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Tuesday, 30 November 2004
Page: 70

Senator LUDWIG (5:04 PM) —I rise to speak on the National Security Information (Criminal Proceedings) Bill 2004. This bill establishes a regime for the handling of national security information in federal criminal proceedings. The opposition will be supporting the bill but will move several amendments at the committee stage. The bill arose as a result of a long process of inquiry by the Australian Law Reform Commission. However, the government chose to introduce this bill into parliament before the ALRC had handed down its final report entitled Keeping secrets: the protection of classified and security sensitive information. Paragraph 17 of the ALRC's submission to the Senate inquiry into the bill, which I participated in, states:

The ALRC was not consulted during the development or drafting of these Bills, nor was this parallel process referred to in consultations, or in the submissions from the Attorney-General's Department and the Australian intelligence community.

This outcome is extremely regrettable because the original bill failed to consider the detailed recommendations contained in the ALRC's final report. This was clearly a wasteful mismanagement of public resources and the Attorney-General should offer the Australian people and the parliament a full explanation of this decision. Why he would set two processes in train independently and not ensure that they utilised each other's expertise in this matter is beyond belief.

The object of the bill is to prevent the disclosure of information in federal criminal proceedings where that disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. In these circumstances, the bill provides a procedure where information relating to or the disclosure of which may affect national security may be introduced in federal criminal proceedings, taking into account the interests of national security and the right of a defendant to receive a fair hearing.

In the submission to the ALRC, the Law Council of Australia stated that a bill outlining a process for dealing with security sensitive information in criminal proceedings was desirable to ensure:

The clear expression of the possible orders that may be made to ensure the appropriate balance between the public interests and the interests of justice. The Council sees as desirable the Commission's proposals (10-10) that emphasise the wide powers courts and tribunals have to ensure the appropriate balance in the individual case.

I now turn to the committee report. On 19 August government and opposition members of the Senate Legal and Constitutional Legislation Committee—on which I had the privilege to serve—delivered a bipartisan report on the bill. The committee made 13 recommendations for amendments to the bill. Subject to these recommendations being adopted, the committee recommended that the bill proceed. In response to these recommendations, the government has introduced a substantially amended bill. The amendments are once again proof of the value of the Senate committee process, and further condemn the Attorney-General's ill thought-out criticism of the opposition in the first instance for referring a bill such as this to the relevant Senate committee. The opposition believes that the current bill strikes a balance between the interests of national security and the right of a defendant to receive a fair hearing. The opposition also believes that the bill deserves to be read a second time.

I now turn to some of the substantive issues covered in the bill. We will touch on some of the more pertinent matters during the second reading debate and deal with the proposed amendments at the committee stage. The exclusion of persons from closed hearings is one of the more germane elements contained within the bill. In response to recommendations 6 and 13 of the Senate committee's report, the bill amends clause 29 of the original bill to ensure that the defendant and his or her legal representative will not be excluded from the entire closed hearing and that the court always maintains the capacity to stay proceedings if a defendant cannot be assured of a fair trial. Let us be clear about that: the bill ensures that the court will always maintain the capacity to stay proceedings if a defendant cannot be assured of a fair trial.

The original bill gave the court the power to exclude the defendant and his or her legal representative from all of the closed pre-trial procedures if the court believed the presence of either of these persons would be likely to prejudice national security. An amendment has been inserted in response to the following finding by the Australian Law Reform Commission:

Leading secret evidence in criminal matters clearly breaches protections afforded by Australian and international law for an individual to be tried in his or her presence and to have the opportunity to examine, or have examined, any adverse witnesses. Excluding a person's lawyer from a criminal hearing would appear to violate that person's rights under Article 14(3)(b) and (d) of the International Covenant on Civil and Political Rights—

that is, the ICCPR—

to communicate with, and be defended by, counsel of his or her own choosing.

The amended clause stipulates that a court can only exclude the defendant or the defendant's legal representative from `any part of the hearing', where the defendant or their legal representative's presence in the court would be likely to prejudice national security. The capacity of a court to restrict access to closed pre-trial procedures is further restricted by an amendment to clause 29(3)(c), which states that a defendant's legal representative can only be excluded by a court for the reason that the representative has failed to be `given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned'.

Clause 19 of the current bill is also amended to expressly state that, irrespective of any pre-trial ruling, a court maintains the discretion to stay federal criminal proceedings. It should be clear in this instance that, irrespective of any pre-trial ruling, a court maintains the discretion to stay federal criminal proceedings in the event that the defendant would not be guaranteed a fair trial.

