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.
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.
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.
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
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- 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
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- fail to notify the Attorney-General
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- disclose information to persons who do not have a security clearance, and
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- contravene a court order.
(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.
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.
Notes on clauses
This clause is a formal provision stating the short title of the Bill once it commences.
This clause states the days on which the provisions of the Act, as originally passed by the Parliament and assented to, commence.
Sections 1 to 3 (and anything in the Act not covered elsewhere in this Clause) commence on the day that the Act receives Royal Assent.
Schedule 1 commences on the 28th day after the day on which the Act receives Royal Assent.
This clause states that each Act specified in a Schedule to the Act is amended or repealed as set out in the Schedule concerned.
Schedule 1 - Amendments
Part 1 - Amendment of the National Security Information (Criminal Proceedings) Act 2004
Item 1 amends the title of the Act to include 'and civil proceedings'. This title will reflect the extended application of the Act to include both criminal and civil proceedings.
Item 2 amends the short title of the Act in section 1 to reflect the Act's new title.
Item 3 amends the object of the Act in section 3 to reflect the Act's extended operation to include civil proceedings.
Item 4 amends section 5 to add insert a subsection number required for the insertion of subsection 5(2) by item 5 of the Bill.
Item 5 inserts new paragraph 5(2) to ensure that the Act does not make the Crown liable to prosecution. This is consistent with longstanding policy.
In accordance with current drafting practice to assist users by explaining which instruments are or are not covered by the Legislative Instruments Act 2003 (the LIA), item 6 inserts a new subclause 6(3) into the Act to explain that a notice given by the Attorney-General (or appointed Minister) or an appointment under section 6A is not covered by the LIA. The notice is not legislative in character (as per paragraph 5(1)(a) of the LIA). Subclause 6(3) has no substantive effect; it merely clarifies the position for users.
Item 7 inserts new section 6A into the Act to clarify how the Act applies to civil proceedings.
Subclause 6A(1) provides that the Act applies to a civil proceeding that begins before, on or after the day on which section 6A commences, if the Attorney-General is not a party to the proceeding and the Attorney-General gives written notice to the parties to the proceeding and the court that the Act applies to the proceeding.
This differs from the application of the Act to a federal criminal proceeding under section 6 of the Act where the prosecutor gives written notice to the defendant and the court that the Act applies to the proceeding.
Subclause 6A(2) provides that where the Attorney-General is or becomes a party to a civil proceeding, the Act applies to a civil proceeding where the appointed Minister gives notice in writing to the parties and the court that the Act applies. The appointed Minister must perform the functions and exercise the powers that are conferred on the Attorney-General under Divisions 2, 3 and 4 of Part 3A.
Subclause 6A(3) provides that the Attorney-General must appoint another Minister for the purposes of subclause 6A(2) as soon as possible after section 6A commences. If the Minister appointed under subclause 6A(3) is or becomes a party to a civil proceeding, as well as the Attorney-General, subclause 6A(4) provides that the Attorney-General must appoint a different Minister for the purposes of subclause 6A(2).
Provisions for the appointment of alternate Ministers do not apply to federal criminal proceedings because the Director of Public Prosecutions will invariably be a party to the proceedings.
Subclause 6A(5) provides an exception to subsections 6A(1) and 6A(2) where the Attorney-General (or appointed Minister) gives the notice after the proceeding begins. In this case, the Act only applies to the parts of the proceeding that take place after the notice is given. This clause ensures that the Act would not have any retrospective effect, given that it would only apply to the future stages of a proceeding and not affect anything that occurred before the notice was given.
Subclause 6A(6) of the Act explains that a notice given or an appointment made by the Attorney-General (or appointed Minister) under section 6A is not covered by the LIA. The notice and appointment are not legislative in character (as per paragraph 5(1)(a) of the LIA). Subclause 6A(6) has no substantive effect; it merely clarifies the position for users.
Item 8 amends the definitions in section 7 by inserting a definition of 'civil proceeding' which cross-refers to the meaning outlined in section 15A. This meaning is explained at item 11.
Item 9 amends the definition of 'defendant' in section 7 by inserting the words ', in relation to a federal criminal proceeding,'. This insertion ensures that the definition of 'defendant' is used in relation to federal criminal proceedings only, not civil proceedings.
Item 10 amends the definition of 'disclose' in section 7 by inserting the words 'or a civil proceeding'. This insertion ensures that the definition of 'disclose' applies to both federal criminal proceedings and civil proceedings.
Item 11 inserts a new Division 3A into the Act to state the meaning of 'civil proceeding' and to explain how the Act applies to parties to civil proceedings.
Subclause 15A(1) states that a 'civil proceeding' means a proceeding before a Commonwealth, State or Territory court. The definition of 'civil proceeding' excludes criminal proceedings.
Subclause 15A(2) lists the proceedings that constitute a 'civil proceeding'.
Item 12 amends section 16 by inserting four further situations in which a person discloses information 'in permitted circumstances'. These are circumstances that are not relevant to criminal proceedings.
The first situation in paragraph (aa) applies to a person who is a party to a civil proceeding with an appropriate security clearance and that person discloses information in the proceeding or in a closed hearing.
