NSIA, considering the matters in s 31(7)-(8) of the NSIA.
In the proceedings before the primary judge, the appellant ultimately accepted that much of the highlighted material should not be disclosed. He sought public disclosure only of information relating to the truth of the Identified Matters.
During the hearing before the primary judge, the Attorney-General sought to rely on "court only" material that had not been provided to the appellant because of its sensitivity. However, his Honour decided the matter by reference only to material that had been provided to the appellant. Based on the material that had been disclosed to the appellant, his Honour was satisfied that all the highlighted material, including the material relating to the truth of the Identified Matters, should not be publicly disclosed: R v Collaery (No 7) [2020] ACTSC 165. Consequently, it was unnecessary for his Honour to address the admissibility and possible effect of the "court only" material.
In accordance with the requirements of s 32(2) of the NSIA, before giving a written statement of his reasons, the primary judge gave a copy of his proposed reasons for decision to the prosecutor and the Attorney-General: s 32(2). Having received the copy, the Attorney-General invoked s 32(3) of the NSIA, pursuant to which the court may be requested to vary proposed reasons to avoid the disclosure of information that is "likely to prejudice national security".
The primary judge considered the request and decided to vary the proposed reasons by redacting certain parts.
The appellant appealed the primary judge's decision about the order that should be made under s 31 of the NSIA: s 37 of the NSIA.
The Court of Appeal accepted that publication of the Identified Matters would involve a relevant risk of prejudice to national security: AJ [106]. However, the Court was satisfied that the interests of the proper administration of justice clearly outweighed any risk of prejudice to national security: at [126]. At AJ [129], the Court ordered:
Subject only to the primary judge's consideration of the admissibility and effect of the "court only" material, the order made by the primary judge should be set aside. Pursuant to s 31(4) of the NSIA there should be an order that is limited to protecting from disclosure the highlighted parts of the brief that, ultimately, the appellant conceded should not be disclosed.
The final form of the order was left to the primary judge and the matter was remitted so that his Honour could continue the s 27(3) hearing by considering the admissibility of the "court only" material and, if it was admissible, the effect of the material on the s 31(4) order that should be made. On 10 November 2021, the primary judge will make directions about the further hearing of the matter.
The Court of Appeal provided the parties with a copy of the AJ.
Pursuant to s 32(3) of the NSIA, the Attorney-General requested that the AJ be varied as indicated in a marked-up copy provided by the Attorney-General.
The parties agreed that consideration of this request was a procedural matter that could be decided by a single judge: s 37J(1)(k) Supreme Court Act 1933 (ACT).
Issues on the s 32 variation application
Section 32(3) and (4) of the NSIA provide:
32 Reasons for court orders
Requirement to give reasons
(3)If a statement recipient considers that giving the proposed statement will disclose information and the disclosure is likely to prejudice national security, the statement recipient may request that the court vary the proposed statement so that the information will not be disclosed.
Court's decision
(4)The court must make a decision on the request.
Section 17 of the NSIA provides:
17 Meaning of likely to prejudice national security
Something is likely to prejudice national security if there is a real, and not merely a remote, possibility that it will prejudice national security.
In s 8 of the NSIA, "national security" is defined to include "Australia's ... international relations ... interests". Section 10 of the NSIA defines "international relations" to include "political ... and economic relations with foreign governments".
Section 32 of the NSIA should be read in the context of the object of the NSIA. Section 3 provides:
3 Object of this Act
(1)The object of this Act 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.
(2)In exercising powers or performing functions under this Act, a court must have regard to the object of this Act.
In relation to s 32(3) and (4), I make the following observations.
First, a court's decision under s 32 must focus on whether disclosure of information is "likely to prejudice national security" in the sense that disclosure poses a "a real, and not merely a remote, possibility that it will prejudice national security". There are degrees of "likelihood", ranging from real possibility to virtual certainty. There are degrees of prejudice, ranging from some prejudice to profound prejudice. In relation to "likelihood of prejudice to national security", the Attorney-General relied on the s 26 certificate which, of course, addresses neither degree of likelihood nor degree of prejudice. Nevertheless, as the parties agreed, until the primary judge's final decision under s 31 comes into force, under s 27(1) of the NSIA the Attorney-General's certificate remains conclusive evidence that disclosure of the information the subject of the certificate is "likely to prejudice national security".
Second, the court should consider any other matters that are relevant to disclosure. In particular, the court should consider whether preventing disclosure "would seriously interfere with the administration of justice" in a particular case.
Third, it is implied that the degree of likelihood and degree of prejudice to national security must be considered together with the extent of interference with the administration of justice (and any other relevant matter) when deciding whether the "likelihood of prejudice to national security" requires nondisclosure.
Fourth, the court's decision concerns whether proposed reasons should be "varied". Redaction is only one means by which "variation" may occur.
The Attorney-General raised a further matter. Particularly in relation to some information contained in the AJ at [57], the Attorney-General submitted that, as it was subject to protection orders under s 22 of the NSlA, it should be redacted.
