House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 8 - Amendments relating to the disclosure of national security information in criminal and civil proceedings

Overview

Schedule 8 will amend the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) to improve its practical application and ensure the appropriate protection and disclosure of national security information in criminal and civil proceedings.

The proposed amendments fall within the following five general categories:

1. Application of the NSI Act to legal representatives

Several of the proposed amendments seek to clarify the application of the Act to the defendant's legal representative in criminal proceedings and a party's legal representative in civil proceedings, including:

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amendments to ensure that the requirement to give notice to the Attorney-General about the possible disclosure of national security information in a proceeding applies to a defendant's or party's legal representative, and

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amendments to clarify the application of the Act to a defendant's or party's legal representative.

These amendments are necessary to ensure that there is no confusion about when the defendant's or party's legal representative is subject to the obligations under the Act. These proposed amendments do not impose further obligations on defence representatives. The sole purpose of the proposed amendments is to clarify when certain obligations or requirements apply to legal representatives.

2. Role of the Attorney-General under the Act

The Attorney-General has a responsibility to protect national security information during court, tribunal and other proceedings. The proposed amendments make it clear that the Attorney-General, or representative of the Attorney-General, has the ability to attend and be heard during federal criminal or civil proceedings. It is also proposed that the Attorney-General be able to be a party to consent arrangements made in relation to the protection of national security material. Permitting the Attorney-General to be a party to these arrangements ensures the Attorney-General is involved in the formation of such arrangements and can effectively represent the interests of the Government in protecting national security.

3. Flexibility and efficiency in the conduct of court proceedings

A number of the proposed amendments seek to clarify court procedures to ensure processes are flexible and efficient. Some of the proposed amendments include:

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clarifying that the NSI Act does not exclude or modify the general power of a court to uphold a claim of public interest immunity, to make an order under section 93.2 of the Criminal Code Act 1995 (Cth) or to make other protective orders such as closed hearings and non-publication orders

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clarifying that pre-trial hearings may be held at any stage of a proceeding, and that pre-trial hearings may be used to consider issues relating to the disclosure, protection, storage, handling or destruction of national security information

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clarifying the application of the NSI Act to proceedings once the NSI Act has been invoked, and

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defining 'court official' to clarify who can be present as a court official in closed hearings under sections 29 and 38I of the NSI Act.

4. Facilitate agreements under sections 22 and 38B

Agreements under section 22 and section 38B of the NSI Act as to arrangements about the disclosure of national security information in the proceedings assist with progressing court cases efficiently. The proposed amendments will facilitate better agreement-making by:

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clarifying that the policy intention behind the NSI Act is that, if possible, it is preferable that parties enter into a section 22 arrangement, compared to the court issuing a certificate

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clarifying who is permitted to enter into a section 22 arrangement, and

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clarifying that section 22 arrangements not only cover the disclosure of national security information, but may also cover the protection, storage, handling and destruction of national security information.

5. Avoid unnecessary procedures

A number of amendments are designed to streamline procedures and minimise unnecessary processes. Some of the amendments include:

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clarifying that, for the purposes of the NSI Act, re-trials should be considered to be part of the same proceeding as the trial

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clarifying that once the Attorney-General is aware of a potential disclosure of national security information, it is not necessary to provide notice again through other processes, and

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clarifying that it is only necessary to adjourn those parts of the proceedings which may involve a disclosure of national security information.

Part 1 - Amendments

National Security Information (Criminal and Civil Proceedings) Act 2004

Item 1: Subsection 6(1)

Item 1 will insert a reference to a defendant's legal representative in subsection 6(1) to clarify that when a prosecutor gives notice of the application of the NSI Act to a federal criminal proceeding under subsection 6(1), the prosecutor must notify the defendant's legal representative, as well as the defendant themselves and the court.

Currently, subsection 6(1) requires the prosecutor to notify the defendant and the court that the NSI Act applies to the federal criminal proceeding. There is no express obligation on the prosecutor to notify the defendant's legal representative. It is unclear whether the term 'defendant' implicitly includes the defendant's legal representative. The amendment will clarify that when a prosecutor gives notice of the application of the NSI Act to a federal criminal proceeding, the prosecutor must also notify the defendant's legal representative. Although such notification occurs in practice, including an express reference to 'legal representative' ensures that there is no technical impediment to the defendant being adequately put on notice that the NSI Act applies.

Item 2: Subsection 6(2)

Item 2 will amend subsection 6(2) to provide that the NSI Act applies to parts of a federal criminal proceeding that occur after notice is given 'whether or not those parts [of the proceeding] began before that time'.

Currently, subsection 6(2) provides that if a prosecutor gives notice that the NSI Act applies to the proceeding after a proceeding has commenced, the Act applies only to those parts of the proceeding that occur after the notice is given. As currently drafted, it is unclear whether the NSI Act applies to parts of the proceeding which start prior to the notice but continue after the notice is given.

This item will clarify that where the prosecutor has given notice of the application of the NSI Act to the proceeding after the proceeding has begun, the Act applies to parts of the proceeding that occur after the notice is given, notwithstanding that these parts may have commenced before the notice was given. For example, if the prosecutor gives notice that the NSI Act applies to a federal criminal proceeding and that notice is given when the committal process is underway, the NSI Act will apply to the remainder of the committal process as well as all other parts of the federal criminal proceeding which take place after the committal process. This will ensure that information is protected from disclosure where a committal may be part-heard.

Item 3: Paragraphs 6A(1)(b) and (2)(b)

This item will amend subsections 6A(1) and (2) by inserting a reference to 'the legal representatives of the parties to the proceeding'. The proposed amendment mirrors that made to subsection 6(1) (item 1), but will apply in the context of civil proceedings.

The procedure for invoking the NSI Act in the civil regime requires the Attorney-General (or, where the Attorney-General is a party to the proceedings, another appointed Minister) to notify the parties and the court that the Act applies. The amendment will ensure that the Attorney-General or his/her appointed Minister is required to give notice to parties' legal representatives as well as the parties themselves and the court that the NSI Act applies to the proceeding.

Items 4 and 5: Paragraph 6A(2)(d) and subparagraph 6A(2)(e)(ii)

These items are consequential amendments arising out of the amendments contained in item 20. These consequential amendments are necessary to ensure that the powers provided in proposed new Division 1A (inserted by item 20) and Division 1 of Part 3A of the Act can be exercised, in accordance with section 6A, by the Minister appointed by the Attorney-General under subsection 6A(3) where the Attorney-General is a party to a civil proceeding.

Item 6: Subsection 6A(5)

This item will amend subsection 6A(5) by omitting the words 'take place after the notice is given' and substituting the words 'occur after the notice is given (whether or not those parts began before that time)'. The proposed amendment mirrors that made to subsection 6(2) (item 2), but will apply in the context of civil proceedings.

As subsection 6A(5) is currently drafted, it is unclear whether the NSI Act can apply to parts of a civil proceeding which start prior to the notice but continue after the notice is given.

This item will clarify that where the Attorney-General, or the Minister appointed by the Attorney-General under subsection 6A(3), gives notice of the application of the NSI Act to the civil proceeding under subsection 6A(1), the NSI Act applies to those parts of the proceeding that occur after the notice is given, whether or not those parts began before the notice was given. For example, if the Attorney-General gives notice that the NSI Act applies to a civil proceeding and that notice is given during the discovery phase of the proceeding, the NSI Act will apply to the remainder of that discovery phase as well as all other parts of the civil proceeding which take place after the discovery phase.

Item 7: Section 7 (definition of 'court official')

Item 7 will insert a definition of court official into section 7.

The NSI Act does not presently contain a definition of 'court official'. This has created uncertainty as to which court staff are able to be present during closed hearings under sections 29 and 38I of the Act.

Paragraph (a) of the proposed definition will apply to individuals employed or engaged by the court to perform services in the court in relation to a proceeding, such as a judge's associate, court reporter or an interpreter.