The second situation in paragraph (ab) applies to a Minister or employee of the Commonwealth who is a party and discloses information in the course of his or her duties in relation to a civil proceeding.
The third situation in paragraph (ac) applies to a legal representative of the Attorney-General or appointed Minister as intervener or a legal representative of a party.
The fourth situation in paragraph (ad) applies to a person assisting a person in paragraph (ac), who discloses the information in the course of his or her duties in relation to the proceeding.
This insertion enables a person assisting the Commonwealth's legal representative, an intervener's legal representative or a party's legal representative to disclose information to their respective client in carrying out duties in relation to the proceeding.
Item 13 amends the general powers of a court in section 19 to extend to the powers of a court in relation to civil proceedings.
Subclause 19(3) states that the Act does not affect a court's power to control the conduct of a civil proceeding, especially in relation to abuse of process, unless the Act expressly or impliedly states otherwise. For example, the court retains the power to stay or dismiss a proceeding, to exclude persons from the court or to make suppression orders.
Subclause 19(4) states that even if a court considers a particular matter in making an order under section 38L, the court can still later stay the proceeding on a ground involving that same matter. Section 38L provides for a procedure whereby a court in a civil proceeding can order the non-disclosure of information in those proceedings. For example, even if the court considers the effect on the substantive hearing in deciding whether to make an order under section 38L, the court will not be prevented from later staying the proceeding on the ground that the substantive hearing would not be fair.
Item 14 amends the heading of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Part 3 only applies to federal criminal proceedings, not civil proceedings.
Item 15 amends the heading of Division 1 of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Division 1 only applies to the management of information in federal criminal proceedings, not in civil proceedings. The procedures necessary for civil proceedings need to be different and are to be dealt with in Part 3A, which is inserted by item 22.
Item 16 amends the heading of Division 2 of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Division 2 only applies to the Attorney-General's certificates in federal criminal proceedings, not in civil proceedings.
Item 17 amends the heading of Subdivision A of Division 2 of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Subdivision A only applies to notifying the Attorney-General and others of expected disclosure in federal criminal proceedings, not in civil proceedings.
Item 18 amends the heading of Subdivision B of Division 2 of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Subdivision B only applies to notifying the Attorney-General and others of disclosure expected by a witness answering a question in a federal criminal proceeding, not in a civil proceeding.
Item 19 amends the heading of Subdivision C of Division 2 of Part 3 by inserting the words 'federal criminal proceedings'. This insertion makes it clear that Subdivision C only applies to the Attorney-General's certificates issued in federal criminal proceedings, not in civil proceedings.
Item 20 amends the heading of Division 3 of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Division 3 only applies to closed hearings and non-disclosure or witness exclusion orders in federal criminal proceedings, not in civil proceedings.
Item 21 amends the heading of Division 4 of Part 3 by inserting the words 'in federal criminal proceedings'. This insertion makes it clear that Division 4 only applies to appeals in federal criminal proceedings, not in civil proceedings.
Item 22 inserts a new Part 3A into the Act to deal with the protection of information, the disclosure of which in civil proceedings is likely to prejudice national security.
The proposed Division 1 of Part 3A deals with the management of information in civil proceedings.
Conferences before the substantive hearings in civil proceedings begins
Clause 38A states that, before the substantive hearing in a civil proceeding begins, a party may apply to the court for a conference of the parties to consider issues about the disclosure in the substantive hearing of information that relates to, or the disclosure of which may affect, national security. These issues include whether notice under section 38D is likely to be required and whether the parties wish to enter into an arrangement under section 38B about the handling of certain information.
If the Attorney-General is not a party to the proceeding, subclause 38A(2) requires the Attorney-General to be given notice of the conference and states that either the Attorney-General or the Attorney-General's legal representative, or both, may attend the conference.
If the Attorney-General is a party to the proceeding, subclause 38A(3) requires notice to be given to the Minister appointed under clause 38C and either the Minister or the Minister's legal representative, or both, may attend the conference.
Subclause 38A(4) requires the court to hold the conference as soon as possible after the application is made.
Clause 38A intends to give the Attorney-General or the appointed Minister, as the case may be, notice of any expected disclosure of information that relates to, or the disclosure of which may affect, national security.
Section 21 of the Act provides for similar pre-trial conferences in federal criminal proceedings. However, since the Director of Public Prosecutions on behalf of the Commonwealth would invariably be a party to these proceedings, it is not necessary to notify the Attorney-General.
Arrangements for civil proceedings about disclosures relating to or affecting national security
Under clause 38B, at any time during a civil proceeding the parties and the Attorney-General or the appointed Minister, as the case may be, may agree to an arrangement about the disclosure in the proceeding of information that relates to, or the disclosure of which may affect, national security. The court has discretion about whether to make an order to give effect to the arrangement.
This clause provides an efficient method of handling information in a civil proceeding where there is consensus between the parties and the Attorney-General or appointed Minister. If the court makes an order under clause 38B, the notification requirements under clauses 38D and 38E do not apply in relation to information that is the subject of a section 38B order.
Section 22 of the Act provides for similar arrangements in federal criminal proceedings. However, since the Director of Public Prosecutions, on behalf of the Commonwealth, would invariably be a party to the proceeding, it is not necessary for the Attorney-General to enter into the arrangement.
