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National Security Information (Criminal Proceedings) Bill 2004

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2004

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

NATIONAL SECURITY INFORMATION (CRIMINAL PROCEEDINGS) BILL 2004

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)



NATIONAL SECURITY INFORMATION

(CRIMINAL PROCEEDINGS) BILL 2004

 

GENERAL OUTLINE

 

The National Security Information (Criminal Proceedings) Bill 2004 (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. 

 

Specifically, the Bill seeks to protect information the disclosure of which would be 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 the disclosure of which may affect, national security, where that information may be adduced or otherwise disclosed during the course of a federal criminal proceeding. 

 

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

 

The Bill is designed to provide a procedure in cases where information relating to, or the disclosure of which may affect, national security could be introduced during a federal criminal proceeding.  The aim of the Bill is to allow this information to be introduced in an edited or summarised 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 the charge through to an appeal of a decision.

 

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



Triggering the operation of the Bill

 

When the prosecutor receives a brief of evidence consideration must be given to whether the regime under the Bill should apply. The prosecutor must notify the court and the parties that a particular case falls within the provisions of the legislation. Such notice can be given at any time during the proceedings. If for some reason the matter proceeded without the trigger normal public interest immunity would have to be relied on.

 

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 a criminal proceeding, where that party expects to introduce information that relates to, or the disclosure of which may affect, national security.  This information includes information that may be introduced through a document or a witness’s answer to a question, as well as information disclosed by the mere 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 certificate) which prevents the disclosure of the information or allows the information to be disclosed in a summarised or redacted form, until a court makes an order in relation to the disclosure of the information or until the Attorney-General revokes the certificate.

 

Pre-trial proceedings

 

The certificate prevents disclosure in all pre-trial proceedings.

 

Closed hearings

 

Before a trial commences, any certificates that have been issued must be considered at a closed hearing of the trial court.  The Attorney-General may intervene in the proceeding. 

 

Whilst the court has a discretion to exclude the defendant, non-security cleared legal representatives of the defendant or non-security cleared court officials from the closed hearing, the defendant and his or her legal representative must be given the opportunity to make submissions to the court on arguments relating to the disclosure of information or the calling of witnesses.

 

The court considers the original information and the certificate and consider whether there would be a risk to national security if the information was disclosed or disclosed otherwise in accordance with the certificate and whether the making of the order would have a substantial adverse affect on the defendant’s right to a fair trial and on the conduct of his or her defence. The court may:

1.       agree with the Attorney-General that the information not be disclosed or be disclosed other than in a particular form; or

2.       disagree with the Attorney-General and order the disclosure of the information.



In its deliberation the court must give greatest weight to the national security considerations and must give reasons for an order to admit, exclude or redact the information or to exclude a witness .

 

The prosecutor or defendant may appeal an order of the court and the prosecutor can always decide to withdraw the charge if the court orders disclosure of the information.

 

The court retains its power to control the conduct of a federal criminal proceeding.  This means that the court may stay the proceedings after the court has made an order. The court may also exclude persons from the court or make suppression orders in relation to the information disclosed during a proceeding.

 

Fair trial for defendant

 

In deciding whether to make an order under the Bill, 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 court retains the power to stay proceedings where the defendant would not be guaranteed a fair trial, even after the court has made an order after the closed hearing.

 

Security clearance for defence counsel

 

Upon receiving notice from the Secretary of the Attorney-General’s Department (the Department), 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, 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 of his or her choosing who has been given, or is prepared to seek, a security clearance by the Department.

 

Uncleared counsel cannot receive access to information that relates to, or the disclosure of which may affect, national security.

 

Financial impact

 

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



NOTES ON CLAUSES

 

Part 1

 

Preliminary

 

 

Clause 1: Short title

 

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

 

Clause 2: Commencement

 

This clause states the days on which the clauses of the Act commence. 

 

Clauses 1 and 2 (and anything in the Act that this clause does not cover elsewhere) commence on the day of Royal Assent.

 

Clauses 3 to 49 of the Act commence on the 28 th  day after Royal Assent.  This later date applies for administration reasons, namely, to provide sufficient time to notify the persons whom the Act is likely to affect, such as court authorities.

 

Clause 3: Object of this Act

 

This clause states the object of the Act and requires the court to consider this object when exercising powers or performing functions under the Act.  This requirement reinforces the importance of balancing national security concerns with the administration of justice.

 

Clause 4: Extension of Act to external Territories

 

This clause states that the Act extends to all external Territories.

 

Clause 5: Act binds Crown

 

This clause states that the Act binds the Crown in each of its capacities.

 

Clause 6: Application of Act

 

This clause specifies the federal criminal proceedings to which the Act applies. 



