Express law No. 24

19 July 2005

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

The National Security Information
Legislation Amendment Act 2005 ('the Amendment
Act')
will amend the National Security Information (Criminal
Proceedings) Act
2004 ('the NSI Act') by extending the operation
of the Act to include civil proceedings. The NSI Act applies
to federal criminal proceedings to protect information
that relates to, or whose disclosure may affect, national
security, by facilitating the prosecution of an offence
without prejudicing national security and the rights of
the defendant to a fair trial. The proposed amendments
also seek to allow sensitive security information to be
protected in civil proceedings.

National Security Information
(Criminal Proceedings) Act 2004

The NSI Act currently applies
to any criminal proceeding in any court exercising federal
jurisdiction in relation
to Commonwealth offences, and covers all stages of the
criminal process. It allows a court to admit documents
and information in an edited form so as to protect national
security but preserve the essence of the information.

National
Security Information Legislation Amendment Act

The Amendment
Act passed through Parliament on 20 June 2005, receiving
Royal Assent on 6 July. It will enter into
force on 3 August 2005. The Amendment Act broadly adopts
the procedures set out in the NSI Act, with some necessary
departures to account for the particular nature of civil
proceedings. It applies to all stages of civil proceedings,
including discovery, ex parte applications, interlocutory
proceedings and appeal proceedings in any Australian court
(Commonwealth, State or Territory).

A key difference with
the regime set out in the NSI Act, as it currently stands,
is that the Attorney-General or
an appointed minister gives written notice to the parties
and court, rather than the prosecutor, that the Act applies
to a civil proceeding. Such a notice can be given at any
time during the proceeding. However, as with criminal proceedings,
if notice is given after the proceeding begins, the Act
would only apply to the part of the proceedings that take
place after the notice is given.

Operation of the Amendment
Act

Attorney-General's Certificates

The Amendment Act
seeks to introduce a Part 3A into the NSI Act which deals
with the protection of information
in civil proceedings as outlined below.

A party must notify
the Attorney-General, at any stage of civil proceedings,
where that party expects to introduce
information that relates to or may affect national security.
National security information may arise in the form of
a document, in the context of evidence given orally by
a witness or by the mere presence of a witness. Where proceedings
have already begun, the court must adjourn to allow the
Attorney-General to consider the information and determine
whether disclosure is likely to prejudice national security.
If so, the Attorney-General may issue a certificate which
either prevents the disclosure of the information or recommends
how the information should be dealt with (a non-disclosure
certificate).

The proposed Part 3A would allow the parties
to confer prior to a substantive hearing, to consider issues
in relation
to disclosure of information that relates to, or may affect,
national security and consider the best mechanism for handling
that information with the assistance of the court. The
court may then make an order giving effect to any agreement
reached by the parties.

Disclosure of information in 'permitted
circumstances'

The Amendment Act introduces a number
of situations in which disclosure of national security
information will
be permitted in civil proceedings. This includes where
a Minister or employee of the Commonwealth, who is a party
to the proceedings, discloses information in the course
of their duties and where a legal representative discloses
information to their client in carrying out duties in relation
to the proceeding.

Closed hearings

Any non-disclosure certificate must be
considered at a closed hearing of the court to assess the
validity of the
Attorney-General's certificate, having regard to
whether the making of the order for the exclusion of information
or a witness would have a substantial adverse effect1 on
the fairness of the hearing. This will not necessarily
be significant departure from the principles to be applied
in determining a claim of public interest immunity.2 Only
parties and their legal representatives who possess security
clearances to an appropriate level may attend these closed
hearings.

The Amendment Act provides that a court must
give reasons to the parties and their legal representatives
for a decision
to make an order to admit, exclude or redact information,
or to exclude a witness.

Offences

The proposed Part 5 outlines offences in relation
to civil proceedings. The offences include disclosure
of information
prior to the issue of a non-disclosure certificate
from the Attorney-General and contravening the requirement
to notify the Attorney-General of expected disclosure.

Conclusion

The amendments proposed in this Amendment Act
will strengthen the protections for security sensitive
information in
civil proceedings whilst still protecting the
rights of the parties.
Perhaps the most significant change introduced
by the NSI legislation is that summarisation of national
security
information is now permitted in civil and criminal
proceedings.

Text of the Amendment Act is available
at:

parlinfoweb.aph.gov.au
- NSI Legislation Amendment Act 2005.pdf

Text of the Act (un-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 which
are available at:

www.comlaw.gov.au
- NSI (Criminal Proceedings) Regulations 2005.pdf

Further
Information

For further information please contact:

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

Notes

1 The definition of 'substantial adverse effect' means
that any effect which is not insubstantial, insignificant
or trivial is a 'substantial adverse effect'.

2 In determining a claim for public interest
immunity a court is required to balance the prejudice to
the interests
of justice if information was withheld against the prejudice
to public interests (such as national security) if information
was disclosed. A claim for public interest immunity can
be refused even if withholding certain information may
not have 'a substantial adverse effect on the fairness
of a hearing' whereas a non-disclosure certificate
could not be overturned unless such a substantial adverse
effect could be shown. However, it would be very rare for
a public interest immunity claim on national security grounds
to be rejected in a civil case, particularly where exclusion
of the information would not have a substantial adverse
effect on the fairness of a hearing.

Important: The material in Express
law is provided to clients 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
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