The potential for discrimination in these new laws is significant, according to the Law Council of Australia, which argues that every citizen should be free to choose their own lawyer, and every lawyer should be free to act.

The laws will require lawyers to obtain a security clearance from the Attorney-General’s Department before they can act in new pre-trial procedures that will deal with the way security sensitive information can be used in a case, according to Law Council president Bob Gotterson QC.

“What this security clearance proposal [means] is that you will not be able to choose your own lawyer if your case has national security overtones — you can only see a lawyer approved by officials appointed by the government of the day,” Gotterson said.

Prohibiting or restricting access by lawyers to information was a role that the courts had fulfilled responsibly for many years, he said.

Additionally, there were measures in place already to deal with these issues, including the criminalisation of unlawful disclosure and the established rules relating to public interest immunity.

Lawyers were already subject to ethical obligations. Any lawyers who might leak security information were already subject to severe penalties and would be publicly shamed by the profession, Gotterson stated.

“The Law Council believes the court, rather than the Executive, should still play the predominant role in supervising the exclusion or restriction of access by lawyers to sensitive information,” he said.