Protection of certain information disclosed in a civil proceeding
Clause 38C states that regulations or court orders may prescribe ways for storing, handling or destroying information that is disclosed or will be disclosed to the court in a civil proceeding. The regulations may also prescribe the way in which and the places at which this information may be accessed or a relevant document or record may be prepared. A court's power includes making orders either under section 93.2 of the Criminal Code Act 1995 for a hearing in camera or under any other provision of the Act, but the order must not be inconsistent with a regulation mentioned in this clause. Section 93.2 provides a procedure for hearing matters in camera where the Judge or Magistrate is satisfied that it is in the interests of the security or defence of the Commonwealth.
This clause is designed to provide physical protection for information that is disclosed or will be disclosed to a court in a civil proceeding.
Attorney-General's certificates for protection of information in civil proceedings
The proposed Division 2 deals with Attorney-General's certificates for protection of information in civil proceedings.
Notifying Attorney-General etc. of expected disclosure in civil proceedings
The proposed subdivision A deals with notifying the Attorney-General and others of an expected disclosure in civil proceedings.
Parties must notify expected disclosure in civil proceedings of information relating to or affecting national security
Clause 38D sets out a procedure for a party in a civil proceeding to notify the Attorney-General about that party's knowledge or belief that he, she or a witness who the party intends to call will disclose in the proceeding information that relates to, or the disclosure of which may affect, national security. In this case, subclause 38D(1) requires the party to notify the Attorney-General in the form prescribed by subclause 38D(3) as soon as practicable after he or she knows or believes that he or she will disclose such information. The notification may occur before or during the proceeding.
Subclause 38D(2) provides an exception to the notice requirements set out in subclause 38D(1). A party need not give the Attorney-General notice where either the information to be disclosed is the subject of a certificate under section 38F, which restricts or prevents the disclosure of certain information, or the witness to be called is the subject of a certificate under section 38H, which prevents a party from calling the person as a witness in the proceeding. For the exception to apply, the certificate must still have effect or the information or witness must be the subject of a court order that is in force under section 38B.
Subclause 38D(4) requires the party to also advise in writing the court, the other party or parties and any relevant witnesses that he or she has notified the Attorney-General. The advice must describe the information.
Subclause 38D(5) requires that the court, on receiving this advice, adjourn the proceeding until the Attorney-General gives to the court either a non-disclosure certificate under subclause 38F(5) or advice under 38F(7) that the Attorney-General will not issue a certificate. The adjournment gives the Attorney-General sufficient time to consider whether to issue a certificate or advice.
The procedure for notifying of expected disclosure in civil proceedings is the same as the procedure used for federal criminal proceedings apart from the exceptions in subclause 38D(2) that may apply in civil proceedings where the information is the subject of either a certificate under section 38F or 38H or a court order under section 38B or 38L.
Under item 27, clause 46C provides that it is an offence if a person contravenes this clause where the related disclosure of information is likely to prejudice national security.
Under item 27, clause 46A provides that it is an offence to disclose information after giving notice to the Attorney-General under this clause but before the Attorney-General gives a certificate or advice.
Notifying Attorney-General etc. where disclosure expected by witness answering question in civil proceedings
The proposed subdivision B involves notifying the Attorney-General and others where a witness is expected to disclose certain information by answering a question in civil proceedings.
Preventing witnesses from disclosing information in civil proceedings by not allowing them to answer questions
Clause 38E sets out a procedure for protecting information that a party to a civil proceeding knows or believes a witness will disclose in answering a question whilst giving evidence in the proceeding, where that information relates to, or the disclosure of which may affect, national security. This clause applies during the proceeding itself.
In this case, subclause 38E(2) requires the party to advise the court of his or her knowledge or belief. Subclause 38E(3) requires that the court must then order that the witness give the court a written answer to the question.
Subclauses 38E(4) and 38E(5) require the court to adjourn the proceeding on receiving the written answer and to give the written answer to the Attorney-General respectively. Subclause 38E(6) states that the court must continue to adjourn the proceeding until the Attorney-General gives the court a certificate or advice under subsection 38F(5) or 38F(7) respectively.
The adjournment gives the Attorney-General sufficient time to consider whether to issue a certificate or advice. The court is not required to adjourn the proceedings if the written answer discloses information that is the subject of a certificate under section 38F still has effect or an order under sections 38B or 38L, about the handling of the information.
The procedure differs from the procedure used in federal criminal proceedings in several ways. In a criminal proceeding, once the prosecutor or defendant informs the court of the requisite knowledge or belief, the court must adjourn the proceeding and hold a closed hearing, in which the witness gives the court a written answer to the question. The court must show the answer to the prosecutor. If the prosecutor believes the answer relates to, or its disclosure would affect, national security, the prosecutor must advise the court of that knowledge and as soon as practicable, give notice to the Attorney-General. Once advised, the court must adjourn the proceeding until the Attorney-General gives a certificate or advice. The difference between the two procedures is explained by the substantial involvement of the Director of Public Prosecutions in criminal proceedings. There is no equivalent to the Director in the civil context. The exceptions arise to simplify the process and avoid unnecessary adjournments where there is already a certificate in place in relation to that information.
Under item 27 clause 46C provides that it is an offence if a person contravenes this clause where the related disclosure of information is likely to prejudice national security.
