House of Representatives

Explanatory Memorandum

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

Notes on clauses

Clause 1: Short title

This clause provides that the Bill, when passed, may be cited as the National Security Legislation Amendment Act 2010 .

Clause 2: Commencement

This clause sets out when the various parts of the Bill commence.

Sections 1 to 3 of the Bill (the short title, the commencement and the schedules provision) and anything in the Bill not covered elsewhere in the table in clause 2 will commence on the day the Act receives Royal Assent.

Part 1 of Schedule 1 to the Bill will repeal existing offences in the Crimes Act 1914 (the Crimes Act) and will amend existing treason and sedition offences in the Criminal Code Act 1995 (the Criminal Code). This part will commence the day after the Act receives Royal Assent. Part 2 of Schedule 1 to the Bill, which will insert new offences of urging violence against groups and members of groups into the Criminal Code, will commence on the twenty eighth day after the Act receives Royal Assent. This is to ensure that there is some prior notice before these new offence provisions commence.

Schedules 2 to 7 to the Bill will commence the day after the Act receives Royal Assent. These schedules will amend Part 5.3 of the Criminal Code, amend the investigation powers under Part 1C of the Crimes Act, insert a new emergency entry power and provide greater flexibility for re-entry under a search warrant under Part 1AA of the Crimes Act, amend section 15AA of the Crimes Act to provide for a right of appeal in bail cases, and amend the listing provisions in the Charter of the United Nations Act 1945 . However, if item 6 of Schedule 1 to the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2010 commences before the Act receives Royal Assent, item 21 of Schedule 2 will not commence at all. This is because both item 21 of Schedule 2 and item 6 of Schedule 1 to the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2010 both propose to insert a definition of 'de facto partner' into the Dictionary of the Criminal Code.

Schedule 8 to the Bill will amend the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act). Schedule 8, except for items 17, 103 and 107, will commence on the twenty-eighth day after the Act receives Royal Assent. This is to ensure that there is some prior notice before these new provisions, which include offence provisions, commence.  Items 103 and 107 will commence on Proclamation, or 6 months from Royal Assent.  These items insert two new offences, which provide that a person commits an offence where they engage in conduct which results in contravention of the requirements relating to storage, handling or destruction of national security information, currently outlined in the National Security Act (Criminal and Civil Proceedings) Regulations 2005 .  The substance of these requirements, set out in the Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings document, is currently being revised to ensure that they establish clear standards, which are necessary for the imposition of an offence for non-compliance.  Accordingly, it is appropriate that these items, and item 17 which is consequential to these items, commence on Proclamation, after these revisions have been completed.

Schedule 9 to the Bill will amend the Inspector-General of Intelligence and Security Act 1986 and will commence the day after this Act receives Royal Assent.

Schedule 10 to the Bill includes consequential amendments relating to the establishment of the Parliamentary Joint Committee on Law Enforcement by the Parliamentary Joint Committee on Law Enforcement Bill 2010. If the Parliamentary Joint Committee on Law Enforcement Act 2010 has commenced when this Bill receives the Royal Assent, Schedule 10 will commence the day after Royal Assent. If the Parliamentary Joint Committee on Law Enforcement Act 2010 has not received Royal Assent, Schedule 10 will commence on the same day as the commencement of the Parliamentary Joint Committee on Law Enforcement Act 2010 .

Clause 3: Schedule(s)

This clause makes it clear that the Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.