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Monday, 7 March 2005
Page: 106

Senator GREIG (6:22 PM) —The National Security Information (Criminal Proceedings) Amendment (Application) Bill 2005 makes two changes to the National Security Information (Criminal Proceedings) Act, which came into force on 11 January this year. The Senate may recall that we Democrats opposed the passage of that legislation. While we recognised that there was a need to examine and clarify the way in which courts handle sensitive, security-related information, and we acknowledged that the government had made a genuine attempt to formulate appropriate legislation, we nevertheless took the view that the proposed scheme had a number of serious flaws. In particular, we expressed concerns regarding the very broad definition of national security and the fact that the legislation permits a court to hear evidence in the absence of the accused person and his or her lawyer if the lawyer has not submitted to a security clearance.

The bill now before us attempts to apply these new national security information regime proposals to a handful of proceedings which were already before the courts at the time the legislation came into effect on 11 January this year. The act, as it currently stands, unequivocally excludes any proceedings which commenced prior to 11 January. It is therefore curious, I think, that the explanatory memorandum suggests that the purpose of the bill is simply to ‘clarify how the act applies to certain proceedings’. The opposition appears to have taken a similar position, as evidenced by the comments of the shadow minister for homeland security, Mr Robert McClelland, in the other place when he stated that ‘the clarification is consistent with what both sides of the House assumed was the potential operation of that original act’. On the contrary, we argue that the act is perfectly clear in that it does not apply to those proceedings. What this bill does is change—not clarify—the application of the act to certain proceedings.

The government has indicated that there are a number of terrorism-related prosecutions currently before the courts to which the regime could potentially apply. The passage of this bill will enable the national security information regime to apply to those proceedings. The government argues that the bill will not have any retrospective operation. This is true in a literal sense, since the national security information regime will be applied to existing proceedings only from the time that this amending legislation comes into effect. However, we Democrats believe there is a compelling argument which suggests that the bill will in fact have some retrospective impact. For example, a defendant in existing proceedings may have retained a lawyer who is unwilling to submit to a security clearance for the purposes of this regime. The defendant will therefore need to either start from scratch with a new lawyer or risk having his or her existing lawyer excluded from parts of the proceedings. Moreover, the fact that the regime will now apply to the defendant’s trial may necessitate a change of the defendant’s case plan or strategy, particularly if he or she had intended to rely on evidence which will now be excluded.

Perhaps the most significant potential impact of this legislation arises in the context of the disclosure obligations it places on defendants and their lawyers. The explanatory memorandum says that ‘there are currently under way a number of terrorism-related proceedings to which the act could possibly apply if the prosecutor gives the requisite notice to the court and defendant’. What the government has failed to point out is that the act will apply to existing proceedings, regardless of whether the prosecutor gives any notice, if the defendant intends to rely on security related information. This is because the principal act requires defendants to notify the Attorney-General if they propose to introduce evidence that is relevant to Australia’s national security. A failure to provide such advance notification attracts a significant penalty of up to two years imprisonment. We Democrats are very concerned that defendants in existing proceedings will acquire new obligations as a result of the passage of this bill and may not be aware of those obligations. There is therefore a risk that a defendant could unknowingly commit an offence of failing to notify the Attorney-General and face up to two years in prison.

While the Democrats are well aware of the maxim that ‘ignorance of the law is no excuse’, we question whether this maxim should apply to legislation which is introduced part way through existing criminal proceedings. If this legislation is passed, we would expect the government to draw it to the attention of all defendants who the government has reason to believe may be affected by its provisions. We will be seeking an undertaking from the minister to this effect.

For the record, I indicate that the Democrats have no objection to the second amendment proposed by this bill, which provides that where a prosecutor gives the requisite notice to the court and the defendant after proceedings have commenced, the act will apply to each subsequent part of those proceedings. In closing, we Democrats maintain our objections to this bill, and they relate solely to its attempt to apply the national security information regime to proceedings that are currently before the courts. We had strong objections to the principal act, and we are therefore naturally reluctant to see it apply to any additional proceedings. Moreover, we believe that this extended application could have an adverse retrospective effect on defendants in existing proceedings. For these reasons, we oppose the passage of the bill.