Collaery v The Queen (No 4)
[2023] ACTCA 47
•12 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Collaery v The Queen (No 4) |
Citation: | [2023] ACTCA 47 |
Hearing Date: | 23 September 2022; written submissions closed 21 October 2022 |
Decision Date: | 12 December 2023 |
Before: | McCallum CJ |
Decision: | (1) The order of the Court of Appeal of 5 November 2021 is vacated. (2) The judgment of the Court of Appeal in Collaery v The Queen (No 2) [2021] ACTCA 28 is to be published in the form proposed by the Attorney-General in MFI 2. (3) The judgment of the Court of Appeal in Collaery v The Queen (No 3) [2021] ACTCA 34 is to be published in the form proposed in Annexure C to the affidavit of Anthony Desmond Giugni dated 20 July 2022. |
Catchwords: | NATIONAL SECURITY – JURISDICTION, PRACTICE AND PROCEDURE – Appropriate form of publication of judgment that includes national security information – where trial judge made order under s 31(4) of the National Security Information (Civil and Criminal Proceedings) Act – where accused succeeded in interlocutory appeal concerning appropriate scope of order – where final form of order remitted to trial judge to be determined after considering further confidential evidence – where prosecution discontinued before further hearing held – whether appeal judgment should be redacted consistently with existing certificate or order APPEAL – INTERLOCUTORY APPEAL – Where Court had previously determined application to vary form of judgment to redact national security information – where Attorney-General brings second application following discontinuance of prosecution – whether an abuse of process |
Legislation Cited: | Intelligence Services Act 2001 (Cth) s 39 Judiciary Act 1903 (Cth) s 71 National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth) ss 3(1), 19(1A), 24, 26, 27, 31, 32 Supreme Court Act 1933 (ACT) s 37(1)(k) |
Cases Cited: | Collaery v The Queen (No 2) [2021] ACTCA 28 Collaery v The Queen (No 3) [2021] ACTCA 34 D A Christie Pty Ltd v Baker (1996) 2 VR 58 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 R v Collaery (No 10) [2021] ACTSC 311 |
Parties: | Bernard Collaery ( Appellant) The Queen ( Respondent) Attorney-General for the Commonwealth (Intervenor) |
Representation: | Counsel P Boulton SC with S Robinson ( Appellant) P Hertzfeld SC with T Glover (Intervenor) |
| Solicitors Gilbert + Tobin ( Appellant) Australian Government Solicitor (Intervenor) | |
File Number: | ACTCA 27 of 2020 |
Decision Under Appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 26 June 2020 Case Title: R v Collaery (No 7) Citation: [2020] ACTSC 165 |
McCALLUM CJ:
1․Bernard Collaery was due to face trial in the ACT Supreme Court on an indictment dated 12 September 2019 alleging five federal offences, being four counts of breach of s 39 of the Intelligence Services Act 2001 (Cth) and one count of conspiring with another person to breach that section. The prosecution brief of evidence included national security information. The Attorney-General for the Commonwealth accordingly took steps to restrict disclosure of information within the brief that was likely to prejudice national security by prohibiting the parties from disclosing that information except for the purposes of the trial. The scope of the restrictions imposed by the Attorney-General, if upheld by order of the Court, would mean that much of the trial would have to be conducted in closed court.
2․Mr Collaery took issue with the scope of the restrictions contended for by the Attorney-General. He accepted that some of the proposed restrictions were appropriate but identified a subset of specific information which he contended should be permitted to be publicly disclosed during the trial in the interests of open justice. After hearing the parties on that issue, the trial judge (Mossop J) accepted the Attorney-General’s position. His Honour made an order under s 31(4) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) prohibiting public disclosure of the information identified by the Attorney-General as the “sensitive information”. The application of that Act to the prosecution is considered in further detail below.
3․Mr Collaery appealed from that order. The appeal was allowed but the Court of Appeal did not set the order aside. Instead, the matter was remitted to Mossop J to consider additional evidence and to determine the final form of the order prohibiting disclosure that would govern the criminal trial.
4․The Court of Appeal gave two judgments. The first judgment determined the substantive appeal. The second judgment, given by the former Chief Justice, Murrell CJ, determined the form in which the first judgment would be published. The Attorney-General maintained that the first judgment included sensitive information the disclosure of which was likely to prejudice national security. Murrell CJ rejected that proposition. Her Honour was prepared to vary the judgment in some respects but not to the extent requested by the Attorney-General. Her Honour made an order as to the form in which the first judgment was to be published and gave a separate judgment stating her reasons for making that order. Neither judgment has yet been made publicly available.