Attorney-General's civil proceedings certificates
The proposed subdivision C deals with the Attorney-General's civil proceedings certificates.
Attorney-General's civil non-disclosure certificate
Clause 38F sets out a procedure for protecting information, the disclosure of which is likely to prejudice national security . The clause applies where the Attorney-General is notified under section 38D that a party knows or believes that information will be disclosed in a civil proceeding, the Attorney-General expects that the circumstances in paragraphs 38D(1)(a) to (c) will arise under which information will be disclosed in a civil proceeding or the Attorney-General considers that a written answer under section 38E in a civil proceeding will disclose information and that disclosure is likely to prejudice national security. Clause 38F does not apply where the mere presence of a witness may prejudice national security. Clause 38H applies in that situation.
Where the Attorney-General expects that the circumstances in paragraphs 38D(1)(a) to (c) will arise under which information will be disclosed in a civil proceeding, subclause 38F(4) states that the Attorney-General may give the certificate at the same time as giving notice that the Act applies under section 6A.
Where the information would be disclosed in a document, subclause 38F(2) provides that the Attorney-General may give the 'potential discloser' a revised version of the document along with a certificate which describes the information and states whether, and if so, how the information may be disclosed. Subclause 38F(9) defines 'potential discloser' in this context as a party to the proceeding, a witness or other person who may disclose information, or a party's legal representative.
Where the information is not in a document, subclause 38F(3) provides that the Attorney-General may give the 'potential discloser' a written summary of the information or a written statement of facts that the information would or would be likely to prove, along with a certificate that describes the information and states whether, and if so how, the information may be disclosed.
Subclause 38F(5) requires the Attorney-General to give the court a copy of the certificate, the source document and a copy of the revised document and a summary, if any, mentioned in paragraph 38F(2)(a) or the summary or statement, if any, mentioned in paragraph 38F(3)(a). This requirement ensures that the court has the original documents before it when making an order under clause 38M
Subclause 38F(6) provides that a certificate of the Attorney-General will only lapse when the court makes an order under section 38B about the disclosure of information that is the subject of the certificate, a court order under section 38L is final, that is, it is no longer subject to a possible appeal. Without this provision, it would be possible that a person could disclose information in accordance with a court order, which the Attorney-General later successfully appeals.
If the Attorney-General decides not to issue a certificate, subclause 38F(7) requires the Attorney-General to advise each potential discloser and the court of his or her decision so that the proceeding may continue.
A certificate under subclause 38F(2) or 38F(3), and a written advice under subclause 38F(7) are not legislative instruments for the purposes of LIA because they are not legislative in character.
Consequences of Attorney-General giving civil non-disclosure certificate
Clause 38G outlines the process that will apply if the Attorney-General gives a potential discloser a certificate under section 38F during a civil proceeding.
If the Attorney-General gives the court the certificate before the substantive hearing begins, the court must hold a hearing before the substantive proceeding begins to decide what order to make under section 38L about whether, and if so how, the relevant information can be disclosed.
If the Attorney-General was notified under section 38D or considers that a written answer given by a witness under section 38E will disclose information, the disclosure of which is likely to prejudice national security information, and the Attorney-General gives the certificate to the court after the substantive hearing begins, the court must continue the adjournment of the proceeding that was required by either subsection 38D(5) in relation to the disclosure of information or subsection 38E(6) in relation to calling a witness. The court must then hold a hearing to decide what order to make under section 38L about whether, and if so how, the relevant information can be disclosed.
If the Attorney-General expects that any of the circumstances in paragraphs 38D(1)(a) to (c) will arise, that is, where a party or a witness will disclose information in the proceeding that relates to or may affect national security, and the Attorney-General gives the certificate to the court after the substantive hearing begins, the court must adjourn the proceeding to hold a hearing to decide whether to make an order under section 38L.
The closed hearing requirements in clause 38I apply to a hearing to decide whether to make an order under section 38L. This is the same as the closed hearing requirement for federal criminal proceedings.
Subclause 38G(2) requires the court to end the adjournment or hearing where it coincides with the court making an order under section 38B about disclosing information that is the subject of the certificate or with the Attorney-General revoking the certificate. This enables the proceeding to continue.
Item 27 inserts clause 46D which provides that it is an offence to disclose information contrary to Attorney-General's non-disclosure certificate.
Attorney-General's civil witness exclusion certificate
Clause 38H sets out a procedure for protecting information that is disclosed by the mere presence of a witness and its disclosure is likely to prejudice national security. The clause applies where either the Attorney-General is notified under section 38D, or where the Attorney-General expects, that an intended witness will disclose information by his or her mere presence and the Attorney-General considers that the disclosure is likely to prejudice national security.
Subclause 38H(2) states that the Attorney-General may give a certificate to the relevant party or its legal representatives stating that it must not call the person as a witness in the proceeding.
If the Attorney-General gives a party or its legal representative a certificate, subclause 38H(4) requires the Attorney-General to also give a copy of the certificate to the court. If the Attorney-General decides not to issue a certificate, subclause 38H(9) requires the Attorney-General to advise the relevant party and the court of his or her decision so that the proceeding may continue.
