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Wednesday, 1 December 2004
Page: 26

Senator BROWN (11:25 AM) —In the wake of the committee's determination that part 4 should stand, I move Greens amendment (6):

(6) Page 32 (after line 15), at the end of Part 4, add:

39A Court orders in relation to security clearances

(1) It is within the competence of a court in considering all the circumstances of a case, to determine whether a defendant's legal representative requires a security clearance before he or she can access information, and a court may so order.

(2) A court may order that specified material not be disclosed to a defendant's legal representative unless he or she holds a security clearance at a specified level.

This amendment does what I argued for earlier in the morning—it gives the court the discretion to determine whether or not a lawyer or barrister appearing before the court is a fit and proper person to hear matters that may affect national security. If there is doubt about that, the court can require the legal representative to get a security clearance. This amendment retains for the court the right to that discretion, rather than the legislation's transference of that right as it stands to the politicians—the government of the day, the Attorney-General of the day. We do not think that is right.

So this amendment is an important one which upholds the separation of powers, retains the right of the court to make a determination about the fitness of legal representatives appearing before it, and ensures that that is not made by political fiat or determined according to the interpretation of a set of rules which is not on the public record. The amendment has the outcome which the government and opposition desire, except it gives the court the ability to make that determination rather than the Secretary of the Attorney-General's Department or the Attorney-General, as the legislation stands.