Constitutional challenge to secret trials in Australian courts

December 15, 2005

Six media organisations, including Fairfax, are mounting a constitutional challenge to secret hearings in an upcoming terrorism trial in Australia.

The trial involves Sydney man Faheem Khalid Lodhi, who is charged with committing acts in preparation for a terrorist attack. Lodhi is accused of conspiring with French terror suspect Willie Brigitte to attack Sydney's military bases and electricity supply network.

Federal Attorney-General Phillip Ruddock will issue a certificate to prevent information judged to be sensitive from reaching the public at Lodhi's trial. The Federal Attorney-General has the powers to do this under the National Security Information (Criminal and Civil Proceedings) Act.

The grounds for the challenge are that National Security Information legislation violates the separation of executive and judical powers, required by the Australian constitution. Tom Blackburn, SC, counsel for the media groups mounting the challenge claims that the act allows for the federal executive to intrude into judicial matters by ordering parts of the trial are kept secret.

The challenge will be heard on 31st January 2006 by Justice Anthony Whealy of the Supreme Court of NSW.

In the course of Lodhi's trial, towards the end of December Justice Anthony Whealy ruled that evidence and pre-trial maters are to remain secret. This ruling is separate to the constitutional challenge.