EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 197

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY‑GENERAL

 

National Security Information (Criminal and Civil Proceedings) Act 2004

 

National Security Information (Criminal and Civil Proceedings) Amendment Regulations 2006 (No. 2)

 

The National Security Information (Criminal and Civil Proceedings) Act 2004 (the Act) seeks to protect, in certain federal criminal proceedings and in civil proceedings in any Australian Court, information that relates to national security, and information which may affect national security if disclosed.  At the same time, the Act seeks to uphold the right of the defendant to a fair trial. 

 

Section 49 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The National Security Information (Criminal and Civil Proceedings) Regulations 2005 (the Principal Regulations) specify how and where information that requires protection under the Act must be accessed, prepared and otherwise handled.  The Principal Regulations refer to the methods and places specified in the 'Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings' (the Requirements), a document issued by the Attorney‑General's Department on 1 April 2006.

 

Section 22 of the Act also provides for the prosecutor and defendant to agree to arrangements for federal criminal proceedings about disclosures of information relating to or affecting national security, and for the court to make orders to give effect to such arrangements.

 

The purpose of the Regulations is to amend the Principal Regulations to clarify that when a section 22 order or arrangement is in place in relation to the storage, handling, destruction, access and preparation of information relating to national security, the requirements set out in the Regulations and the Requirements do not apply.  Section 22 provides for orders in this way because there will be circumstances in specific cases where the requirements appropriate for security are best expressed by section 22 orders rather than in accordance with the Requirements which are a general standard.  The amendments more clearly reflect the policy intent of the legislation.

 

The Regulations also reflect that the Requirements have been re‑issued to make minor amendments regarding conditions for access to information.

 

The Department has consulted with the Australian Government Solicitor, the Australian Security Intelligence Organisation, the Commonwealth Director of Public Prosecutions and the Australian Federal Police about the amendments.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. 

 

The Regulations commenced on 28 July 2006.