5․Apprehending the publication of the first judgment in the form allowed by Murrell CJ, the Attorney-General sought special leave to appeal to the High Court from her Honour’s order. However, on 6 July 2022, before the special leave application had been determined, the Attorney-General exercised his power under s 71 of the Judiciary Act 1903 (Cth) to decline to proceed further with the prosecution of Mr Collaery. The application for special leave has since been discontinued.
6․It remains to consider an application by the Attorney-General to have the two judgments of the Court of Appeal redacted on the grounds that their publication as previously contemplated would prejudice Australia’s national security. That application is opposed by Mr Collaery. He contends that the application should be dismissed as an abuse of process, the question of the appropriate form of the first judgment having been determined by Murrell CJ following a contested hearing. Alternatively, he submits that, if determined on its merits, the application should fail because publication of the first judgment as varied by Murrell CJ will not disclose information that is likely to prejudice national security.
7․I heard the application sitting as the Court of Appeal, as allowed under s 37(1)(k) of the Supreme Court Act 1933 (ACT).
8․I have concluded that the application is not an abuse of process and indeed that I have a duty to determine it. I have further concluded that it is in the interest of national security, prior to publication of the first judgment of the Court of Appeal, to make the redactions sought by the Attorney-General. A redaction to the judgment of Murrell CJ which is not opposed by Mr Collaery will also be made.
Application of the National Security Information (Civil and Criminal Proceedings) Act to the prosecution
9․In order to explain my reasons for those conclusions, it will be helpful to provide more detail about the application of the National Security Information (Civil and Criminal Proceedings) Act. That Act seeks to address the obvious difficulty for the Commonwealth, in the prosecution of allegations of breach of secrecy obligations, that the principle of open justice calls for an open hearing about the very secrets sought to be protected by the criminal proceedings. The Act has the object of preventing the disclosure in federal criminal proceedings of information “likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice”: s 3(1). The Act reflects the principle stated by French CJ in the decision of the High Court in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20] that open justice is essential but not absolute. His Honour noted at [21] that one of the circumstances in which a superior court might exercise its inherent jurisdiction to limit the application of the open justice principle is “where ‘exceptional and compelling considerations going to national security’ require that the confidentiality of certain matters be preserved”.
10․The National Security Information (Civil and Criminal Proceedings) Act applied to the prosecution of Mr Collaery. As the brief of evidence against him contained national security information that would have to be disclosed in the proceedings, the prosecutor gave notice of that fact to the Attorney-General for the Commonwealth, as required under s 24 of the Act.
11․On 18 September 2019, after receiving that notice, the then Attorney-General, the Hon Christian Porter MP, issued a certificate to the parties pursuant to s 26 of the Act prohibiting them from disclosing certain information, referred to as “the sensitive information”, except in permitted circumstances. The sensitive information was identified by yellow highlighting of the parts of the prosecution brief of evidence to which the restriction applied. The certificate prohibited the persons to whom it was addressed (the prosecutor, her advisors, the defendant and his advisors) from disclosing the information highlighted in the classified part of the prosecution brief, information that might directly or indirectly reveal that information and information that tends to confirm or deny that information.
12․The issue of that certificate enlivened an obligation on the Court to hold a hearing before Mr Collaery’s trial began to decide whether to make an order under s 31 of the Act in relation to the disclosure of the information: s 27(3) of the Act. In the meantime, the certificate stood as conclusive evidence that disclosure of the sensitive information was likely to prejudice national security. Under s 26(5) of the Act, such a certificate ceases to have effect when any order by the court under s 31 ceases to be subject to appeal. It will be necessary to return to that issue.
13․The hearing required under s 27(3) was held by Mossop J. The Attorney-General sought an order under s 31(4) consistent with the certificate he had issued under s 26. Mr Collaery accepted that much of the highlighted material the subject of that certificate should not be disclosed. However, he sought to have information relating to six identified matters exempted from the s 31(4) order.
14․Mossop J made the order sought by the Attorney-General: R v Collaery (No 7) [2020] ACTSC 165. His Honour was able to reach that conclusion without having to consider certain “court only” material that had not been provided to the parties because of its sensitivity.
