Collaery v The Queen

This matter concerned an application by the appellant, Bernard Collaery, to vacate the scheduled hearing dates for his appeal before the Supreme Court of the Australian Capital Territory. The appeal arose from orders made by the primary judge on 26 June 2020, concerning the closure of parts of the appellant's trial to the public and restrictions on the publication of evidence, which were sought by the Commonwealth Attorney-General. The appellant was facing charges under the *Intelligence Services Act 2001* (Cth) and conspiracy to breach that Act.

The central legal issue before the Court of Appeal was whether the appeal dates should be vacated to accommodate the appellant's engagement of new senior counsel, Mr Bret Walker SC, who had volunteered to act pro bono. This engagement was complicated by the operation of the *National Security Information (Criminal and Civil Proceedings) Act 2004* (Cth) (NSI Act), which required the Attorney-General to amend a certificate issued under s 26 of that Act to permit Mr Walker access to sensitive information and to take instructions from the appellant. The appellant argued that the Attorney-General's delay in amending the certificate prejudiced his ability to benefit from Mr Walker's expertise, particularly given Mr Walker's unavailability on the original appeal dates.

The Court reasoned that the power vested in the Attorney-General under the NSI Act to control access to sensitive information by legal representatives is significant and should be exercised with efficiency and for its intended purpose, not to gain a forensic advantage. The Court noted that the Attorney-General did not amend the s 26 certificate to include Mr Walker until 25 January 2021, despite the appellant's request on 23 December 2020. This delay, coupled with Mr Walker's subsequent unavailability for the original appeal dates, meant that any benefit the appellant might have gained from briefing Mr Walker was likely to be significantly reduced or lost. The Court considered this delay and its impact to be unfair to the appellant.

Consequently, the Court acceded to the appellant's application to vacate the appeal dates.