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re: law council slams howard's scam. This is how ridiculous it gets....

National security obstacle to Melbourne terror trial
PM - Tuesday, 27 September , 2005 18:21:40
Reporter: Nick McKenzie
MARK COLVIN: On the day when state and federal governments decided to toughen up the security laws even further, one of the existing laws has hit a major obstacle.

It's the National Security Information Act – passed last year and in effect since the beginning of this year, and one of its provisions is to force the lawyers in some terrorism trials to get security clearances.

But the defence lawyers in the trial of the Melbourne terrorism suspect, Jack Terrence Thomas, are refusing to submit to the clearance process.

And in today's development, prosecutors told a Victorian Supreme Court hearing that this refusal posed serious problems for the whole trial.

Defence counsel Lex Lasry, QC, and Mark Taft won't budge on their stand that the requirement for them to get a security clearance is unfair and unethical.

Counsel for the Federal Government and the Director of Public Prosecutions told the court a compromise was now needed so the trial could proceed.

Nick McKenzie reports.

NICK MCKENZIE: Laws which came into effect earlier this year and are designed to protect information aired in a trial, and which could jeopardise national security, are facing their first real test in Victoria's Supreme Court.

Barristers for Melbourne terrorism suspect Jack Thomas have refused to get the security clearance, which, under the new laws, is needed to allow them to remain in court when sensitive information is aired.

Defence barristers Lex Lasry, QC, and Mark Taft have said their refusal is based on principle.

That is, they say that as ethical legal practitioners, they should not need to be scrutinised by a government agency to get approval to do their job, especially when they can be denied a clearance on grounds that can't be tested.

Today, barristers for the Commonwealth DPP and the Attorney-General Philip Ruddock told the Supreme Court that with the defence counsel maintaining their anti-clearance stand, the Thomas trial would face some serious hurdles.

Also of concern was whether court staff could also need security clearances to handle certain evidence.

Crown Prosecutor Richard Maidment told the court that it may be:

RICHARD MAIDMENT (read by actor): Quite impossible to comply with national security regulations without defence counsel being cleared and at least someone on the court staff being cleared.

NICK MCKENZIE: But he went on to say that a compromise was possible and that the defence barristers could, instead of getting a security clearance, provide an undertaking to the court.

That suggestion seemed to resonate with Justice Cummins, who told the court:

JUSTICE CUMMINS (read by actor): When counsel and members of the court are honourable and prepared to give an undertaking, the Attorney-General could be satisfied.

NICK MCKENZIE: As for the problem of court staff without clearances handling sensitive information, counsel for the Attorney-General, Richard Tracey, QC, proposed a system of safes, in which information could be stored and only handled by approved officers.

The court also heard about problems which may arise when witnesses are cross-examined and give answers which may fall under the new laws.

Again, the court was presented with another possible solution by counsel for the Attorney-General, Richard Tracey, QC.

The sensitive witness answers could be written on paper and stored until they are viewed by the Attorney-General and either approved for open court release or, if necessary, subject to special measures.

The legal teams connected to the Thomas trial are now discussing today's proposals.

They will appear in court again tomorrow to try and reach some sort of an agreement to allow the trial to proceed as smoothly as possible.

The Attorney-General will also have to give his tick of approval.

But already some civil liberties groups are voicing their opposition to the compromises proposed in court, and the way the new law is being applied.

Barrister Brian Walters, SC, is the head of Liberty Victoria.

BRIAN WALTERS: The National Security Information Act, a recent act of the Commonwealth Parliament, now gives power to the Attorney-General, Mr Ruddock, a politician, to directly interfere in the conduct of a criminal trial.

Under this act statements of witnesses can be tendered without cross-examination, summaries of evidence can be given, such that a prosecution case could be completely reshaped.

And we now have the Kafkaesque suggestion that some witnesses in cross-examination should be compelled to write down an answer and have the Attorney-General approve it before that answer could be shown to counsel who's cross-examining them. Now, that…

NICK MCKENZIE: But aren't these new measures needed in this new era in which we live, where terrorism is a real danger and the Government needs to do all it can to protect national security?

BRIAN WALTERS: Courts have been around for a long time; they know how to run fair trials and trials involving security without this kind of interference by politicians. Criminal trials shouldn't have politicians getting involved.

This is the first real test of our security laws, and at the moment they're seen to be lacking.

MARK COLVIN: Nick McKenzie prepared that report, which ended with Brian Walters, SC, head of Liberty Victoria. PM approached Philip Ruddock for an interview, and his spokeswoman has not got back to PM.