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Tuesday, 30 November 2004
Page: 87


Senator ELLISON (Minister for Justice and Customs) (6:18 PM) —Senator Brown has asked, `Does the government believe that the bill requires a court to proceed where it thinks that there will be an unfair trial?' No. It is quite the reverse, and that is what I was saying. I was indicating that, even if the court considers this question of an unfair trial at an early stage in the proceedings and determines that it is not an unfair trial, there is nothing to stop it changing that view should events during the trial indicate that it has become an unfair trial. So the court has that flexibility. Clause 19(2) states:

To avoid doubt, the fact that the court considers a matter in making an order under section 31 does not prevent the court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter.

Normally, where a court makes an order, it could be regarded as functus officio—that is, you have dealt with the matter, that is the end of it and you cannot revisit it. That is often the case with decisions by officials. Here, we are saying that, even if a court makes an order under clause 31, it is still not precluded at any stage thereafter from considering the unfairness aspect of the trial and making an order contrary to the order it made earlier. So the legislation gives and preserves that flexibility for the court to change its mind should it feel that there is a requirement to do so.