2002- 2003- 2002-2003 2004 - 200 5

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES HOUSE OF REPRESENTATIVES

 

 

 

 

 

CRIMINAL CODE AMENDMENT NATIONAL SECURITY INFORMATION LEGISLATION AMENDMENT (HAMAS AND LASHKAR-E-TAYYIBA CRIMINAL PROCEEDINGS ) BILL 200 3 5 4

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on behalf of the Government

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

CRIMINAL CODE AMENDMENT NATIONAL SECURITY INFORMATION

LEGISLATION AMENDMENT (HAMAS AND LASHKAR-E-TA YY IBA CRIMINAL PROCEEDINGS ) BILL 200 3 5 4

 

 

GENERAL OUTLINE

 

The Criminal Code Amendment ( Hamas and Lashka-e-Ta yy iba ) Bill 200 3 (the Bill) seeks to protect information from disclosure during a proceeding for a Commonwealth offence where the disclosure is likely to prejudice Australia’s national security.  

 amends the Criminal Code Act 1995 (the Criminal Code) to enhance the Commonwealth’s ability to combat terrorism .

 

Specifically, t he Bill seeks to protect information whose disclosure is likely to prejudice Australia’s defence, security, international relations, law enforcement interests or national interests.  The compromise of this information could possibly affect the security of the nation.

 

The amendment to the National Security Information Legislation Amendment (Criminal Proceedings) Bill 200 5 4 (the Bill) changes the meaning of ‘civil proceeding’ seek to clarify two aspects of the Bill as introduced into the Parliament on 27 May 2004 to ensure consistency with Chapter III of the Constitution . First, t ; and second .

 

The amendment remove s the reference s to a federal criminal proceeding and to contempt proceedings.  The effect of th is amendment is to define ‘civil proceeding’ to mean any proceeding in a Commonwealth, State or Territory court except a criminal proceeding.

(a)             s also respond to several recommendations of the report of the Senate Legal and Constitutional Legislation Committee dated 19 August 2004 substanial

C larify that a defendants legal representative obtains the Attorney - General’s certificate not just the defendant .

A mend clause 23 to ensure regulations can be made in relation to handling and destruction

(a)              as well as storage of information .

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 and to clarify certain provisions of the Bill .

 

The amendments :

allow the C ourt to give reasons for its decision under clause 29 for admitting, excluding or redacting the information or e xclud ing a witness ;

specifically provide that the court must consider whether the exclusion of information or a witness would impair the ability of a defendant to make his or her own defence ;

a.             enable the closed hearing to be held by the trial court before the trial begins ;

a.             ensure that evidence in a redacted or summarised form approved during a closed hearing can be adduced without it being argued, in the trial itself, that the form in which the evidence is adduced is inadmissible . In all other respects the normal admissibility discretions of the court will apply ;

a.             clarify the notice requirement for providing notice to the Attorney-General , t he court, a witness and the other party of an expected disclosure o f information that relates to or may effect national security ;

a.             grant the court the discretion to exclude non-security cleared court officials from the closed hearing ; and

a.             define the term “likely to prejudice national security” .

 

protect information from disclosure during a proceeding for a Commonwealth offence where the disclosure is likely to prejudice Australia’s national security. 

 

Specifically, the Bill seeks to protect information whose disclosure is likely to prejudice Australia’s defence, security, international relations, law enforcement interests or national interests.  The compromise of this information could possibly affect the security of the nation.

 

The existing rules of evidence and procedure do not provide adequate protection for information , that relates to or may affect national security, wh ich may be adduced or otherwise disclosed during the course of criminal proceeding s . 

When applied to prosecutions for espionage, treason, terrorism and other security related crimes, the y may require the disclosure of such information to persons who are not security cleared, such as members of the jury.  As a consequence, the Commonwealth may be faced with a choice between accepting the damage resulting from disclosure of information or protecting that information by abandoning the prosecution.

 

The Bill is designed to provide a procedure in cases where information that relat es to or may affect national security may be introduced during a federal criminal proceeding. The aim of the Bill is to allow such information to be introduced in such a form so as to facilitate the prosecution of an offence without prejudicing national security and the rights of the defendant to a fair trial.

