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Wednesday, 8 December 2004
Page: 118


Senator LUDWIG (5:49 PM) —The stated intention of the National Security Information (Criminal Proceedings) Bill 2004 is to provide a procedure where the disclosure of information relating to or that may affect national security could be introduced during federal criminal proceedings. The stated aim of the bill is to allow this information to be introduced in an edited or summarised form so as to facilitate the prosecution of an offence without prejudicing national security and the rights of a defendant to a fair trial.

In this instance we have a schedule of amendments that have been made by the House of Representatives to clarify the procedures and ensure that the operation of the procedures that are contained within the bill will work more effectively. We are disappointed that all of the matters that could have been dealt with were not dealt with in the National Security Information (Criminal Proceedings) Bill. However, when you look at the position of the bill as a whole, it is much improved from when we first started. The Senate Legal and Constitutional Committee was able to provide a number of recommendations on the bill and they were in part picked up by the government. Although they were not completely and all picked up by the government, significant improvement was made.

I think it is worth mentioning the significant improvements that committee work can make. Senator Greig was also a party to that committee and I think that in this instance he would concur that the work of the committee was able to significantly advance the recommendations that were picked up by the government. The recommendations exposed issues that the government were able to incorporate into the bill to improve its operation. They ensured that issues such as how the procedures would work, and how the process would be dealt with and continued in a fair way, moved the balance between national security and the right of defendants in these matters to receive adequate instruction from solicitors and barristers. They ensured that there were checks and balances and that public interest rights were significantly protected. So the changes ensured that the public interest was balanced against the needs of national security.

Although, as we indicated during the second reading debate, the bill is not perfect and Labor certainly would have done it differently, I think it has been significantly improved. Without taking up a significant amount of the chamber's time, I have been able to at least put down our position. We would have implemented a new federal protected disclosure regime, which would have included appropriate protections for persons working in the area. We would have had a better position than the one the government has now adopted.

One of disappointing things that came out of this, notwithstanding the Senate Legal and Constitutional Committee work, was that the government failed to address the Australian Law Reform Commission work. A unique situation developed where the ALRC developed a report, called Keeping secrets, which by and large was ignored by the government. They developed a model of their own. One wonders what the ALRC really thought about the whole process. They clearly spent significant amounts of time and energy developing a response to this position without the knowledge that at some point the government would in fact develop a bill and response, but not based on the work that ALRC had done. The ALRC ended up commenting, in relation to the national security bill which was proposed by the government, that they were—perhaps in my words—a little bit disappointed that the government had not taken the opportunity of utilising a lot of their work.

Labor will agree to the passage of this bill. The scheme will provide protections and the right checks and balances. It balances national security on the one hand with the rights of the offender and the defendant on the other. It ensures that the judiciary still has a significant role in ensuring fairness all round. It has been substantially amended to pick up recommendations of the Legal and Constitutional Committee.