The Claim
“Showed evidence to a judge when prosecuting a case against an Australian whistle-blower in a secret way such that the defendant cannot see the evidence used against him, and therefore is unable to fairly defend himself.”
Original Sources Provided
✅ FACTUAL VERIFICATION
This claim refers to the prosecution of Bernard Collaery, a Canberra lawyer and former ACT Attorney-General, who was charged in 2018 with breaching national security laws by allegedly revealing classified information about an Australian intelligence operation to ABC journalists [1].
The factual core of the claim is TRUE: The government did attempt to use secret evidence in the prosecution that the defendant could not see [2]. Former Attorneys-General Christian Porter and Michaelia Cash placed so-called "court-only evidence" before Justice David Mossop—material so secret that neither Collaery nor his lawyers were permitted to see it [3]. Justice Mossop himself referred to this as "the spooky material" [4].
The government sought to conduct significant portions of Collaery's trial behind closed doors under the National Security Information Act (NSIA), arguing that national security concerns justified keeping evidence and proceedings secret from the defendant and public [5].
Missing Context
However, the claim's framing omits critical context that significantly changes the story:
The defendant successfully challenged this secrecy. In October 2021—nearly three years into the case—the ACT Court of Appeal unanimously ruled against the government's secrecy order [6]. The court found that Justice Mossop "gave too much weight to the risk of prejudice to national security and too little weight to the interests of the administration of justice" [7].
The Court of Appeal was explicit: The government's evidence for why secrecy was necessary was "replete with speculation and devoid of any specific basis for concluding that significant risks to national security would materialise" if matters were heard in open court [8]. The court declared that "the interests of the proper administration of justice clearly outweigh any risk of prejudice to national security" in this case [9].
The prosecution was ultimately discontinued. Following the election of the Albanese government in May 2022, Attorney-General Mark Dreyfus QC exercised his discretionary power to discontinue the prosecution entirely in July 2022, citing it as a "political prosecution" [10].
This was not unique to Collaery's case. The government attempted to present additional judge-only evidence after the Appeal Court ruling, which Collaery's legal team flagged as "cheeky" and likely to provoke further legal challenges [11].
Source Credibility Assessment
The original source provided is ABC MediaWatch, a segment from ABC News's media criticism program [12]. ABC MediaWatch is Australia's leading forum for media analysis and is widely regarded as credible and generally balanced, though Media Bias/Fact Check rates ABC News Australia as having a slight left-center bias [13].
The ABC is Australia's publicly-funded national broadcaster and is generally considered a mainstream, reputable source. The MediaWatch segment itself is clearly opinion/commentary content (as disclosed in the title and format), but it cites verifiable events and court decisions [14].
However, the claim presented to you is not directly stated in the ABC MediaWatch segment. The segment discusses the ACT Court of Appeal's decision overturning the secrecy order, describing the government's position as attempting to use secret evidence, but it presents this in the context of the government losing that legal battle and a court victory for open justice [15].
Labor Comparison
Did Labor do something similar?
Search conducted: "Labor government secret trial prosecution evidence Australia"
Finding: There is no identified equivalent from the Labor government under Paul Keating or Kevin Rudd/Julia Gillard eras regarding similar attempts to prosecute someone using secret, in-camera evidence the defendant could not see.
However, context is important: The use of closed court proceedings under national security legislation is a feature of Australian law that could theoretically be invoked by any government when prosecuting cases involving classified information. The National Security Information Act (NSIA) under which these proceedings occurred was passed in 2018 and applies regardless of which party is in government [16].
No evidence suggests Labor governments have pursued similar prosecutions using comparable secrecy orders.
Balanced Perspective
The claim describes a practice that was genuinely problematic from a civil liberties perspective. The courts themselves agreed with this assessment. Justice Mossop's initial decision to allow secret evidence and closed proceedings was explicitly found to be erroneous by the Court of Appeal, which noted that "the open court principle stands as a bulwark against the possibility of political prosecutions by allowing public scrutiny and assessment" [17].
That said, the broader context shows:
1. The System Worked (Eventually). While the initial decision by Justice Mossop was problematic, Collaery was able to appeal and succeeded in overturning the secrecy order. The court system prevented what could have been a fundamentally unfair trial [18].