If the Attorney-General gives a certificate because the Attorney-General expects that the intended witness may disclosure the information by his or her mere presence, the Attorney-General may give the certificate at the same time as notice that the Act applies under section 6A. Section 6A enables the Attorney-General to apply the provisions of the Act to proceedings by written notice.
Subclause 38H(6) provides that a certificate of the Attorney-General will only lapse when the Attorney-General revokes it, the court makes an order under section 38B about the disclosure of information by a witness who is the subject of the certificate or a court order under section 38L is final, that is, it is no longer subject to a possible appeal. Without this provision, it is possible that the witness could disclose information in accordance with a court order, which the Attorney-General later successfully appeals.
The closed hearing requirements in clause 38I apply to the hearing to decide whether to make an order under section 38L.
Subclause 38H(8) requires the court to end the adjournment or hearing where it coincides with the court making an order under section 38B about disclosing information that is the subject of the certificate or with the Attorney-General revoking the certificate. This requirement enables the proceeding to continue.
Item 27 inserts clause 46D which provides for an offence to disclose information contrary to Attorney-General's non-disclosure certificate.
A certificate under subclause 38H(2) and a written advice under subclause 38H(9) are not legislative instruments for the purposes of LIA because they are not legislative in character. An equivalent provision applies to criminal proceedings.
Item 27 inserts clause 46E which provides for an offence to call a witness contrary to Attorney-General's witness exclusion certificate.
Closed hearings and non-disclosure or witness exclusion orders in civil proceedings
The proposed Division 3 deals with closed hearings and non-disclosure or witness exclusion orders in civil proceedings.
Closed hearing requirements in civil proceedings
Clause 38I sets out the closed hearing requirements for a hearing under subsection 38G(1) or 38H(6).
Subclause 38I(2) states that no-one (including the jury) may be present at the closed hearing except the magistrate, judge or judges, court officials, parties to the proceeding, the parties' legal representatives, any witnesses allowed by the court and if an intervener, the Attorney-General and his or her legal representative.
Subclause 38I(3) gives the court a discretion to exclude from part of a closed proceeding a party (other than the Attorney-General), a party's legal representative and a court officer who have not been given an appropriate security clearance, where the disclosure of information to that person is likely to prejudice national security. The court may only exclude these persons from the part of the hearing where the Attorney-General or his or her legal representative gives information in arguing either why the information should not be disclosed or a why witness should not be called to give evidence in the proceeding.
Subclause 38I(4) states that if the Attorney-General as a party or intervener, or his or her legal representative argues that either the information should not be disclosed or that the witness should not be called, the other parties to the proceeding and any of their legal representatives must be given the opportunity to address the court on these arguments.
Subclause 38I(5) requires the court to make and maintain a sealed record of the hearing, which it must make available to an appeal or review court.
Subclause 38I(6) requires the court to give a copy of the record to the Attorney-General.
Where the Attorney-General considers that giving a security-cleared legal representative access to the record would disclose information and that disclosure is likely to prejudice national security, subclause 38I(7) states that the Attorney-General may request that the court vary the record so that the information is not disclosed.
Subclause 38I(8) requires the court to make a decision on the Attorney-General's request. Delays in making a decision could result in a higher likelihood that the information could be disclosed. Where the court makes a decision that the Attorney-General considers is not appropriate, there is at least a decision that can be quickly appealed under clause 38Q.
Subclause 38I(9) requires the court to allow each party's legal representative with an appropriate security clearance to access the record or varied record and to prepare documents or records in relation to that record in a way and at a place prescribed by the regulations. The court must not give access to the record to anyone else.
Request to delay making record available pending appeal decision
Subclause 38J(1) states that if a court makes a decision under subsection 38I(8), the Attorney-General may request that the court delay allowing access to the record to give the Attorney-General time to decide whether to appeal against the court's decision, and if so, to make the appeal. An equivalent provision in section 29A applies to federal criminal proceedings.
Subclause 38J(2) requires the court to grant the Attorney-General's request, so that the record is not disclosed before an appeal is lodged.
Intervention by Attorney-General in civil proceedings
Clause 38K permits the Attorney-General to intervene on behalf of the Commonwealth in a closed hearing in a civil proceeding. If the Attorney-General intervenes, he or she would be treated as a party to the proceeding. An equivalent provision in section 30 applies to federal criminal proceedings.
Court orders in civil proceedings
Subclause 38L(1) requires the court to make one of three orders after holding a closed hearing under subsection 38G(1) (a hearing required as a consequence of the Attorney-General giving a civil non-disclosure certificate).
The first order is contained in subclause 38L(2), which states that where the information is a document, the court may order how the information may be disclosed. The court's order may permit disclosure in a way other than permitted by the Attorney-General's certificate. If the court makes an order under subclause 38L(2), subclause 38L(3) states that the copy of the document is admissible in evidence if, apart from the order, it is admissible.
Subclause 38L(3) relates to adducing the information during the normal course of the proceeding after the closed hearing is completed. Where a court has made an order which allows the disclosure of a copy of a document with the information deleted or a copy of the document with the information deleted and either a summary of the deleted information or a statement of facts that the deleted information would or would be likely to prove, the copy, statement or summary are admissible as evidence of the contents of the original document if the original contents of the document is admissible.