Paragraph (b) of the definition will apply in relation to a federal criminal proceeding, to an individual who supervises the defendant in court. This will include, for example, a correction officer who is required to be present in the court room to supervise and accompany the defendant. It will also include a medical officer, such as a doctor, who is required to be in the court room to attend to the medical needs of the defendant if necessary. Such individuals may not be employed directly by the court, but their presence is in an official capacity for the purpose of facilitating federal criminal proceedings.

Persons captured by this definition will be permitted to remain in the court room during closed court hearings under sections 29 and 38I of the NSI Act.

Item 8: Section 7 (definition of 'national security information')

Item 8 will insert a new definition of 'national security information' into section 7 of the NSI Act. There is presently no definition of 'national security information' in the Act.

Under sections 24, 25, 38D and 38E the prosecutor, defendants and parties must notify the Attorney-General of any expected disclosure of information that relates to national security or information the disclosure of which may affect national security. These sections are proposed to be amended so that notification will need to be given of an expected disclosure of 'national security information.'

'National security information' will be defined as information that relates to national security or the disclosure of which may affect national security. 'National security' is already further defined in section 8 of the NSI Act to include 'Australia's defence, security, international relations or law enforcement interests'. 'Security' is defined in section 9 to have the same meaning as in the Australian Security Intelligence Organisation Act 1979 .

The inclusion of the definition will simply provide greater clarity and streamline the provisions, rather than change the substance of the notification requirements.

Item 9: Paragraph 13(2)(c)

Item 9 will omit the phrase 'documents and reports of persons intended to be called by a party to give evidence' from paragraph 13(2)(c) and substitute it with the phrase 'documents or reports'.

Paragraph 13(2)(c) currently defines a criminal proceeding to include the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence . This specific qualification could result in the definition being interpreted narrowly to only cover discovery procedures that relate to persons intended to be called by a party to give evidence, rather than documents, evidence and reports in general. This limits the breadth of the definition of criminal proceedings.

The proposed amendment will clarify this uncertainty by omitting the phrase 'of persons intended to be called by a party to give evidence' to clarify that when the NSI Act has been invoked in a federal criminal proceeding, discovery procedures relate to documents as well as to persons who are intended to be called by a party to give evidence. The term 'intended evidence' will continue to cover the disclosure of evidence of an individual who could be called to give evidence. For example, the amendment will ensure that subpoenas requesting the production of documents or appearance of persons to give evidence are captured by the revised definition under paragraph 13(2)(c).

As currently drafted, it is unclear whether 'documents and reports' forming part of a federal criminal proceeding are mutually exclusive. Substituting the phrase 'documents or reports' in proposed paragraph 13(2)(c) will confirm that documents and reports each constitute separate categories within the definition of federal criminal proceedings.

Item 10: Section 13

Item 10 will insert subsection 13(3) to clarify that the NSI Act applies to re-trials and proceedings relating to the re-trial.

Under existing section 13, it is unclear whether a re-trial is considered a separate federal criminal proceeding from the trial. If the prosecution gives notice under section 24 that the Act will apply to a trial, there is uncertainty about whether the prosecution needs to give another notice if there is a re-trial. Proposed subsection 13(3) will clarify that a re-trial and proceedings relating to a re-trial are considered, for the purposes of the Act, to be part of the same federal criminal proceeding as the trial. Accordingly, where the prosecution gives notice that the NSI Act will apply to the trial, there will be no requirement for the NSI Act to be invoked again for the purposes of a re-trial or proceedings relating to the re-trial.

Item 11: Section 14 (definition of 'federal criminal proceeding')

Item 11 will repeal and replace the definition of 'federal criminal proceeding' with a definition which excludes reference to 'proceedings under the Extradition Act 1988 .'

Paragraph 14(b) of the current definition includes a reference to 'court proceedings arising under the Extradition Act 1988' . The terminology which applies to federal criminal proceedings in the NSI Act can be difficult to apply to extradition proceedings. For example, the terms 'prosecutor' and 'defendant' are not terms used in proceedings under the Extradition Act 1988 .

Any future proceeding under, or in relation to, a matter arising under the Extradition Act 1988 that involves national security information will be treated as a civil proceeding for the purposes of the NSI Act.

Item 12: Subsection 15(1)

This item is a consequential amendment arising from item 11. This item amends the definition of 'defendant' to remove the reference to a 'federal criminal proceeding mentioned in paragraph 14(b)' - that is, a proceeding under the Extradition Act 1988 - as a consequence of the proposed repeal of paragraph 14(b).

Item 13: Paragraph 15A(2)(b)

This item will amend paragraph 15A(2)(b) to omit the phrase 'of persons intended to be called by a party to give evidence' and substitutes the phrase 'documents or reports'.

Similar to the proposed amendment to the definition of federal criminal proceedings under paragraph 13(2)(c) (item 9), paragraph 15A(2)(b) currently defines a civil proceeding to include the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence . This definition could be interpreted narrowly to only cover discovery procedures that relate to persons intended to be called by a party to give evidence, rather than documents, evidence and reports in general. This amendment will ensure that subpoenas or other mechanisms requesting the production of documents or appearance of persons to give evidence (unaffiliated with persons intended to be called to give evidence) are captured by the definition of civil proceeding under paragraph 15A(2)(b). Further, as the subsection is currently drafted, it is unclear whether 'documents and reports' forming part of a civil proceeding are mutually exclusive. The proposed amendments will replace 'and' with 'or' in paragraph 15A(2)(b) to confirm that documents and reports each constitute separate categories within the definition of civil proceedings.

These amendments mirror proposed changes to the definition of federal criminal proceeding (item 9).

Item 14: Subsection 15A(3)

This item will insert a new subsection 15A(3) to clarify the application of the NSI Act to re-hearings and proceedings relating to the re-hearing. Proposed subsection 15A(3) will provide that a re-hearing, and proceedings relating to a re-hearing are considered, for the purposes of the Act, part of the same civil proceeding as the hearing.

Currently under section 15A, it is unclear whether a re-hearing and proceedings relating to a re-hearing are considered part of the original civil proceeding. The proposed addition of subsection 15A(3) will confirm that, where the Attorney-General gives notice under subsection 6A(1) that the NSI Act will apply to the proceeding and the proceeding eventuates in a court ordering the matter be re-heard, the re-hearing and any proceeding relating to a re-hearing will be considered for the purposes of the NSI Act to be part of the same proceeding. There will be no requirement for the NSI Act to be invoked again for the purposes of that re-hearing.

These amendments mirror proposed changes in relation to criminal proceedings (item 10).

Item 15: Paragraphs 16(aa), (ab), (ac), (ad) and (b)

This item will amend section 16 by repealing paragraphs 16(aa), (ab), (ac), (ad) and (b) and substituting a new paragraph 16(b).

Section 16 currently provides a list of permitted circumstances when information can be disclosed. For civil proceedings, the permitted circumstances differ depending on the category of person. A point of concern with the current section is that, in relation to civil proceedings, the definition of permitted circumstances is so wide that it potentially undermines the protection accorded to national security information by other provisions of the Act. For example, under existing paragraph 16(ab), an individual will be permitted to disclose information 'in the course of their duties'. This may result in an individual being permitted to disclose information in order to comply with an order for discovery or a notice to produce.

Proposed subsection 16(b) will give the Attorney-General greater flexibility to prescribe the circumstances in which national security information could be disclosed. Proposed subsection 16(b) will clarify that disclosure of national security information is only permitted as specified in a certificate or advice issued by the Attorney-General under sections 26, 28, 38F or 38H.

Item 16: Section 17

This item will amend the definition of 'likely to prejudice national security' in section 17 by removing the term 'national security information' and substituting it with the generic term 'information'. This item is a consequential amendment necessary because of the proposal to insert a definition of 'national security information' into the NSI Act under section 7 (item 8).

The amendment will ensure that there is no confusion between information which is 'likely to prejudice national security' and 'national security information' as defined in section 7.

