Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Outline and financial impact

General outline

The National Security Information Legislation Amendment Bill 2005 (the Bill) amends the National Security Information (Criminal Proceedings) Act 2004 (the Act) to extend the operation of the Act to include certain civil proceedings.

The Bill broadly adopts the process for federal criminal proceedings under the Act, with some necessary departures to account for the nature of civil proceedings. The key differences in the civil regime are as follows:

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The Attorney-General or an appointed Minister gives written notice to the parties and court that the Act applies to a civil proceeding, rather than the prosecutor.

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The Attorney-General may appoint a Minister to perform the Attorney-General's functions under the Act where the Attorney-General is a party to the proceeding. This is not necessary in federal criminal proceedings which invariably involve the Director of Public Prosecutions.

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The permitted circumstances for the disclosure of information have been extended.

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The Attorney-General (or appointed Minister) must be given notice of a pre-hearing conference and may attend the conference, given that the Attorney-General may not necessarily be a party to the proceeding and may not otherwise be aware of it.

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At any time during a civil proceeding, the Attorney-General (or appointed Minister) may agree with the parties to the proceeding to an arrangement about any disclosure and the court can give effect to such an order.

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The security clearance provisions extend to the parties as well as their legal representatives and the assistants of the legal representatives given that, unlike defendants accused of serious criminal offences, parties to civil proceedings come from all walks of life and many may already have or qualify for security clearances.

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Where a witness may disclose security sensitive information in giving evidence, the court must order a witness to provide a written answer to the question. Upon receiving the answer, the court must adjourn the proceeding. The adjournment is not necessary where the information in the written answer discloses information that is the subject of a certificate under proposed clause 38F which is still in effect or the answer discloses information that is the subject of an order by the court under clause 38B or 38L. This departure from the procedure for criminal proceedings will seek to reduce delays and adjournments during the civil proceedings.

The Bill applies to civil proceedings in any Australian court. A civil proceeding means all stages of the civil process, including discovery and interlocutory proceedings.

Triggering the operation of the Act

The Act applies once the Attorney-General has issued a notice to the parties and to the court. Such a notice can be given at any time during the proceeding. If for some reason the matter proceeded without the trigger, normal public interest immunity would have to be relied upon.

Attorney-General's certificate

A party must notify the Attorney-General, at any stage of a civil proceeding, where that party expects to introduce information that relates to, or the disclosure of which may affect, national security. This includes information that may be introduced through a document, a witness's answer to a question or the presence of a witness.

The notification requirements do not apply where the party is aware that the Attorney-General has already issued a certificate in relation to the same information or where the court has made an order in relation to the information.

The court, any relevant witnesses and the other party are informed that a notice has been given to the Attorney-General.

Upon notification, the Attorney-General considers the information and determines whether disclosure of the information is likely to prejudice national security. If so, the Attorney-General may issue a certificate which either prevents the disclosure of the information or allows the information to be disclosed in a summarised or redacted form. The certificate will remain in force until it is revoked by the Attorney-General; or until the court makes an order in relation to the disclosure of information.

Where the Attorney-General is a party to a civil proceeding, the Attorney-General appoints another Minister to perform the functions of the Attorney-General conferred by the Act. In these cases, the appointed Minister determines whether a certificate should be issued and is able to intervene in any closed hearing to rule on the certificate, rather than the Attorney-General.

Agreement between parties on disclosure

The Bill allows the parties to confer before the substantive hearing in a civil proceeding to consider issues in relation to disclosure. If the Attorney-General is not a party to the proceeding, the Attorney-General or his or her legal representative may attend the conference. The Court may issue orders to give effect to any agreements made by the parties and the Attorney-General or the appointed Minister.

Closed hearings

Any certificates which have been issued must be considered at a closed hearing of the court before the substantive hearing commences. If the Attorney-General issues a certificate after the substantive hearing has begun the court must adjourn the hearing and hold a closed hearing.

Whilst the court has the discretion to exclude from the closed hearing court officials, parties and the legal representative of a party who are not security cleared. The Attorney-General or the appointed Minister can intervene in a closed hearing. The non-security cleared parties and their legal representative are able to make submissions to the court on arguments relating to the disclosure of information or calling of a witness.

