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Thursday, 27 May 2004
Page: 29307

Mr RUDDOCK (Attorney-General) (9:02 AM) —I move:

That this bill be now read a second time.

The government has an obligation to protect Australia's national security and the information that may damage that security.

At the same time, the government has an equally important obligation to enforce Australia's criminal laws, including the laws that protect our security.

We must ensure that those who break the law do not escape punishment.

A recent criminal trial demonstrated that a conflict between these obligations may arise during prosecutions in relation to Commonwealth security offences, such as terrorism and espionage.

In these cases, the Commonwealth may face the unpalatable decision of whether to risk disclosing sensitive information relating to national security or to protect this information by abandoning a prosecution, even where the alleged crimes could themselves have grave consequences for our national security.

The case of Lappas in 2001, which involved espionage charges, highlighted the inadequacy of the present arrangements.

During that case, the presiding judge stated that certain prosecution documents should be granted protection from disclosure under public interest immunity.

Having made this ruling, His Honour had no option but to stay the charge relating to the unlawful disclosure of those documents, given that he also found that the fair trial of the accused depended on their disclosure.

In that same case, defence counsel's refusal to undergo a security clearance posed a further problem for the protection of the documents.

Following the Lappas case, the government took immediate administrative action to protect national security information.

We amended the legal aid guidelines to require legal representatives in legal aid funded cases to obtain security clearances.

However, this only addresses a small part of the difficulty highlighted in the Lappas case.

This bill will alleviate the dilemmas that could arise in future prosecutions for Commonwealth security offences.

The legislation will strengthen the procedures for protecting national security information.

It will also protect an individual's right to a fair trial.

Most importantly, it will provide a court which has found that sensitive security related information should not be disclosed with an alternative to simply dismissing the charge.

It will enable a court to admit documents and information in a redacted form which protects national security but preserves the essence of the information.

This bill protects information which, if disclosed, may compromise Australia's national security.

This is information that relates to Australia's defence, security, international relations, law enforcement interests or national interests.

In developing this bill, we considered existing legislation in the United States, the United Kingdom and Canada.

Whilst these schemes go some way towards protecting information that may affect national security, none of them alone would provide sufficient protection in the Australian legal environment.

Consequently, we have adopted elements of each scheme to develop a regime that is suitable for us here in Australia.

The scheme applies to all stages of criminal proceedings and to all courts exercising federal jurisdiction for Commonwealth offences.

Under this bill, both the prosecution and defence have a duty to notify the Attorney-General and the court if they know or believe that they, or one of the witnesses they intend to call, will disclose during the proceeding information that may affect our national security.

The Attorney-General must review the relevant information to decide whether it may be fully disclosed, disclosed in a limited form that does not prejudice Australia's national security or not disclosed at all.

If the information cannot be disclosed or can only be disclosed in a redacted or summarised form, the Attorney-General must issue a certificate to that effect.

The certificate is conclusive of the facts contained in it in all pre-trial proceedings.

Once the trial begins or where a certificate is issued during a trial, the court must first rule on the admissibility of the information that is the subject of the certificate.

The court must then rule on whether the information would prejudice national security.

If the court rules the information both admissible and prejudicial, the court can rule that it only be disclosed in the form authorised in the certificate or in some other modified form.

The court must then determine whether such a ruling would have a substantial adverse effect on the defendant's right to receive a fair hearing.

Both the prosecution and defence can appeal the court's decision relating to disclosure.

If a proceeding involves information that is likely to prejudice our national security, the legal representatives must obtain a security clearance at an appropriate level before receiving national security information.

The bill also requires all persons to obey any court order or direction relating to the custody, handling and disclosure of information that may affect our national security.

This bill will significantly change the way in which information which may affect our national security is handled in federal criminal proceedings.

However, it will not jeopardise the very principles on which our legal system is based.

The government recognises the importance of maintaining an independent judiciary and an accused person's right to a fair trial.

This bill strikes a balance between these fundamental principles and the Commonwealth's duty to protect information that may affect our national security. For this reason, I commend this bill to the House and table the explanatory memorandum.

Debate (on motion by Mr Swan) adjourned.