This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Public Interest Immunity From Producing Documents


There are many situations in which legal, political and moral considerations clash. This is occurring in a matter currently before the ACT Supreme Court involving the former ACT Attorney-General and leading barrister Bernard Collaery and the Australian government. This case raises the interesting issue of whether and under what circumstances, a party can be excused from having to produce documents on the basis of public interest immunity.

R v Collaery

Collaery, a reforming former first law officer of the Territory, is being criminally prosecuted by the  government, for allegedly providing information (and also conspiring to do so) about the Australian Secret Intelligence Service, to a person. That information has been widely reported to be related to the alleged bugging by ASIS of the Cabinet room of the Timor Leste Government.

When this matter was last dealt with by the ACT Supreme Court before Justice David Mossop – the issue being decided was based on public interest immunity. This court ruled on whether Collaery should have certain government documents obtained by way of subpoena released to him.

What is Public Interest Immunity?

The Evidence Act 2011 provides at Section 130 for the exclusion of evidence of matters of state. That provision states: “If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be presented as evidence.”

Mr Collaery had sought a number of documents, including a brief for Australian Cabinet submissions, two briefs for Departmental Secretaries in discussions in the Secretaries Committee on National Security and one ministerial submission on legal prospects regarding an aspect of the case against Mr Collaery.

The government resisted, citing public interest immunity.

Justice David Mossop said the three-stage process for consideration of the claim was uncontroversial, following the process described by Chief Justice Sir Harry Gibbs in Alister v The Queen (1984) 154 CLR 404 at 412:

“ …  when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates.  The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration – i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence.  The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation”.

Justice Mossop’s consideration of public interest immunity

Justice Mossop found authority that said significant weight had to be given to the views of government officials but that the entity claiming privilege had to show a “real risk of harm”, not just that harm was more probable than not.

Documents recording the actual deliberations of Cabinet, as distinct from other Cabinet documents, have “a pre-eminent claim to confidentiality” but it is not absolute: the detriment to the public interest involved in disclosure could be outweighed by the public interest in the advancement of justice. But such a situation was exceedingly rare.

In Mr Colleary’s case, a senior official of the Department of Prime Minister and Cabinet gave evidence, saying, “Generally speaking, the five documents are either Cabinet documents themselves, or their content is substantially and specifically replicated in the Cabinet documents, such that their disclosure would reveal Cabinet deliberations.” Counsel for Mr Collaery submitted that the documents were “far removed from Cabinet deliberations” and hence did not attract immunity.

Much of Justice Mossop’s decision under the heading “The public interest identified by the defendant” was redacted, and many of Mr Collaery’s arguments were not accepted.

Justice Mossop said, “I do not accept the submission that the documents, because of their degree of removal from the actual deliberations of Cabinet, cannot be covered by immunity. I have accepted the evidence of [the senior government official] that, as a matter of fact, the disclosure of the documents will allow reliable inferences to be drawn about Cabinet deliberations and the positions adopted during the course of those deliberations.

“Because of their relationship to the deliberations of Cabinet, as disclosed in the evidence, there is a recognised and strong public interest in not having those documents disclosed in court proceedings.”

Community response

While Justice Mossop’s study of the legislation and case law was comprehensive, it had to be – by its very nature – a purely legal analysis. The political and moral questions raised in this case are being played out in the court of public opinion.

Mr Collaery’s case has attracted considerable interest, with a group of supporters regularly attending his court appearances and making peaceful demonstrations at the front of the ACT law courts.

Civil Liberties Australia has had a long involvement with the case.

A former Member of the South Australian Legislative Council, Sandra Kanck (Australian Democrat), told a CLA rally on 9 November 2020: “Australia was involved in espionage against our neighbour Timor Leste, a developing nation, a nation attempting to rebuild itself after years of colonisation, cultural suppression and, latterly, genocide.

“As a proud new nation, rebuilding from scratch, Timor Leste ought to have been able to expect better of its neighbour and so-called developed nation, Australia, in the … treaty negotiations over oil and gas resources in the Timor Sea.

“Instead – and the instruction must have come from on high – ASIS bugged the Timor Leste negotiating team’s office in Dili. This effectively tied the hands of the negotiating team behind their backs without them even knowing it was so.

“It guaranteed Timor Leste obtained minimal outcomes from the treaty, including even the gas that was within their own maritime borders. Shame, Australia, shame.”

The source of media reports about the bugging was allegedly a former ASIS operative known only as Witness K, who has been charged along with Mr Collaery.

Ms Kanck continued, speaking of Mr Collaery: “What did he do to deserve the charges against him? He did what a lawyer should do. He represented his client, Witness K. Since when did representing a client become a crime? It seems when Australia’s Attorney-General, Christian Porter, says so.”

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