Item 17: Subsection 17(2)

This item will repeal and substitute a new section 17, which provides for the definition of 'likely to prejudice national security' to apply to contravention of requirements under the NSI Act. This amendment is a consequence of the insertion of proposed new paragraphs 45A(1)(d) and 46FA(1)(d) which make it an offence to contravene the National Security Information (Criminal and Civil Proceedings) Regulations 2005 (NSI Regulations) where the contravention is likely to prejudice national security (items 103 and 107).

As currently drafted, the definition of 'likely to prejudice national security' in section 17 applies only to disclosures of information and not to contraventions of the NSI Regulations. This amendment is consequential to the inclusion of the offence provisions which necessitate application of the definition of 'likely to prejudice national security'.

The definition of this expression as it applies to contraventions under sections 45A and 46FA is identical to that which currently applies to disclosures of national security information, namely, there needs to a real and not merely a remote possibility that the contravention will prejudice national security.

Item 18: New subsection 19(1A)

This item will insert a new subsection 19(1A) after subsection 19(1) to clarify that the court may make any orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction of national security information in a federal criminal proceeding provided such orders are in the interests of national security and not inconsistent with the provisions of the Act or the Regulations under the Act.

Section 19 of the Act currently provides that a court retains the power to control the conduct of a court proceeding. For example, a court retains the power to stay or dismiss a proceeding and to exclude persons from the court. The purpose of this provision is to ensure that the court's discretion is not unduly fettered. As presently drafted, section 19 may be interpreted to unduly restrain a court from making orders that relate to national security information that are not specifically provided for in the Act. Furthermore, lower level courts, such as the Magistrates Court, do not have inherent powers which allow them to make general orders relating to the protection of national security information. The proposed amendment will clarify that the powers of the court are not limited to those provided for by the Act.

Proposed subsection 19(1A) will provide that where a court is satisfied that it is in the interest of national security to make additional orders and those orders will not be inconsistent with the provisions of the NSI Act or Regulations made under the NSI Act, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction of national security information in a federal criminal proceeding. The proposed amendment will also enable such orders to be made by the lower courts. For example, during a committal hearing in a Magistrates Court, a magistrate may order that, in order to protect the identity of a witness because the identity of the witness is national security information, the witness may appear behind a screen.

This proposed amendment will reinforce a court's ability to control the conduct of a federal criminal proceeding under subsection 19(1) of the NSI Act.

Item 19: New subsection 19(3A)

Similarly to proposed subsection 19(1A) (item 18), this item will insert a new subsection 19(3A) after subsection 19(3). The proposed new subsection will ensure that where a court is satisfied that it is in the interest of national security to make additional orders and those orders will not be inconsistent with the provisions of the NSI Act or Regulations made under the NSI Act, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction of national security information in a civil proceeding.

The ability of the court to make these orders is in addition to any other power provided to the court under other provisions of the NSI Act. This amendment will confirm a court's ability to control the conduct of the civil proceeding under subsection 19(3) of the Act.

Item 20: Divisions 1A and 1B

This item will insert Divisions 1A and 1B into Part 3 of the NSI Act. Proposed new sections 20A and 20B will be inserted by this item under new Divisions 1A and 1B respectively. Proposed section 20A

Currently, there is limited scope for intervention by the Attorney-General in federal criminal proceedings. Under section 30 of the NSI Act, the Attorney-General may only intervene in federal criminal proceedings when closed hearing requirements apply. Furthermore, a representative of the Attorney-General is not permitted to intervene.

Proposed section 20A will provide for the Attorney-General, the Attorney-General's legal representative and any other representative of the Attorney-General (such as an officer from the Department or a law enforcement or intelligence and security agency who is responsible for the information) to attend and be heard at any stage of a federal criminal proceeding where an issue relating to disclosure, protection, storage, handling or destruction of national security information in the proceeding arises.

Section 20A will replace the existing, more limited scope for intervention by the Attorney-General in closed court hearings under section 30 which will be repealed by item 50.

Proposed section 20B

Currently under the NSI Act, if an issue relating to the disclosure, protection, storage, handling or destruction of national security information is raised, the only mechanism

to protect the information, while dealing with the issue, is through a closed hearing under section 30. The requirement to hold a closed hearing whenever there is an issue relating to the treatment of national security information arises, can result in unnecessary delays in the proceeding. The higher courts have inherent powers to make general orders relating to national security information and are therefore not required to utilise the closed hearing provisions of the Act. However, the lower courts, operating without such inherent powers, are required to use the closed hearing requirements without the ability to moderate these requirements using their inherent jurisdiction.

Proposed section 20B will require the court in a federal criminal proceeding to consider, before hearing an issue relating to the disclosure, protection, storage, handling or destruction of national security information in the proceeding, making an order under section 93.2 of the Criminal Code for the hearing to be heard in camera or another appropriate order to protect national security information under proposed new subsection 19(1A) (item 18). Under section 93.2 of the Criminal Code, a person presiding over the court may make orders, if satisfied they are in the interest of the security or defence of the Commonwealth, to do any or all of the following: exclude members of the public, place restrictions on reporting of proceedings and place restrictions on access to physical evidence.

This requirement will not apply if the issue is the subject of an order that is in force under section 22. In those circumstances, protections agreed as sufficient by the parties and the court will already be in place.

Item 21: Subsection 21(1)

This item will repeal existing subsection 21(1), substitute a new subsection 21(1) and insert a new subsection 21(1A) after subsection 21(1).

Section 21 of the NSI Act currently gives parties the option to engage in a pre-trial conference to consider issues relating to national security information. Conferences can only occur before the trial in a federal criminal proceeding commences. However, at any time during a federal criminal proceeding, the prosecutor and defendant may agree to an arrangement about the disclosure of national security information in the proceeding. Accordingly, it makes sense to be able to hold a hearing to consider issues relating to the making of these arrangements at any point of the proceeding.

Proposed subsection 21(1) will clarify that at any stage of a federal criminal proceeding a hearing may be held to consider issues relating to disclosure, protection, storage, handling and destruction of national security information. For example, a hearing may be held to consider disclosure which is expected to occur during discovery, interrogatories, committal hearing or during the trial. Such hearings will be conducted in a way which is similar to a directions hearing in a proceeding. Proposed paragraph 21(1)(b) will acknowledge that these hearings can be held in closed court if it is likely that national security information will be disclosed.

The use of the term 'pre-trial conference' in existing section 21 implies that such discussions are restricted to the pre-trial phase of the proceedings. Consistent with the intent of proposed subsection 21(1), this phrase will be replaced with the phrase 'national security hearing' for the purposes of section 21 to clarify that such hearings will no longer be limited to being held at the pre-trial phase.

Another limitation with existing section 21 is that the Attorney-General is unable to apply to the court to hold a hearing. He or she also is not required to be notified when either the prosecutor or defendant applies to the court to hold a hearing. This fails to recognise the Attorney-General's role in protecting national security information in accordance with the Act.

Proposed subsection 21(1A) will clarify the obligation imposed on an applicant for a hearing under this section to notify all other relevant parties. The Attorney-General, the Attorney-General's legal representative, the prosecutor, the defendant or the defendant's legal representative will be able to apply to the court to hold a hearing. Proposed subsection 21(1A) will also outline that the applicant must give notice to all parties involved (including the Attorney-General where the applicant is the prosecutor or the defendant) in the proceeding that such an application has been made.

Furthermore, conferences are presently limited to a consideration of issues associated with the disclosure of national security information. Confining the subject matter of the conference to issues relating to disclosure does not aptly recognise the broader range of issues that may arise in relation to national security information during a proceeding.

Proposed subsection 21(1A) will also clarify that a hearing may be held not only to consider disclosure, in the proceeding, of national security information, but also its protection, storage, handling or destruction.

Item 22: Subsection 21(2)

This item is a consequential amendment which is necessary because of the amendments made in item 21. This item will ensure consistency of language between all subsections of section 21.

Item 23: Subsection 22(1)

This item will repeal subsection 22(1) and substitute a new subsection 22(1).

