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Wednesday, 1 December 2004
Page: 25

Senator LUDWIG (11:21 AM) —The Democrats are seeking to remove part 4 from the bill, which allows the Secretary of the Attorney-General's Department to give written notice to a defendant's legal representative that an issue is likely to arise relating to a disclosure of information or information in the proceedings that is likely to prejudice national security. This notice then allows the person, the subject of the notice, to apply for a security clearance from the Attorney-General's Department.

The opposition realises that the security clearance of lawyers is a contentious and controversial issue—that is recognised. However, the opposition believes that, in the extremely limited circumstances that are contemplated by this bill, the unusual security measure is warranted. This in-principle support for the security clearance of lawyers is limited to circumstances which were supplied by the Australian Law Reform Commission in its inquiry into the protection of classified and security-sensitive information in criminal proceedings. The principle is not one that simply rests with the government. In its report Keeping secrets: the protection of classified and security sensitive information, which was released in May 2004—I will not castigate the government again for not paying significant heed to that report—the ALRC noted that it felt uncomfortable making a recommendation to the effect that a court or tribunal could order a lawyer to submit to the security clearance process. However, the ALRC noted that if important material is not available to counsel in the proceedings counsel run a risk of failing to provide their client with effective assistance and consequently should consider seeking a security clearance or withdrawing from the proceedings. The ALRC suggested that the proposed focus should not be on the dignity or convenience of the lawyer, but rather on the client receiving the best possible representation in circumstances in which highly classified information must be protected. The Senate Legal and Constitutional Legislation Committee also concluded that the security clearance of lawyers was ultimately necessary if security-sensitive information is to be protected in an environment where criminal proceedings can still go ahead.

The opposition shares the view of the ALRC and the Senate Legal and Constitutional Legislation Committee, and for that reason accepts part 4 of the bill, which is necessary to facilitate the process through which the defendant's legal representatives can be notified that they have the capacity to apply for a security clearance. For those reasons we will not be supporting the Democrat amendment.

The TEMPORARY CHAIRMAN (Senator Kirk)—The question is that part 4 stand as printed.

Question agreed to.