EXPLANATORY STATEMENT

 

STATUTORY RULES 2005 NO.

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY‑GENERAL

 

National Security Information (Criminal Proceedings) Act 2004

 

NATIONAL SECURITY INFORMATION (CRIMINAL PROCEEDINGS) REGULATIONS 2005

 

 

The National Security Information (Criminal Proceedings) Act 2004 (the Act) seeks to protect, in certain federal criminal proceedings, 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.  The main provisions of the Act commenced on 11 January 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.

 

Subsection 23(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 federal criminal 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.

 

Paragraph 29(5)(d) of the Act states that the court must allow a legal representative of the defendant with an appropriate security clearance 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 specify how and where information that requires protection under the Act must be accessed, prepared and otherwise handled.  The Regulations refer to the methods and places specified in the ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings’ (the Requirements for the Protection of National Security Information), a document issued by the Attorney‑General’s Department. 

 

It is important to note that the Regulations and the Requirements for the Protection of National Security Information would only apply to the small number of federal cases to which the Act applies.  The Act applies to a case if the proceeding begins on or after 11 January 2005 and the prosecutor gives notice in writing to the defendant and the court that the Act applies to the proceeding.  In such a case, the prosecutor, the legal representative of the defendant, or a court officer (each with an appropriate security clearance) would need to comply with the Act, the proposed Regulations and the Requirements for the Protection of National Security Information.  These individuals would be able to obtain advice and training on how to comply with the Regulations and the Requirements for the Protection of National Security Information.

 

The Regulations also set out the form of the notice for a prosecutor or defendant to notify the Attorney‑General of an expected disclosure of information relating to, or the disclosure of which may affect, national security.  Subsection 24(2) of the Act states that this notice must be in the prescribed form.

 

The Regulations specify 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 prosecutor or defendant 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 subsection 29(5) 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 subsection 29(5) may be prepared.

 

Details of the Regulations are set out in the Attachment.

 

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

 

The Regulations commenced on the day on which they were registered on the Federal Register of Legislative Instruments.

 

Attachment

 

Details of the National Security Information (Criminal Proceedings) Regulations 2005

 

Regulation 1 provides that the Regulations are the National Security Information (Criminal Proceedings) Regulations 2005.

 

Regulation 2 provides that the Regulations commence on the day on which they are registered.

 

Regulation 3 defines several terms used in the Regulations; namely Act, national security information and Requirements for the Protection of National Security Information.

 

Requirements for the Protection of National Security Information refers to the document titled ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings’ that the Attorney‑General’s Department issued on 10 January 2005.  This document is available from the Attorney‑General’s Department and online.  It sets out the requisite ways and places for accessing, preparing and otherwise handling information that requires protection under the National Security Information (Criminal Proceedings) Act 2004 (the Act), such as national security information and the records of closed hearings.

 

Regulation 4 states that the Requirements for the Protection of National Security Information sets out the methods by which national security information must be stored, handled or destroyed for the purposes of paragraph 23(1)(a) of the Act.  The regulation also states that this document will provide the ways and places for accessing national security information and for preparing documents and records relating to national security information.

 

Regulation 5 provides that Schedule 1 to the Regulations prescribes the form of notice for paragraph 24(2)(a) of the Act.

 

Regulation 6 states that the Requirements for the Protection of National Security Information provides the ways and places for accessing the record of the hearing mentioned in subsection 29(5) of the Act and for preparing documents and records in relation to that record.

 

Schedule 1 provides the form of notice required by paragraph 24(2)(a) of the Act.  A prosecutor or defendant uses the notice 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.  The form is expressed sufficiently broadly to enable the prosecutor or defendant to use language to protect the identity of potential witnesses and national security information.