The material containing the information had been subpoenaed. As a matter of convenience, the appellant's legal representatives had agreed to s 22 non-disclosure orders, thereby relieving the Attorney-General of any need to seek protection of the information by a more cumbersome process.
The submission concerning the relevance of s 22 orders lacks cogency. The orders were made by consent. The appellant no longer seeks to maintain the orders. Neither party submitted that the Court of Appeal was bound by the parties' agreement or the orders insofar as publication of the AJ was concerned. Consequently, I consider that earlier agreements to s 22 orders have little, if any, relevance to the s 32 decision.
In relation to each aspect of the AJ identified by the Attorney-General, the issues are:
(1)Is it information that is the subject of the s 26 certificate because it is highlighted information, information that "might directly or indirectly" reveal the highlighted information, or information that "tends" to confirm or deny the truth of the highlighted information?
(2)If so, are there other matters that inform whether the information should be disclosed in the AJ? In particular, would nondisclosure "seriously interfere with the administration of justice"?
Consideration of s 32 application
Some matters of general principle apply. First, the AJ should be published with as few variations as possible, particularly as to critical aspects of the Court's reasoning, in relation to which considerations of the administration of justice assume greater prominence. Second, variations should not alter meaning. Third, the published AJ should not effectively undermine the primary judge's final decision, which may be affected by the consideration of further evidence.
There was little dispute that any direct reference in the AJ to the substance of the Identified Matters would fall within the s 26 certificate. For that reason, it was agreed that information should be redacted from three paragraphs, and I will redact parts of other paragraphs.
Debate centred on whether parts of the AJ "might directly or indirectly" reveal information that was highlighted in the prosecution brief or "tended" to confirm or deny the truth of highlighted information, particularly information about the Identified Matters.
The Attorney-General submitted that:
To date, there has been no official public confirmation or denial of which particular parts of the public statements by the appellant comprise the actual ASIS information which is the subject of the prosecution.
Consequently, so the Attorney-General submitted, disclosures that "lessened residual ambiguity as to the truth or otherwise of information that has not been officially confirmed or denied" were captured by the certificate because they "tended" to confirm or deny information highlighted in the brief.
I do not accept that a statement that "lessens residual ambiguity" in the mind of a sensitive and speculative reader is captured by the s 26 certificate. It is a matter of assessing each statement in its context to decide whether it has a real tendency to suggest that protected information is true or untrue or might directly or indirectly reveal protected information.
[REDACTED].
The Attorney-General requested that the Court redact passages of the AJ which refer in very general terms to the possible impact on international relationships (either positive or negative) of information suggesting (however indirectly) that an allegation was true (without referring to a specific allegation).
I do not accept these submissions. General statements about international relationships and hypotheses about how unspecified information might impact upon them do not fall within the descriptors of information that "might directly or indirectly" reveal highlighted information, information "tending" to confirm or deny the truth of highlighted information, or information that is otherwise "likely to prejudice national security" in the sense that there is a real possibility of it doing so.
The most important part of the AJ is the Court's consideration of the arguments, which appears at paragraphs [120]-[126]. In relation to those paragraphs, the need to protect "the administration of justice" is prominent. It is particularly important that the public has unadulterated access to the core parts of the Court of Appeal's reasoning.
The table to these reasons identifies the variations (including redactions) that reflect the above approach.
Application under s 19(1A)
This application relates to the content of the letters the subject of AJ [85], [86] and [92].
The letters were created in 2012 and were in Australia's possession from that time. From 2014, the content of the letters was referred to in a general way in the media. In 2013 and 2017 the Permanent Court of Arbitration made orders protecting the confidentiality of the letters. In December 2018, the letters were disclosed to the appellant as part of the prosecution brief.
Later, the letters were identified as potentially sensitive in that, through oversight, Timor-Leste had not been consulted prior to disclosure of the letters in the prosecution brief. Timor-Leste was consulted and agreed to limited disclosure of the letters to the court and the parties.
The Court received evidence about the current relationship between Timor-Leste and Australia.
Section 19(1A) of the NSIA provides:
19 General powers of a Court
Power of a court in a federal criminal proceeding
(1A) In addition to the powers of a court under this Act in a federal criminal proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information if:
(a)the court is satisfied that it is in the interest of national security to make such orders; and
(b)the orders are not inconsistent with this Act; and
(c)the orders are not inconsistent with regulations made under this Act.
Having regard to the close but complex relationship between Timor-Leste and Australia, the content of the letters and their limited relevance to the Court of Appeal's decision, I am satisfied that the detail in the letters should not be disclosed, except to the extent that it is described in [85], [86] and [92] of the AJ as varied, or is disclosed in accordance with order [7] of the draft orders proposed by the Attorney-General.
The relevant paragraphs of the AJ are varied. Otherwise, the parties are asked to attempt to agree on an order to be made under s 22 of the NSIA. The parties have liberty to apply.
Decision
The AJ is varied in accordance with the table to these reasons, which (subject to further order of the Court) will not be published.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |