EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 165

 

Issued by the authority of the Attorney-General

 

Subject -   National Security Information (Criminal Proceedings) Act 2004

 

                  National Security Information (Criminal Proceedings) Amendment

                  Act 2005

 

 

The National Security Information Legislation Amendment Act 2005 (the Amendment Act) amends the National Security Information (Criminal Proceedings) Act 2004 (the Act) to extend the operation of the Act to include civil proceedings in any Australian Court.  Prior to these amendments the Act only applied to federal criminal proceedings.  The Amendment Act protects information that relates to national security and information which may affect national security if disclosed during a civil proceeding.  The Amendment Act received Royal Assent on 6 July 2005, and the main provisions of the Amendment Act, set out in Schedule 1 to that Act, commenced on 3 August 2005.

 

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.

 

New subsection 38C(1) of the Act provides that the regulations may prescribe:

(a)    ways in which information that is disclosed, or to be disclosed, to the court in a civil proceeding must be stored, handled or destroyed; and

(b)   ways in which, and places at which, such information may be accessed and documents or records relating to such information may be prepared.

 

New paragraph 38I(9)(a) of the Act states that the court must allow a party’s legal representative who has an appropriate security clearance, or a party with an appropriate security clearance who has not engaged legal counsel, to access a record of a closed hearing, and to prepare documents or records in relation to that record, in a way and at a place prescribed by the regulations.

 

The purpose of the Regulations is to amend the National Security Information (Criminal Proceedings) Regulations 2005 (the Principal Regulations), as a consequence of the amendments to the Act.  The Principal Regulations currently only apply to federal criminal proceedings.  The Regulations extend the application of the Principal Regulations to civil proceedings.  In particular the Regulations specify how and where information that requires protection under the Act must be accessed, prepared and otherwise handled in civil proceedings.  The 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 for the Protection of National Security Information), a document issued by the Attorney-General’s Department. 

The Regulations and the Requirements for the Protection of National Security Information only applies those cases to which the Act applies.  The Act applies to a civil case if the proceedings begin on or after 3 August 2005 and where the Attorney‑General, or a Minister appointed by the Attorney-General, gives notice in writing to the parties to the civil proceedings and the court that the Act applies to the proceedings.  In such a case, the parties to the proceedings, the legal representative of the parties, or a court officer (each with an appropriate security clearance) need to comply with the Act, the Regulations and the Requirements for the Protection of National Security Information.  These individuals are able to obtain advice and training on how to comply with the proposed Regulations and the Requirements for the Protection of National Security Information. 

 

The Regulations also set out the form of the notice for parties to civil proceedings to notify the Attorney-General of an expected disclosure of information relating to, or the disclosure of which may affect, national security.  New subsection 38D(3) of the Act states that this notice must be in the prescribed form.

 

The Regulations specify, in relation to civil proceedings, the:

·                     method by which national security information must be stored, handled or destroyed;

·                     ways in which, and the places at which, national security information may be accessed;

·                     ways in which, and the places at which, documents and records relating to national security information may be prepared;

·                     form of notice by the parties to civil proceedings of an expected disclosure of information relating to or affecting national security;

·                     ways in which, and the places at which, the record of the hearing mentioned in new subsection 38I(9) of the Act may be accessed; and

·                     ways in which, and the places at which, documents and records in relation to the record of the hearing mentioned in new subsection 38I(9) may be prepared.

 

Details of the Regulations are set out in the Attachment.

 

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

 

The Regulations commenced on the day on which Schedule 1 to the Amendment Act commences.

 

 

Attachment

 

Details of the proposed National Security Information (Criminal Proceedings) Amendment Regulations 2005 (No. 2)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the National Security Information (Criminal Proceedings) Amendment Regulations 2005 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides the Regulations commence on the commencement of Schedule 1 to the National Security Information Legislation Amendment Act 2005.  This means the 28^th day after the day on which the National Security Information Legislation Amendment Act 2005 received Royal Assent.

 

Regulation 3 – Amendment of National Security Information (Criminal Proceedings) Regulations 2005

 

This regulation provides that Schedule 1 amends the National Security Information (Criminal Proceedings) Regulations 2005 (the Principal Regulations).

 

Schedule 1 – Amendments

 

Item [1] – before regulation 1

 

This item inserts a new heading of ‘Part 1 Preliminary’ before regulation 1 of the Principal Regulations. 

 

Item [2] – regulation 1

 

This item amends regulation 1 of the Principal Regulations by omitting the current citation of the Principal Regulations and inserting a new citation of the National Security Information (Criminal and Civil Proceedings) Regulations 2005.  This new citation reflects the extension of the application of the regulations from federal criminal proceedings to also include civil proceedings in Australian courts.

 

Item [3] – regulation 3, definition of Act

 

This item amends the definition of ‘Act’ as defined in regulation 3 of the Principal Regulations to mean the ‘National Security Information (Criminal and Civil Proceedings) Act 2004’.  This definition has changed as a consequence of the amendments made to the National Security Information (Criminal Proceedings) Act 2004 by the National Security Information Legislation Amendment Act 2005.

