An early hearing about how to handle sensitive matters in the trial of a former spy and his lawyer accused of conspiring to breach national intelligence laws will be held in a closed court, if the Commonwealth has its way.
But barristers for Witness K and his lawyer Bernard Collaery argued on Wednesday for a different path - one that would not include the "startling" proposition that even defence lawyers might be precluded from the closed hearing.
The East Timor bugging case made only its second appearance in the ACT Magistrates Court and the parties now appear agreed that they cannot agree on a set of procedural orders that would govern how sensitive information is handled during the case.
The determination of the orders will now fall to the court in a preliminary hearing at a future date.
However, on Wednesday the two sides, one being the Commonwealth prosecutors and the federal attorney-general and the other the two defendants, gave two very different interpretations of how the same national security information laws operate in relation to any hearing about the orders. Chief Magistrate Lorraine Walker described the two sides’ views as “diametrically opposed”.
The defence had made an application for a hearing as soon as possible under one section of the laws which would see the questions aired in open court and the magistrate herself making a determination about which matters were likely to prejudice national security.
But Commonwealth prosecutors on Tuesday night told the defendants that they had given notice to the attorney-general that the brief of evidence against the pair could disclose national security information - which could mean the attorney-general issues a non-disclosure certificate if he deems the evidence likely to prejudice national security.
That would trigger a mandatory process that would see the orders hearing be held in a closed court, the attorney-general's counsel Tim Begbie argued with the support of federal prosecutor Richard Maidment QC.
Mr Collaery's silk Christopher Ward SC told Chief Magistrate Lorraine Walker the defendants had not received the brief and that meant they had very serious charges over their head - but no knowledge of the details. The former spy and Mr Collaery were summonsed to court more than four months ago and have indicated they intend to fight the charges.
Dr Ward also said the Commonwealth and attorney-general's path to the orders included the "startling proposition" that even Mr Collaery’s legal team could be excluded from the closed hearing subject to the appropriate security clearances. Dr Ward said that alone was a powerful reason for the court to rule in their favour as it would cause almost irreparable prejudice to Mr Collaery.
He said his client would be further prejudiced by the prosecution's intention to serve them a redacted brief and Mr Collaery's not being able to give instructions without the risk of breaching the law.
He urged the court to set a date for the hearing as argued by the defence as soon as possible.
It was revealed on June 28 that Witness K and his Canberra lawyer Mr Collaery had been charged with conspiracy to reveal information about the Australian Security Intelligence Service.
Witness K blew the whistle on an illegal bugging operation undertaken by Australian intelligence officers against the Timor-Leste government in 2004.
The two nations were in negotiations about how revenue from lucrative oil and gas reserves would be divided.
Witness K took his complaint to the Inspector General of Intelligence Security, and with approval engaged Mr Collaery as his representative.
Mr Collaery later spoke with journalists after ASIO raided his office in 2013.
Ms Walker said she would hand down a decision on Friday.
Tentative dates of February 11 to 13 were listed for the preliminary hearing.
Correction: An earlier version of this story incorrectly said Mr Collaery and Witness K were accused of conspiring to breach national security laws. They are accused of conspiracy to provide information about the Australian Security Intelligence Service.