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Wednesday, 1 December 2004
Page: 15

Senator LUDWIG (10:37 AM) —As the Democrats have said, these amendments aim to remove the discretion of the court to exclude the defendant and their legal representative, if the legal representative does not have a security clearance, from the section 31 closed hearing. One fundamental issue that has been missed—or at least glossed over—by the minor parties is that the section 31 closed hearing is not the trial. I think that is important to reflect upon. It is not the trial of the defendant. My advisers tell me the closed hearing is a voir dire in practice. It is a process which is designed to deal separately with these matters of national security. The opposition, as a consequence—and I will go on to explain a little more as we take up the time—do not support these amendments because we fundamentally believe that these amendments would undermine the basic objects of the bill.

The bill aims to create a separate, closed hearing, not a trial—and I tried to explain how that sits—where the court can consider arguments about the disclosure of information; perhaps forum is a word you could use. It is fundamentally necessary that that forum be closed because arguments could be considered within that and then be declared security sensitive by the Attorney-General. There is a requirement that the forum be closed so that security sensitive information can be considered and that consideration cannot of itself lead to the disclosure of security information such as to prejudice national security. We do not want to be in a position where the forum could prejudice national security. What would be the point of having the forum? What would be the point of having the section 31 closed hearing? The whole point of it is to ensure that there is integrity to that system. If the court did not have the capacity to exclude the defendant and their legal representative from the section 31 closed hearing, if the legal representative did not have a security clearance, then the court would not have the capacity to create that intended forum.

Without that forum, or separate hearing, the whole object of the bill is effectively defeated. It is not the trial of the defendant. I think you have to put that delineation in your mind when you address this national security bill. You have to be able to conceptualise the difference between a closed forum hearing, which is to determine a particular issue, and a trial, which is to determine the guilt or innocence of the person. It is important to note that a section 31 closed hearing, from which the defendant and their legal representative—if they do not have a security clearance—can be excluded is not, as I have said, a trial. If it is not a trial then the decisions that are made in it are about the nature of the security information. The trial may be subsequent to that forum or the forum may be part of the trial—that is, you could be in the middle of a trial and need a forum because something came up, and that could come up more than once depending on the witnesses. The trial may or may not have started and you may have a forum. At any point in the process the certificate could be issued and you would come out of the trial, go into the closed forum and determine those issues.

There are also a couple of safeguards, as a few things might pop up. In the trial itself the court does not have the discretion to exclude the defendant or their legal representative. When you are in the trial, the court cannot say, `Because you don't have security clearance, you're excluded.' Due to the amendments to clause 19, the court now expressly has the power to permanently stay proceedings if it concludes that, due to an order it made pursuant to clause 29 about excluding a defendant or their legal representative from a section 31 closed hearing, the defendant's capacity to receive a fair trial has been substantially adversely affected. If you have a situation where in the forum the defendant's legal representative was excluded because they did not have a security clearance, the defendant's legal adviser cannot then be excluded from the trial. If the court determines that because of a decision it made in that forum the defendant may not receive a fair trial because they have been substantially adversely affected, it can stay the proceedings. When you put those two bits together, the bill would be defeated in its purpose if you did not have that process in place. For those reasons we do not support the amendments.