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Wednesday, 1 December 2004
Page: 23

Senator LUDWIG (11:14 AM) —I will deal with these amendments concurrently although I understand that they have to be put separately. These amendments aim to remove the capacity of the prosecutor and the Attorney-General, if the Attorney-General is a party to an appeal to the court, to vary the proposed written statement of reasons published by the court following a section 31 closed hearing prior to that statement being published. These amendments will remove the required prior notice to the prosecutor and the Attorney-General of the proposed written statement of reasons following a section 31 closed hearing and only allow an ex post facto appeal to vary the form of the published statement.

The opposition do not support these amendments because we believe that the removal of the prior notice mechanism from the bill effectively makes the entire appeal mechanism contained in the bill redundant. There is no practical benefit in appealing to vary a written statement of reasons once those reasons have been published. The cat, so to speak, is out of the bag, because they have already been published and, if anything were going to be damaged by that, it would have already been damaged. It reminds me of defamatory remarks—the remarks are out there. So the point of it being varied ex post facto seems to be redundant in that sense.

The opposition believe that the nature of the potential disclosure that may be contained in the written statement means that it is legitimate for the prosecutor and the Attorney-General to make the decision about the need to appeal to vary the written statement in the context of that statement having not yet been published—and that is prior to publication. If there is a requirement to change it, let it be done at that point. For that reason we believe that clauses 32(2), 32(3) and 32(4), as well as clause 33 of the bill, should not be omitted because they serve a legitimate and important purpose contained within the bill.

It is also worth noting that nothing in clauses 32 or 33 of the bill undermines the court's ultimate discretion to determine the form of their own written statement of reasons. The court still retains that ability. Ultimately, these clauses simply regulate the timing of the publication and possible appeals in a manner that is consistent with the objects of the bill and appropriate given the subject of reasons. For those reasons we will not be supporting the Democrat amendments.