2004- 2005

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

NATIONAL SECURITY INFORMATION (CRIMINAL PROCEEDINGS) AMENDMENT (APPLICATION) BILL 2005

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

NATIONAL SECURITY INFORMATION

(CRIMINAL PROCEEDINGS) AMENDMENT (APPLICATION) BILL 2005

 

GENERAL OUTLINE

 

The National Security Information (Criminal Proceedings) Amendment (Application) Bill 2005 (the Bill) amends the National Security Information (Criminal Proceedings) Act 2004 (the Act) to clarify how the Act applies to certain federal criminal proceedings. 

 

The Bill will amend the Act to ensure that it can be  applie s d to future proceedings even though the proceedings that  began before 11 January 2005, the day on which the main provisions of the Act commenced.  There are currently underway a number of terrorism-related proceedings to which the Act could possibly apply once if the prosecutor gives the requisite notice to the court and defendant.  Without this amendment, there is a risk that any attempt to apply the Act to future stages of these proceedings would be found incompetent. 

 

The Bill will also amend the Act to clarify how it applies to a proceeding where the prosecutor gives the requisite notice to the court and defendant after the proceeding begins.  This amendment ensures that in such cases, the Act would apply to all stages of the proceeding that take place after the prosecutor gives the requisite notice.  It may otherwise be possible to misinterpret the Act as requiring the prosecutor to give further notices for the Act to apply to each subsequent part of the proceeding.

 

 

Financial impact

 

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

NOTES ON CLAUSES

 

 

Clause 1: Short title

 

This clause is a formal provision stating the short title of the Act.

 

Clause 2: Commencement

 

This clause states that the Act commences on the day of Royal Assent. 

 

Clause 3: Schedule(s)

 

This clause states that each Act specified in a Schedule to the Act is amended or repealed as set out in the Schedule concerned.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-Amendment of the National Security Information (Criminal Proceedings) Act 2004

 

 

Item 1

 

This item amends section 6 of the Act in two ways.

 

First, it amends subsection 6(1) to ensure that the Act can be appl ied y to a federal criminal proceeding that began before the day on which section 6 commenced.  Prior to this amendment, it is arguable that the Act could only apply to a federal criminal proceeding that began on or after the day on which section 6 commenced.

 

This amendment ensures that the Act can have transitional operation to federal criminal proceedings that commenced prior to 11 January 2005, once if the prosecutor gives the requisite notice.  It is not proposed that the 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.

 

Second, the item amends subsection 6(2) to ensure that if the prosecutor gives the requisite notice after the proceeding begins, then the Act will apply to all parts of the proceeding that occur after the notice is given. 

 

Without this clarification, it may be possible to misinterpret subsection 6(2 ) ) as to mean ing   that the Act would only apply to the part of the proceeding that takes place immediately after the notice is given.  According to this interpretation, the prosecutor would have to give a further notice for the Act to apply to each subsequent part of the proceeding.  Instead, the provision is intended to mean that once the prosecutor has given the requisite notice, the Act will apply to all subsequent stages of the proceeding.