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Tuesday, 30 November 2004
Page: 80


Senator ELLISON (Minister for Justice and Customs) (5:47 PM) —At the outset, I will comment on the second reading amendment moved by Senator Ludwig on behalf of the opposition. The amendment refers to a new federal protected disclosure regime, which was the subject of comment made by the Australian Law Reform Commission. Whilst the government will not support the amendment, the government will look closely at this when it considers its response to the report by the Australian Law Reform Commission. By not supporting this amendment, the government is by no means dismissing the issue out of hand, but it is perhaps premature at this stage for the government to be indicating its position in relation to that without first having considered in detail the report of Australian Law Reform Commission and, more importantly, the response to that report.

I note that the issue of national interest has been mentioned by various senators in the debate on this national security legislation. I can appreciate the comments that were made about the application of national interest to the bill. It was the subject of comment by the Senate Legal and Constitutional Legislation Committee and it is an issue that the government has taken on board. There is a government amendment which we will be addressing shortly in committee, and I will not take it further than that other than to say that we have responded to the Senate committee's recommendation positively.

More widely, of course, the National Security Information (Criminal Proceedings) Bill 2004 is very important in the government's overall strategy of protecting our national security. The bill will strengthen the procedures for protecting information that may affect our national security. The bill will also protect an individual's right to a fair trial. A court which has found that sensitive security related information should not be disclosed will have an alternative to simply dismissing the charge. It will be able to admit documents and information in a redacted form that protects national security but preserves the essence of the information. Consequently, the Commonwealth will no longer have to choose between risking the disclosure of sensitive information that relates to national security and protecting this information by abandoning the prosecution, even when the prosecution relates to alleged crimes that could have grave consequences for our national security.

The bill will significantly change the way that information that may affect our national security is used in federal criminal proceedings. It will not, however, jeopardise the very principle on which our legal system is based. The Australian Law Reform Commission submitted its final report, Keeping secrets: protecting classified and security sensitive information, to the government on 31 May this year. The ALRC was asked to inquire into measures used to protect classified and security-sensitive information in the course of investigations, legal proceedings and other relevant contexts. The aim of the reference was to examine whether existing mechanisms adequately protect classified and security-sensitive information or whether there is a need for further regulation in this area. The Attorney-General tabled the ALRC report on 23 June this year. The report, of course, made a number of recommendations, including the development of a legislative scheme to protect classified and security-sensitive information during court and tribunal proceedings.

The release of the ALRC report follows the release of a discussion paper, No.67, entitled Protecting classified and security sensitive information in January 2004. In developing this bill the government had the benefit of considering the ALRC's recommendations regarding proposals for reform as outlined in the discussion paper. In light of the importance of having safeguards in place, the government decided to introduce the bill prior to receiving the final report. The bill was referred to the Senate Legal and Constitutional Legislation Committee, which reported on 19 August this year. The government has adopted several of the Senate committee's recommendations. Among other changes, the government amended the bill to clarify that the courts will only exclude defendants and their legal representatives from closed hearings in limited circumstances and will retain the power to stay proceedings if the defendant cannot be assured of a fair trial.

The government recognises the importance of maintaining an independent judiciary and an accused's right to a fair trial. The government believes that this bill strikes a balance between these fundamental principles and the Commonwealth's duty to protect information that may affect our national security. This bill is much overdue. For some time now questions have been raised as to how information that may be sensitive to national security can be dealt with in a criminal prosecution. It is high time that we have this legislation in place so that there can be certainty for all. I commend this bill to the Senate.

Question agreed to.

Original question, as amended, agreed to.

Bills read a second time.