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Wednesday, 1 December 2004
Page: 18


Senator LUDWIG (10:49 AM) —by leave—I move opposition amendments (4) and (5) on sheet 4432 revised:

(4) Clause 29, page 24 (lines 18 to 21), omit subclause (5), substitute:

(5) The court must make the record available to, and only to:

(a) a court that hears an appeal against, or reviews, its decision on the hearing; and

(b) the parties to proceedings, unless the court determines that the provision of the record or part of the record to the parties would prejudice national security.

(5) Clause 29, page 24 (after line 21) at the end of the clause, add:

(6) Notwithstanding subsection (5), if a court makes an order under subsection 31(5), the court may make the record of the closed hearing, or part of the record of the closed hearing, available to the public, unless the court determines that the publication of the record or part of the record would prejudice national security.

Amendment (5) contains a new paragraph to be inserted which says that the court must take a record of the proceedings of a closed hearing and that it will be available to the parties to proceedings unless the court determines that the provision of the record or part of the record would prejudice national security. This amendment removes the legislative prescription that the transcript must be sealed and allows the court to determine if the record of proceedings is to be made available to the parties to the proceedings and to a court that hears an appeal against, or reviews, the court's decision on the hearings.

Allowing access by the parties to the record promotes an important public interest that the administration of justice can proceed publicly while balancing the importance of protecting national security. It would seem a sensible addition to the process to ensure that the transcript is available to the parties. They may require reflection upon that transcript or a check of the record to determine that those were the matters that were dealt with. The amendments provide that the court can otherwise seal the record if necessary—if they do not think it should be given out. So the amendments do give the court the discretion in that regard. We think that these are sensible amendments and that they should be supported.