The new federal Attorney-General has been urged to provide "a silver lining to the otherwise sorry saga" of Bernard Collaery's prosecution by allowing "a significant win for open justice" to see the light of day.
Attorney-General Mark Dreyfus QC made an unprecedented intervention in the case of Mr Collaery earlier this month, when he ordered Commonwealth prosecutors to drop all five charges levelled at the Canberra lawyer and former ACT politician.
Mr Collaery, 77, had been due to stand trial in the ACT Supreme Court in October to defend the charges, which alleged he had unlawfully communicated classified information about a 2004 Australian espionage operation against impoverished ally East Timor.
He was also accused of illegally conspiring with a former client, the ex-spy known only as Witness K, to reveal to East Timor that Australian Secret Intelligence Service operatives had bugged the country's cabinet room during sensitive oil and gas treaty negotiations.
While Mr Dreyfus decided the prosecution of Mr Collaery should end, having considered factors like "Australia's relationships with our closest neighbours", unanswered questions remain about the future of classified documents currently stored at the ACT's courthouse.
That matter was canvassed in the ACT Court of Appeal on Wednesday, as was the issue of whether a key judgement handed down nearly 10 months ago will finally be made public.
Three appeal judges ruled in Mr Collaery's favour last October, overturning an earlier decision that would have resulted in his trial being held largely behind closed doors.
Then-chief justice Helen Murrell, Justice John Burns and Justice Michael Wigney found while there was a risk disclosure of certain matters in open court would prejudice Australia's national security, a significant risk was unlikely to 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 judges said.
"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."
Those comments came from a one-page judgement summary, which was all the court could release because lawyers for Michaelia Cash, the attorney-general at the time, were unhappy with how much of the full document Chief Justice Murrell proposed to redact.
The former minister's lawyers appealed to the High Court for a greater level of secrecy to be applied to the document before it was published, only for the nation's top court to effectively put the application on hold.
Tony Giugni, counsel for Mr Dreyfus, and Stephen Robinson, one of Mr Collaery's barristers, raised the topic on Wednesday in light of the 77-year-old's trial being scrapped.
They asked new Chief Justice Lucy McCallum for a Court of Appeal date to determine the issue of the redactions and the judge made four orders, which included that the matter be listed for a hearing.
Kieran Pender, a senior lawyer from the Human Rights Law Centre, urged Mr Dreyfus to abandon the pursuit of secrecy initiated by his predecessor.
"While the prosecution of Bernard Collaery is finally over, it has not been fully resolved - and important matters of utmost public interest remain outstanding," he told The Canberra Times.
"Last October, the ACT Court of Appeal ruled that the trial should only go ahead in open court.
"The previous Coalition government then sought to shroud that judgement itself in secrecy, including through an appeal to the High Court.
"The new Attorney-General should discontinue that appeal and allow the Court of Appeal's important judgement, a significant win for open justice, to finally see the light.
"That would be a silver lining to this otherwise sorry saga."
