THE PEAK BODY representing the legal profession has condemned new national security laws introduced into Parliament last week.
While the Federal Government claims the new laws demonstrate its determination to “get on with the job” of ensuring Australia’s counter-terrorism legislative regime remains responsive to the war on terror, the Law Council of Australia (LCA) is concerned by the prospect of defence lawyers having to undergo a government sanctioned security clearance in some cases.
The federal Attorney-General Philip Ruddock last week introduced the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Consequential Amendments) Bill 2004.
The Bills are aimed at strengthening laws to ensure protection of sensitive information where it is disclosed during the course of criminal proceedings. They will also ensure a trial is fair and the defendant is not disadvantaged, according to a statement made by the Attorney-General.
But the new laws still worry the LCA. Steve Southwood QC, president of the LCA, said last week that, as presently proposed, they would still restrict an accused person’s right to a lawyer of their choice.
“We remain concerned by the prospect of defence lawyers having to undergo a government sanctioned security clearance in order to represent clients in cases with alleged national security overtones,” Southwood said.
As well, the legislation requires courts to give greater weight to national security, making it a higher priority than an accused person’s right to a fair trial when making orders about the non disclosure of information or witness exclusions.
The LCA is not opposed to reasonable legislation which would improve court procedures in relation to managing security-sensitive information, Southwood said.
“However, any changes to the current approach must be balanced against the need to ensure courts retain adequate discretion over the process and that the fair trial values essential to our system of justice are preserved. In our view, the Bills as presently constituted do not achieve such a balance,” Southwood said.
The National Security Information Bill was reintroduced after originally being introduced into the House of Representatives in May this year. The Bill did not pass before the dissolution of Parliament for the federal election.
Criminal prosecutions for federal security offences, such as terrorism and espionage, may rely on information that can affect the national security of the country, the Attorney-General said in a statement.
But the current situation could force the Commonwealth to decide between risking the disclosure of sensitive information and protecting the information and thereby abandoning the prosecution.
The Director-General of the Australian Security Intelligence Organisation (ASIO), Dennis Richardson, recently told the Australian Chamber of Commerce and Industry that the protection of classified information would eventually be a critical issue in the case of a terrorism trial.
Ruddock said the new legislation was a means to avoiding this situation.
The LCA argued that recommendations made by a bi-partisan committee had been overlooked, including that courts won’t have the discretion to determine the extent to which a court transcript should be sealed.