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Tuesday, 30 November 2004
Page: 89

Senator LUDWIG (6:31 PM) —The committee dealt with this issue in some detail under the heading `The right to a fair and public trial'. Specifically, clause 3.32, at page 19 of the committee report, in terms of the line, states:

The Law Council accepted that in the interests of national security it may be necessary, in exceptional cases, for a court to restrict public access to a hearing. It stated:

... if sensitive national security information is to be protected and the interests of justice achieved, there must be exceptions to the general principle that it is in the interests of open justice that courts remain open to the public. However, any exceptions must be to the minimum extent necessary to protect national security ...

And it goes on. It was not only the Law Council that accepted that there could be closed hearings. To the same effect, at 3.34 the committee report states that HREOC argued:

... the discretion to hold part or all of a hearing in camera should be left to the courts. It suggested that, in considering whether to have a closed hearing, there should be safeguards in place ...

So the dividing line is that there is an ability to have closed courts. At 3.35 of the report it is noted that the Australian Press Council also recognised `that in specific cases involving the protection of sensitive national security information in-camera proceedings may be necessary'. The ALRC report, as I alluded to earlier, also dealt in a comprehensive way with a range of the issues that we have gone through, and in their report they dealt with the way that this restricted information and the principles may be dealt with. What we have in this instance is a pre-trial or a certificate that can determine, without prejudicing the substantive hearing at a later date, whether the information should be protected.

We think the process is a fair one because it will ensure that there is a fair hearing. Of course, the court has the discretion, as I think was alluded to earlier, to say whether the certificate should or should not be granted. In other words, the court holds the key to the process, but it is not determined substantively as to whether the matters are determined by the court. If there is a requirement to have a closed hearing the court still retains the discretion at any stage to come back, depending on how those things unfold. The principles, as I have argued, do in fact ensure that there is the ability to have these closed hearings, and we rely substantively on the statement by the Law Council which accepted that, in the interests of national security, this may be necessary.