George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Allowing for the fact that I have not seen the document, Senator, you have me at something of a disadvantage, so I will have to answer you in reasonably general terms. I think you misquoted yourself or misquoted me. I think the word was 'may', not 'will be limited opportunity', and that is a very important difference, because ordinarily there will not be limited opportunity but there may be limited opportunity. This raises the issue—which is a very difficult issue in national security law enforcement—of the circumstances in which it is not possible to acquaint a person—either an accused person or in this case a controlee—of everything in the Crown brief of evidence or in the application, as the case may be, because of the sensitive national security nature of that evidence. Of course, it is a fundamental principle of the criminal law and of natural justice that an accused person is entitled to confront their accuser and be made aware of the case against them. It is also, however, in some circumstances impossible in bringing a prosecution. I will talk about a prosecution because I think this problem arises more commonly in prosecutions than in applications for control orders. I am not aware that with the six control orders that have been sought in the last 12 years the problem ever has arisen. It can be the case that not everything in the Crown brief can be shared with the accused person because it may, for example, put the lives of covert sources at risk.

This is a problem that all the jurisdictions have grappled with. The way in which Australia has dealt with the problem is to appoint special advocates, who, in addition to the ordinary obligations of a legal representative, have a super added obligation, as it were, of trusteeship or guardianship of the interests of the accused person so that they are acquainted with the matter but their client cannot be. That happened very rarely, but I think you would understand, Senator McKim, that there may be circumstances, rare though they may be, where information simply cannot be shared with an accused person, without putting lives at risk or otherwise compromising the security of highly sensitive material.

The other alternative, which I would not favour and I do not think any mainstream government favours in any of our Five Eyes partners or elsewhere for that matter is to say, 'Well, because we can't rely upon this sensitive national security information, we will not bring the prosecution at all, even though we are very certain that this person is guilty of a very serious terrorist crime.' That is the conundrum. Nobody is trying to impinge on anybody's civil liberties, but it is the practical reality that in rare cases in a terrorism prosecution some of the evidence may not be shared with the accused person. So a category of special advocates, who are security cleared, is created. And the right of the accused person to know the case against them in every particular is placed upon the shoulders of their legal representative, usually a barrister, who of course has the ordinary obligations of any barrister to vigorously defend his client's interests.