15․As already noted, the practical effect of his Honour’s order was that much of the trial would have to be closed to the public. Mr Collaery appealed from the order, maintaining his contention that information relating to the six identified topics should be permitted to be publicly disclosed during the trial.
16․On 6 October 2021, the Court of Appeal made an order allowing the appeal. However, the Court did not set aside the order under s 31(4) made by Mossop J. Noting the fact that the “court only” material had not been considered, the Court said at [129] that, subject only to Mossop J’s consideration of the admissibility and effect of that material, his Honour’s order should be set aside. The Court said:
Pursuant to s 31(4) of the NSIA Act 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 that order is a matter for the primary judge after his Honour has heard further submissions from the parties.
The matter was remitted to Mossop J “to consider the admissibility of the ‘court only’ material and, if it is admissible, the effect of that material on the s 31(4) order”: [130]. Clearly, the s 31(4) order referred to there was the original order of Mossop J. The Court of Appeal had not made any order under that section. The judgment of the Court of Appeal was given the medium neutral citation Collaery v The Queen (No 2) [2021] ACTCA 28.
17․The argument before me proceeded on the assumption that the certificate issued by the Attorney-General under s 26 of the Act remains in force and binds the parties. As noted above, by force of s 26(5) of the Act, that certificate ceases to have effect when any order of the Court under s 31 ceases to be subject to appeal. The expression “ceases to be subject to appeal” is defined in s 20. Relevantly for present purposes, it means when any appeal against the s 31 order was finally determined or disposed of.
18․As I see the position, the appeal against Mossop J’s s 31 order was finally determined on 6 October 2021 when the Court of Appeal remitted the matter to his Honour to determine the final form of the order. It would appear to follow that it is Mossop J’s order, and not the Attorney-General’s certificate under s 26, that remains in force. Either way, it appears to be common ground that the parties remain bound today not to disclose the sensitive information.
19․Returning to the narrative, after providing its judgment to the parties and to the Attorney-General, the Court of Appeal invited submissions as to any variations (including redactions) that should be made to the judgment before it was made public. That application was heard by Murrell CJ sitting as the Court of Appeal, as allowed under s 37(1)(k) of the Supreme Court Act 1933 (ACT). The Attorney-General identified redactions sought by him. Those redactions were opposed by Mr Collaery.
20․According to the judgment of Murrell CJ, the Attorney-General’s application for variations was made under s 32(3) of the National Security Information (Civil and Criminal Proceedings) Act: [19]. That section is concerned with the disclosure of the mandatory written statement of reasons for making an order under s 31. Murrell CJ was informed by counsel then appearing for Mr Collaery, Dr Ward, that she had “a statutory duty” under s 32(4) to undertake the task of deciding the Attorney-General’s request. However, as already noted, the Court of Appeal had not made an order under s 31, instead remitting that task to Mossop J. Accordingly, it is doubtful whether s 32 applied to the decision of the Court of Appeal.
21․In any event, that is the basis on which Murrell CJ evidently determined the application. On 5 November 2021, her Honour made the following order: “The appeal judgment is varied in accordance with the table to these reasons, which (subject to further order of the Court) will not be published”. I will refer to the form of judgment authorised for publication by that order as the varied judgment. The varied judgment adopted some but not all of the variations sought by the Attorney-General. The judgment of Murrell CJ stating her reasons for making that order was given the medium neutral citation Collaery v The Queen (No 3) [2021] ACTCA 34.
22․The Attorney-General sought special leave to appeal to the High Court from the order of Murrell CJ of 5 November 2021. That application was listed for oral hearing on 13 April 2022. The transcript of the oral hearing (which is publicly available) indicates that the Attorney-General brought the application because he apprehended that this Court was proposing to publish the judgment of Murrell CJ and the varied judgment of the Court of Appeal, notwithstanding the fact that the primary judge had not yet considered the “court only” material and determined the appropriate final form of order under s 31(4). The High Court stood the matter out of the list pending the determination of that issue by Mossop J.