The second order is contained in subclause 38L(4). Regardless of the form of information, the court may order under subclause 38L(4) that the information must not be disclosed, other than in the permitted circumstances in clause 16.
The third order is contained in subclause 38L(5). Regardless of the form of the information, the court may order under subclause 38L(5) that any person may disclose the information in the proceeding. However, the information is only admissible in evidence in the proceeding if, apart from the order, the information is admissible.
Where the court has held a hearing under subsection 38H(6) about whether to call a witness, subclause 38L(6) requires the court to order whether the relevant party must not or may call the person as a witness in the civil proceeding.
In deciding what order to make under clause 38L, subclause 38L(8) requires the court to give greatest weight to the need to protect national security. Subclause 38L(7) requires the court to also consider whether an order would have a substantial adverse effect on the substantive hearing in the proceeding and any other matter the court considers relevant.
Item 27 inserts clause 46F which provides that it is an offence if a person intentionally contravenes a court order made under the Act.
Subclause 38M(1) requires the court to give a written statement of reasons for its order under section 38L to admit, exclude or redact information, or to exclude a witness. The statement must be given to the person who is the subject of the order, the parties, the parties' legal representatives and, if an intervener, the Attorney-General and his or her legal representative.
Subclause 38M(2) requires the court to give a copy of the proposed statement to the Attorney-General before giving the statement to the persons in subclause 38M(1).
If the Attorney-General considers that the proposed statement would disclose information and that disclosure would be likely to prejudice national security, under subclause 38M(3) the Attorney-General may request that the court vary the proposed statement to prevent the disclosure.
Subclause 38M(4) requires the court to make a decision about the Attorney-General's request, so that this decision may be appealed under clause 38S.
Request to delay giving section 38M statement pending appeal decision
Subclause 38N(1) provides that if the court makes a decision under clause 38N, the Attorney-General may request that the court delay giving its statement of reasons to give the Attorney-General sufficient time to decide whether to appeal against the court's decision and if necessary, to make the appeal.
Subclause 38N(2) requires the court to grant the Attorney-General's request.
Period of operation of court orders
Clause 38O states that a court order made under Division 3 of the Act enters into force when it ceases to be subject to appeal and remains in force until the court revokes it. This operation prevents the disclosure of information in accordance with a court order which is later successfully appealed. An equivalent provision in section 34 applies to federal criminal proceedings.
Adjournment after certain court orders
Subclause 38P(1) states that where the court makes an order under section 38L, a party who brought the proceeding may apply to the court to adjourn the proceeding. The adjournment is designed to give the party time to decide whether to appeal against the order, to withdraw the proceeding, and if necessary, to make that appeal or withdrawal.
Subclause 38P(2) states that where the court makes an order under section 38L, a party against whom the proceeding was brought may apply to the court to adjourn the proceeding. The adjournment is designed to give the party time to decide whether to appeal against the order and if necessary, to make the appeal.
Subclause 38P(3) requires the court to make the adjournment.
The proposed new Division 4 deals with appeals in civil proceedings.
Appeal against court decisions under section 38I
Clause 38Q provides that the Attorney-General may appeal against a court's decision under subsection 38I(8). The court with jurisdiction to hear and determine appeals from the judgment in the proceeding also has jurisdiction to hear and determine any appeal under this clause.
Appeals against court orders under section 38L
Clause 38R provides that a party to a civil proceeding, or if an intervener, the Attorney-General, may appeal against a court's decision under section 38L. The court with jurisdiction to hear and determine appeals from the judgment in the proceeding also has jurisdiction to hear and determine any appeal under this clause.
Appeal against court decisions under section 38M
Clause 38S provides that the Attorney-General may appeal against a court's decision under section 38M. The court with jurisdiction to hear and determine appeals from the judgment in the proceeding has jurisdiction to hear and determine any appeal under this clause.
Item 23 inserts a new division title into Part 4 of the Act. This insertion will assist to create two divisions in Part 4 - one for security clearances in federal criminal proceedings; and the other for security clearances in civil proceedings.
Item 24 inserts a new division into Part 4 of the Act for security clearances in civil proceedings.
Subclause 39A(1) states that the procedure for security clearances under section 39A is triggered where, before or during a civil proceeding, the Secretary of the Attorney-General's Department (the Department) gives written notice to a party, a party's legal representative or a person assisting a party's legal representative that an issue is likely to arise in the proceeding about information, the disclosure of which is likely to prejudice national security.
Under subclause 39A(2) a person who receives this notice may apply to the Secretary for an appropriate security clearance by the Department. Except in permitted circumstances outlined in section 16, it is an offence to disclose information to a party, a party's legal representative or an assistant who are not security cleared, unless disclosure is approved by the Secretary of the Department. The Commonwealth Protective Security Manual sets out the procedures for security clearances.
Subclause 39A(3) allows a party to a proceeding to apply to the court for the proceeding to be deferred or adjourned until the person in subclause 39A(1) receives an appropriate security clearance or another legal representatives receives such a security clearance instead.
Subclause 39A(4) requires the court to defer or adjourn the proceeding accordingly.