Part 2

 

Interpretation

 

 

Division 1 - Definitions

 

Clause 7: Definitions

 

This clause defines many terms, including:

 

document which, according to the Evidence Act 1995 (the Evidence Act), means ‘any record of information’, including anything on which there is writing; anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and a map, plan drawing or photograph.  It also includes any part of the document; any copy, reproduction or duplicate of the document or of any part of the document; or any part of such a copy, reproduction or duplicate.

 

information which, according to subsection 90.1(1) of the Criminal Code Act 1995 , means information of any kind, whether true or false and whether in a material form or not, including an opinion and a report of a conversation.  Information may or may not be in the public domain.

 

 

Division 2 - National security and related definitions

 

Clause 8: Meaning of national security

 

This clause defines ‘national security’ based on the definition in the Commonwealth Protective Security Manual (the Manual).  This definition is for the purposes of the Act only and is not intended to supersede the definition of ‘national security’ in the Manual.

 

Clause 9: Meaning of security

 

This clause defines ‘security’, which forms part of the definition of ‘national security’ in clause 8.

 

‘Security’ means, according to the Australian Security Intelligence Organisation Act 1979 , the protection of the Commonwealth, States and Territories and their respective people from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia’s defence system or acts of foreign interference regardless of whether directed from or committed within Australia.  It also includes carrying out Australia’s responsibilities to any foreign country in relation to one of these matters.



Clause 10: Meaning of international relations

 

This clause defines ‘international relations’, which forms part of the definition of ‘national security’ in clause 8.

 

Clause 11: Meaning of law enforcement interests

 

This clause provides an inclusive list of things, interest in which constitutes ‘law enforcement interests’.  The meaning of ‘law enforcement interests’ forms part of the definition of ‘national security’ in clause 8.

 

Clause 12: Meaning of national interests

 

This clause defines ‘national interests’, which forms part of the definition of ‘national security’ in clause 8.

 

 

Division 3 - Federal criminal proceeding and related definitions

 

Clause 13: Meaning of criminal proceeding

 

Subclause (1) defines ‘criminal proceeding’, which forms part of the definition of ‘federal criminal proceeding’ in clause 14. 

 

Subclause (2) lists the proceedings that constitute a ‘criminal proceeding’.

 

This clause reinforces the intention of the Act to apply to all stages of a proceeding for a Commonwealth offence, including pre- and post-trial proceedings and proceedings relating to section 39B of the Judiciary Act.

 

Section 39B of the Judiciary Act deals with applications for a writ of mandamus or prohibition, or an injunction against an officer or officers of the Commonwealth in relation to a ‘related criminal justice process decision’.  A ‘related criminal justice process decision’ is a decision that is connected with the investigation, committal for trial or prosecution of a defendant.

 

Jurisdiction to hear an application under section 39B of the Judiciary Act is conferred on the Supreme Court of the State or Territory before which a prosecution or appeal is being heard to prevent defendants from delaying proceedings by applying to the Federal Court of Australia for a writ or injunction.

 

Although an application under section 39B is not criminal in nature, due to the close connection between the application and the prosecution, it is conceivable that information, the disclosure of which may prejudice national security, may arise in such proceedings.

 

Clause 14: Meaning of federal criminal proceeding

 

This clause defines ‘federal criminal proceeding’.  This clause reinforces the intention of the Act to apply to any court exercising federal jurisdiction for a criminal proceeding and a proceeding under, or in relation to a matter arising under, the Extradition Act.

 

Clause 15: Meaning of defendant

 

This clause defines ‘defendant’ and explains how the Act applies where there is more than one defendant.

 

 

Division 4 - Other interpretation provisions

 

Clause 16: Disclosure of information in permitted circumstances

 

This clause describes when a person discloses information ‘in permitted circumstances’. 

 

Clause 17: Meaning of likely to prejudice national security

 

This clause defines ‘likely to prejudice national security’ to mean a real possibility that disclosure will prejudice national security.  This definition avoids the application of a ‘more likely than not’ test.

 

Clause 18: Operation of other Acts etc.

 

This clause states that the Act does not affect the operation of any other Act except the specified provisions of the Evidence Act and the Judiciary Act.

 

Clause 19: General powers of a court

 

Subclause (1) states the Act does not affect a court’s power to control the conduct of a federal criminal 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 (2) states that even if a court considers a particular matter in making an order under clause 31, the court can still later stay the proceeding on a ground involving that same matter.  For example, even if the court considers the defendant’s right to receive a fair trial in deciding whether to make an order under clause 31, the court is not prevented from later staying the proceeding on the ground that the defendant would not receive a fair trial.

