By Michael Pelly Legal Reporter
December 19, 2005
AUSTRALIA'S only trial for an alleged terrorist bomb plot faces a long delay because of the first constitutional challenge to the Federal Government's anti-terrorism laws.
Six media organisations are arguing that the National Information Security Act interferes with the conduct of trials in state courts and gives no guidance on weighing national security against the right to a fair hearing.
They fear it only allows the judiciary to rubber-stamp any non-disclosure order by the federal attorney-general for the trial of Faheem Khalid Lodhi, which is scheduled for February 20 in the NSW Supreme Court.
Justice Anthony Whealey will hear the constitutional challenge on January 31, but said last week he was concerned about the timetable for the trial of Lodhi, who will have been in custody for two years in April.
Lodhi, 36, a Punchbowl architect, is accused of working with the French terrorism suspect Willy Brigitte to bomb the national electricity supply and Sydney military sites.
After Tom Blackburn, SC, acting for clients that include Fairfax, publisher of the Herald, said he had "another quiver to their store of arrows", Justice Whealey asked whether any thought had been given to the possibility of "considerable disruption" to the trial.
"I mean it is a wondrous thing to come to court with another quiver … but the arrow is really going to end up in Mr Lodhi's back, as I see it," the judge said.
Mr Blackburn said it "need not in any way derail the trial", but the judge - mindful of the likelihood of appeals - "doubted whether that's a reality".
Mr Lodhi's counsel, Phillip Boulten SC, said if the proceedings were postponed for a considerable period he would consider applying for bail.
The challenge focuses on the division of power in the constitution between the executive and the judiciary, with Mr Blackburn describing the act as a "rather naked and impermissible intrusion into judicial power".
He said that when the attorney-general issues certificates of non-disclosure - for evidence or the identity of witnesses - the court is hamstrung by the demand that the greatest weight be given to national security.
The media groups say there are no guidelines, such as when a decision could affect relations with foreign governments. There could be evidence that may exonerate Lodhi and no one would know about it, not even Lodhi himself.
They also say the Commonwealth is intruding into the workings of a state court by setting down a different mode of criminal trial, as well as interfering with the implied freedom of political communication in the constitution.
Lodhi's is the second terrorism trial in NSW. Zeky Mallah was acquitted in April of planning a terrorist act - shooting ASIO officers - but was jailed for threatening to kill the officers.
The director-general of ASIO, Paul O'Sullivan, has already asked that transcripts be done on government-supplied laptops by "security-cleared" staff.
The Crown has also foreshadowed that the Attorney-General, Philip Ruddock, will issue a certificate for the trial to be held in a closed court, meaning the evidence would not be made public.
The Supreme Court Building of New South Wales

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.