Express law No. 20

27 April 2005

Amendments to the National Security Information (Criminal
Proceedings) Act 2004

The National Security Information
(Criminal Proceedings) Amendment (Application) Act 2005 seeks
to clarify ambiguities arising from section 6 of the NSI
Act. The amendments broaden
the application of the Act to include federal criminal
proceedings commenced before the commencement of the Act
(11 January 2005). Furthermore, the section is clarified
to ensure that where a prosecutor gives notice that the
case falls within the provisions of the legislation, notice
need only be given once, rather than separately at each
part of the proceedings.

National Security Information
(Criminal Proceedings) Act 2004 (the NSI Act)

The NSI Act seeks to protect information
from disclosure during a proceeding for a Commonwealth
offence where the
disclosure is likely to prejudice Australia's defence,
security, international relations, law enforcement interests
or national interest; specifically, where the disclosure
of information would be likely to prejudice Australia's
national security. The Act applies to any criminal proceeding
in any court exercising federal jurisdiction in relation
to Commonwealth offences, and covers all stages of the
criminal process through to an appeal of a decision.

The
legislation provides the court with a device to admit documents
and information in an edited form which protects
national security but preserves the essence of the information.
The legislation facilitates the prosecution of an offence
without prejudicing national security and the rights of
the defendant to a fair trial.

The Act requires that a party
must notify the Attorney-General at any stage of a criminal
proceeding where that party
expects to introduce information that relates to, or the
disclosure of which may affect national security. This
information includes information that may be introduced
through a document or a witness's answer to a question,
as well as information disclosed by the mere presence of
a witness.

Upon notification, the Attorney-General may review
the relevant information to decide whether the information
can be disclosed. If the information is likely to prejudice
national security, the Attorney-General may issue a certificate
which prevents the disclosure of the information or allows
the information to be introduced in an edited or summarised
form. Before a trial commences, any certificates that have
been issued must be considered at a closed hearing of the
trial court.

Part 3 of the Act considers the management
of information including pre-trial conferences and the
arrangements regarding
disclosure of material. Section 23 provides that regulations
may be made to prescribe the way in which information is
disclosed and stored. Accordingly, the purpose of the National
Security Information (Criminal Proceedings) Regulations
2005 is to specify how and where information that requires
protection under the Act must be accessed, prepared and
otherwise handled. The Regulations commenced on 11 January
2005, the day of their registration.

The Act also considers
the issue of security clearances. If an issue is likely
to arise relating to a disclosure
of information in the proceeding that is likely to prejudice
national security, the defendant's legal representative
may apply to the Secretary for a security clearance by
the department at the level considered appropriate by the
Secretary in relation to the information.

Part 5 deals with
offences under the Act, which include the disclosure
of information contrary to, or prior to
the issue of an Attorney-General non-disclosure certificate,
and the contravention of the requirement to notify the
Attorney-General.

NSI (Criminal Proceedings) Amendment
(Application) Act 2005

The NSI (Criminal Proceedings)
Amendment (Application) Act 2005 commenced on 21 March
2005. The amendments
to the NSI Act are set out in schedule 1 which provides
for the repeal of section 6 and substitution of the
following:

6 Application of the Act

a. Subject to subsection (2),
this Act applies to a federal criminal proceeding, whether
begun before
on or after
the day on which this section commences, if
the prosecutor gives notice in writing to the defendant and the court
that this Act applies to the proceeding.

b. If the
prosecutor gives the notice after the proceeding begins,
this Act only applies to the
parts of the
proceeding that take place after the notice
is given.

The amendments to the Act have the effect of broadening
its application to include proceedings that began
prior to the commencement of the
main provisions
of the
Act. Accordingly, section six provides that the Act now applies
to federal criminal proceedings if the proceeding began
before, on or
after 11 January
2005.

In order to trigger the operation of the Act, the prosecutor
must notify the court and the parties that a particular
case falls within
the provisions
of
the legislation. Such notice can be given at any time during
the proceedings, however
if the prosecutor gives notice after the proceeding begins, the
Act only applies to the part of the proceedings that takes place
after
notice
is given (Section
6(2)).

Section 6 amends the NSI Act to confirm that the prosecutor
is only required to give the requisite notice of intention
to the
court and
the defendant
on the one occasion and that the provisions of the Act will
thereafter apply to
all
stages of the proceedings in terms of the utilisation of that
material. The amendment avoids a possible misinterpretation
of the Act requiring
the prosecutor
to give
further notices under the Act for each subsequent part of the
proceedings (e.g. at a committal and then at the trial) and,
the consequent
possibility of triggering
the various appeal mechanisms that are provided for in the
Act once the notice is given.

Implications

Five terrorism related proceedings were underway
at the time of the amendments to the NSI Act in which
security sensitive
information
may have disclosed.
Without the amendments provided in the Amendment Act, there
was a
risk that an attempt
to apply the primary Act to future stages of these proceedings
could be found to be incompetent (because the proceedings
were commenced
before the commencement
of the Act). The amendments thereby allow security sensitive
information to be protected in these proceedings by the
NSI Act without the
need to
issue fresh
charges.

Text of the Act (as amended) is available at:
www.comlaw.gov.au - NSI (Criminal Proceedings) Act 2004.pdf

This
is to be read in conjunction with the National Security
Information (Criminal Proceedings) Regulations 2005
available at:
www.comlaw.gov.au - NSI (Criminal Proceedings)
Regulations 2005.pdf

For further information please contact:

Andrew Berger
Senior Executive Lawyer
T 02 6253 7405 F 02 6253 7383
andrew.berger@ags.gov.au

Important: The material in Express law is
provided as an early, interim view for general information
only and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.