23․At the hearing of the application before me, the Attorney-General submitted that the pendency of the application for special leave had the effect that the order of Murrell CJ concerning publication of the varied judgment would not come into force until the special leave application was determined or discontinued. That submission was based on the provisions of s 34 of the National Security Information (Civil and Criminal Proceedings) Act, which provides that “an order made by the court under this Division does not come into force until the order ceases to be subject to appeal”. It may be accepted that Murrell CJ treated the Attorney-General’s application as one for an order under the relevant division of the Act. However, that assumed that the Court of Appeal had made an order under s 31(4) and that its judgment was a statement of reasons within the meaning of s 32(1) of the Act. As already explained, that assumption appears to have been wrong. The Court of Appeal had not made any order under s 31. That is not to suggest the Court of Appeal did not have power to make the order sought; only that the wrong source of power may have been identified.
24․On 6 July 2022, the Attorney-General for the Commonwealth, the Hon Mark Dreyfus QC MP, exercised his power under s 71 of the Judiciary Act to decline to proceed with the prosecution of Mr Collaery. That brought the criminal proceedings to an end. In the result, although the appeal from the order of Mossop J was allowed, the original order under s 31(4) was never set aside and the final form of the order was never determined as contemplated by the remitter. Justice Mossop was to determine the form of a final order under s 31(4) after considering the highly sensitive “court only” material but that task was overtaken by events and was never completed.
25․It is important to understand the difference between the matter in dispute in the appeal and now. In the appeal, the matter in dispute was the scope of the order that should be made under s 31(4) of the National Security Information (Civil and Criminal Proceedings) Act to govern the disclosure of national security information for the purposes of Mr Collaery’s trial for federal offences.
26․The present application seeks redactions that will not have an impact on any trial. It is concerned with the form in which judgments of the court are to be published. The Attorney-General identified several sources of power for determining that issue but was content for it to be treated as an application under s 19(1A) of the National Security Information (Civil and Criminal Proceedings) Act. That section relevantly provides that 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 satisfied that it is in the interest of national security for the court to make such orders and the orders are not inconsistent with the Act.
27․The basis for the application is that the publication of the first judgment of the Court of Appeal in the form approved by Murrell CJ, and the publication of her Honour’s judgment as provided to the parties, would prejudice Australia’s national security.
Threshold issue: abuse of process
28․The application seeks redactions to the varied judgment that were rejected by Murrell CJ after a hearing. Mr Collaery initially submitted that, the issue having already been determined by Murrell CJ, the doctrine of res judicata applied. That submission was ultimately withdrawn (with respect, appropriately). However, Mr Collaery maintained that I should not entertain the application because it is an abuse of process, being the same application brought a second time, particularly where it was brought before a different judge following the retirement of the former Chief Justice.
29․The Attorney-General submitted that, as Murrell CJ’s order was interlocutory, it was open to him to bring a further application seeking the same relief in accordance with the principles stated by the New South Wales Court of Appeal in Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139. That was a case concerning a second application for leave to commence motor vehicle accident proceedings out of time. The application was based on a better explanation for the delay, which should have been put before the court on the first application.
30․The New South Wales Court of Appeal was divided as to whether the further application should be entertained. The Victorian Court of Appeal in D A Christie Pty Ltd v Baker (1996) 2 VR 58 had previously held, by majority, that a second application for an extension of the time within which to bring an action to recover damages for personal injury was an abuse of process, and so liable to be dismissed, where it relied on additional material which was not “fresh” and where there was no fraud.
31․In Manning, the Nominal Defendant relied on Baker to support the broad proposition (as recorded in the judgment of Heydon JA at [44]) that:
[T]he very important public interest in the courts ensuring that the parties conduct litigation efficiently and expeditiously meant that in interlocutory application of all kinds, including proceedings to obtain extensions of time, only one application should be permitted unless there has been a change of circumstances, or unless the second application rests on evidence which could not, with reasonable diligence, have been obtained in the first application.
32․The majority in Manning rejected the test proposed by the Nominal Defendant and declined to follow Baker: at [72] (Heydon JA); [122] (Foster A-JA). Heydon JA said at [72]:
The Nominal Defendant’s proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion.
33․His Honour acknowledged the “real evils” of repeated applications referred to in Baker as “evils which each court in its individual discretion will rightly strain to avoid” but went on to say at [73] that the risk of evils must be balanced against all the circumstances of the case relevant to whether it is fair and just [in that case, that leave to commence out of time should be granted].