Section 22 currently allows parties, during a federal criminal proceeding, to enter into an arrangement about any disclosure of information that relates to national security or that may affect national security. Presently, neither a defendant's legal representative nor the Attorney-General are specified as being able to enter a section 22 arrangement. The proposed amendment will provide that the Attorney-General may be a party to a section 22 arrangement in a federal criminal proceeding, thereby ensuring that the Attorney-General will be able to fulfil his or her responsibility for the protection of national security information in accordance with the Act. The substituted provision will also clarify that a defendant's legal representative, on behalf of a defendant, can also be a party to such consensual arrangements.

Scope of arrangements

The proposed amendment will also ensure that an arrangement under section 22 may cover not only the disclosure of national security information, but also the protection, storage, handling and destruction of national security information. This proposed amendment will recognise the broader range of issues that may arise in relation to national security information during a proceeding. The heading to section 22 will also be altered to reflect this expansion.

Item 24: Paragraph 23(1)(a)

This item will amend paragraph 23(1)(a) to ensure that the regulations made under subsection 23(1) of the NSI Act can be made in relation to the storage, handling or destruction of national security information which is disclosed, not only in the court, but also to relevant parties outside the court.

Paragraph 23(1)(a) of the NSI Act currently enables the Regulations to prescribe how to access, prepare, store, handle or destroy 'information' that is disclosed during proceedings. The regulation-making power is currently too broad, covering all information. The proposed amendment will appropriately limit the regulation-making power to 'national security information'.

The regulation-making power currently only covers information which is to be disclosed to the court. Accordingly, it does not account for information that may be disclosed outside the court. The proposed amendment will extend the regulation-making power to allow for the protection of all national security information arising in a proceeding, not just that which is to be disclosed to the court. This will ensure that where disclosure is or will be made to the defendant's legal representative or relevant parties out of court, the Regulations can prescribe ways in which that national security information should be handled, stored and destroyed by the defendant's legal representative. In this way, national security information is afforded consistent protection notwithstanding the forum in which it is disclosed.

The heading to section 23 will be altered to reflect the extension of the regulation power to all national security information and not just certain information which is or is to be disclosed to the court.

Item 25: Subsections 23(2) and 23(3)

This item will repeal subsections 23(2) and (3) and substitute a new subsection 23(2). Existing subsection (2) will be repealed in light of proposed new subsection 19(1A) (item 18) which will make it clear that the court retains discretion during a federal criminal proceeding to make appropriate orders in the interests of national security relating to the disclosure, protection, storage, handling and destruction of national security information. Existing subsection (3) will be repealed as a consequence of the insertion of proposed paragraph 19(1A)(b) (item 18).

Proposed subsection 23(2) will clarify that the Regulations made pursuant to section 23 do not apply to information that is subject to an order that is in force under a section 22 arrangement. The policy intention behind the Act is that, if possible, it is preferable that the parties agree to an arrangement under section 22. Arriving at an arrangement assists with ensuring court cases progress efficiently. Therefore, throughout the Act it is the aim that the provisions support the formation of section 22 arrangements.

Item 26: Subsection 24(1)

This item will amend section 24 by repealing subsection 24(1) (including the note), substituting a new subsection 24(1), and inserting a new subsection 24(1A).

Currently under the NSI Act, if the prosecutor or defendant knows or believes that national security information will be disclosed during a proceeding, he or she must notify the Attorney-General and advise the court, the other party and any relevant witness that the Attorney-General has been notified. Notice must also be given if the prosecutor or defendant knows or believes that a person whom he or she intends to call as a witness in a federal criminal proceeding will disclose national security information in giving evidence or by that person's mere presence national security information will be disclosed. For example, notice must be given where an officer of an intelligence or security agency is to be called as a witness in a proceeding and not only will that officer be giving evidence about that agency's operations but the officer's identity itself is national security information. These notice requirements are important as they trigger the Attorney-General's consideration of whether to issue a criminal non-disclosure or witness exclusion certification under sections 26 and 28 of the Act.

Proposed subsection 24(1) will clarify that the obligation to notify the Attorney-General of a prospective disclosure of national security information is imposed not only on the prosecutor and defendant in federal criminal proceedings, but also on the defendant's legal representative.

Further, existing subsection 24(1) does not impose notice obligations in respect of subpoenas which may cause national security information to be disclosed. Proposed paragraph 24(1)(c) will provide that notification obligations placed on the prosecutor, defendant or defendant's legal representative in federal criminal proceedings include where that person has applied to the court for a subpoena and the issuing of that subpoena will require a third party to disclose national security information in a criminal proceeding. For example, if a security or intelligence agency is subpoenaed for documents by the defendant's legal representative, where that defendant's legal representative knows or believes that those documents contain national security information, the legal representative must notify the Attorney-General of that knowledge or belief in accordance with subsection 24(1).

Proposed subsection 24(1) will also clarify that the type of information to which the disclosure obligations relate is 'national security information' as defined in section 7 (item 8). The revised section title will confirm that the notification obligations are not restricted to the prosecutor and defendant, but rather also extend to the defendant's legal representative.

Note 1 to proposed subsection 24(1) will provide that a failure to give notice as required under subsection 24(1) is an offence under section 42 of the Act. The offence is punishable by up to 2 years imprisonment.

Proposed subsection 24(1A)

Existing subsection 24(1) specifies when notice of a prospective disclosure of national security information is necessary, but does not specify when such notification is unnecessary.

Proposed subsection 24(1A) will set out the circumstances when it is not necessary to give notice to the Attorney-General. Generally, these circumstances are where the Attorney-General has become aware of any potential disclosure of national security information through other mechanisms in the Act. For example, where particular national security information is the subject of court orders made under section 22, it will not be necessary to comply with the notification requirements under subsection 24(1) in relation to that information. Notification is not required because, once section 22 orders are created, it is not necessary for the Attorney-General to issue a criminal non-disclosure or witness exclusion certification. However, if the orders under section 22 were varied or terminated or if a legal representative wishes to ask a question of a witness, knowing that the answer will disclose national security information not covered by the section 22 orders, notice would need to be given in compliance with section 24.

This proposed amendment will ensure that parties in a proceeding are not unnecessarily required to comply with multiple disclosure procedures that may delay the proceedings, while still guaranteeing adequate protection for national security information.

Item 27: Subsections 24(3) and (4)

This item will repeal existing subsections 24(3) and (4) of the Act and substitute new subsections 24(3), (4) and (5).

Proposed new subsection 24(3) will require the person who gives notice of a potential disclosure under subsection 24(1) to advise all other relevant parties that notice has been given to the Attorney-General. In cases where the defendant's legal representative or the defendant gives notice, there is no legislative requirement to advise each other of the notice. It is assumed that this will occur in the normal course of lawyer/client communications.

Existing subsection 24(3) currently requires that this advice must be provided in writing and must include a description of the information. This provision may potentially compel the defence to disclose aspects of their defence. Proposed subsection 24(4) will exclude a defendant or the defendant's legal representative from the requirement to include a description of the information in the advice to the prosecutor. This will ensure that, to the extent possible, the defendant and the defendant's legal representative are not unnecessarily required to disclose aspects of their defence contrary to normal practice in the conduct of criminal prosecutions.

Once notice has been given to the Attorney-General, subsection 24(4) currently requires the court to adjourn the proceeding. Having to adjourn the whole proceeding can cause unnecessary delays. Proposed subsection 24(5) will ensure that the court must only adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed, i.e. that part of the proceeding which relates to the national security information which is the subject of the notice to the Attorney-General. This will ensure that there is no unnecessary delay in a federal criminal proceeding as a result of the protection of national security information through the procedures of the Act.

Item 28: Paragraph 25(1)(b)

This item will amend subsection 25(1) by repealing and substituting paragraph 25(1)(b). This proposed amendment will clarify that the obligation set out in section 25 is borne not only by the prosecutor and defendant, but also the defendant's legal representative.

Paragraph 25(1)(b) will also be amended by this item as a consequence of the proposal to define national security information in item 8.

Item 29: Subsection 25(2)

This item will clarify that the obligation to notify the court of the knowledge or belief that a witness will disclose national security information set out in subsection 25(2) is borne not only by the prosecutor and the defendant, but also by the defendant's legal representative.

