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Wednesday, 1 December 2004
Page: 23

Senator GREIG (11:12 AM) —I move Democrat amendment (7) on sheet 4438:

(7) Clause 32, page 27 (lines 17 to 29), omit clauses (2) to (4).

I will speak to both amendments (7) and (8), but procedurally, of course, they will need to be moved separately. These amendments relate to the obligation of a court to provide a draft copy of its reasons for making an order under proposed section 31 to the prosecutor and, in some circumstances, to the Attorney-General. Both the prosecutor and the Attorney-General then have the opportunity to request that the court make changes to its statement of reasons. We Democrats view these provisions not only as inherently unfair to the defendant but as a dangerous blurring of the separation of powers.

Regardless of any genuine security concerns raised by the prosecutor or the Attorney-General at this stage, these provisions have the potential to create at least the perception that the executive government is instructing the courts and playing an active role in their decision-making process. The Democrats believe it is important to guard against that perception. It should be the case that the prosecutor and the Attorney-General can make their national security concerns clear to the court prior to the making of a proposed section 31 order. There is no need to give them an additional right to vet the judge's statement of reasons. For those reasons, we believe these provisions should be removed from the bill.