Mr McCLELLAND (Barton) (11.41 a.m.) —The opposition will support the government's motion. I would like to comment, however, on two of the government's amendments. Firstly, amendment (5) deletes from clause 29 of the bill what were some additional criteria or identifying criteria that the court could consider. That proposition was advanced by the opposition and moved as an amendment in the Senate as a result of what we believed were valid representations from the Law Council of Australia about the right of non-security cleared counsel to attend closed hearings or, rather, not be excluded from parts of closed hearings. As the Attorney-General indicated, the additional criteria or identified criteria related to the period of active service of the practitioner without, firstly, previous criminal conviction or adverse finding; secondly, previous experience in handling confidential information; and, thirdly, the effectiveness of any implied or expressed undertaking to use such information only for the purpose of defending an accused in the relevant court proceedings.
In advancing the amendment we also had regard to the report of the Australian Law Reform Commission. In particular, there is a discussion in the Law Reform Commission report about how, in Lappas's case itself, the issue as to whether relevant security sensitive information should have been provided to counsel was resolved as a result of an appropriate undertaking. At paragraph 6.107, the Australian Law Reform Commission report states: [start page 26]
In the ALRC's view, the court's power to restrict access to certain material to people holding a security clearance and to require participants in court proceedings to give confidentiality undertakings might often work in tandem. The Crown might well seek orders requiring both. The court or tribunal will be able to determine which of them, separately or in combination, provides that degree of protection fairly required by the demands of justice in each case.
I must say that, as currently framed in clause 29, we would not see the court being precluded from deciding whether—to again pick up the words of the section—'the disclosure would be likely to prejudice national security'. On our reading of clause 29, we do not see that as precluding the court from considering, perhaps, such a combination of security clearance and undertaking as is mentioned in the Law Reform Commission report. That is something that the Attorney-General may wish to address, or at least could be addressed in the Senate, after giving consideration to that. I suppose it could be a not insignificant issue. But the purpose of our amendment went essentially to that—that there were a number of things that a court might consider by way of balancing whether a non-security cleared counsel should be secured.
I should say at the outset that I personally—and this may not necessarily be the view of all my colleagues—do not believe it is an onerous thing to request that counsel appearing in defence of a person involved in a case such as this obtain a security clearance. Balancing the public interest criteria that I referred to in the second reading debate, I think it is reasonable to expect. I think we are entitled to say to counsel: `Who are you defending? Are you looking at your own point of principle jealously or are you looking at the rights of the person you're defending?' If they are looking at the rights of the person they are defending it is not an onerous obligation, I believe, to obtain a security clearance. I conclude by noting that point. However, going back to where I started, there is perhaps room for a balancing act that the court could perform. I will address one further amendment, if I may continue. The second and final amendment that I want to address is amendment (6). This is in respect of access to transcripts. The amendments that the opposition moved in the Senate related to giving the court power to grant access to the transcript to both counsel. (Extension of time granted) We saw that the ability of the court to make the transcript available not only to counsel but also to the public if the court were satisfied—and I cannot recall precisely the words that we used in the amendments adopted by the Senate—that it would not prejudice national security would be applicable, for instance, in circumstances where the court determined that no issue of national security or justifiable issue of national security had been put before it. In other words, that it made a determination on the Attorney-General's certificate that there was no justification for excluding, reducing or summarising the information and it would give its reasons, which it is obliged to do under the legislation already. But it would also make available the transcript in those circumstances, with appropriate appeal procedures in place so that the Crown, either through the Attorney-General or the prosecutor, could appeal any such release of the transcript. We advanced that from the point of view of achieving a balance between the closed hearing and the public interest in having tribunal or court proceedings literally open to the public's view as I think the member for Denison said in his second reading contribution, `to have sunlight on the process'. You can be overly dramatic in using that terminology, I suppose.
We appreciate that there may be a need to restrict access to the transcript if national security were to be prejudiced. We thought our amendments provided for that and provided for the appeal. Again I put on the record our reasons for what we believe are valid amendments. Having said that, as I said in my speech in the second reading debate, I think that generally the amendments that have been moved by the government and those that have previously been adopted in the bill as it now stands do provide a balanced outcome. We were proposing measures by way of improvement, if that is a better way of framing the points we are making at this instance. I am not sure whether my colleague the member for Denison, who was also involved in considering this matter, wants to make a few remarks in this context as well.