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Tuesday, 30 November 2004
Page: 88

Senator BROWN (6:24 PM) —by leave—I move Greens amendments (1) to (4):

(1) Clause 25, page 16 (line 3), omit subclause (4).

(2) Clause 27, page 20 (line 31), omit subclause (5).

(3) Clause 28, page 22 (line 6), omit subclause (7).

(4) Clause 29, page 24 (after line 21), at the end of the clause, add:

(6) It is a requirement of a closed hearing that a court notify in open court at a time proximate to a closed hearing the reason or reasons for holding the closed hearing.

These amendments give effect to several recommendations of the Senate Legal and Constitutional Legislation Committee. Recommendation 1 of the committee was that the three subclauses which require the court to hold closed hearings be removed so that the court retains its discretion to determine whether its proceedings are open or closed. Recommendation 2 of the committee report states:

The Committee recommends that the Bill be amended to include a provision requiring the court to provide a written statement of reasons outlining the reasons for holding proceedings in-camera.

Recommendation 7 states:

The Committee recommends that the Bill be amended to include a provision that requires the court, when making an order allowing information to be disclosed as being subject to the Attorney-General's non-disclosure certificate, to be satisfied that the amended document and/or substitution documentation to be adduced as evidence would provide the defendant with substantially the same ability to make his or her defence as would disclosure of the source document.

The Greens amendments give effect to those recommendations. The fourth Greens amendment is based on recommendation 10 of the committee, which states:

The Committee recommends that the court assume a more active role in determining whether a defendant's legal representative requires a security clearance before he or she can access information. The Committee recommends that the Bill adopt the recommendation by the ALRC that `the court may order that specified material not be disclosed to a lawyer unless he or she holds a security clearance at a specified level'.

Without this amendment the determination of who an accused can be represented by is in the hands of the executive and security agencies like ASIO, not the court. These are essentially the same agencies that are bringing the case against the accused. As recently as 18 November, the Law Council of Australia made public a statement headed, `The government vets and vetoes defendants' lawyers'. Referring to this bill it said:

New national security laws dealing with the management of classified information in court proceedings, still pose serious concerns to the Law Council of Australia.

President Steve Southwood, QC, said today that the Bills as presently proposed would still restrict an accused person's right to a lawyer of their choice. `We remain concerned by the prospect of defence lawyers having to undergo a government sanctioned security clearance in order to represent clients in cases with alleged national security overtones,' Mr Southwood said.

He said the legislation also required courts to give greater weight to national security, rather than an accused person's right to a fair trial, when making orders about the non disclosure of information or witness exclusions.

A bi-partisan committee had recommended this clause be removed ... It also recommended that courts retain the discretion to stay proceedings if the defendant cannot be assured of a fair trial, (Recommendation 6).

Mr Southwood said other important recommendations made by the Senate Committee had also been overlooked, including:

Courts won't have the discretion to determine the extent to which a court transcript should be sealed or more widely available in applicable proceedings (Recommendation 4);

That defendants only be excluded from closed hearings in limited, specified circumstances (Recommendation 6).

It continued:

The court play an active role in determining whether a lawyer requires a security clearance—

Further in the statement Mr Southwood said:

We're not opposed to reasonable legislation which will improve court procedures in relation to managing security sensitive information. However, any changes to the current approach must be balanced against the need to ensure courts retain adequate discretion over the process and that the fair trial values essential to our system of justice are preserved. In our view, the Bills as presently constituted do not achieve such a balance.

I ask the minister what he has against these recommendations of the bipartisan Senate committee, backed up by the Law Council of Australia and put forward in these Australian Greens amendments. Specifically, why is it that a court should not determine whether a lawyer is eligible to appear for a defendant, rather than that being left to security agencies and the Attorney-General of the day? In other words, why should this be a political decision rather than a legal one brought before the courts?