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Wednesday, 1 December 2004
Page: 7

Senator BROWN (9:53 AM) —The minister has just mentioned ASIO. What is the relationship between ASIO and the Australian Security Vetting Service? Who is doing the vetting of the lawyers? Is it the vetting service or is it ASIO? How does this relationship work? I remind the Senate that it was established last night that we are not just talking here about matters of security in the way people might expect—that is, terrorist matters and otherwise. This is much wider than that. This involves people who might be a worry to the government in some way relating to international or bilateral trade agreements. We are not just looking at physical security, but economic security as well, and an extraordinary widening of the government's ability to determine what information is fit to be brought before a court and who is fit to be brought before a court. I remind the chamber that the process opened up through this legislation is one where witnesses brought to defend somebody who is charged before a court can themselves be refused an appearance before the court because they are seen to be a threat to security, including economic security.

This is a dangerous process. The Greens are saying that the court should make a determination about what information should be made public; that is built into our amendments. The court can hear evidence in camera but it should make that determination—not some bureaucrat in Attorney-General's. Likewise, the court should make a determination as to who is or is not a fit person in terms of security clearance to appear as a lawyer before it—not some bureaucrat in Attorney-General's. The government is saying, `We are going to determine it'—the politicians. Ultimately, the person in the Australian Security Vetting Service is going to be in a close relationship with the Attorney-General and, therefore, the government of the day, and it is the Attorney-General who makes these determinations. Here we have an intrusion of the government into the Australian court system to determine, firstly, what courts may hear and, secondly, who is fit to appear before that court, both as witnesses and as legal representatives.

No wonder that the Law Council of Australia has misgivings about this, as did the Senate committee itself, and as does Amnesty International. I remind the Senate that President Steve Southwood QC of the Law Council of Australia wrote just over a week ago saying that the bill as 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.

That is the problem. This is political intrusion into the court system. This is the government of the day reaching out and intruding itself into the court system. The minister for justice says it might be embarrassing to international relations to have our courts make these determinations. What a specious argument that is. What an indictment on the integrity of the Australian courts. On the one hand, it says that we will not have a security clearance for judges. On the other hand, it says the judges are not themselves fit to determine who will appear before the court or what information should be kept from the public record in the national interest. That is what is wrong with this bill. The Greens' amendments rectify that wrong and make sure that politics does not intrude into the courts. The minister says there is not a black list of lawyers. We cannot know that. What we do know is that this bill sets up a black-listing process. There will be a black list of lawyers. People will be banned. That is the point of this legislation—it allows the government to ban certain lawyers from appearing in courts in certain cases.

A political choice will be made as to which lawyer is fit and which lawyer is not fit, and the courts cannot do anything about it under this legislation. The Greens' amendments are saying that the courts should be able to make that determination; do not leave it to the politicians, to the government of the day. It is a fraught process, and it overturns the whole history of that separation between politics and the courts which is fundamental to our democratic system in Australia. That is why we are not supporting the legislation as it stands. That is why we have brought forward these measured amendments. These are critical amendments to respond to what the legal community itself is saying is a very serious problem with the government's legislation.

The minister has simply said: `You have to trust us. We have a secret vetting service, we have a secret list of criteria and we will establish a secret list of lawyers who are banned.' I do not like that process at all. I do not think any fair-minded person is going to say that that is good for democracy. I think it is an affront to the Australian courts and to the Australian legal profession, who are fit to make that determination—much better than politicians, including the Attorney-General of the day, whoever that might be. Whatever one might think of the current Attorney-General, this is wide open to abuse by future governments. They can simply use this legislation before the committee today to pick and choose which lawyers will or will not be allowed before Australian courts in certain matters.

We are left with more questions that we have answers for. The minister has not been able to explain why this system is better than leaving it to the courts to make the determination. That is the essential point missing here. The minister says, `We'll be looking at such things.' This is not just ASIO; this is a determination in Attorney-General's, who will be looking at such things as lawyers' lifestyles. I ask the minister: `What is it in the lifestyle of lawyers that will be secretly vetted by Attorney-General's that may determine that a lawyer is not going to be allowed to appear before a court? How do you make that determination and be assured about it?'