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Wednesday, 1 December 2004
Page: 13

Senator LUDWIG (10:26 AM) —These deeming provisions mean that the Attorney-General's certificate is, as has been said, conclusive evidence that disclosure of the information in proceedings is likely to prejudice national security. I will deal with the issue of unfairness that might burden the defendant in that matter at a later point. But I remind Senator Greig that at any stage the court can determine if it is significantly unfair. I will not go to the bill to read those parts out which say that the court can at any stage discontinue but, in other words, it can say that it is manifestly unfair and come to another conclusion. But I think this amendment does something different, and we can deal with that issue later on. Whilst the certificate is in place—whenever that might come into the process, whether it is before or during, because it can be issued in any time—until the court rules otherwise, it is an offence under the act for the defendant or their legislative representative to reveal such information. So it is a way of ensuring that information that forms part of the process is not revealed, regardless of the eventual decision of the court regarding the capacity for its disclosure to prejudice national security—so it is held at that point.

It is clear that these are onerous provisions that place a heavy burden on the defendant and their legal representative to abide by the terms of the Attorney-General's certificate. They are required to abide by the terms of the certificate until the certificate has been ruled upon by the court. However, the opposition believes that this burden is necessary to ensure that there is no disclosure of information in the proceedings. Disclosure is only made once legal recourse for the Attorney-General or the prosecution to prevent a disclosure has been expended. So it holds it in that position until such time as it is ruled upon. I think this safeguard is necessary to ensure that no irreversible disclosures are made before the legality of those disclosures is fully tested. I think that is sensible. These irreversible disclosures must be made only in such limited circumstances because of the potentially adverse impact that these disclosures could have on our national security. Once they are out there, there is no way to draw them back. That is why these provisions are onerous and do place a heavy burden on defendants.

The result of adopting the amendment would be to introduce the potential for defendants and their legal representatives to second-guess the findings of the court and pre-emptively disclose information based on their belief that the court would eventually overrule the certificate. So a defendant or their lawyer might come to a position where they have a reasonable belief that information might be able to be disclosed, and they disclose it. Once it is disclosed, it cannot be drawn back. It is designed to ensure that it is held there.

Modern courts manage their processes. I have no doubt that they would be able to solve that issue relatively quickly. The court can determine when to bring it on. There is always a need for the court to oversee its own processes to make sure that trials are speedy and not drawn out unnecessarily. This is one of those areas where the courts can play a role, do play a role and have been playing a role. I am sure Senator Greig has listened to the questions to the various courts at estimates hearings. They have indicated what their case management processes are and how they ensure that they do not have long, drawn-out cases and that these issues are dealt with. So I think it falls under all of that. The other issue which could come up is that they could be drawn out, or long periods might elapse. In these instances everyone would require and want this issue to be determined conclusively and quickly so that the people who do have a heavy onus placed upon them can be relieved of that onus once the determination is made.