The Punchbowl man is accused of working with French terror suspect Willie Brigitte to bomb the national electricity supply and Sydney military sites. Federal Attorney-General Philip Ruddock will issue a certificate under the National Security Information (Criminal and Civil Proceedings) Act 2004, outlining the measures needed to protect security-sensitive evidence at Lodhi's trial.
The act requires the court to give greatest weight to national security concerns when deciding whether to close the court or make suppression orders, with the defendant's right to a fair trial and principles of open justice taking a back seat. National security is defined as "Australia's defence, security, international relations or law enforcement interests". At a pre-trial hearing on Thursday before Justice Anthony Whealy, the constitutional validity of the act was challenged by Tom Blackburn, SC, representing seven major media groups.
Mr Blackburn said it impinged on the separation of executive and judicial powers, as enshrined in the Australian constitution. "This act represents the naked and impermissible intrusion into the judicial power of the commonwealth," Mr Blackburn said.
Sections of the act imposed limitations on the conduct of the trial, interfering in ways that were "incompatible with the exercise of commonwealth judicial power", he said. The act was also inconsistent with the freedom to discuss political matters implied in the constitution, he told the court. Lodhi's lawyers raised their own legal challenge on Thursday, applying to quash the indictment because it was worded too generally.
Defence counsel Phillip Boulten, SC, said Lodhi was charged under laws referring to "the" terrorist act, and argued that the crown had not specified which terrorist act was allegedly being planned. "There needs to be some specificity about what acts constitute these offences," Mr Boulten told the court.
He said it was "a fundamental flaw in the indictment going to the root of the proceedings", and the judge would be unable to give the jury appropriate directions. But prosecutor Richard Maidment, SC, told the court it would be "absurd" if the legislation was interpreted so narrowly. Someone apprehended in the early stages of a planned terrorist attack, buying chemicals for example, "may never have any inkling of what ... (their) superior may have in mind for the use of the explosive", he said.
"You could never show for sure if they had finally selected a target," Mr Maidment said. The crown simply alleged Lodhi was preparing to strike "one target from a selection of targets", he said.
Amendments to anti-terror legislation rushed through parliament last month now refer to "a" terrorist act, meaning prosecutors do not have to identify the specific act being contemplated. Justice Whealy will hear further submissions on the constitutional challenge, and rule on the defence application, when the case returns to court next year.
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.