Bernard Collaery's lawyer argues in ACT court against 'inadvertent disclosure' of sensitive govt information

The continued push is in spite of the evidence not forming a substantial part of the prosecution, the ACT Supreme Court heard on Wednesday.

Mr Collaery, a Canberra lawyer and former territory politician, is set to stand trial in the ACT Supreme Court accused of five offences.

He is pleading not guilty to four charges alleging he broke the law by sharing via media interviews protected information about the Australian Secret Intelligence Service.

He is also fighting a single count of conspiring with his former client, the ex-spy known as Witness K, to unlawfully communicate such information to the government of East Timor.

During a pre-trial hearing of the long-running legal saga on Wednesday, Tim Begbie QC for the Attorney-General, Michaelia Cash, said that the secrecy of the information if released would be destroyed to the detriment of those seeking to protect the confidentiality of that information.

Mr Begbie said that while Mr Collaery's lawyers were not "incredible or untrustworthy", there was "a very real risk of inadvertent disclosure".

"This is not evidence that would be led by the prosecution in any case ... It does not impact on what he would have to answer in his trial," he said.

Mr Begbie also said the court must consider "the very practical question of the facts and circumstances that frame the procedural fairness question".

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He said Mr Collaery's lawyer, Christopher Ward SC, has focused on only the disadvantages that the court-only evidence would create.

"You must consider the procedural fairness question in a much more complete and balanced way than that," Mr Begbie said.

He cited the nature, purpose and context of the evidence and that the procedure of restricting access "accords with authority and which is procedurally fair".

"In the sense that it offers practical fairness to all of the parties in the circumstances of an inevitable tension between the demands of secrecy and the demands of openness," he said.

Dr Ward for Mr Collaery urged for the rejection of the court-only evidence, saying that disclosure of it would not destroy "the necessary qualities of secrecy".

Dr Ward also argued that the assertion about inadvertent disclosure should not be accepted at face value.

"The focus is on disclosure to the public at large [but] the hinge to restrict disclosure to the defendant and his legal advisers is that there is a risk of inadvertent disclosure. That seems to be as high as it goes," he said.

"There is an undoubted consistent and completely uniformed acceptance of the proposition that access to evidence in an adversarial proceeding is fundamental and a fundamental part of procedural fairness," he said.

"It cannot be the subject of abrogation by general words."

Since being charged in mid-2018, Mr Collaery has been dragged through an endless, secretive prosecution.

Senator Cash recently appealed to the High Court to keep secret the details of an ACT Court of Appeal judgment related to the case.

Kieran Pender, senior lawyer at the Human Rights Law Centre, continues his calls for the protection of whistleblowers and law reform.

"While consenting to the prosecution of whistleblowers, the government has delayed reforming laws that would protect those who speak up about wrongdoing."

Mr Pender said that in 2016, an independent review found that the Public Interest Disclosure Act 2013 needed to be overhauled.

"Australia's whistleblowers are suffering," Mr Pender said.

"Reform to the PID Act is long overdue. The Morrison government should start delivering on integrity reform promises, including fixing our broken whistleblower protection laws."

The latest hearing, before Justice David Mossop, also raised the prospect of a special counsel being appointed to assist proceedings. Justice Mossop has reserved his decision.

The charges against Mr Collaery concern the exposure of a 2004 espionage operation, in which Australian spies bugged a government building in the southeast Asian nation.

Australia was negotiating with its impoverished ally over lucrative oil and gas resources at the time.

Members of Drop the Whistleblower Prosecutions group marched through Canberra on Wednesday to support Mr Collaery.

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