Item 30: New subsection 25(2A)

This item will amend section 25 by inserting a new subsection 25(2A).

Section 25 currently requires that, if a witness is asked a question in the course of giving evidence and the prosecutor or the defendant knows or believes that the witness's answer may disclose national security information, the prosecutor or the defendant must advise the court.

In the interests of minimising delays associated with multiple disclosure procedures, proposed subsection 25(2A) will set out circumstances where the requirement to provide notice of the knowledge or belief of the disclosure of national security information under subsections 25(1) and (2) does not apply.

This amendment will confirm that the intention of the notification provisions under the Act is to ensure the Attorney-General is aware of any potential disclosure of national security information. Where the Attorney-General has become aware of any potential disclosure of national security information under other mechanisms in the Act, notice is not required to be given. This amendment will clarify that parties in a proceeding do not need to comply with multiple procedures unnecessarily and proceedings are not unduly delayed through the operation of the Act.

Item 31: Subsections 25(3) to (7)

This item will amend section 25 by repealing subsections 25(3) to (7) and substituting new subsections.

Subsections 25(3) to (7) currently set out stringent procedures for protecting national security information in cases where a witness is expected to disclose such information. After the court has been advised of a prospective disclosure, the proceedings must be adjourned and a closed court hearing held. During the course of the closed hearing, the witness must provide a written answer to the court which must, in turn, show the answer to the prosecutor. If the prosecutor knows or believes that the answer discloses national security information, the court must be advised and the Attorney-General notified, at which point the Court must again adjourn the proceedings until the Attorney-General determines whether a certificate should be issued. This process has the propensity to result in unnecessary delays associated with compounded adjournments.

Proposed subsections 25(3), (4) and (5) are designed to streamline the procedure which is required to be followed where a witness's testimony may disclose national security information. The automatic requirement for a closed hearing to be held will be removed, thereby limiting delays associated with invoking closed hearing requirements. Instead, the witness will be required to provide a written answer to the court, which the court in turn shows to the prosecutor and, if present, the Attorney-General or the Attorney-General's representative. An obligation will then be placed on the Attorney-General's representative, if present, to advise the prosecutor if they believe the answer would disclose national security information should it be given in evidence. If the Attorney-General's representative is not present, the prosecutor would make the assessment in relation to national security information in the witness's answer. Proposed subsection 25(6) will mirror the disclosure requirements contained in existing subsection 25(6) but reflect the insertion of the new definition of 'national security information' by item 8.

Proposed subsection 25(7) will clarify that the obligations imposed on the prosecutor by subsection 25(6) do not apply where the national security information is:

•

already the subject of a criminal non-disclosure certificate issued by the Attorney-General,

•

the subject of court orders (and an arrangement between the parties) under section 22, or

•

the subject of court orders under section 31.

This amendment will ensure that parties in a proceeding do not need to comply with multiple procedures unnecessarily and proceedings are not unduly delayed through the operation of the Act.

While it may still be necessary to adjourn proceedings following advice from the prosecutor and notification to the Attorney-General of a potential disclosure of national security information, proposed subsection 25(8) will provide that a court will only be required to adjourn as much of the proceeding as may involve a disclosure of national security information. Those parts of the proceeding unaffected by the disclosure may continue in the normal course. The ability to limit the scope of the adjournment will assist in countering undue delays.

Items 32 and 33: Subparagraphs 26(1)(a)(i) and (ii)

These items are consequential amendments resulting from item 26 which clarifies that the obligation under section 24 to notify the Attorney-General of the potential disclosure of national security information is also borne by the defendant's legal representative.

Item 34: Subparagraph 26(1)(a)(iii)

This item is a consequential amendment resulting from item 31 which reflects the process whereby the prosecutor notifies the Attorney-General of the potential disclosure of national security information under proposed subsection 25(6) after making an assessment of the witness's answer or being advised by the Attorney-General's representative under proposed subsections 25(4) and (5).

Item 35: Subsection 26(8)

This item will amend section 26 by repealing subsection 26(8) and substituting a new subsection 26(8).

Subsection 26(8) currently specifies persons who may be 'potential disclosers' of information in a proceeding. However, it does not account for the possibility of the defendant's legal representative being a potential discloser.

Proposed subsection 26(8) will clarify that the defendant's legal representative, along with the defendant and prosecutor will, in all instances, be classified as a potential discloser of the information.

Items 36 and 37: Subsections 27(1), (2) and (3)

These items will repeal and replace subsections 27(1) and (2) and partially repeal and replace subsection 27(3).

These amendments are consequential to the proposed repeal and replacement of the definition of 'federal criminal proceedings' within section 14 (Item 11).

Item 38: Paragraph 27(3)(b)

This item is a consequential amendment to paragraph 27(3)(b) as a result of the renumbering of the subsections in section 24 (item 27) and section 25 (item 31).

Items 39 and 40: Subparagraphs 28(1)(a)(i) and (ii)

These items are consequential amendments arising out of item 26, which clarifies that the notification obligations under section 24 are also borne by the defendant's legal representative.

Items 41 and 44: Subsections 28(2), 28(9) and 28(10)

These items will insert amendments to cover the defendant's legal representative, consistent with other proposed amendments.

Items 42 and 43: Subsections 28(5) and 28(6)

These items make consequential amendments to subsection 28(5) and repeal subsection 28(6) as a result of removing extradition proceedings from the definition of a federal criminal proceeding (item 11).

Item 45: Subsection 29(1)

This is a consequential amendment to subsection 29(1) reflecting that a closed court hearing will no longer be provided for under subsection 25(3) (item 31).

Item 46: Paragraph 29(2)(f)

This item will amend subsection 29(2) by repealing paragraph 29(2)(f) and substituting a new paragraph 29(2)(f).

Currently, the Attorney-General and his or her legal representative may be present at a closed hearing in a federal criminal proceeding if the Attorney-General has intervened in the proceedings under section 30.

Proposed substituted paragraph 29(2)(f) will clarify that any other representative of the Attorney-General, in addition to the Attorney-General and the Attorney-General's legal representative, may also be present. This will allow, for example, officers of the relevant law enforcement, security or intelligence agencies or Attorney-General's Department to be present in order to assist the Attorney-General fulfil his or her role of protecting national security information. This amendment will complement the proposed section 20A (item 20), which will create a broader power for the Attorney-General, the Attorney-General's legal representative and any other representative to attend and be heard at any stage of a federal criminal proceeding.

Items 47 and 48: Subparagraph 29(5)(c)(iii) and subsection 29(6)

These items are consequential amendments to subparagraph 29(5)(c)(iii) and subsection 29(6) to remove the reference to section 30. These consequential amendments are necessary as item 50 proposes to repeal section 30.

Item 49: Subsection 29(7)

This item is a consequential amendment resulting from the insertion of the definition of 'national security information' (item 8).

Item 50: Section 30

This item will repeal section 30 of the NSI Act.

Section 30 currently allows the Attorney-General to intervene in a federal criminal proceeding where closed court hearing requirements apply.

Section 30 is no longer necessary as proposed section 20A, inserted by item 20, will provide for the Attorney-General, the Attorney-General's legal representative and any other representative of the Attorney-General, to be present and to be heard at a federal criminal proceeding in relation to the disclosure, protection, storage, handling and destruction of national security information.

Item 51: Paragraphs 31(6)(a) and (b)

This item will amend paragraphs 31(6)(a) and (b) in order to clarify that a court may make orders under subsection 31(6) that apply to a defendant's legal representative as well as to the defendant.

Subsection 31(6) currently gives the court the power to order, after holding a witness exclusion certificate hearing, that the prosecutor or defendant may or must not call the person as a witness. However, it is unclear whether the court is empowered to extend such orders to the defendant's legal representative. The proposed amendment will clarify that the court can do so.

Items 52 and 53: Paragraph 32(1)(e) and subsection 32(2)

These items are consequential amendments to paragraph 32(1)(e) and subsection 32(2) to remove the reference to section 30. These consequential amendments are necessary as item 50 proposes to repeal section 30.

