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Wednesday, 1 December 2004
Page: 21


Senator LUDWIG (11:03 AM) —For some of the reasons that have already been outlined by the government in respect of Greens amendment (7), the opposition will not be supporting it. It is our view that clause 31(8) should not be omitted from the bill. This provision reflects the stated object of the bill by reinforcing the manner in which the various matters set out in clause 31(7) are to be considered by a court when determining what orders in fact should be made regarding the disclosure of the information. Among those matters is the requirement that the court consider whether any order that is made would have a `substantial adverse effect on the defendant's right to receive a fair hearing', as amended in this place yesterday. In order to trigger this provision, consideration must be given to whether the effect on the defendant's right to receive a fair trial is not insubstantial, insignificant or trivial. Furthermore, the court maintains an absolute discretion under clause 19 to stay proceedings once a closed hearing has taken place, irrespective of what orders were made during the closed hearing, if in the court's opinion the defendant would be unlikely to receive a fair hearing.

The point I was making earlier—you may not have been in the chamber, Senator Brown—was that the closed hearing is not the trial of the defendant. It is a separate forum—if you want to give it a separate name other than `closed hearing', but `closed hearing' will suffice—where a certificate has been issued under clause 31. Notwithstanding what might happen, there is the ability under clause 19, when the defendant is on trial, for the court, in the court's opinion, to determine that a fair hearing is not likely to take place and for that reason stay the proceedings. So what happens is that you have the closed hearing and there is also a trial. As has been said, I think it is essential to the understanding of the process that you have to be able to delineate between the two. A closed hearing can take place either before or during the trial—it can, of course, happen a number of times during the trial. It is designed to ensure that there is fairness in the trial. The closed hearing is to determine as to the competing issues—what is within the public interest and what, in the government's view, comes within national security, to ensure that national security is not compromised as a consequence. For those reasons and the reasons that I outlined earlier about the process, we are not in a position to support the amendment.

Question negatived.