The Australian Government is continuing with its proposal for a system of state approved lawyers who must hold a security clearance before being involved in matters relating to Australia’s national security.

The LCA is most concerned about the implications this will have for Legal Aid clients. LCA president-elect Bob Gotterson, QC, said: “What this security clearance proposal means is that you will not be able to choose your own legal aid lawyers if your case has national security overtones - you can only see a lawyer approved by officials answerable to the government of the day.”

Gotterson said the proposals introduced a very serious potential for discrimination. “Every citizen should be able to choose their own lawyer; and every lawyer should be free to act. Terrorism exists, and government must respond to it. And this should be in a thoughtful, no impulsive, way,” he said.

In its submission to the Australian Law Reform Commission, the LCA rejects the proposals on the grounds they are unnecessarily extreme and impractical.

It said there is no evidence court controlled processes are inadequate or that the present political security environment warrants such radical changes. It also pointed out that if the system required barristers to have security clearance, it would require judges to have a similar clearance. A system of state-cleared judges might be perceived to fly in the face of the fundamental principle of judicial independence, the report said.

It is not possible to reconcile the proposal for security clearances with a truly independent judiciary, the LCA submission said.