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Wednesday, 1 December 2004
Page: 17

Senator LUDWIG (10:44 AM) —I move opposition amendment (3) on sheet 4432 revised:

(3) Clause 29, page 24 (after line 7), after subclause (3), insert:

(3A) In considering whether to make an order under subsection (3) in relation to a legal representative of the defendant, the matters the court should consider include but are not limited to:

(a) the period in active practice without either previous criminal convictions or adverse findings in disciplinary matters;

(b) previous experience in handling confidential information;

(c) the effectiveness of any implied or express undertaking to use such information only for the purpose of defending an accused in the relevant court proceedings.

Amendment (3) proposes to insert a new subclause 29(3A) to outline some of the important factors that must be considered by a court when determining whether the legal representative of a defendant who has not been given security clearance may be present during a closed hearing where the disclosure of information at the closed hearing would be likely to prejudice national security. The matter to be considered by the court concerns the previous experience of the defendant's legal representative in handing confidential information, their period in active practice without criminal conviction or disciplinary action, and the effectiveness of the existing implied undertakings to only use relevant information for the purpose of defending the accused in the proceedings.

This amendment ensures that consideration is given to those matters that bear upon an assessment of the fitness of the defendant's legal representative who has not received a security clearance to participate in the closed hearing in which information will be disclosed that would be likely to prejudice national security. The amendment reinforces the objects of the bill by ensuring that various matters are considered by the relevant court. They go to ensuring that, if there is a position where the court considers these matters of the representative's experience, there is a clear basis on which to do that. We think this amendment adds to, rather than modifies or changes, the intent of the bill. We think it shores the bill up in this instance and makes it a bit more practical and workable.