The District Court of NSW has an implied power to make screening orders preventing an accused from seeing the faces of witnesses for the purpose of protecting national security. The constitutional Kable limitation is subsumed within the implied power test — if a screening order would undermine institutional integrity, the necessity test would not be satisfied and the power would not exist. Arguments about the effect of screening on cross-examination go to the exercise of discretion, not the existence of the power. The degree of permissible impingement on the right to a fair trial varies from case to case, with the significance of the witnesses' testimony and the demonstrated forensic disadvantage being key factors in the balancing exercise.
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