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QC defends refusal for clearances

QC defends refusal for clearances

DEFENCE LAWYERS involved in a terrorism trial in Victoria have defended their refusal to undergo security checks, arguing these demands on lawyers are unfair.As the Government launches its…

DEFENCE LAWYERS involved in a terrorism trial in Victoria have defended their refusal to undergo security checks, arguing these demands on lawyers are unfair.

As the Government launches its toughening of security laws under the National Security Information Act, the defence lawyers in the trial of Melbourne terrorist suspect Jack Terrence Thomas have refused to submit to the clearance process.

According to the Government, while judges are out of the loop, lawyers may have to undergo security checks if they want access to information in terrorism trials.

Attorney General Philip Ruddock said that solicitors and barristers were not beyond scrutiny, and that there had been some instances, New South Wales in particular and reportedly in Victoria as well, in which they had been avoiding paying their taxes.

“Now, I don’t know what people’s circumstances are but when some members of the legal profession tell me that I should accept every undertaking on the basis that everybody is honourable and always does the right thing, I have to match it with what I know has been the propensity of some members of the Bar, particularly in New South Wales and reported [in Victoria], to essentially avoid paying their proper obligations and then sometimes using the bankruptcy arrangements to ensure that the assets of their spouse and themselves are put beyond reach of creditors.”

But defence counsel Lex Lasry QC and Mark Taft refuse to budge on their stand in the current case, labelling the requirement unfair. In an interview with Lawyers Weekly, Lasry said that in this particular case, security clearances are “being endeavoured to be made a condition of legal aid”.

“So by virtue of the arrangement that exists between legal aid in Victoria and the Commonwealth Government, security clearances are being imposed on lawyers who are willing to accept legal aid defence briefs. And if they don’t accept them and don’t agree to get the clearance, then at some point during the trial they might be able to be excluded from the case because of the sensitivity of the information,” Lasry said.

He argued that the most discriminatory part about this particular case is that wealthier clients, who can afford their own legal representation, “can’t have this condition imposed on them”.

“So the requirement for security clearances will only apply to those who are in the indigent and therefore in need of legal aid. And that is obviously unfair,” he said.

Referring to some lawyers’ refusal to have security checks, Ruddock said: “You know, if you are going to go out there and hold yourself out to be whiter than white, then you know, you ought not to be surprised if somebody raises these sorts of questions.”

But there is a general issue of principle as well, argued Lasry. Because security clearances involve a “fairly invasive inquiry” into the private affairs of people, “when government is checking into the private affairs of lawyers who defend in terrorism cases, then the thing that always concerns lawyers is how that information might be used”, he said.

Criminal lawyers are well versed when it comes to dealing with sensitive information, said Lasry, and they are aware of the consequences if they do not abide by the rules.

“In essence it is unnecessary because lawyers, particularly criminal lawyers, are regularly dealing with sensitive information. They are familiar with the manner in which lawyers can give undertakings to courts about not disclosing sensitive information to people, and they know that if they give such an undertaking and breach it then they will be in contempt of the court and open to be punished in a transparent process which may include imprisonment.

“Under the National Security Information Act, security clearances for lawyers are not made mandatory. The parliament specifically declined to make them mandatory,” said Lasry.

Judges, however, are not included in the security checks. Ruddock told ABC Radio last week that judges go through another form of scrutiny when they are appointed. “Before I appoint judges, for instance, I have to undertake a probity check in relation to their suitability to fulfil the role and that means issues in relation to whether they have paid their tax and that is the example I have used before.”

Pressed by the ABC presenter about a recent newspaper article on a judge who had not paid tax in over 12 years, Ruddock said such matters were a “real concern”. “But I do check very carefully those matters before people are appointed to the bench and that is the point that I am making. They go through a form of complete checking.”

While lawyers will need security checks to access some information in terrorism trials, they will not need to in order to represent their clients.

Ruddock said he believed the legal counsel who argue that they should not have to comply with the law are doing their clients a disservice.

“Now let me make it clear, nobody is told they have to have a security clearance but what I can make well understood is if they don’t get a security clearance, their clients’ capacity to be most effectively represented may be jeopardised. The idea that you would discourage people from getting security clearances flies in the face of the fact that there are many who’ve appeared in terrorist related matters who have been prepared to obtain security clearances.”

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