Alex White (Labour)

The suggestion the Minister appears to be making seems implausible. I suggest that the outcome that would flow from this subsection is that it would become the norm that these matters would be tried in the Special Criminal Court. That seems to be what is intended and what would flow from the subsection.

In the current circumstances, the Minister will accept that the Director of Public Prosecutions is required to send a particular matter to the Special Criminal Court, but under the new regime matters would go automatically to the Special Criminal Court and, essentially, they would have to be taken out of the Special Criminal Court by the Director of Public Prosecutions. Juryless trials for these offences would become the norm and, clearly, that seems to be the case from this subsection.

If the Minister was minded to insert in the legislation the kind of regime he appeared a moment ago to be claiming would follow, I believe he would support our amendment. Our amendment would provide for the Director of Public Prosecutions exercising a power to certify in writing that the ordinary courts in his opinion were inadequate to secure the effective administration of justice in relation to the trial of an offence that is not a scheduled offence. In other words, the Director of Public Prosecutions would have to form this opinion, but we make the case that the protection should be that it would have to be formed on reasonable and objective grounds that there was a real and substantial risk that jurors or potential jurors in the case may be intimidated or put in fear. Instead of making a presumption that a jury is not appropriate or that it should not be in place, the Minister makes a presumption that it should be and that the Director of Public Prosecutions should be required to demonstrate on reasonable grounds that it was not appropriate for the reasons that he would advance for a case to be tried in the ordinary courts.

I understand that there is a provision in British law that a hearing is held in respect of a proposal that a particular prosecution should be dealt with in a juryless court. It is not an unusual proposal we are making. It would certainly require the Director of Public Prosecutions to demonstrate in a given case that this should happen and that the matter should go to the Special Criminal Court, but it is wrong that the norm and the presumption should be that those cases in regard to those particular offences would go to the Special Criminal Court.

I am reminded of what Senator Boyle said earlier, to which I did not get an opportunity to respond, which is relevant to this amendment. He made the point that there is an important protection in respect of the yearly renewal of aspects of legislation that come before the Houses. We had a recent experience of that in this House, and it occurs every year around this time - I cannot remember the particular legislation as it has been a long day - where in respect of the designation of certain offences to be tried in the Special Criminal Court------