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Tuesday, 30 November 2004
Page: 85

Senator LUDWIG (6:09 PM) —We might have to recommit that, because I thought we were dealing with clause 19, rather than clause 7. We actually dealt with clause 7 and amendment (1), not clause 19 and amendment (2), and what I spoke to was clause 19. I must have had an earlier running sheet with me at the time. I thought we were on clause 19; we were in fact on clause 7. By the time I sat down, I realised that we dealt with clause 7, not 19.

The TEMPORARY CHAIRMAN (Senator Lightfoot)—You got your amendment up anyway, Senator Ludwig.

Senator LUDWIG —Yes. It would not change anything other than what I would have added on that particular matter—

Senator Ellison —You can do it now.

Senator LUDWIG —Yes, that is what I thought. Given that we are in the committee stage, we can deal with both amendments given that one has already passed. The definition of the term `substantial adverse effect' had been inserted into clause 7 in order to provide clarification of the weight that should be given to the ability of a defendant to receive a fair hearing. Both of them hinge on ensuring that there is a fair hearing in relation to the defendant, especially when a court is engaged in the process of determining what orders to make in clause 31(7). The definition of the word `substantial' ensures that the defendant is not burdened with an unreasonable high test to activate the protective test contained in that clause. That was the crux of clause 7, which ensures that there is a fair trial.

Paragraph 19, which is also about a fair trial, is to ensure that paragraph 19(2), as I have said, has been amended to conform with the obligations placed on a court under clause 31 of the bill to consider the defendant's ability to receive a fair hearing if an order is made by a court about the disclosure—or, in fact, the nondisclosure—of information in a closed hearing. That ensures that it provides clarification of the importance of the bill in protecting not only the interests of national security but the rights of a defendant to receive a fair trial. I might need to get a new running sheet to make sure I have an up-to-date one.

The TEMPORARY CHAIRMAN —You could still formally move your amendment. Rather than referring to `paragraph 19', Senator Ludwig, you may be kind enough to refer to it as `clause 19'. You may equally be kind enough to formally move the amendment.

Senator LUDWIG —I move opposition amendment (2) on sheet 4432 revised:

(2) Clause 19, page 10 (line 28) to page 11 (line 2), omit subclause (2), substitute:

(2) An order under section 31 does not prevent the court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under section 31 would have a substantial adverse effect on a defendant's right to receive a fair hearing.

Clause 31(7) outlines the factors that a court must consider. In consultation with the Law Council of Australia, clause 19(2) has been amended to reinforce that the court will not be prevented from ordering that a federal criminal proceedings be stayed following the making of an order under paragraph 31, especially if that order made under paragraph 31 would have a substantial adverse effect on a defendant's right to receive a fair trial.

Both amendments—the one which has passed and this one, referring to clause 19—speak volumes for the necessity to ensure that a fair trial is provided. We ask the government to seriously consider that amendment and accept it in the spirit with which we have dealt with the National Security Information (Criminal Proceedings) Bill 2004. The government has been able to look seriously at the substantive recommendations made by the Legal and Constitutional Legislation Committee to ensure that at the end of this process we have a bill ensuring fairness to the defendants, fairness to the prosecutors and fairness to the overall system of protecting national security information.