The court considers the original information and the certificate whether there would be a risk of prejudice to national security if the information were disclosed or disclosed otherwise than in accordance with the Attorney-General's certificate. The court must also consider whether the making of the order for the exclusion of information or a witness would have a substantial adverse effect on the fairness of the hearing. The court may also consider other relevant matters. In its deliberation the court must give greatest weight to the national security considerations.

The court may make orders in relation to the disclosure of information the subject of the certificate. The court may order that the information be disclosed in a summarised or edited form; disclosed in full or not be disclosed.

The court retains its power to determine that the proceedings should be stayed in the event that a party would not be guaranteed a fair hearing, even after the court makes an order after the closed hearing.

The Bill provides for the Court to give reasons to the parties and their legal representatives for its decision to make an order for admitting, excluding or redacting the information or excluding a witness. The Bill allows the Attorney General if he or she was represented at the closed hearing, to challenge the proposed publication of the statement of reasons to ensure that it does not disclose information which is prejudicial to national security.

The Bill provides that the Court must make a record of the closed hearing and that this record can be disclosed to security cleared self represented parties or legal representatives. The Bill allows the Attorney General if he or she was represented at the closed hearing, to request that the record be varied to ensure that it does not disclose information which is prejudicial to national security to security cleared parties or their legal representatives.

Appealing an order of the court

The Bill allows the parties or the Attorney General if he or she was represented at the closed hearing, to appeal an order of the Court for admitting, excluding or redacting information or excluding a witness.

Security clearances

The Bill requires parties to the proceedings to be security cleared. Upon receiving written notice from the Secretary of the Attorney-General's Department (the Department), a party or a party's legal representative may apply to the Secretary of the Department for a security clearance at the level the Secretary considers appropriate. The Bill extends the security clearance requirement to all parties to the proceedings and not just legal representatives.

If a party or a party's legal representative does not apply for a security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows, the Secretary may advise the court that a party or a party's legal representative has not sought clearance. The court may then advise the party of the consequences of not being security cleared or of being represented by an uncleared counsel and may recommend that the party seek a security clearance or engage a legal representative of his or her own choosing who has been given, or is prepared to seek a security clearance from the Department at the level considered appropriate by the Secretary in relation to the information.

Offences

The Bill creates a number of offences to prevent disclosure of national security in civil proceedings. It is an offence to:

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disclose information after a notice has been given to the Attorney-General but prior to the Attorney-General issuing a certificate in relation to that information

b)

call a witness prior to the Attorney-General issuing a witness exclusion certificate

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disclose information or call a witness who is the subject of a certificate from the Attorney-General

d)

fail to notify the Attorney-General

e)

disclose information to persons who do not have a security clearance, and

f)

contravene a court order.

Consequential amendments

(i) Administrative Decisions (Judicial Review) Act 1977

The Bill proposes inserting a new section 9B into the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) to limit the jurisdiction of courts to hear a party's application in relation to a certificate decision of the Attorney-General (or appointed Minister) to issue a notice that the Act applies or a decision to issue a certificate. This will remove the decision of the Attorney-General (or appointed Minister) from administrative review as far as possible.

The Bill includes a certificate decision and a notice decision of the Attorney-General (or an appointed Minister) in Schedule 2 to the ADJR Act. The effect of this amendment is that section 13 of the ADJR Act will not apply to a certificate decision and a notice decision of the Attorney-General (or appointed Minister). This means that a person cannot request the Attorney-General (or appointed Minister) to furnish a written statement setting out the findings on material questions of fact, the evidence or other material on which those findings were based and the reasons for the certificate decision or the notice decision.

(ii) Judiciary Act 1903

The Bill amends section 39B of the Judiciary Act 1903 (the JA Act) to ensure that the court that is conducting the substantive hearing in a civil proceeding is also able to deal with any judicial review of the certificate or the notice decision.

(iii) National Security Information (Criminal Proceedings) Amendment (Application) Act 2005

The Bill makes three technical amendments to the National Security Information (Criminal Proceedings) Amendment (Application) Act 2005 (the Application Act) to take into account the new title of the Act.

Financial impact

The Bill is not expected to have a direct financial impact.