Subclause 39A(5) states that if a party is not given or does not receive a security clearance or does not apply for a security clearance within 14 days of receiving the notice (or within a greater period allowed by the Secretary), the Secretary may advise the court of this fact, and the court may advise the party of the consequences of not being given a security clearance and recommend that the party apply for a clearance or engage a legal representative who has received or is prepared to received a clearance. An equivalent provision in section 39 applies in relation to a defendant's legal representative in a federal criminal proceeding.
Subclause 39A(6) states that if a party's legal representative or the person assisting the legal representative is not given a security clearance or does not apply for a security clearance within 14 days after receiving the notice (or within a greater period allowed by the Secretary), the Secretary may advise the court of this fact. The court may then advise the relevant party of the consequences of engaging a legal representative who does not have an appropriate security clearance and may recommend that that party engage a representative who has received, or who is prepared to receive, such a clearance.
Subclause 39A(7) explains that a notice given under subclause 39A(1) is not covered by the LIA. The notice is not legislative in character (as per paragraph 5(1)(a) of the LIA). Subclause 39A(7) has no substantive effect; it merely clarifies the position for users.
Item 25 inserts a new division title into Part 5 of the Act. This insertion will assist to create two divisions in Part 5 - one for offences relating to federal criminal proceedings; and the other for offences relating to civil proceedings.
Item 26 amends paragraph 45(a) by inserting the words 'in relation to a federal criminal proceeding'. This insertion ensures that the offence in section 45 only applies to court orders made under the Act in relation to a federal criminal proceeding, not court orders in relation to a civil proceeding. Under section 5.6 of the Criminal Code, fault must be proved beyond a reasonable doubt by the prosecutor for each of the elements of each offence.
Item 27 inserts a new division into Part 5 of the Act which contains offences relating to civil proceedings. The offences reflect the serious harm that the Commonwealth may suffer from the disclosure in a civil proceeding of information that is likely to prejudice national security.
Offence to disclosure information before Attorney-General gives civil non-disclosure certificate etc. under section 38F
Clause 46A contains two offences relating to the disclosure of information before the Attorney-General gives a certificate under section 38F. The offences do not apply where the disclosure occurs in the permitted circumstances in section 16 of the Act or where the disclosure may occur through a witness's mere presence.
The offence in subclause 46A(1) arises where a party in a civil proceeding gives the Attorney-General notice under subclause 38D(1) and that party or another person discloses the information before the Attorney-General gives a certificate under subsection 38F(2) or 38F(3) or advice under subclause 38F(7), and that disclosure is likely to prejudice national security. A maximum penalty of two years' imprisonment applies.
The offence in subclause 46A(2) arises where a witness gives the court a written answer under section 38E and the witness discloses information contained in the answer after giving the answer to the court and before the Attorney-General gives the witness a certificate under subsection 38F(2) or 38F(3) or advice under subsection 38(7), and that disclosure is likely to prejudice national security. A maximum penalty of two years' imprisonment applies.
Offence to disclose information before Attorney-General gives civil witness exclusion certificate etc. under section 38H
The offence in clause 46B arises where a party notifies the Attorney-General under section 38D and that party calls the relevant person as a witness before the Attorney-General gives a certificate under subsection 38H(2) or advice under subsection 38H(9), and the disclosure of information by the mere presence of that person is likely to prejudice national security. A maximum penalty of two years' imprisonment applies.
Offence to contravene requirement to notify Attorney-General etc. under sections 38D and 38E
The offence in clause 46C arises where a party contravenes subclause 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 subclause is likely to prejudice national security. The elements of this offence are to be derived from the relevant substantive provisions, that is, subclause 38D(1), 38D(3), 38D(4) or 38E(2), rather than clause 46C itself. A maximum penalty of two years' imprisonment applies.
Offence to disclosure information contrary to Attorney-General's civil non-disclosure certificate given under section 38F
The offence in clause 46D arises where a person receives a certificate under subclause 38F(2) or 38F(3) and that person discloses the information in contravention of the certificate. However, a person does not commit an offence if the disclosure occurs after the court orders disclosure under section 38L. and the disclosure is in accordance with that order. This offence addresses the disclosure of information that relates to, or the disclosure of which may affect, national security outside of a civil proceeding itself. A maximum penalty of two years' imprisonment applies.
Offence to call witness contrary to Attorney-General's civil witness exclusion certificate given under section 38H
The offence in clause 46E arises where a person receives a certificate under subclause 38H(2) and that person calls a witness in contravention of that certificate. However, a person does not commit an offence if the person calls the witness after the court orders under subclause 38L that the witness may be called. A maximum penalty of two years' imprisonment applies.
Offence to contravene court order
The offence in clause 46F arises where a person intentionally contravenes a court order made under the Act. This offence reinforces the serious nature of a court order. A maximum penalty of two years' imprisonment applies.
Unlike the other offences, the fault element of intention is specified for reasons of clarity. If it was not specified, the prosecution may only be required to prove recklessness which would otherwise apply under subsection 5.6(2) of the Criminal Code.
Offence to disclosure information in civil proceedings to certain persons without security clearance etc.
The offence in clause 46G arises where, for the purposes of a civil proceeding, a person discloses information to a party, a party's legal representative or a person assisting a party's legal representative and that disclosure is likely to prejudice national security. However, there is an exception from the offence where: the disclosure occurs in permitted circumstances or in giving evidence in the proceeding; the party or the legal representative or his or her assistant has received an appropriate security clearance from the Department; the Secretary of the Department has approved the disclosure; or the disclosure takes place in accordance with conditions that the Secretary has approved. A maximum penalty of two years' imprisonment applies.