Item 54: Subsection 32(2)

This item is a consequential amendment which is necessary because of the insertion of the proposed definition of 'national security information' (item 8).

Item 55: Subsection 37(1)

This item is a consequential amendment to subsection 37(1) to remove the reference to 'intervention' under section 30 which is proposed to be repealed by item 50.

Item 56: Divisions 1A and 1B

This item will insert new Divisions 1A and 1B into Part 3A of the NSI Act. Proposed sections 38AA and 38AB will be inserted by this item under new Divisions 1A and 1B respectively.

Part 3A of the NSI Act, which will incorporate the proposed Divisions 1A and 1B, currently sets out a regime for civil proceedings similar to that which applies to federal criminal proceedings. The proposed amendments under this item are similar to those in item 20 for the criminal regime.

Proposed section 38AA

Proposed section 38AA will provide for the Attorney-General, the Attorney-General's legal representative and any other representative of the Attorney-General (such as an officer from the Department or a law enforcement or intelligence and security agency who is responsible for the information) to attend and be heard at any stage of a civil proceeding where an issue relating to disclosure, protection, storage, handling or destruction of national security information in the proceeding arises.

Proposed subsection 38AA will replace the existing, more limited scope for intervention by the Attorney-General in closed court hearings under section 38K (proposed to be repealed by item 83).

Proposed section 38AB

Consistent with proposed section 20B for criminal proceedings (item 20), proposed section 38AB will require the court in a civil proceeding to consider, before hearing an issue relating to the disclosure, protection, storage, handling or destruction of national security information in the proceeding, making an order under section 93.2 of the Criminal Code for the hearing to be held in camera or another appropriate order to protect national security information under proposed new subsection 19(3A) (proposed to be inserted by item 19). Under section 93.2 of the Criminal Code, a person presiding over the court may make orders, if satisfied they are in the interest of the security or defence of the Commonwealth, to do any or all of the following: exclude members of the public, place restrictions on reporting of proceedings and place restrictions on access to physical evidence.

This requirement will not apply if the issue is the subject of an order that is in force under section 38B (that is, a consensual disclosure arrangement akin to a section 22 order in federal criminal proceedings). In those circumstances, protections agreed as sufficient by the parties and the court will already be in place.

Item 57: Subsections 38A(1), (2) and (3)

This item will repeal existing subsections 38A(1), (2) and (3) and insert new subsections 38A(1) and (2). It will make amendments similar to those for criminal proceedings in section 21 (item 21).

Section 38A currently provides for parties in civil proceedings to hold conferences before the substantive hearing to consider issues relating to the disclosure of national security information. These conferences are designed to facilitate the formation of section 38B agreements between the parties regarding the protection of national security information during the course of the proceeding.

Proposed subsection 38A(1) will clarify the availability of section 38A hearings at any stage of a civil proceeding, not only prior to the substantive proceeding. It will also provide that hearings may be conducted to consider issues relating not only to disclosure of national security information but also to the protection, storage, handling and destruction of such information.

Proposed subsection 38A(1) will also provide that the Attorney-General or the Attorney-General's legal representative may apply to the court to hold a section 38A hearing. The proposed subsection will also clarify that the parties' legal representatives, as well as the parties themselves, may apply to the court for a section 38A hearing.

Subsection 38A(2) currently specifies that if the Attorney-General is not party to the proceeding, there is an obligation on the party who applies for the conference to notify the Attorney-General of the conference. Proposed new subsection 38A(2) will extend this obligation by requiring an applicant to notify all relevant parties that an application has been made.

Subsection 38A(3) will be repealed by this item as items 4 and 5 propose to amend section 6A of the NSI Act to make it clear that references to the Attorney-General are to be read as references to the Minister appointed by the Attorney-General under subsection 6A(3), where the Attorney-General is a party to a civil proceeding and where the NSI Act has been invoked.

Item 58: Subsection 38A(4)

This item is an amendment consequential to the amendments made by item 57 and will ensure consistency of language between all subsections of section 38A.

This amendment reflects similar changes in terminology in the federal criminal proceeding context in proposed subsections 21(1) and (2) inserted by items 21 and 22.

Item 59: Subsection 38B(1)

This item will repeal and replace existing subsection 38B(1). It is consistent with the proposed amendment to section 22 in the criminal context (item 23). Proposed subsection 38B(1) will include a reference to legal representatives and clarify that they can also be part of a consensual section 38B arrangement. It will also clarify that arrangements between the parties and the subsequent court orders giving effect to those arrangements may cover not only the disclosure of national security information, but also the protection, storage, handling and destruction of that information. This item will also revise the heading to subsection 38B to reflect the insertion of a new definition of 'national security information' (item 8).

Item 60: Paragraph 38C(1)(a)

This item will amend paragraph 38C(1)(a) by omitting reference to 'information that is disclosed, or to be disclosed, to the court' and substituting it with 'national security information that is disclosed, or to be disclosed'. The proposed amendment is consistent with that proposed for section 23 in the criminal context (item 24).

Paragraph 38C(1)(a) currently enables the regulations to prescribe how to protect, store, handle and destroy 'information'. This could extend to all information that may be disclosed (without reference to its national security status). It is also limited to information which is to be disclosed to the court.

The proposed amendments will extend this regulation-making power to allow for the protection of all national security information arising in a proceeding, not just that which is to be disclosed to the court.

Item 61: Subsections 38C(2) and (3)

This item will amend section 38C by repealing subsections 38C(2) and (3) and substituting a proposed new subsection 38C(2).

Existing subsection 38C(2) will be repealed in light of proposed new subsection 19(3A) (item 19) which will make it clear that the court retains discretion during a civil proceeding to make appropriate orders in the interests of national security relating to the disclosure, protection, storage, handling and destruction of national security information.

Proposed subsection 38C(2) will clarify that the Regulations do not apply to information that is subject to an order that is in force under a section 38B arrangement. This is consistent with the policy intention of the NSI Act that, if possible, it is preferable that the parties agree to an arrangement under section 38B. Entry into consensual arrangements for the handling of national security information assists in ensuring proceedings are progressed efficiently.

Item 62: Subsection 38D(1)

This item will repeal subsection 38D(1) and substitute a new proposed subsection 38D(1). The proposed new provision will clarify the notice obligations under section 38D in a similar way to the proposed amendments to section 24 in the criminal context (item 26).

Proposed subsection 38D(1) will clarify that the obligation to notify the Attorney-General of a prospective disclosure of national security information is imposed not only on parties to a civil proceeding, but also on their legal representatives. It will also clarify that the information, the subject of the notification obligation, is national security information.

In a similar way to the proposed amendments to section 24 (item 26), proposed paragraph 38D(1)(c) will provide that the notification obligations placed on parties and parties' legal representatives in a civil proceeding extend to any potential disclosure of national security information resulting from their application to a court of a subpoena or other order which requires a person to produce a document or disclose national security information in the proceeding. For example, if a security or intelligence agency is subpoenaed for documents by the party's legal representative, where that party's legal representative knows or believes that those documents contain national security information, the party's legal representative must notify the Attorney-General of that knowledge or belief in accordance with subsection 38D(1).

Note 1 to proposed subsection 38D(1) will provide that a failure to give notice as required under subsection 38D(1) is an offence under section 46C of the Act. The offence is punishable by up to 2 years imprisonment.

Item 63: Subsection 38D(2)

This item is a consequential amendment to subsection 38D(2) arising out of the proposed amendment to subsection 38D(1) to provide that the obligations under that subsection are imposed not only on parties to a civil proceeding, but also on their legal representatives (item 62). This substitution will clarify that neither a party nor their legal representative would need to give notice under subsection 38D(1) in the circumstances listed in subsection 38D(2).

Items 64 to 66: Subsection 38D(2)

These items will make amendments to clarify the circumstances where a party or a party's legal representative is not required to give notice under subsection 38D(1). Generally, these circumstances are where the Attorney-General has become aware of any potential disclosure of national security information through other mechanisms in the Act.