34․Mason P dissented, accepting the existence of a general rule (which his Honour preferred to describe as a “rule of practice”) and rejecting the proposition that the relevant cases established “no more than a statement that a broad judicial discretion is at work”: at [15]-[16]. However, Mason P still accepted that there could be cases in which “the attempt to revisit a contested interlocutory application without change of circumstances or genuinely fresh evidence will not amount to an abuse of process”: at [17].
35․In the present case, in addition to disputing the existence of the general rule, the Attorney-General submitted that there is no discretion to decline to revisit an interlocutory ruling unless the further application amounts to an abuse of process. He submitted that a further application brought in the absence of a material change in circumstances or fresh evidence does not necessarily amount to an abuse of process.
36․I gave leave to the parties to address that issue in further written submissions after the hearing.
37․In his post-hearing submissions, Mr Collaery submitted that it was an abuse of process for the Attorney-General to re-agitate the application in the absence of a material change of circumstances and where the Attorney-General’s evidence could reasonably have been put before Murrell CJ and was not (the written submissions say “and was put before” but that is clearly a typographical error).
38․The submission rested on an invitation to the Court to prefer the views of Mason P in dissent in Manning and the majority in Baker to those of the majority in Manning and Charles JA in dissent in Baker.
39․The issue raised by the parties’ competing positions is whether the “general rule” concerning the bringing of a second interlocutory application in the absence of a material change of circumstances, fresh evidence or fraud on the part of the opposing party is subject to exceptions or whether it is a preclusive rule that should prevent successive applications of the same kind. In my respectful opinion, the better view is that there is no preclusive rule, for the reasons given by Heydon JA particularly at [71]-[73].
40․In any event, it is not necessary to determine that issue. I am satisfied that the present application is not an abuse of process for the following reasons. First, the application is not a repeat of the earlier application. As I have explained, the application determined by Murrell CJ was treated as an application under s 32(3) of the National Security Information (Civil and Criminal Proceedings) Act concerning the reasons for an order under s 31 (albeit that the Court of Appeal had made no such order). The application before me invoked s 19(1A) of the Act.
41․Secondly, even assuming (as suggested in Mr Collaery’s written submissions) that the source of power is unimportant in the present context because the applications are in substance the same, and even adopting the preclusive rule contended for in Mr Collaery’s post-hearing submissions, in my view the rule would not extend to an application of the present kind. The decision in Manning was concerned with the entitlement of a plaintiff in a common law action to twice vex the defendant with a claim brought out of time. The matter in issue in the present application is different. Obviously, this is not a common law claim for damages. Perhaps more importantly, while no issue was taken as to Mr Collaery’s entitlement (in his capacity as the former defendant) to be heard on the issue of disclosure of the information, and I accept without hesitation that it was appropriate to hear him on that issue, he was not a necessary party to the application. He was not vexed twice in the sense in which that is regarded as a vice of multiple applications in civil proceedings.
42․Thirdly, even if all of the foregoing analysis is wrong, the discontinuance of the prosecution against Mr Collaery is a relevant and material change in circumstance, for the reasons explained below.
43․Alternatively, Mr Collaery submitted that, even if it is permissible for the Court to entertain a further application, it is inappropriate for the Court to do so. He noted that the correctness of the order of Mossop J was properly contested in a hearing over two days (and a further day before Murrell CJ) and that three judges rejected the Attorney-General’s position (as to the Court of Appeal’s adoption of the correctness standard of review, see the subsequent decision of Mossop J in R v Collaery (No 10) [2021] ACTSC 311 at [3]-[4]). Mr Collaery submitted that, in light of the careful consideration given to the issue by Murrell CJ, I should dismiss the application in the exercise of my discretion.
44․That overlooks the nature of the power I am asked to exercise. The application invokes the provisions of s 19(1A) of the National Security Information (Civil and Criminal Proceedings) Act. Assuming an obligation to entertain the application (that is, assuming it is not an abuse of process), it is doubtful whether s 19(1A) is to be construed to confer a discretion to dismiss an application invoking the power it confers without forming a view as to whether it is in the interest of national security to make the order sought.
45․Mr Collaery further submitted that Murrell CJ was “better placed” than me to decide the issue because her Honour heard the appeal. That may be so. However, the retirement of a judge does not afford a basis for another judge to refuse to entertain an application properly brought.
