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Monday, 7 March 2005
Page: 107

Senator PAYNE (6:28 PM) —I join in the second reading debate on the National Security Information (Criminal Proceedings) Amendment (Application) Bill 2005, which, as previous speakers have noted, is not a complex piece of legislation but nevertheless an important amendment to a very complex substantive act, the National Security Information (Criminal Proceedings) Act. As I am sure Senator Ludwig observed in his cogent remarks, the Senate Legal and Constitutional Legislation Committee had cause to consider at some length the head act, the National Security Information (Criminal Proceedings) Act, in a report tabled in August of last year. That legislation was later brought forward after the election.

The most important aspect of this bill is its effort to clarify how that act applies to particular federal proceedings of a criminal nature. As has been alluded to, it reinforces the fact that the application of the act is to proceedings that commenced prior to 11 January 2005—which is the day on which the main provisions of the act came into effect. The amendment ensures that the act can in fact be applied to a number of terrorism related proceedings that are currently under way, once a prosecutor has given requisite notice to both the court and the defendant. The act seeks to ensure that there is no capacity to avoid application of it just because a person had been charged and a bail hearing had occurred before the commencement of the act on 11 January.

Sitting suspended from 6.30 p.m. to 7.30 p.m.

Senator PAYNE —I will continue the brief remarks I made earlier before the dinner adjournment, and my remarks in conclusion will also be brief. I would like to make a couple of further points. Before the adjournment we were discussing the application of the act to terrorism proceedings that are currently under way, once the prosecutor gives the notice that is required by the act to the court and to the defendant. The bill clarifies the position, if there was any doubt, that just because a matter had commenced before 11 January 2005, that is, before the act came into effect, the act could not be applied to those proceedings—either the committal or the trial of an individual some time later. What the Attorney-General has assured in the other place and publicly elsewhere is that this amendment does not give the act any retrospective effect. That is to say, it does not affect anything that occurred before the notice that the prosecutor is required to give is actually provided.

The bill also seeks to clarify the manner in which the act applies to any proceeding in which the prosecutor does give that requisite notice to the court and the defendant after the proceeding commenced. As the Attorney stated in his, also relatively brief, second reading speech:

This amendment restates the intent of the act to require a prosecutor to give the requisite notice only once, after which time the act will apply to all subsequent parts of the proceeding.

The Attorney also emphasised that the act as it currently stands could possibly be, in the government’s view, subject to some misinterpretation that may have the potential effect of putting in jeopardy the underlying intent of the act, which is to ensure that the prosecution can be carried out without any risk to national security or to a defendant’s right to a fair trial. I alluded in my earlier remarks to the consideration by the Legal and Constitutional Legislation Committee of the substantive act in 2004—the National Security Information (Criminal Proceedings) Act 2004. The committee paid some attention to the question of ensuring that the defendant has the right to a fair trial. In that report the committee made something like 13 or 14 recommendations in relation to a number of those measures, some of which were taken up and some of which, in the normal course of these procedures between government and committees, were not taken up. But they did go some way to addressing those concerns.

In that process we also considered the report of the Australian Law Reform Commission of May 2004 entitledKeeping secrets: the protection of classified and security sensitive information. A number of the recommendations that the ALRC brought forward in that report were taken up in the legislation; some were not. The Attorney-General’s Department gave evidence to the committee in relation to those that were not accepted, and the committee made further recommendations in that regard.

But the main provisions of the bill were to ensure that we had adequate and appropriate procedures for dealing with sensitive national security information during federal criminal proceedings. That is of course necessary in the current climate in which we find ourselves, for a range of reasons. It is necessary to ensure that we have an effective management of information, both pre-trial and during trial; a mechanism by which there can be a notification of expected disclosure of security sensitive information; adequate procedures to follow where it is expected that a witness might disclose information that is potentially prejudicial to national security; and some provisions for the use of an Attorney-General’s certificate in certain instances and the consequences of the Attorney-General giving that non-disclosure certificate. Also of some concern to the committee and considered in that inquiry were the requirements for closed hearings and the court orders that may be made in those circumstances; the methods for appeal against those court orders; and an issue which has been debated across a number of pieces of legislation in recent times, the need for a security clearance for the defendant’s legal representative. A number of offences were created under the bill and it concluded with the requirement for the Attorney-General to report to parliament on an annual basis in a report which would state the number of certificates given by the Attorney-General under the relevant clauses of the act each year, and identification of the criminal proceedings to which those certificates relate.

In conclusion, Senator Greig raised some concerns in relation to what he described as a retrospective impact of the bill. I note that the Attorney has gone to great lengths—as I understand it, agreed with by the shadow minister in this case—to indicate that the bill is not regarded as having a retrospective effect as may be viewed elsewhere. The Bills Digest, for example, considers but does not particularly expand upon some of those issues. I noted, and listened with interest to, the matters that Senator Greig raised. But I do not think the bill qualifies, if you like, as a retrospective piece of legislation in the sense which we understand that to be the case. In looking again at the explanatory memorandum this evening and rereading the speeches on the second reading in the other place, I think that we can proceed with the legislation in its current form with this small amendment bill on the basis that it does not have the sort of retrospective application which we might otherwise be opposed to.

The ACTING DEPUTY PRESIDENT (Senator Ferguson)—Order! Senator Payne, you have been working under quite considerable competition, and I think that perhaps we should allow you to proceed in silence.

Senator PAYNE —Thank you, Mr Acting Deputy President, I was hoping they were distractions, in fact, but it does not appear to have worked that way. As I was concluding, in the climate in which we find ourselves and the need for very strict procedures as to how this legislation should operate, it is important that the legislation operates in a case where there is no room for doubt, and this amendment seeks to achieve that result.