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Wednesday, 1 December 2004
Page: 14

Senator ELLISON (Minister for Justice and Customs) (10:31 AM) —The government has considered these amendments and does not support them. Senator Ludwig has made some observations about these amendments that the government would agree with. I will quickly deal with each amendment in turn. The first Democrat amendment proposes removing those clauses of the bill which provide that the Attorney-General's nondisclosure certificate is conclusive for all pre-trial proceedings and for all extradition proceedings. The pre-trial process was introduced as a means to ensure timely justice that is not frustrated by endless delays and challenges relating to the admission into evidence of national security information. It is best to have that sorted out in the pre-trial procedures. That gives everyone certainty. Extradition proceedings are also mentioned. An extradition proceeding is not actually a trial of a person for an offence; it merely determines whether an individual should be surrendered to another country to face trial there. The admissibility of evidence is then a matter for the trial in that other state.

The Democrats' second proposal is to delete the introductory words to clause 27(3), which are:

If a proceeding is covered by paragraph 14(a) (about a proceeding involving a trial) and, under section 26 ...

This phrase is a technical drafting means of ensuring clause 27(3) applies to paragraph 14(a) proceedings, that is, criminal proceedings. When you look back at the definition of proceedings in 14(a), it does not apply to extradition proceedings. Clause 27(3) requires a closed hearing to be held for criminal proceedings if the Attorney-General has issued a certificate under clause 26. To remove those words would render that proposed section ineffective

Amendment (3) seeks to extend the application of 27(3) to circumstances where the Attorney-General has given a certificate before the proceeding. We believe it is not necessary to extend this provision. The Attorney-General will issue a certificate if he or she considers that the information is likely to prejudice national security. The Attorney-General will consider that information only after he or she has been notified that such information may be disclosed during a proceeding. A person is required to notify the Attorney-General only if the legislation applies. The legislation applies only if the Director of Public Prosecutions advises that a particular matter may result in the disclosure of national security information. This would occur only once the DPP has been given a brief of evidence after a person has been charged—that is, once the proceedings have commenced. Accordingly, the words `during the proceedings' would cover this from that point onwards. There would be no situation of `before the proceedings'.

Amendment (4) seeks to exclude the provision that the Attorney-General's certificate is conclusive for extradition proceedings. I reiterate that extradition proceedings are not a trial of a person for the offence but merely determine whether an individual should be surrendered to another country to face trial there. It is an administrative action.

For those reasons the government does not support the Democrat amendments. I agree with the comment made by Senator Ludwig that, although these provisions are onerous, they are there with the relevant checks and balances. We believe that to incorporate these amendments would render the system unworkable. We have a situation where the Attorney-General gives his or her certificate before the proceedings in pre-trial proceedings and extradition proceedings. They are conclusive. Of course, once a trial has started, if a certificate is given, the court can still make an order that overrules the Attorney-General's certificate.

Question negatived.