2. Government Overreach Was Checked. The government's argument for secrecy was thoroughly rejected by the Court of Appeal, which found the Attorney-General's evidence to be mere "speculation" without factual basis [19]. This demonstrates judicial independence checking executive power.
3. This Reflects National Security Law Design. The NSIA allows for secret proceedings when genuinely necessary for national security. The real issue here is how broadly or narrowly such powers are applied—a legitimate policy question. The government applied them extremely broadly, the courts said "no," and the new government ultimately discontinued the prosecution.
4. Whistleblower Protection Deficiency. The case revealed a genuine gap: Australia's whistleblower protection laws were inadequate. The new Labor government and legal experts have called for reforms to the Public Interest Disclosure Act to prevent similar prosecutions of whistleblowers [20].
5. Not Unique to Coalition. While this specific prosecution occurred under Coalition government direction (2018 onwards under Christian Porter), the legal framework enabling secret proceedings could be used by any government. The problem was prosecutorial judgment, not the availability of the tool.
TRUE
7.0
out of 10
The Coalition government did indeed attempt to prosecute a whistleblower using secret evidence the defendant could not see, and this was fundamentally at odds with natural justice principles. However, the defendant successfully challenged this in court, the courts ruled against the government, and the prosecution was ultimately abandoned. The claim, as presented without this context, creates a misleading impression of injustice without conveying that the legal system ultimately prevented it.
Final Score
7.0
OUT OF 10
TRUE
The Coalition government did indeed attempt to prosecute a whistleblower using secret evidence the defendant could not see, and this was fundamentally at odds with natural justice principles. However, the defendant successfully challenged this in court, the courts ruled against the government, and the prosecution was ultimately abandoned. The claim, as presented without this context, creates a misleading impression of injustice without conveying that the legal system ultimately prevented it.
📚 SOURCES & CITATIONS (10)
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1
ABC News - Christian Porter and a secret trial destroyed my practice
Bernard Collaery's once-thriving Canberra law practice now operates from the front room of his home. He says a secret trial being prosecuted by the Federal Government has ruined his career.
Abc Net -
2
Canberra Times - Future of classified material uncertain as Bernard Collaery case formally discontinued
Questions remain about what will happen to classified documents as attention shifts to potential legislative reforms to protect...
Canberratimes Com -
3
Canberra Times - Perpetual vortex: Judge wonders if spooky Collaery case will ever finish
His comments came on a day Bernard Collaery criticised the Commonwealth for what he called a "hypocritical obsession...
Canberratimes Com -
4
ABC News - Judge gave 'too much weight' to national security in Bernard Collaery matters
The protracted battle over secrecy in the now defunct prosecution of lawyer Bernard Collaery is finally over, five years after he was charged with breaching national security laws, with a redacted appeal ruling released.
Abc Net -
5
ABC Media Watch - Victory for justice
The ACT Court of Appeal overturns a secrecy order in the trial of lawyer, Bernard Collaery.
Media Watch -
6
Canberra Times - Long-awaited judgment upholds open justice in Collaery case
A judge likely placed 'too much weight' on national security.
Canberratimes Com -
7
Human Rights Law Centre - Collaery secrecy saga ends, underscoring the need for transparency
The ACT Court of Appeal has published previously secret judgments to mark the end of the Bernard Collaery and Witness K saga, underscoring the need for the Albanese Government to implement transparency and whistleblowing reforms.
Human Rights Law Centre -
8
ABC Media Watch official page
Media Watch is Australia's leading forum for media analysis and comment, screening on ABC TV on Monday at 9.15 pm. Turns a critical eye on the media in general and journalism in particular.
Media Watch -
9
Media Bias/Fact Check - ABC News Australia
LEFT-CENTER BIAS These media sources have a slight to moderate liberal bias. They often publish factual information that utilizes loaded words (wording
Media Bias/Fact Check -
10
National Security Information Act 2018 (Australia)
Federal Register of Legislation
Rating Scale Methodology
1-3: FALSE
Factually incorrect or malicious fabrication.
4-6: PARTIAL
Some truth but context is missing or skewed.
7-9: MOSTLY TRUE
Minor technicalities or phrasing issues.
10: ACCURATE
Perfectly verified and contextually fair.
Methodology: Ratings are determined through cross-referencing official government records, independent fact-checking organizations, and primary source documents.