SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collaery (No 9) |
Citation: | [2020] ACTSC 291 |
Hearing Date: | 30 September 2020 |
DecisionDate: | 16 October 2020 |
Before: | Mossop J |
Decision: | See [57] |
Catchwords: | PARLIAMENT – PUBLIC INTEREST IMMUNITY – Subpoenas served on government departments to produce documents – party seeking access is the defendant in criminal proceedings – application to be excused from production on the grounds of public interest immunity – whether the documents would reveal deliberations of Cabinet – disclosure of documents would allow reliable inferences to be drawn about Cabinet deliberations – strong public interest in not disclosing the documents in court proceedings – excused from producing the documents |
Legislation Cited: | Evidence Act 2011 (ACT), ss 130, 131A Freedom of Information Act 1982 (Cth), s 34 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 27 |
Cases Cited: | A v Hayden (No 2) (1984) 156 CLR 532 Alister v The Queen (1984) 154 CLR 404 Queanbeyan City Council v ACTEW Corporation Limited [2008] FCA 1983; 253 ALR 121 |
Parties: | Secretary, Department of Prime Minister and Cabinet (Applicant) Secretary, Attorney-General’s Department (Applicant) The Queen (Crown) Bernard Collaery (Defendant) |
Representation: | Counsel A Mitchelmore SC and T Begbie (Applicants) C Tran (Crown) C Ward SC (Defendant) |
| Solicitors Australian Government Solicitor (Applicants) Commonwealth Director of Public Prosecutions (Crown) Gilbert + Tobin (Defendant) | |
File Number: | SCC 195 of 2019 |
MOSSOP J:
Introduction
Bernard Collaery is being prosecuted on four charges of contravening s 39 of the Intelligence Services Act 2001 (Cth) and one count of conspiring to do so. In response to subpoenas served by him on the Secretary of the Department of Prime Minister and Cabinet (Secretary, PM&C) and the Secretary of the Attorney-General’s Department (Secretary, AGD), both Secretaries have filed applications seeking that they be excused from producing certain documents.
By the time of the hearing, only five documents were in contention. Those documents are documents alleged to be related to the processes of the…
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- AGLC
- R v Collaery (No 9) [2020] ACTSC 291
- Case
- [2020] ACTSC 291
- Decision Date
CaseChat Overview and Summary
The court considered the potential implications of disclosing Cabinet deliberations, emphasising the importance of confidentiality in such matters. It found that the documents in question did indeed reveal deliberations of Cabinet and that their disclosure would allow reliable inferences to be drawn. The court further concluded that there was a significant public interest in maintaining the confidentiality of these deliberations to ensure the effectiveness of Cabinet processes and to protect the integrity of government decision-making. Therefore, the court decided that the defendant was excused from producing the documents as they were protected by public interest immunity.
As a result of the court's reasoning, it was ordered that the defendant was excused from producing the documents in question. This outcome underscores the balance the court must strike between the public's right to transparency and the need for confidentiality in certain government processes. The court's decision in this case highlights the weight given to the public interest in protecting the confidentiality of Cabinet deliberations in the context of criminal proceedings.
Orders
Orders of the court
See [57]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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