Following the proposed amendments to subsection 38D(2) as provided by these items, a party or a party's legal representative will not be required to give notice about the information to be disclosed if:

•

another person has already given notice about the information,

•

the information is the subject of a certificate given to the parties or their legal representatives under section 38F or 38H,

•

the information is the subject of arrangements between the parties and court orders under section 38B or 38L, or

•

the Attorney-General has provided advice about the information under subsection 38F(7) or 38H(9).

These proposed amendments will ensure that parties in a proceeding are not unnecessarily required to comply with multiple disclosure procedures that may delay the proceedings.

Item 67: Subsections 38D(4) and (5)

This item will repeal existing subsections 38D(4) and (5) and insert new subsections 38D(4) and (5).

Proposed new subsection 38D(4) will require the person who gives notice of a potential disclosure under subsection 38D(1) to advise all other relevant parties, and their legal representatives, that notice has been given to the Attorney-General.

Once notice has been given to the Attorney-General, subsection 38D(5) currently requires the court to adjourn the whole proceeding (as opposed to the relevant part). Proposed new subsection 38D(5) will ensure that the court must only adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed; i.e. that part of the proceeding which relates to the national security information which is the subject of the notice to the Attorney-General. This will ensure that those parts of the proceeding that do not relate to the national security information in question can continue, thereby avoiding any unnecessary delay.

Proposed new subsection 38D(5) will also clarify that the adjournment of proceedings continues until the Attorney-General issues a civil non-disclosure certificate in accordance with subsection 38F(5), issues a civil witness exclusion certificate in accordance with subsection 38H(4) or provides advice to the court in accordance with subsections 38F(7) or 38H(9).

Items 68 and 69: Subparagraph 38E(1)(b) and subsection 38E(2)

These items repeal and replace paragraph 38E(1)(b) and amend subsection 38E(2).

The proposed amendments will clarify that the obligation to notify the court of the knowledge or belief that a witness will disclose national security information is borne not only by the party but also by the party's legal representative.

Item 70: Subsection 38E(2A)

This item will insert a proposed new subsection 38E(2A). The proposed subsection will provide that a person need not advise the court that a witness's answer may involve potential disclosure of national security information, in accordance with subsection 38E(2), when:

•

another person has already notified the court,

•

the Attorney-General has been notified subsection 38D(1),

•

the information is the subject of a civil non-disclosure certificate under section 38F or the subject of an arrangement given effect by order of the court under section 38B,

•

the information is the subject of other court orders under section 38L, or

•

the information has been the subject of advice from the Attorney-General under subsection 38F(7).

The proposed amendments will clarify that the intention of notification provisions is to ensure the Attorney-General is aware of any potential disclosure of national security information. Where the Attorney-General has become aware of any potential disclosure of national security information under other mechanisms in the Act, notice is not required to be given. This ensures that parties in a proceeding do not need to comply with multiple disclosure procedures unnecessarily and proceedings are not unduly delayed through the operation of the Act.

Items 71 to 73: Subsection 38E(4), 38E(5) and 38E(6)

These items will make amendments to clarify that although the court is required to adjourn the proceedings under subsections 38E(4), (5) and (6) to allow the Attorney-General to consider the written answer of a witness, a court is to adjourn only so much of the proceeding that may involve the disclosure of national security information which is the subject of the notice under section 38E. These proposed amendments will ensure that even if the court considers that an adjournment is required, those parts of the proceeding that do not relate to the written answer in question can continue, thereby avoiding any undue delays.

Items 74 and 75: Subparagraphs 38F(1)(a)(i) and (ii)

These items are consequential amendments to subparagraphs 38F(1)(a)(i) and (ii) as a result of proposed amendments to section 38D which will extend the notification obligations to parties' legal representatives as well as to the parties themselves (item 67).

Item 76: Subsection 38F(9) (new definition of 'potential discloser')

This item will amend section 38F by repealing subsection 38F(9) and substituting proposed new subsection 38F(9).

The definition of 'potential discloser' in existing subsection 38F(9) does not cover parties' legal representatives being potential disclosers.

The proposed amendment will ensure that parties' legal representatives are included in the definition.

Items 77 and 78: Subparagraphs 38H(1)(a)(i) and 38H(1)(a)(ii)

These items are consequential amendments to subparagraphs 38H(1)(a)(i) and (ii) as a result of the proposed amendments to section 38D(1) to include legal representatives (item 62).

Items 79 and 80: Subsections 38H(2) and 38H(9)

These items will repeal existing subsections 38H(2) and 38H(9) and replace them with new subsections 38H(2) and 38H(9).

The items are consistent with other amendments that extend coverage to legal representatives. They will make it clear that the obligation not to call a witness extends to legal representatives in addition to relevant parties and that the Attorney-General must advise the relevant legal representative, as well as the parties, of a decision not to issue a certificate under subsection 38H(2).

Item 81: Subparagraph 38I(2)(e)

This item will amend subsection 38I(2) by repealing subparagraph 38I(2)(e) and substituting proposed new subparagraph 38I(2)(e).

Under existing section 38I, only the Attorney-General or his or her legal representative may be present at a closed hearing in a civil proceeding. This precludes other representatives (for example, from law enforcement or security agencies) from being present and assisting the Attorney-General to fulfil his or her role of appropriately protecting national security information.

The proposed new subparagraph will clarify that other representatives of the Attorney-General are allowed to be present during closed court civil hearings. The proposed amendment will complement the proposed new section 38AA (item 56) which will create a broader power for the Attorney-General and representatives to be present and be heard at civil proceedings.

Items 82 and 87: Subsections 38I(7) and 38M(3)

These items are consequential amendments to subsections 38I(7) and 38M(3) which are necessary because of the insertion of the definition of 'national security information' at item 8.

Item 83: Section 38K

This item will repeal section 38K. Section 38K currently allows the Attorney-General to intervene in a civil proceeding where closed court hearing requirements apply. Section 38K will no longer be necessary as proposed section 38AA (proposed to be inserted by item 56) will provide for a wider ability for the Attorney-General's interests to be represented and heard at civil proceedings.

Item 84: Paragraphs 38L(6)(a) and (b)

This item will insert the term 'legal representative' in paragraphs 38L(6)(a) and (b). These proposed amendments will clarify that the court can order the parties, as well as the parties' legal representatives, not to call (or may call) a witness in a civil proceeding in accordance with subsection 38L(6).

Items 85, 86 and 88: Paragraph 38M(1)(d), subsection 38M(2) and subsection 38R(1)

These items make consequential amendments to subsections 38M(1), 38M(2) and 38R(1) to remove references to section 38K (which is proposed to be repealed by item 83).

Item 89: Subsection 39(1A)

This item will insert proposed new subsection 39(1A). This item will clarify that when the Secretary of the Attorney-General's Department is considering whether to give notice to a legal representative that it would be appropriate for the legal representative or a person assisting the legal representative to seek an appropriate security clearance, the Secretary should consider the nature of the information likely to be disclosed and not the character of the legal representative in question. This reflects the protective objects of the NSI Act, which are directed towards the characteristics of the information itself.

Items 90, 92, and 93: Subsection 39(2), paragraph 39(3)(a), subparagraph 39(5)(b)(i)

These items will amend various parts of section 39 to omit the phrase 'by the Department'. These amendments will clarify that while persons must apply to the Secretary of the Attorney-General's Department for a security clearance if national security information is likely to be disclosed in a federal criminal proceeding, the source from which such clearances are obtained does not need to be the Attorney-General's Department.

Item 91: Subsection 39(3)

This item will insert the words 'or the defendant's legal representative (on the defendant's behalf)' after the word 'defendant' in subsection 39(3).

Under existing subsection 39(3), it is unclear whether a legal representative could apply, on the defendant's behalf, for a deferral or adjournment of the proceedings pending receipt of their security clearance. The proposed amendment will clarify that a defendant's legal representative, on behalf of the defendant, may apply for a deferral or adjournment.