 

Item [4] – regulation 3, definition of national security information, paragraph (b)

 

This item amends the definition at paragraph (b) of the term ‘national security information’ at regulation 3 of the Principal Regulations by omitting the phrase ‘in a federal criminal proceeding’ and inserting the phrase ‘in a federal criminal proceeding or a civil proceeding’.

 

Item [5] - regulation 3, definition of Requirements for the Protection of National Security Information, except the note

 

This item amends the definition of the term ‘Requirements for the Protection of National Security Information’ in regulation 3 of the Principal Regulations to mean the document titled ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings’ issued by the Attorney‑General's Department as in force on the commencement of Schedule 1 to the National Security Information Legislation Amendment Act 2005.  This means the 28^th day after the day on which the National Security Information Legislation Amendment Act 2005 received Royal Assent.  The title of the document is amended to reflect the extension of the application of that document to civil proceedings.  This document sets out the requisite ways and places for accessing, preparing and otherwise handling information that requires protection under the National Security Information (Criminal and Civil Proceedings) Act 2004 (the Act), such as national security information and the records of closed hearings.  The document is available from the Attorney-General's Department and online at www.ag.gov.au

 

Item [6] – After regulation 3

 

This item provides that a new heading of Part 2, ‘Protection of information in federal criminal proceedings’, be inserted after regulation 3 of the Principal Regulations.  This new heading means that Part 2 of the Principal Regulations will apply to federal criminal proceedings only.  Part 3 will apply to civil proceedings. 

 

Item [7] – regulation 5, heading

 

This item amends the heading of regulation 5 of the Principal Regulations by substituting a new heading of ‘Notice by prosecutor or defendant of expected disclosure in a federal criminal proceeding of information relating to or affecting national security’.  Regulation 5 only applies to federal criminal proceedings and not civil proceedings.

 

Item [8] – regulation 5

 

This item amends regulation 5 of the Principal Regulations by omitting the words ‘form of notice’ and inserting in their place, the words ‘Form 1’. 

 

Item [9] – regulation 6, heading

 

This item amends the heading of regulation 6 of the Principal Regulations, by substituting a new heading, ‘Closed hearing requirements in federal criminal proceedings – access to record of hearing by legal representative of defendant’.

 

Item [10] – After regulation 6

 

This item inserts a new Part 3 after regulation 6 of the Principal Regulations.  The new Part 3 is headed ‘Protection of information in civil proceedings’ and inserts new regulations 7, 8 and 9 into the Principal Regulations.

 

New regulation 7 deals with the ‘Protection of certain information disclosed in a civil proceeding’.

 

Subsection (1) of new regulation 7 provides that for the purposes of paragraph 38C(1)(a) of the Act, national security information must be stored, handled or destroyed according to the applicable standards set out in the document entitled ‘Requirements for the Protection of National Security Information’.

 

The Note below subsection 7(1) states that the ‘applicable’ method is determined by reference to the classification of the relevant information.

 

Subsection (2) of new regulation 7 provides that for the purposes of paragraph 38C(1)(b) of the Act, the document entitled ‘Requirements for the Protection of National Security Information’ sets out the ways in and places at which national security information and documents and records relating to national security information may be accessed and prepared.

 

New regulation 8 provides that Form 2 as set out in Schedule 1 of the Principal Regulations (as amended by item [11] see below) prescribes the form of notice for the purposes of paragraph 38D(3)(a) of the Act. 

 

New regulation 9 states that the Requirements for the Protection of National Security Information document provides the ways and places for accessing the record of hearing mentioned in subparagraph 38I(9)(a)(iii) or (iv) of the Act, and for preparing documents and records in relation to that record. 

 

Item [11] - Schedule 1

 

This item substitutes a new Schedule 1 into the Principal Regulations, which contains Form 1 and Form 2.  Form 1 relates to federal criminal proceedings and Form 2 relates to civil proceedings.

 

Form 1 provides the form of notice required by paragraph 24(2)(a) of the Act. 

 

Form 1 allows a prosecutor or defendant to inform the Attorney-General of an expected disclosure in a federal criminal proceeding of information relating to, or the disclosure of which may affect, national security.  The form requires either a description of the relevant information or details and copies of the documents in which the relevant information is contained. 

 

Form 2 is a form headed ‘Notice of expected disclosure in a civil proceeding of information relating to or affecting national security’. Form 2 provides the form of notice as required by section 38D of the Act. 

 

Form 2 allows a party to a civil proceeding to inform the Attorney-General of an expected disclosure in a civil proceeding of information relating to, or the disclosure of which may affect, national security.

 

Forms 1 and 2 requires either a description of the relevant information or details and copies of the documents in which the relevant information is contained.  The forms are expressed sufficiently broadly to enable the prosecutor or defendant to use language to protect the identity of potential witnesses and national security information.