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Wednesday, 8 December 2004
Page: 119

Senator GREIG (5:55 PM) —As I made clear in the Democrats response to the bill in the second reading debate, we oppose the bill in toto. In relation to the amendments which have now been made by the other place, we welcome some but disagree with others. I would like to touch on some of those briefly. We would argue that amendment (1) basically accepts what was the opposition's original amendment, which we supported, to insert a definition of `substantial adverse effect'. The government amendment we have now expands upon and further clarifies the definition inserted by Labor.

Amendments (2) and (3) we could support. Amendment (2) further expands the regulation-making power under clause 23. In particular, it provides that regulations may be made in relation to accessing, preparing, storing, handling and destroying information. Amendment (3) ensures that the court can make orders relating to not only the storage of information but also to its handling or destruction. Amendment (4), again, we could support. This amendment makes it clear that a defendant's legal practitioner is a potential discloser for the purposes of paragraph 28(8)(c). This is important because it ensures that the defendant is provided with the Attorney-General's certificate but is also subject to the offence of unlawful disclosure.

We do not agree with amendment (5), but we could begrudgingly accept it, I suppose. The amendment removes subclause 29(3A), which was inserted by an opposition amendment in the Senate. The subclause provides that, in considering whether to exclude a lawyer who has not received a security clearance, the court should consider how long that lawyer has been in active practice without previous criminal convictions or adverse findings in disciplinary matters, the lawyer's previous experience in handling confidential information and the effectiveness of any undertakings to the court. The government makes the point that this subclause does not add anything to the bill and that essentially the court will still have to consider whether granting an uncleared lawyer access to information would be likely to prejudice national security. While it may be true that these additional considerations add little to the bill, in the sense that they may be taken into consideration by the court in any event, the Democrats do see some merit in explicitly including them in legislation. They serve to remind courts that, just because a lawyer has not received a security clearance under this legislation, he or she is not automatically prevented from accessing high-level security information. Ultimately, such access will be at the discretion of the court and the court will be free to take into account matters such as the legal practitioner's previous record. As these are important factors, the Democrats do see some benefit in expressly including them in the bill. However, as they do not change the ultimate decision to be made by the court, we will accept the amendment.

Amendment (6) is one we could not support. This amendment removes subclause 29(6), which was included in the bill by an opposition amendment. It provides that the court must make the record of a closed hearing available to the public unless the court determines that the publication of the transcript would prejudice national security. We accept the government's point that the transcript of the rest of the trial proceedings, other than closed hearings, would be available to the public and we also accept its point that the transcript will be available to the parties for the purpose of an appeal. But perhaps the most important point that the government makes is that the hearing is closed to the public in order to prevent the disclosure of information that may affect Australia's national security and that it would not be appropriate to protect the disclosure of information all the way through trial only to have it disclosed to the public. In part, we Democrats agree with this argument. However, we are also conscious of the possibility that, in some circumstances, after hearing the relevant evidence in full, the court may reach the conclusion that the information would not, in fact, prejudice national security. In those cases, the interests of an open justice system should prevail. We concede that this will rarely be the case. However, we are concerned that this will be the case on occasions, and for the sake of those occasions the court should retain its discretion to order the public release of the transcript.

Amendments (7) and (8) relate to the opportunity for the prosecution and/or the Attorney-General to seek an appeal of the court's decision in relation to a request to vary aspects of a record. They are similar to provisions in clauses 32 and 33 relating to appeals against the court's proposed statement of reasons. This is because in each case the legislation sets up a process which involves only the court, the prosecution and possibly the Attorney-General but which occurs without the knowledge of the defendant and his or her lawyer. We Democrats view these provisions not only as inherently unfair to the defendant but also as a dangerous blurring of the separation of powers.

Regardless of any genuine security concerns raised by the prosecutor or the Attorney-General at this stage, these provisions have the potential to create a perception that the executive government is playing a direct and active role in the decision-making process of the court. We Democrats believe it is important to guard against such a perception. It should be the case that the prosecutor and the Attorney-General can make their national security concerns clear to the court prior to the making of a section 29 order. There is no need to give them an additional right of appeal in the absence of any counterarguments from the defendant. In summary, that is the Democrats position on this latter suite of amendments progressed by the government through the other place. Our opposition to the bill in toto remains.