Item 94: Subsection 39A(1A)

This item will insert a new subsection 39A(1A) to clarify that the Secretary should consider the nature of the information likely to be disclosed and not the character of the legal representative in question when deciding on the need for a security clearance.

This proposed amendment serves the same purpose as proposed new subsection 39(1A) (item 89).

Items 95, 97 98: Subsection 39A(2), paragraphs 39A(3)(a) and (5)(d) and subparagraph 39A(6)(d)(i)

These items reflect amendments made by items 90, 92 and 93 but are applicable to civil proceedings. These items will amend various parts of subsection 39A to omit the phrase 'by the Department'. These amendments will clarify that while persons must apply to the Secretary of the Attorney-General's Department for a security clearance if national security information is likely to be disclosed in a civil proceeding, the source from which such clearances are obtained does not need to be the Attorney-General's Department.

Item 96: Subsection 39A(3)

This item will amend subsection 39A(3) to clarify that a party's legal representative, on behalf of the party, may apply for a deferral or adjournment under subsection 39A(3) to allow security clearances to be issued.

Item 99: Subsections 40(1) and 40(1A)

This item will amend section 40 by repealing subsection 40(1) and substituting new subsections 40(1) and 40(1A).

Under existing section 40, it is an offence for the prosecutor, the defendant or another person to disclose information after notice is given to the Attorney-General under subsection 24(1) but before the Attorney-General gives a certificate or advice under section 26. The proposed amendments will divide this offence into two separate offences contained within proposed new subsections 40(1) and 40(1A). The proposed changes will reflect that the notification obligations provided by section 24 are imposed not only on a defendant in a federal criminal proceeding, but also on a defendant's legal representative (item 26).

The offence in proposed new subsection 40(1) will be limited to the prosecutor, defendant and the defendant's legal representative, omitting the previous reference to other persons making a disclosure. This will ensure that only persons who have given notification of expected disclosure, and can therefore be assumed to be aware of their obligations under the Act, satisfy the elements of the offence contained in this subsection.

Proposed new subsection 40(1A) will provide for an offence where a person other than the prosecutor, defendant and the defendant's legal representative makes a disclosure, where they have been advised under subsection 24(3) that the Attorney-General has been notified that the evidence they are to provide may involve disclosure of national security information. This similarly ensures that only persons who have been advised of the notification, and can therefore be assumed to be aware of their obligations under the Act, satisfy the elements of the offence contained in this subsection.

A maximum penalty of imprisonment for two years will apply for both offences.

Item 100: Paragraph 40(2)(a)

This item will amend paragraph 40(2)(a) by omitting reference to 'or believes' and substituting 'believes or is advised'.

This amendment is a consequential amendment to the insertion of a new subsection 25(6) by item 31. Proposed new subsection 25(6) will provide that if the prosecutor knows, believes, or is advised that the written answer provided by the witness will disclose national security information in a proceeding, the prosecutor must advise the court and the Attorney-General of that knowledge, belief or advice as soon as practicable. This proposed amendment will ensure that it is an offence to disclose information from a witness's answer prior to a certificate being issued if the prosecutor has been advised that a witness's answer involves national security information, and he or she has notified the Attorney-General.

Item 101: Section 41

This item will repeal existing section 41 and replace it with a proposed new section 41.

Existing section 41 provides that it is an offence to disclose information after the prosecutor or defendant notifies the Attorney-General that a witness may be called who will disclose information that may affect national security but before the Attorney-General has given a certificate.

The proposed amendments to section 24 (item 26) will place an obligation on a defendant's legal representative to notify the Attorney-General of any potential disclosure of national security information by a witness.

Proposed new section 41 will clarify that it is an offence for a defendant's legal representative, in addition to the defendant themselves and the prosecutor, to call a witness after they have notified the Attorney-General that they may disclose national security information.

A maximum penalty of imprisonment for two years will apply.

Item 102: Paragraph 42(a)

This item is a consequential amendment arising out of the inclusion of new subsections 24(3) and (4) inserted by item 27.

Items 103 and 107: Sections 45A and 46FA

These items will insert two new offences into Part 5 of the NSI Act, in proposed new sections 45A and 46FA.

The proposed new sections will create a new offence relating to federal criminal proceedings (proposed section 45A) and a similar new offence relating to civil proceedings (proposed section 46FA).

These new offences will make it an offence to contravene the NSI Regulations made under sections 23 and 38C.

The proposed new offences will attract a maximum penalty of 6 months imprisonment. Although the substantial components of the offences are contained within the Regulations, a penalty of imprisonment is reasonable, given the type of classified and sensitive information in question and the serious consequences of failing to comply with the requirements relating to the storage, handling or destruction of national security information. Furthermore, without a sufficient penalty the offence will not act as a sufficient deterrent against failing to comply with the requirements in the Regulations.

Item 105 - Subsections 46A(1) and 46A(1A)

This item will amend section 46A by repealing subsection 46A(1) and substituting proposed new subsections 46A(1) and (1A).

Existing section 46A provides that it is an offence if a party to a civil proceeding or a person other than the party discloses information after the party notifies the Attorney-General about the potential disclosure of national security information but before the Attorney-General has given a certificate.

The proposed amendments to section 38D (item 62) will place an obligation on the legal representatives of parties to notify the Attorney-General of any potential disclosure of national security information. Proposed new subsection 46A(1) will clarify that it is an offence for a legal representative of a party, in addition to the party themselves, to disclose the information.

Proposed new subsection 46(1A) will provide for an offence where a person other than the parties and their legal representatives makes a disclosure, where they have been advised under subsection 38D(4) that the Attorney-General has been notified that the evidence they are to provide may involve disclosure of national security information.

A maximum penalty of imprisonment for two years will apply.

Item 106: Sections 46B and 46C

This item will amend Part 5 of the NSI Act by repealing sections 46B and 46C and substituting proposed new sections 46B and 46C.

Under existing section 46B a party to a civil proceeding commits an offence if they call a witness, after they have notified the Attorney-General that the witness may disclose national security information, but before the Attorney-General has given a civil witness exclusion certificate or advice.

Proposed new section 46B will reflect that the notification obligations provided by section 38D are imposed not only on parties to civil proceedings, but also on their legal representatives (item 62).

The offence contained in proposed section 46B will be committed where a party or a party's legal representative notifies the Attorney-General under section 38D and that party calls the relevant person as a witness before the Attorney-General gives a certificate or advice under section 38H, and the disclosure of information by the mere presence of that person is likely to prejudice national security. A maximum penalty of imprisonment for two years will apply.

Proposed section 46C similarly reflects that notification obligations provided by sections 38D and 38E will be imposed not only on parties to civil proceedings but also their legal representatives. The offence contained in proposed section 46C will be committed where a party or a party's legal representative contravenes subsections 38D(1), 38D(3), 38D(4) or 38E(2), all of which contain notification requirements, and the disclosure of information referred to in the applicable subsection is likely to prejudice national security. A maximum penalty of imprisonment for two years will apply.

Part 2 - Application of amendments and saving

Part 2 to Schedule 8 of the Bill outlines the application of the proposed amendments contained in Part 1 to Schedule 8 of the Bill.

Item 109: Application of amendments

This item sets out the how the amendments contained in Part 1 to Schedule 1 of the Bill will apply to proceedings.

The amendments will apply to federal criminal proceedings and civil proceedings where notice under sections 6 and 6A respectively have been given on or after the commencement of the amendments. For proceedings where notice has been given before commencement, the amendments will apply only to those parts of the proceedings that take place on or after commencement. Further, any certificates, orders, notices or advices which were given before commencement will continue to have effect. This will ensure that proceedings currently taking place or starting prior to commencement can still move forward in compliance with the Act.

Item 110: Savings provision

This item will insert a savings provision which provides that Regulations made under sections 23 and 38C of the Act will remain in force and continue as such, notwithstanding that sections 23 and 38C will be amended. The amendments to these sections will not affect the substantive content or operation of the Regulations. By allowing them to continue, the ongoing effectiveness of the protective regime under the NSI Act will be ensured.