Bernard Collaery and Attorney-General Christian Porter (Images: AAP)

The overturning by the Supreme Court of the ACT yesterday of secrecy orders in the Bernard Collaery trial is significant in a couple of ways.

Judges Murrell, Burns and Wigney overturned trial Judge David Mossop’s decision to grant Christian Porter’s application to hide evidence against Collaery, and witness evidence produced by Collaery, via national security orders made by Porter under the National Security Information (Criminal and Civil Proceedings) Act 2004. The appellate court ruled that

Public disclosure of information relating to the truth of the identified matters would involve a risk of prejudice to national security. However, the court doubted that a significant risk of prejudice to national security would 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 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.

The ruling threatens to derail the entire trial of Collaery for conspiracy and revealing information about the illegal bugging of Timor-Leste’s cabinet. Why? The strategy of then-attorney-general Christian Porter was to impose a long, grinding legal process on Witness K and Bernard Collaery, wrecking Collaery’s remaining legal career and serving as an example to anyone who might embarrass the Coalition by exposing its dirty laundry.

But the downside of the strategy was that it might further embarrass the Coalition with revelations of more detail of the decision of John Howard and Alexander Downer to bug the government of a friendly microstate. The prosecution had to be kept as secret as possible, on the pretext of national security.

That’s now in danger and will be the reason why Attorney-General Michaelia Cash will appeal the judgment, whatever the advice she receives from the Australian government solicitor.

There’s also the slight problem that, under Christian Porter’s own reasoning, the government shouldn’t be proceeding with the prosecution at all now because it will endanger national security. How would the best possible outcome for the government — a conviction and suspended sentence for Bernard Collaery — be justified by the danger to national security that it insists will result from a public trial?

The government is desperate to keep embarrassing details of the actions of the Howard government, and the Department of Foreign Affairs and Trade, out of the public eye. Under John Howard and Alexander Downer, the Australian Secret Intelligence Service illegally bugged the Timor-Leste cabinet room in an effort to secure an advantage in negotiations with the fledgling state over access to resources under the Timor Sea.

The other issue it raises is that a court has now demonstrated a willingness to push back against government national security overreach, and hold that the interests of open justice and confidence in the legal system outweigh blanket and ambit claims of national security by governments.

It creates an example that other courts might reflect on whenever they, too, are asked to accept without question government demands that secrecy be maintained out of concern for national security.

It’s well established that governments invoke national security to cover up their own embarrassment, leading to journalists being raided for revealing information embarrassing to officials and politicians, but no one suffering when government ministers, staffers and senior intelligence officials leak national security information in their own interests. Home Affairs secretary Mike Pezzullo has even boasted he has a small menagerie of tame journalists that he discusses sensitive information with.

It seems courts have taken notice that not every federal government claim about national security should be taken at face value.

Another reason why the government will be desperate to appeal the decision.