Collaery v The Queen (No 3)

[2021] ACTCA 34

ACT Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › National security information
3. › Variation of statement of reasons
4. › Whether information in proposed reasons directly or indirectly reveals protected information
5. › Whether information tends to confirm or deny protected information
6. › Balancing national security against administration of justice
7. › National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 3, 17, 26, 27, 31, 32
1. Practice and Procedure
2. › National security information
3. › General powers of court in federal criminal proceedings
4. › Orders for protection of national security information
5. › Whether orders appropriate in interest of national security
6. › National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), s 19(1A)
1. Practice and Procedure
2. › Open justice
3. › Publication of reasons for judgment
4. › Extent of permissible redaction
5. › Importance of public access to core reasoning of appellate court

Quick Take

When exercising the s 32(4) variation power, the court must balance the degree of likelihood and degree of prejudice to national security against the extent of interference with the administration of justice. A s 26 certificate does not capture statements that merely 'lessen residual ambiguity' in the mind of a speculative reader; the test is whether the statement has a real tendency to suggest protected information is true or untrue, or might directly or indirectly reveal it. General statements about international relationships and hypothetical impacts do not fall within the certificate's scope. Appellate reasons should be published with as few variations as possible, particularly as to core reasoning.