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Tuesday, 30 November 2004
Page: 91


Senator BROWN (6:41 PM) —This is at the heart of the matter. What the Greens, by way of their amendments, are saying—and they echo what the Australian Law Council is saying and what the Senate committee found—is that we put our trust in the courts. We say that the courts are quite able to determine those matters that ought to be kept out of public view and even from defendants, because national security might otherwise be compromised. The minister says the courts would be embarrassed by that onus. No, I do not think so. I think the government would be embarrassed by the court not making a decision, potentially, which the government wanted made. That is were the embarrassment lies.

This is an intrusion by politics and the executive into the rights of courts in this country. It should be the determination of the court as to whether national security will be infringed by defendants or others becoming aware of information that might come before the court. The government should be able to present that information to a court, put its case and have the court determine whether or not its case is sound. Without that, we have the situation where the government simply says to a court, `This information cannot be revealed, and you cannot do anything about it.'

The minister cites arrangements with other governments on intelligence gathering. Let that be put before the court and let the court make that determination, otherwise we have political decisions made as to whether or not information will go before a court. The AttorneyGeneral of the day ultimately makes that decision, and that is why there is objection to this legislation. We have political decisions being made about what evidence will appear before a court. We say: `Trust the courts. Let the government put its argument to the court and have the court make that determination.' That is a much fairer system and one which the public can have much greater reliance upon than leaving it to the politician who happens to be appointed AttorneyGeneral of the day.

Then there is the matter of whether a lawyer can be excluded from the court because they are a security risk. Once again what the Law Council is saying, what the Greens' amendment is saying and what international law would have is that that is a matter that the court can properly and responsibly determine. It should be a matter that is given due and fair weight by a court and not a decision made by politicians. But under this legislation that decision will be made by politicians—that is, the politician appointed by the Prime Minister as the Attorney-General of the day—with the prime ministerial override, I might add, as to who is a fit lawyer and who is not. Can you imagine that? And the courts cannot do anything about it.

This is a very dangerous erosion of the rights of courts to determine evidence, who shall or shall not appear before them and who is or is not a fit person to appear before them. If the national interest dictates that a court should make a determination either on evidence or the integrity of a qualified lawyer in this country then let the government bring the evidence before the court and let the court make that determination. This is a very serious matter.

Let it be legally determined by the justice system. But this legislation says, `No, let it be a political decision made by the government of the day.' Now that is dangerous. We are dealing with legislation that is not here just for today, tomorrow or the next six months or that has a sunset clause; we are permanently withdrawing a century or more of the rights of our legal system and are interfering with the balance between politics and the legal system that is part of the fabric of this democratic nation. We should not stand for it.

I ask the minister: how many lawyers are adjudged unfit to appear before a court for security reasons in this country? Is there a list? If there is not, how is the Attorney-General going to make this determination? Is every lawyer going to be vetted in turn after they have been appointed? What is the process? If there is a list, how many people are on it? This chamber should have that information. If we get into the business of having a government determine who is or is not a fit lawyer to defend somebody that the government is prosecuting then we need to know how the government makes that determination. Lawyers have a right to know how that determination is made and, moreover, how deep into the legal profession this government assessment of who is fit or who is not goes.

I ask the minister: what is the process for determining which lawyers are a security risk and which are not? Who makes that determination and on what evidence? Who gains that evidence and for how long? How is that information on lawyers stored at the moment? What access does the Attorney-General or, indeed, anybody else in government have to that information?