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Wednesday, 1 December 2004
Page: 22

Senator GREIG (11:10 AM) —The legislation makes it very clear that, at all stages of a trial, the trial judge retains the power to stay the proceedings if an order made under proposed section 31, which would include amending or editing a document on national security grounds, would have a substantial adverse effect on the defendant's right to receive a fair hearing. Because the court retains this power, we feel it is unnecessary for an additional requirement to be made that the court ensures any editing of a document provides the defendant with the same ability to make his or her defence.

But a more important point to make here is that, given that Senator Brown's amendment (7) has failed—it did have Democrat support but it was not passed in this place—if we were now to progress with the amendment before us, it would effectively render the bill's regime unworkable. We would argue that that is because the court would have an obligation to give most weight to national security interests in deciding whether to order the editing of a document, yet the court would simultaneously have to be satisfied that the defendant would have the same ability to make his or her defence. So, while the Democrats do not agree with the requirement to place more weight on the protection of national security, if it remains in the bill, it will be important to ensure that the bill is workable and does not place conflicting obligations on the judiciary.