In response to recommendations 7 and 8 of the committee's report, clause 31 of the bill has been amended to provide that a court must, when making an order in relation to the disclosure of information or a witness, take into consideration `whether any such order would have a substantial adverse effect on the defendant's right to receive a fair hearing, including in particular on the conduct of his or her defence'.

In making its decision a court is still required to give greatest weight to the risk that the disclosure of information or a witness could prejudice national security. However, a court retains the discretion to stay proceedings if the court believes that the order made under clause 31 would unfairly prejudice the defendant. In particular, clause 19 has clarified, by way of additional provision, that any order made under proposed clause 31 in a closed hearing does not prevent the court from later ordering that the criminal federal proceedings be stayed on a ground involving the same matter. In respect of the timing of closed hearings, in response to recommendation 9 of the committee report, clause 27 of the bill has been amended to allow the trial court to hold closed pre-trial hearings in relation to information which is the subject of an Attorney-General's certificate. This amendment gives the defendant more time to prepare his or her defence in the context of the court's ruling on the certificate.

I now turn to the issue of admissibility of redacted evidence. While a pre-trial ruling on the Attorney-General's certificate cannot be challenged before a court conducting the criminal proceedings, the court retains its discretion to determine the admissibility of evidence and to generally determine the course of the trial. As the Law Council noted in its submission to the original ALRC inquiry, while situations will arise which demand that access to sensitive national security information be prohibited or restricted in courts and tribunals, `any such limitations remain the responsibility of the courts, that the onus be always upon those seeking to limit access, and that any permitted limitations upon access always remain consistent with the principles of a fair trial'. That is consistent with Senate committee recommendation 2.

I now turn to another issue that was dealt with during the Senate Legal and Constitutional Legislation Committee—reasons for court orders following a closed hearing. The Senate committee report recommended that the bill be amended to include a provision requiring the courts to provide a written statement of reasons outlining the reasons for holding closed hearings. The current bill does not act upon this recommendation, because the bill requires that a court hold closed hearings for all proceedings in which the Attorney-General's certificate is challenged. Therefore, a court's only reason would be that the court is required to hold a closed hearing by the relevant act.

Instead of adopting this amendment, new clause 32 has been inserted into the bill to ensure that the court is now required to give reasons for decisions it makes admitting, excluding or redacting information or excluding witnesses following a clause 31 closed hearing in which the Attorney-General's certificate has in fact been challenged. This can be found at clause 32(1). Given the potential of any information in those reasons to be prejudicial to national security, clause 32(2) requires the court to give a copy of its proposed statement to the prosecution. If the Attorney-General is a party or if the prosecution or the Attorney-General consider that the proposed statement may disclose information that may prejudice national security then either of those parties may challenge the proposed publication. The court must then make a decision about this request to refrain from publishing its reasons and again give reasons for acceding to or rejecting the request.

New clause 33 in the bill ensures that the prosecution or the Attorney-General—if he is a party to the closed hearing—can request that the court delay publishing its statement of reasons to allow those parties to appeal a decision under new clause 32. Clause 38 has also been added to allow the prosecution and the Attorney-General—if the Attorney-General is a party to the closed hearings—to appeal a decision under clause 32. The court that hears the appeal is the court that has jurisdiction to hear and determine appeals from the judgment on the trial. That statement can be found in clause 38(2).

The bill also contains technical amendments that impact on the lapsing of the Attorney-General's certificate, the required form of notice to the Attorney-General regarding an expected disclosure, the impact of the bill on extradition hearings and a definition of `likely to prejudice national security'. All these amendments are consistent with the intent of the Senate committee report.

We have a federal protected disclosure regime. A Labor government will introduce a new federal protected disclosure regime, which will include appropriate protection for national security information as per recommendations 3-1 to 3-3 of the ALRC's report. As indicated in the opposition's second reading amendment, whilst not objecting to the second reading of the bill, the opposition believes that the Senate should call upon the government to implement a new federal protected disclosure regime, which will include appropriate protection for persons working with security sensitive information and national security matters consistent with the recommendations of the Australian Law Reform Commission. In light of the amendments outlined above and the opposition's support of the purpose of the bill, it is now fair to say that we can speak in favour of granting the bill a second reading; however, we note the opposition will also move amendments to the bill in the committee stage.