 

Federal Criminal Proceedings

The Bill applies to any criminal proceeding in any court exercising federal jurisdiction in relation to Commonwealth offences.  The Bill covers all stages of the criminal process, from charge through to appeal of a decision.

The Bill also covers proceeding s the subject of certain applications under section 39B of the Judiciary Act 1903 and the Extradition Act 1988 .  Because of the close connection between s39B proceedings and the prosecution, it is conceivable that information may arise in such proceedings which relates to or may prejudice national security. The Extradition Act 1988 has been included to prevent information from being disclosed in such proceedings; for example the extradition of a terror suspect.

 

Attorney-General’s Certificate

Central to the operation of the Bill is the requirement that a party must notify the Attorney-General , at any stage of the criminal proceeding s , where that party expects to introduce information that relates to or may affect national security.  This includes information which may be introduced through a document, a witness e s answer to a question or the presence of a witness.

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 (the C ertificate) which prevents the disclosure of the information or allows the information to be disclosed in a summarised or redacted form.

 

Pre-trial proceedings

The C ertificate prevents disclosure in all pre-trial proceedings.

 

Trial

Before a trial commences, any C ertificates which have been issued must be considered at a closed hearing of the trial court. The Attorney-General may intervene in the proceeding s . The court rules on the admissibility of the original information and considers the C ertificate. The C ourt may:

1.             agree with the Attorney-General, that the information not be disclosed or disclosed other than in a particular form, in which case the trial continues or the defendant appeals; or

1.             disagree with the Attorney-General and order disclosure of the information in which case the trial continues or the prosecution appeals.

 

Security clearance for defence counsel

The defendant’s legal representative may apply to the Secretary for a security clearance by the Department.

If the defendant’s legal representative does not apply for the security clearance within 14 days after the day the court may advise the defendant of the consequences of being represented by an uncleared counsel and may recommend that the defendant engage a legal representative who has been given, or is prepared to seek a security clearance by the Department.

Uncleared counsel cannot receive access to information which relates to or may affect national security.  

This Bill creates a basis for the identification and listing of the Hamas and Lashka-e-Tayyiba Hizballah External Security Organisation as terrorist organisations under Australian law, if the Minister is satisfied that the Hizballah External Security Organisation either Hamas and Lashka-e-Tayyiba    are engaged in terrorist activity. The effect of this is to avoid the requirement that an organisation be first identified in, or pursuant to, a decision of the United Nations Security Council relating wholly or partly to terrorism, or using a mechanism established under the decision, as a condition precedent to specifying the organisation in regulations as a terrorist organisation.

 

The Bill inserts a provision whereby, if either or both organisations are listed in a regulation made under the Bill, and the Minister subsequently ceases to be satisfied that either or both organisations are directly or indirectly engaged in terrorist activity, a declaration to that effect must be made. The result of such a declaration will be that any listing of the relevant organisation will cease to have effect      .

Schedule 1 The Bill will commence on 4 November 2003, the date the legislation was introduced into the House of Representatives to allow for the retrospective operation of the regulations if necessary.  If regulations are made,. They could operate retrospectively from the time at which a public announcement is made by a Minister stating the Government’s intention to list the Hizballah External Security Organisation either or both Hamas and Lashka-e-Tayyiba in regulations.

 

Financial i I mpact

 

The Bill is not It is not expected t o hat the Bill will have a direct financial impact.

 

 

NOTES ON CLAUSES

 

Item 1

 

Schedule 1, item 11 Clause 7 : Definitions

 

Item   1 inserts a reference into the definition provision to ‘making the records available ’ to mean ‘permitting a party in paragraph 29(5)(b) to read the record at the court without making any copies of the record’.   This definition limits the parties’ permitted use of a record of a closed hearing.

 

Item 2

 

 

 

Item  2 1 amends the definition of ‘ civil proceeding’ to mean any proceeding in a Commonwealth, State or Territory court except a criminal proceeding.  

