Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I thank the minister for his comments. If we are waiting for the National Security Legislation Monitor to turn up and assess this for us, we could be waiting for a very, very long time. At this point I commend amendment (35) to the chamber. If it is lost, I will speak to amendments (36) and (37).

Question negatived.

by leave—I move items (36) and (37) on sheet 6181:

(36)  Schedule 8, item 26, page 52 (line 27), omit “or”.

(37)  Schedule 8, item 26, page 52 (lines 28 to 32), omit paragraph 24(1)(c).

The National Security Legislation Amendment Bill amends the National Security Information (Criminal and Civil Proceedings) Act. This is the piece of legislation that I just unsuccessfully proposed to repeal in its entirety. It is a very complicated piece of legislation. It has in fact been observed by Justice Anthony Whealy of the Supreme Court of New South Wales that:

It may respectfully be observed that it gives the appearance of having been drafted by persons who have little knowledge of the function and processes of a criminal trial.

That is the act we are contemplating now. This is a highly unsatisfactory situation to say the least, given the penalties for terrorism related offences being so severe and the rights to a fair trial being compromised by this piece of legislation. To provide one example of how flawed this legislation is, I refer to section 39, which requires lawyers to obtain security clearances in certain cases. The NSI Act currently provides that during a federal criminal proceeding a legal representative of the defendant may receive written notice from the Secretary of the Attorney-General’s Department that an issue is likely to arise in the proceedings relating to the disclosure of information that is likely to prejudice national security. They must do so within 14 days of receiving a notice and, if they are denied a security clearance or do not obtain it, they may be prevented from viewing all the evidence in relation to the case, which will obviously severely impact on their ability to continue to represent their client.

This obviously would consequently restrict the pool of lawyers for an accused to select from, because this provision significantly detracts from the guarantee of the right to a fair trial in article 14(3) of the ICCPR—there it is again. I understand that in this building in particular, which hosts its fair share of lawyers, the idea that to participate in a criminal trial or a terrorism trial you would need to undergo some kind of security clearance has been soundly rejected by the legal community as entirely offensive. The independence of the legal profession is undermined by section 39 of this act. It ignores the reality that criminal lawyers deal with confidential information every day and already must adhere to very strict professional conduct rules concerning confidentiality. We were not able just now to successfully repeal the act, so I believe that proposed section 24(1)(c) should not be implemented.

Schedule 8 of the bill amends division 2 of part 3 of the NSI Act. Part 3 is entitled ‘Protection of information whose disclosure in federal criminal proceedings is likely to prejudice etc. national security’. Under section 24(1) of the act:

If the prosecutor or defendant knows or believes that:

(a)

he or she will disclose, in a federal criminal proceeding, information that relates to … or … may affect national security; or

               …            …            …

(c)

a person whom the prosecutor or defendant intends to call as a witness in a federal criminal proceeding will disclose information in giving evidence or by his or her mere presence—

that relates to or may affect national security, the prosecutor or defendant must as soon as possible notify the Attorney in writing of their knowledge or belief. The maximum penalty for failure to do so is two years imprisonment. The bill proposes to amend section 24(1) so that providing notice to the Attorney is also required when the prosecutor or defendant knows or believes that:

… on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in a federal criminal proceeding …

The Australian Greens do not support the proposal to extend the notice provision to cover subpoenas. In closing, I think this sums up for us the extraordinary disappointment that we feel that, after two years of reviewing and taking an extraordinary amount of evidence from a very wide range of experienced legal practitioners, the only thing the government can come up with in relation to this act is to extend its scope. The reason for this position is that the act already covers the production of information on subpoena. The mere issuing of a subpoena will not result in the disclosure of information that may be prejudicial to national security. Only court officials and the party to whom the subpoena is directed are privy to the contents of such a document.

As noted by the Law Council, adding further to our concern is the very broad nature of the definition of ‘national security information’, which I will come to shortly, and the lack of precision with which subpoenas are often drafted. This makes it very difficult for lawyers to be aware of the precise information that will result. Somehow your counsel is meant to hypothetically understand what it is that might come back as a result of the subpoena, and if they do not then they are subject to two years in prison if material is adduced that somehow compromises this very broad definition of national security. I think it is putting the courts, and the legal profession in particular, under an impossible burden. It makes it very difficult for lawyers to be aware of the precise information that will result from a subpoena and whether it may result in the revelation of material prejudicial to national security. As counsel you just have to guess, and you had better hope that you get it right, or you might serve two years in prison.

The bill also proposes to insert a definition of ‘national security information’—and this is my final point on this issue:

national security information means information:

(a)

that relates to national security; or

(b)

the disclosure of which may affect national security.

It is a positive step to include a definition of ‘national security information’; at least it provides some clarity for lawyers and the judiciary. However, the breadth of the definition highlights that the notice provisions for lawyers in this act are unduly onerous. As with many of the amendments that I have moved tonight, I would hope that at the last minute the government sees sense and that, if we are not able to repeal this offensive act in its entirety, at least we can make these two minor amendments to limit its scope. So I commend these two amendments to the chamber.