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Wednesday, 1 December 2004
Page: 22


Senator LUDWIG (11:07 AM) —We have already dealt with some of those issues, but it is worth adding that clause 31(7) of the bill already details the matters that must be taken into consideration by a court when determining what order it will make regarding the disclosure of information. So the provisions within the bill already detail what the court must consider when making an order it may otherwise arrive at. Among those is the requirement that the court consider whether any order it makes would have a substantial adverse effect on the defendant's right to receive a fair hearing. It is important to keep coming back to the fact that the process—given the forum of the closed hearing, which is separate from the trial—has a requirement that the court consider whether any order it may make would have a substantial adverse effect on the defendant's right to receive a fair hearing, as was amended in this place yesterday. I think it is important to keep in train that it is then not the hearing.

Under clause 19(2), in the hearing the court can also come to a similar provision because in that instance, where they cannot exclude the non-security cleared lawyer—so that everyone is in there—the court can still 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. So in the hearing—as distinct from the closed hearing—which relates to the trial, clause 19 gives the court that discretion to still stay proceedings if, in its opinion, the defendant would be unlikely to receive a fair hearing.

To put those together, under clause 31(7) the court must take matters into consideration when determining what orders it will make regarding the disclosure of information in the closed hearing and the court can determine whether or not it might have a substantial adverse effect on the defendant's right to receive a fair hearing there. Subsequently, if it did not and the information was excluded, redacted or summarised, then during the trial, which determines the defendant's guilt or innocence, the court can say that in those proceedings, in the court's opinion, the defendant would be unlikely to receive a fair hearing on the information that has been presented or having regard to the way the information has been allowed to come forward from the closed hearing. For those reasons we are not going to support the amendment.