 

This amendment removes the reference to a federal criminal proceeding , which in turn , rectifies an oversight that would have meant that a civil proceeding includes a criminal proceeding under a State or Territory law. 

 

The amendment also removes the reference to a contempt proceeding .   This reference is unnecessary because civil proceedings are defined to mean proceedings which are not criminal proceedings .  Statutory contempt offences would fall within the definition of criminal proceeding under the National Security Information (Criminal Proceedings) Act 2004 .  In contrast, contempt punishable under the inherent power s of a court would fall outside the definition of a criminal proceeding and would therefore constitute a civil proceeding. s 2 and 3 Clause 23 : Protection of information disclosed in a proceeding

 

Item s 2 and 3 amend c lause 23 . Clause 23 allows regulation to be made in relation to the storage of information disclosed or to be disclosed during a closed hearing . T he court can make order s consistent with the regulations. T his item provide s that regulations may be extended to the handling and destruction of information as well as the storage of information to ensure information that may affect national security is protected appropriately .

 

Item 4

 

Clause 2 6: Attorney-General’s non-disclosure certificate

 

This amendment clarifies that the defendant’s legal counsel falls within the definition of potential discloser.

 

Item 5

 

6 Item s29(5) and  and substitutes new subclause s 29(5) to 29(8) e current   29(6) must N ew subclause s security cleared read the record , without taking a copy or any notes . Subclauses 29(6) to 29(7)  (the record recipient) varyto better protect national security information. Subclause 29(8) provides that the court must make a decision on this request.

 

Item 7 : Subc lause 29A

 

record recipient and t he court must make a decision on th is request .

 

Item 8 : Subc lause 2 8 A

 

This provision provides that a record recipient may appeal against a decision of the court made under sub section 29(8). The court that has jurisdiction to hear and determine appeals from the judgment on the trial in the proceeding has jurisdiction to hear and determine any appeal.

 

Clause 1: Short T itle

 

This clause is a formal provision s pecifying the short title of the Bill

 

Clause 2 : Commencement

 

Subclause 2(1) provides that each provision of the Criminal Code Amendment ( Hizballah ) Act (2003) listed in column 1 of the table in clause 2 commences, or is taken to have commenced, on the day specified in column 2 of the table.

Sections 1 - 3 will commence on the day the Act receives the Royal Assent.

Schedule 1 will commence T he Bill is taken to have commenced on 4 November 2003 .

 

Clause 3 : Schedule(s)

 

Clause 3 provide s th

 

 

 

 

 

 

at each Act specified in a Schedule is amended as set out in the Schedule concerned.

 

Schedule 1 - Amendments

 

Item 1 - The Schedule (subsection 102.1(1) of the Criminal Code )

 

Item 1 inserts a definition of ‘Hamas Organisation’ into subsection 102.1(1) to mean the

 

 

 

 

 

 

Item 1 inserts paragraph (c).

Proposed subsection 102.1(1)(c) defines ‘Hizballah Organisation’ to mean the Hizballah External Security Organisation, and whatever name the organisation is known by from time to time, and any organisation derived from that organisation.  This provision means that the Act will continue to operate with respect to the Hizballah External Security Organisation and its derivatives even if that organisation changes its name.

 

For the purpose of the definition of ‘terrorist organisation’, the Hizballah External Security Organisation is a terrorist organisation if that is organisation is specified by regulations for the purposes of this paragraph.  That is, that it meets the criteria set out in subsections (7), (8) and (9).

 

Item 3 - The Schedule (subsection 102.1 (7), (8), (9), (10), (11), (12), (13), and (14) of the Criminal Code )

 

Proposed Subsection 102.1(7)

 

Proposed subsection 102.1(7) enables the Hizballah External Security Organisation to be specified in regulations as terrorist organisations if the Minister is satisfied on reasonable grounds that either or both of the organisations are directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, whether or not the terrorist act has occurred or will occur.

It will remain a requirement for the Minister to be satisfied that the relevant organisation is engaged in terrorist activity.