Item 28 amends section 47 to insert references to sections 38F and 38H, to ensure it adequately covers civil proceedings. The effect of this insertion is to expand the Attorney-General's requirement to report to the Parliament to include civil proceedings. This expansion involves: stating the number of certificates given by the Attorney-General under sections 38F and 38H during the year; stating the number of certificates given by a Minister, who the Attorney-General appointed, under sections 38F and 38H during the year; and identifying the civil proceedings to which the certificates relate.
Part 2 - Amendment of other Acts
Administrative Decisions (Judicial Review) Act 1977
Item 29 amends paragraph (b) of the definition of 'related criminal justice process decision' in subsection 9A(4) of the ADJR Act. This amendment changes the reference to the Act to reflect its new title.
Item 30 inserts a new section after section 9A of the ADJR Act to limit a court's jurisdiction to review related civil proceeding decisions.
New subclause 9B(1) provides that, while a civil proceeding or an appeal arising out of a civil proceeding is before a Commonwealth, State or Territory court, no court has jurisdiction to hear or determine a party's application under the ADJR Act in relation to a certificate decision of the Attorney-General or an appointed Minister
New subclause 9B(2) defines 'appeal', 'civil proceeding' and 'related civil proceeding decision'. A 'related civil proceeding decision' would mean a decision of the Attorney-General or appointed Minister to give a certificate under the proposed sections 38F or 38H of the Act, a decision of the Attorney-General to give notice under section 6A or a decision of an appointed Minister to give notice under section 6A.
Item 31 amends paragraph (da) of Schedule 2 of the ADJR Act to insert references to notices under section 6A, and certificates under sections 26, 28, 38F and 38H of the Act. The effect of this insertion is that section 13 of the ADJR Act will not apply to certificate decisions of the Attorney-General or an appointed Minister under sections 38F and 38H or notices of the Attorney-General or an appointment Minister under section 6A. This means that a person cannot request that the Attorney-General or an appointed Minister 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 or notice decision.
The nature of a certificate decision is such that exposure of the reasons for the decisions could itself prejudice Australia's national security. For this reason, section 13 of the ADJR Act does not require the Attorney-General or an appointed Minister to provide a statement of reasons for a certificate decision.
Item 32 amends subsection 39B(1) of the JA Act to insert a reference to subsection (1EA). The effect of this insertion is to make subsection 39B(1) subject to subsection (1EA), which is inserted into the JA Act by item 33 of the Bill.
Item 33 inserts two new subclauses after subsection 39B(1E) of the JA Act.
Subclause 39B(1EA) of the JA Act gives the Family Court, Federal Magistrates Court or the State or Territory Supreme Court that is hearing a civil proceeding, or an appeal arising out of a civil proceeding, jurisdiction with respect to any matter in which a party to the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related civil proceeding decision. This provision also limits the Federal Court of Australia's jurisdiction to hear such a matter.
This amendment promotes administrative efficiency by ensuring that an application for a writ of mandamus or prohibition or an injunction is heard by the same court that is likely to hear the civil proceeding.
Item 34 amends subsection 39B(1F) of the JA Act to insert a reference to subsection (1EA). The effect of this insertion is to ensure that subsection 39B(1EA), which is inserted into the JA Act by item 33 of the Bill has effect despite any other law, including the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) and section 9 of the ADJR Act.
Item 35 amends paragraphs 39B(1F)(a) and (b) to insert a reference in each to subsection (1EA), which was inserted into the JA Act by item 33 of the Bill.
The effect of the insertion into paragraph 39B(1F)(a) is to ensure that no law, especially the Cross-vesting Act, gives the Federal Court of Australia jurisdiction contrary to subsection 39B(1EA).
The effect of the insertion into paragraph 39B(1F)(b) is to ensure that no law, especially section 9 of the ADJR Act, removes the jurisdiction of the Family Court, Federal Magistrates Court or State or Territory Supreme Court which is given to it by subsection (1EA).
Item 36 amends subsection 39B(2) of the JA Act to insert a reference to subsection 37(1D). The effect of this insertion is to correct an oversight to ensure that the reference in subsection 37(1D) to an officer or officers of the Commonwealth does not include references to a person holding office under the Workplace Relations Act 1996 or the Coal Industry Act 1946, or a Judge or Judges of the Family Court of Australia.
Item 37 amends subsection 39B(3) of the JA Act to insert a definition of 'civil proceeding'. This insertion means that the definition of 'civil proceeding' in the Act also applies to section 39B of the JA Act.
Item 38 amends subsection 39B(3) of the JA Act to insert a definition of 'related civil proceeding decision'. This insertion means that for the purposes of section 39B of the JA Act, a 'related civil proceeding decision' means a certificate decision of the Attorney-General or appointed Minister under the Act, or a notice decision of the Attorney-General or appointed Minister under the Act.
Item 39 amends paragraph (b) of the definition of 'related criminal justice process decision' in subsection 39B(3) of the JA Act. This amendment changes the reference to the Act to reflect its new title.