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Tuesday, 30 November 2004
Page: 86

Senator ELLISON (Minister for Justice and Customs) (6:14 PM) —The government do not see their way clear to support this amendment and the previous amendment. I refer back to the first amendment opposed by the government. We do not believe that the proposed words `substantial adverse effect' add anything to the definition contained in the bill in relation to the balance which must be achieved in preserving the rights of the accused person.

Similarly, the government believes that, in relation to the proposed amendments to clause 19, the clause has been redrafted to make it clear that the court retains all of its powers to control the conduct of the trial, including that the proceedings should be stayed in the event that the defendant would not be granted a fair trial or guaranteed a fair trial, more importantly. This is so even where an order has been made under clause 31 relating to the disclosure of information or the exclusion of a witness.

The opposition have proposed an amendment, the objectives of which we believe are already met by clause 19. All that the opposition amendment does is to add that an order made under clause 31 includes an order which `would have a substantial adverse effect on a defendant's right to receive a fair hearing'. It is clear from clause 19 that matters considered by the court in making an order under clause 31 do not prevent the court from staying the proceedings on those same matters. Clause 31 clearly states:

One of the matters the court must consider in making an order is the effect of the order on the defendant's right to receive a fair trial.

There is no need to complicate clause 19 by elaborating any further. I refer to the explanatory memorandum, which states:

... even if the court considers the defendant's right to receive a fair trial in deciding whether to make an order under clause 31, the court is not prevented from later staying the proceeding on the ground that the defendant would not receive a fair trial.

Even if the court makes an order that the trial can proceed and there is no detriment to the defendant, the court is not prevented at some later stage in the proceedings from staying those proceedings if it becomes apparent that the defendant would not receive a fair trial. For those reasons the government does not believe that the opposition amendment is necessary and therefore does not support it.