46․Finally, Mr Collaery submitted that the High Court indicated it would refuse special leave. The suggestion appeared to be that that was an indication of the Court’s view of the correctness of the order of Murrell CJ. Apart from being wrong in principle, the submission does not reflect what the High Court said when it stood the matter out of the list. Kiefel CJ stated that the Court was prepared to “in effect, adjourn the matter pending a final order under s 31(4)” (the task remitted to Mossop J). If anything, contrary to Mr Collaery’s submission on this issue, the High Court’s preparedness to stand the matter out of the list rather than dismissing the application on the spot recognised the significance of the fact that the final form of the order under s 31(4) remained to be determined by Mossop J.
47․In any event, as submitted on behalf of the Attorney-General, the issue is not whether Murrell CJ was right or wrong but whether to make the order now sought.
48․The discontinuance of the prosecution brings a significant change to the circumstances in which the issue of publication was determined by Murrell CJ, for two reasons.
49․First, the context in which the appeal was determined was that the restrictions on publication sought by the Attorney-General would have a direct impact on Mr Collaery’s trial. It would mean that his charges would be tried without the protection of public scrutiny. The Court of Appeal placed significant weight on the risk of damage to public confidence in the administration of justice where proceedings, particularly criminal proceedings, are held in closed court. That aspect of the weighing of competing interests in the manner required by the National Security Information (Civil and Criminal Proceedings) Act is removed by the discontinuance of the prosecution. Of course, the publication of the court’s judgments is also an essential feature of open justice. My point is that it raises different considerations; importantly, ones that do not have a direct impact on the fairness of a trial.
50․Secondly, as a consequence of the discontinuance, the further function required to be performed by Mossop J of considering the admissibility and effect of the “court only” material and its effect on the existing s 31(4) order was not undertaken and will never be undertaken. Mr Collaery submitted that the outcome of that process could only have been that there would be fewer restrictions on publication, not more than those determined by the Court of Appeal. That is not how I see the position. With respect, I do not understand how a position on that issue can be reached by any person who has not seen the “court only” material. The basis for the submission was that Murrell CJ applied “the highest level of secrecy as the test for the redactions”. It followed, so it was submitted, that “all redactions necessary to comply with [the Attorney’s certificate under s 26] had already been made”. But that was in the context, first, that the Court of Appeal had undertaken a balancing exercise in which it concluded that Mossop J placed too little weight on the administration of justice and, secondly, where Murrell CJ did not have the confidential evidence I have before me.
51․Justice Mossop was able to reach the conclusion that the restrictions sought by the Attorney-General should apply to the trial without having to consider the “court only” material. The material was categorised in that way because of its sensitivity. If the application could be determined without taking the exceptional course of considering evidence not available to the parties, that was obviously preferable.
52․The Court of Appeal recognised, however, that the order of Mossop J should not be set aside without first providing for his Honour to consider that material. The obvious reason is that it might have afforded an additional or separate basis for restricting the sensitive information. The Court of Appeal could not have known what would be the likely effect on the order of considering that material. Nor could Mr Collaery and nor can I. The closed court material is not before me.
53․That is a sufficient and indeed compelling reason for entertaining the present application. The application before me is different from the application determined by Murrell CJ. In circumstances where the mandatory hearing under s 27 remained in effect part-heard before Mossop J at the time the prosecution was discontinued, the Attorney-General seeks an order under s 19(1A) of the National Security Information (Civil and Criminal Proceedings) Act concerning the treatment of the judgment of the Court of Appeal that was itself the subject of appeal at that time. That is not to say that the reasons need not be published because the point has become moot; only that the decision now falls to be made in the changed circumstance that the further step the Court of Appeal acknowledged should occur before the final form of the s 31(4) order could be determined by Mossop J will not now occur.
Mr Collaery’s fallback position – consideration of the confidential evidence
54․Mr Collaery’s fallback position was that, if I was inclined to entertain the application, disclosure of particular parts of the sensitive information should not be restricted. Those submissions were heard in closed court. Mr Collaery provided a schedule setting out his position in respect of each individual redaction or variation sought by the Attorney-General. That schedule was marked “MFI 1” during the hearing.
55․After the conclusion of the hearing, the Attorney-General (with leave) provided a response to Mr Collaery’s schedule in which he accepted a small number of the alternative variations proposed by Mr Collaery. The Attorney-General’s response has been marked in chambers “MFI 2”. The Attorney-General otherwise maintained the position proposed in the application as filed. The Attorney-General contends that the text sought to be redacted should be understood in context and read as a whole, for the reasons explained in a confidential affidavit before me. Mr Collaery replied to the Attorney-General’s version of the schedule. That document has been marked in chambers “MFI 3”.
