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Wednesday, 1 December 2004
Page: 12

Senator GREIG (10:24 AM) —by leave—I move Democrat amendments (1), (2), (3) and (4) on sheet 4438:

(1) Clause 27, page 19 (line 22) to page 20 (line 7), omit subclauses (1) and (2).

(2) Clause 27, page 20, (lines 9 and 10), omit “a proceeding is covered by paragraph 14(a) (about a proceeding involving a trial) and, under section 26,”.

(3) Clause 27, page 20 (line 11), after “time”, insert “before or”.

(4) Clause 28, page 22 (lines 1 to 5), omit subclause (6), substitute:

(6) If the proceeding is covered by paragraph 14(b) (about extradition proceedings), the court must adjourn the proceedings for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the calling of the witness.

These four Democrat amendments go to the heart of our concerns relating to the potential for the Attorney-General's certificate to operate as conclusive evidence in some circumstances. In its current form the bill provides that if the Attorney-General provides a certificate, either during pre-trial proceedings or extradition proceedings, that certificate is to operate as conclusive evidence that the disclosure of the information is likely to prejudice national security.

There are a couple of points that we feel need to be made about these provisions. Firstly, it is important to note that in the vast majority of cases the Attorney-General's certificate will be issued prior to the commencement of a trial and therefore the conclusive evidence provision will apply. This provision is not limited to a small number of circumstances but is likely to apply to the vast majority of certificates issued by the Attorney-General. Secondly, although the court will retain its discretion to admit or exclude evidence to which a certificate relates, the court will no doubt be guided by the certificate of the Attorney-General in most cases. As I argued in my speech in the second reading debate, in issuing a certificate the Attorney-General is essentially making a finding of fact without any real opportunity for the defendant to be heard. Given that the court may rely on the certificate in making an order to exclude the evidence, this may have a significant impact on the defendant's right to a fair trial.

Again, as I have previously stated, the potential unfairness that is associated with the Attorney-General's certificates is compounded by the fact that they are not liable to judicial review. The only accountability mechanism that applies is the Attorney-General's obligation to provide an annual report to parliament. We feel that, taking all those factors into consideration, it is entirely appropriate for the Attorney-General's certificates to operate as conclusive evidence in any circumstances and, accordingly, these amendments seek to remove the conclusive evidence provisions in relation to pre-trial and extradition proceedings.