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Wednesday, 1 December 2004
Page: 19

Senator ELLISON (Minister for Justice and Customs) (10:54 AM) —Whilst we are cognately debating opposition amendments (4) and (5), can I say that the government does not support either of those. In relation to amendment (4) I point out that, generally, the spirit of this proposal is contained in clause 32 of the bill which provides for the court to give reasons for its decision for making an order under clause 31. That relates to an order admitting, excluding or redacting the information or excluding a witness. At the outset, I would point that out to the committee.

In relation to the proposal on the distribution of the transcript and making it public, I would point out that section 85B of the Crimes Act 1914 permits a court exercising federal jurisdiction to order the proceedings to be held in a closed court where the orders are expedient in the interests of the defence of the Commonwealth. So there is a provision for a closed hearing. That being the case, it follows that you do not widely distribute the transcript of the record of those closed proceedings. Clause 29(5) in this bill provides that the court must:

(a) make and keep a sealed record of the hearing; and

(b) make the record available to, and only to, a court that hears an appeal against, or reviews, its decision on the hearing.

You really need that for any conduct of appeal. We believe that to disseminate that widely, or even to provide that for distribution to the counsel or defendant concerned, detracts from the fact that you have a closed hearing. Once you decide that a closed hearing is in order, then the record of proceedings should be equally protected, albeit with that provision that the court has to give reasons for its decision and that the record is kept for any appeal purposes.