Proposed Subsection 102.1(8)

Proposed subsection 102.1(8) is, in effect, a sunset clause that provides that if regulations are made for the purpose of listing either or both organisations as terrorist organisations the regulations will only be valid for two years from the date they are made unless, during that time, the regulations are repealed or otherwise cease to have effect, or new regulations are made which are, in substance, the same.

Proposed Subsection 102.1(9)

Proposed subsection 102.1(9) inserts a mechanism making ineffective a listing of either or both organisations, in the event that the Minister ceases to be satisfied of certain matters, colloquially referred to as ‘de-listing’. In the event that the conditions specified in paragraphs (a) and (b) are satisfied, subsection 102.1(9) obliges the Minister to make a declaration, to be published in the Gazette , detailing the matters described in those paragraphs.

This provision requires the Minister to publish a written notice of his or her decision to “de-list” either or both organisations. The regulation(s) will cease to have effect from the date of that declaration.  This does not prevent authorities from investigating and, if appropriate, prosecuting for offences committed in relation to either or both organisations (membership of a terrorist organisation; directing activities of a terrorist organisation etc.) where these offences occurred prior to the de-listing of the relevant organisation.

This provision provides the Minister with the ability to make a determination about the suitability of continuing to specify either or both organisations in regulations, which is independent of the initial decision to specify that organisation in regulations, and to “de-list” the organisation where such a course of action is determined by the Minister to be appropriate.  These provisions are of course predicated on the Minister making a decision to specify either or both organisations in regulations.

Proposed Subsection 102.1(10)

Proposed subsection 102.1(10) provides that either or both organisations, if de-listed under subsection 102.1(9), may be subsequently re-listed. This provision takes account of the potentially changing nature of the organisation, in terms of such factors as leadership, organisational aspirations, activity, etc.

Proposed Subsection 102.1(11) and (12)

Proposed subsection 102.1(11) introduces a mechanism allowing for the listing of either or both organisations in regulations to operate retrospectively, subject to paragraphs 102.1(11)(a)-(c), from the time of a public announcement made by the Minister, or another Minister, as described in paragraph (b). 

Paragraph (a) ensures that the retrospective operation of the regulation(s) does not pre-empt the decision-making process of the Minister which is required before the either or both organisation can be specified in regulations.

Paragraph (b) then requires the Minister to make a public announcement to that effect.  The listing of either or both organisations will commence from the time of that announcement.  That announcement must also be published on the internet and in major daily newspapers pursuant to subsection 102.1(12).  The announcement must be made on the same day that the Attorney-General makes a determination that he or she is satisfied of the conditions set out in subsection 102.1(7) for the purposes of paragraph 102.1(10)(a).

Paragraph (c) provides that a regulation specifying either or both organisations to be a terrorist organisation be made within 60 days of the day on which the Act receives Royal Assent in order for it to operate retrospectively from the date of the announcement for the purposes of the subsection. Paragraph (c) effectively operates as a sunset clause, limiting the period of time in which regulations with retrospective application can be made to 60 days after the commencement of the Act.

Proposed Subsection 102.1(13)

Proposed subsection 102.1(13) provides that, if a regulation ceases to have effect as a result of this section, section 50 of the Acts Interpretation Act 1901 applies.   This means that, in the event a regulation ceases to have effect pursuant to this section, certain matters, consequent upon the operation of that regulation while in force and necessary for the proper operation of the regulation, will not be affected despite the regulation subsequently ceasing to have effect.

Proposed Subsection 102.1(14)

The provision ensures that the scope of operation of paragraph 102.1(1)(b) is not diminished in relation to its potential applicability to either or both organisations, notwithstanding that paragraph 102.1(1)(c) (definition of terrorist organisation) applies exclusively to that organisation.  That is, paragraph 102.1(1)(c) is not intended to constitute the sole mechanism by which either or both organisations might be identified as a terrorist organisation for the purposes of section 102.1.

 

Item 4 - The Schedule (paragraph 102.3(1)(b) of the Criminal Code )

This item ensures that paragraph 102.3(1)(b) in relation to terrorist organisation membership offences includes paragraphs 102.1(1)(d) and (e), the definition of terrorist organisation that is specific to Hamas and Lashkar-e-Taiba.