find the latest legal job
Corporate/Commercial Lawyers (2-5 years PAE)
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Specialist commercial law firm · Long-term career progression
View details
Graduate Lawyer / Up to 1.5 yr PAE Lawyer
Category: Personal Injury Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Mentoring Opportunity in Regional QLD · Personal Injury Law
View details
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
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.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

QC defends refusal for clearances
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Scales of Justice
Dec 15 2017
Timing ‘critical’ in unusual contempt of court ruling
A recent case could have interesting implications for contempt of court rulings, according to a Ferr...
Dec 14 2017
International arbitration and business culture
Promoted by Maxwell Chambers. This article discusses the impact of international arbitration on t...
Papua New Guinea flag
Dec 14 2017
World-first mining case launched in PNG
Citizens of Papua New Guinea have launched landmark legal proceedings against the country’s govern...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...