Mr McCLELLAND (Barton) (3.46 p.m.) —The opposition supports the passage of the National Security Information (Criminal Proceedings) Amendment (Application) Bill 2005, which amends the National Security Information (Criminal Proceedings) Act 2004. Members might recall that that act was passed by the parliament shortly before Christmas. I understand it commenced operation on 11 January this year. The bill clarifies ambiguities with respect to the operation of that act. I think it is fair to say that the clarification is consistent with what both sides of the House assumed was the potential operation of that original act. [start page 29]
Essentially, the bill clarifies that the original act can be applied to the conduct of federal criminal proceedings already under way, even though they were commenced prior to 11 January 2005—the commencement date of the primary act. There are currently under way five terrorism related proceedings to which the act could potentially apply—that is, there is a possibility in those proceedings that it may be necessary for one or other of the parties to adduce security sensitive information. The government has been advised that, without the amendments contained in the bill, there is a risk that any attempt to apply the primary act to the future stages of these proceedings could be found to be incompetent.
The bill avoids complications, additional expense and delay that could otherwise arise from the need to issue fresh charges, for instance, against those currently facing terrorism proceedings. In the absence of this bill, fresh charges may have been necessary in order to bring those cases within the provisions of the primary act. This would be a particular detriment to those who have been accused of these terrorism related offences—three of whom are currently in custody, having been denied bail.
Four of those proceedings currently on foot are at the committal stage or are listed for mention for committal. One case—the Crown against Mallah—is listed for hearing in a three-week period, commencing 2 March 2005. With respect to that case, concerns have been raised in a recent article published in the Australian newspaper on 11 February this year under the title `Ruddock changing the rules, says terror lawyer'. That article cites the lawyer as expressing concern that the application of the National Security Information (Criminal Proceedings) Act to those proceedings currently under way will prejudice the ability of the defendant to select legal counsel.
While I am ever ready, when appropriate, to criticise the Attorney-General, I must say that the concern set out in that article is based on a false premise that section 39 of the primary act in some way makes it obligatory for a lawyer to obtain a security clearance either to represent someone accused of a terrorism related offence or if they receive during that representation a notice from the Secretary to the Attorney-General's Department that a security sensitive issue is likely to arise in the course of the proceedings in terms of potential evidence that will be adduced.
In these circumstances, section 39 facilitates rather than creates any obligation. The Secretary to the Attorney-General's Department issues a notification advising counsel that in their opinion security sensitive information is likely to arise, and then procedures are available for that counsel to elect to obtain a security clearance to the appropriate level. That is not, however, an obligation. Counsel are not obliged to obtain a security clearance; however, if they do not obtain that security clearance, their right to appear in the closed hearing to consider the security sensitive material may be restricted, at least in part.
During the debate on the primary bill, speakers from both sides of the House mentioned in that context the important task of balancing the concerns of national security against any potential detriment or imposition placed on lawyers to have to or at least to be confronted with whether they will elect to seek a security clearance. Given the significance of these national security concerns when we are dealing with material of this sort—particularly in circumstances where the material may come from an overseas government or the publication of it may disclose a source and prejudice the safety of the source of that evidence—people have to recognise that there are some valid public responsibilities that we can request counsel to consider. [start page 30]
So this is not a situation where the executive determines or vets which counsel can appear in the proceedings. Rather the defendant has a right to instruct counsel of their choice at all stages and that counsel has a right to appear at the actual hearing. If that counsel does not, however, obtain a security clearance, then certain consequences may follow. In particular, they may not be in a position to present as full and as detailed an argument on the security sensitive material as they otherwise would if they had secured a clearance and were automatically entitled to access to that material during that debate. But again I emphasise that that clearance is not obligatory for the defence counsel to obtain.
I note that section 39 further provides that, upon receiving notice from the Secretary to the Attorney-General's Department, a defendant may apply for a deferral or adjournment of the proceedings until (1) the legal representative has been given a security clearance or (2) if the legal representative is not given a security clearance, another legal representative is given such a security clearance. In these circumstances, the relevant court has an obligation to defer or adjourn. The language is mandatory in nature—it is expressed as `must defer or adjourn the proceeding' until the matters are resolved. This power exists, of course, in addition to any general powers of the court to direct the conduct of its cases, including the power to order an adjournment to ensure that the accused is afforded a fair hearing. Indeed, there are several references to that in the primary act.
So, for instance, in the Crown case against Mallah, upon the commencement of this bill, if notice is given—and it is by no means guaranteed that notice will be required under the act—that security sensitive information will be adduced or it is contemplated that it will be adduced, Mr Mallah can apply to the court under section 39 of the act to adjourn the proceedings until his legal representative has been given a security clearance or until another legal representative, if it is desired, is given such a clearance. If that application is made, the court must adjourn the proceedings.
Finally, as a second operative provision, the bill will also amend the act to confirm that the prosecutor is only required to give the requisite notice of intention to adduce security sensitive information to the court and the defendant on the one occasion and that the provisions of the act will thereafter apply to all stages of the proceedings in terms of the utilisation of that material. The amendment avoids a possible misinterpretation of the act requiring the prosecutor to give further notices under the act for each subsequent part of the proceedings and, of course, triggering the various appeal mechanisms that are provided for in the act once the notice is given. The amendment is sensible to clarify this point. It would avoid additional complexity, expense and delay, and it is fair to say it was not the intention of the original legislation. The opposition support these amendments. We believe they are justified and are consistent with the understanding of both sides of the House of the primary act when it was passed.