56․The difficulty with Mr Collaery’s proposal is that it asks the Court to make orders permitting the disclosure of information the secrecy of which was, until the prosecution was discontinued, still the subject of the part-heard application before Mossop J. That application will now never be determined. In the meantime, for the reasons I have explained, either the s 26 certificate issued by the Attorney-General or the s 31(4) order made by Mossop J remains in force. Either way, as submitted by the Attorney-General, the publication of the judgments of the Court of Appeal without the redactions sought by him would publicly disclose information currently protected from such disclosure. And, either way, that prohibition is founded on a determination as to what is necessary to protect the national interest.
57․That highlights the very different circumstance in which the present application falls to be determined. As revealed in its judgment at [120]-[126] (in parts not sought to be redacted), the Court of Appeal’s consideration of the application (applying the correctness standard of review) was very much predicated on the importance of a fair trial. It is not necessary for present purposes to consider whether the correctness standard was the appropriate standard of review. It is enough to observe that, applying that standard, the Court considered that Mossop J had given too much weight to the risk of prejudice to national security and too little weight to the interests of the administration of justice. The Court’s reasoning on that issue invoked incontestable principle concerning the importance of public scrutiny and assessment of criminal proceedings by reference to the evidence adduced in a criminal trial.
58․There will now be no trial. The present application requires the Court to balance the national interest, as certified by the Attorney-General for the Commonwealth (or as assessed by Mossop J), with the principle of open justice as served by the publication of judgments. It is not heretical to hold that that manifestation of the principle of open justice, rightly hallowed as it is, might in a proper case give way to the national interest. So much is recognised in Hogan v Hinch and given statutory force in the National Security Information (Civil and Criminal Proceedings) Act.
59․In my assessment, the appropriate order under s 19(1A) of the Act at this stage of the proceedings is one that respects and is consistent with the s 26 certificate issued by the Attorney-General and the order of Mossop J, which has never been set aside and the final form of which was to abide his Honour’s consideration of the “court only” material, which has not been seen by me or the Court of Appeal as constituted for the hearing of the appeal. For that reason, the order I propose is that the judgment be published in the form proposed by the Attorney-General in MFI 2.
60․There is an alternative and separate reason for making the same order. The Attorney-General relied on confidential affidavits to sustain the protection of information sought. I have given careful consideration those affidavits. That evidence has persuaded me that it is in the interest of national security to make an order in the terms sought by the Attorney-General. In reaching that conclusion, I have given anxious consideration to the importance of publishing decisions of the Court with as few redactions as possible, particularly as to critical aspects of the Court’s reasoning. But I am required by the National Security Information (Civil and Criminal Proceedings) Act also to consider the national interest.
61․Mr Collaery’s counsel made careful submissions directed to individual parts of the judgment of the Court of Appeal. However, there is cogent evidence before me explaining the risk of determining what should be redacted by considering individual pieces of evidence piecemeal. As submitted by the Attorney-General, the text sought to be redacted should be understood in context and read as a whole. Mr Collaery’s submissions reflect a rejection of that approach. He submitted that the premise of the opinion stated in the confidential affidavits was contestable and was the subject of a great deal of evidence.
62․I accept that the Court of Appeal was evidently prepared to weigh those considerations differently in determining the grounds rules for Mr Collaery’s forthcoming trial. I am less sanguine about the consequences of rejecting the considered opinions of the highly qualified witnesses who have given affidavits in the application before me. As already noted, that evidence was not before Murrell CJ. In the current context, that is not a reason to refuse to consider the evidence; it is a reason to scrutinise it with all the more care, as I have.
Orders
63․For those reasons, I make the following orders:
(1)The order of the Court of Appeal of 5 November 2021 is vacated.
(2)The judgment of the Court of Appeal in Collaery v The Queen (No 2) [2021] ACTCA 28 is to be published in the form proposed by the Attorney-General in MFI 2.
(3)The judgment of the Court of Appeal in Collaery v The Queen (No 3) [2021] ACTCA 34 is to be published in the form proposed in Annexure C to the affidavit of Anthony Desmond Giugni dated 20 July 2022.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 9 January 2024 |
0
6
4