Federal Attorney-General Michaelia Cash has suffered a blow, with a judge denying her request to update secret evidence she hopes to rely on in the prosecution of Bernard Collaery.
Mr Collaery, a Canberra lawyer, is awaiting trial in the ACT Supreme Court on charges alleging he unlawfully communicated information about the Australian Secret Intelligence Service.
The allegations relate to the public exposure of a 2004 Australian espionage operation in impoverished East Timor.
The most recent in a long line of pre-trial proceedings have focused on Senator Cash's bid to update so-called "court-only evidence"; material the Commonwealth considers so sensitive it proposes providing it to only the trial judge and not to even Mr Collaery or his lawyers.
It was prepared between 18 months and two years ago, and Senator Cash's legal team has argued it needs to be changed for reasons including that some of it is no longer accurate.
But on Tuesday, Justice David Mossop ruled that would not be permitted.
The judge indicated he would now proceed to determine whether or not to admit the material into evidence on the basis the Attorney-General has sought.
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He wrote that it remained open to Senator Cash to "apply for an order in different terms to accommodate current circumstances" if some of the relevant material was now outdated.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, expressed worry at this possibility following the revelation Senator Cash is heading to the High Court to seek greater secrecy over a key judgment that denied the Commonwealth's request for a largely closed trial.
"Whistleblowers should be protected, not punished - and certainly not dragged through an endless, opaque prosecution," Mr Pender told The Canberra Times.
"While today's decision is a partial win for Bernard Collaery, the prospect that the Attorney-General could start the whole secrecy process again is deeply concerning.
"Rather than appealing the secrecy of a judgment that said no to secrecy to the High Court, or re-litigating these issues from scratch, the Attorney-General should drop the prosecution and fix our broken whistleblower laws.
"Changes to Australia's whistleblowing laws is long overdue. That reform, rather than the prosecution of whistleblowers, should be the Attorney-General's priority."
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