 

Clause 20: When an order of a court ceases to be subject to appeal

 

This clause defines when an order of a court ‘ceases to be subject to appeal’.  This definition relates to the duration of an Attorney-General’s certificate under subclauses 26(5) and 28(4) and the period of operation of court orders under Division 3.



Part 3

 

Protection of information whose disclosure is likely to prejudice etc. national security

 

Division 1 - Management of information

 

Clause 21: Pre-trial conferences

 

This clause states that the prosecutor or defendant may apply to the court for a pre-trial conference of the parties to consider issues about information that relates to, or the disclosure of which may affect, national security.  The court must hold the conference as soon as possible after the application is made.

 

This clause intends to give the court notice of any expected disclosures of the prosecutor or defendant of information that relates to, or the disclosure of which may affect, national security.

 

Clause 22: Arrangements about disclosures relating to or affecting national security

 

This clause states that the prosecutor and defendant may agree to an arrangement about any 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 such an arrangement.

 

This clause provides an efficient method of handling information in a federal criminal proceeding where there is consensus between the prosecutor and defendant. 

 

Clause 23: Protection of certain information disclosed in a proceeding

 

This clause states that a regulation or court order may prescribe ways for storing information that is disclosed or will be disclosed to the court in a federal criminal proceeding.  A court may also make orders about protecting such information at any time during the proceeding.  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, however the order must not be inconsistent with a regulation mentioned in this clause.

 

This clause intends to provide physical protection for information that is disclosed or will be disclosed to a court in a federal criminal proceeding.



Division 2 - Attorney-General’s certificates for protection of information

 

Subdivision A - Notifying Attorney-General etc. of expected disclosure

 

Clause 24: Prosecutor and defendant must notify expected disclosure of information relating to or affecting national security

 

This clause sets out a procedure for a prosecutor or defendant to notify the Attorney-General about the prosecutor or defendant’s knowledge or belief that he, she or a witness will disclose in a federal criminal proceeding information that relates to, or the disclosure of which may affect, national security.  The prosecutor or defendant must notify the Attorney-General in a prescribed form 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 a trial. 

 

The prosecutor or defendant must also advise the court, the other party and any witness that he or she has notified the Attorney-General and include a description of the relevant information.  On receiving the advice, the court must adjourn the proceeding until the Attorney-General gives the court a certificate or advice that no certificate will be issued under subclauses 26(4) or 26(7) respectively.

 

If the notice is given to the Attorney-General after the trial commences, the adjournment gives the Attorney-General sufficient time to consider whether to issue a certificate or advice under clause 26.

 

Clause 42 provides that it is an offence if a person contravenes this clause where the related disclosure of information is likely to prejudice national security.

 

Clause 40 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 under clause 26.

 

 

Subdivision B - Notifying Attorney-General etc. where disclosure expected by witness answering question

 

Clause 25: Preventing witnesses from disclosing information by not allowing them to answer questions

 

This clause sets out a procedure for protecting information that a prosecutor or defendant knows or believes a witness will disclose in answering a question whilst giving evidence in a federal criminal proceeding, where the information relates to, or the disclosure of which may affect, national security.  This clause applies during a trial.

 

The prosecutor or defendant must advise the court of his or her knowledge or belief.  The court must then adjourn the proceeding to hold a closed hearing.  Clause 29 contains the closed hearing requirements.  At the closed hearing, the witness must give the court a written answer to the question, which the court must show to the prosecutor.  If the prosecutor knows or believes that if the answer were given in evidence it would disclose information that relates to, or the disclosure of which may affect, national security, the prosecutor must advise the court and must notify the Attorney-General in writing as soon as practicable about that knowledge or belief.  On receiving the advice, the court must adjourn the proceeding until the Attorney-General gives a certificate or advice under subclauses 26(4) or 26(7) respectively.

 

The adjournment gives the Attorney-General sufficient time to consider whether to issue a certificate or advice under clause 26.

 

Clause 42 provides that it is an offence if a person contravenes this clause where the related disclosure of information is likely to prejudice national security.

 

 

Subdivision C - Attorney-General’s certificates

 

Clause 26: Attorney-General’s non-disclosure certificate

 

When the Attorney-General is notified under clause 24 that the prosecutor or defendant knows or believes that information will be disclosed in a federal criminal proceeding, this clause sets out a procedure for protecting information where the Attorney-General considers that the disclosure is likely to prejudice national security.  However, this clause does not apply where the mere presence of a witness may prejudice national security.  Clause 28 applies in that situation.

 

The Attorney-General may give the potential discloser a certificate which describes the information but prevents the information from being disclosed except in permitted circumstances.  Alternatively the Attorney-General may give the potential discloser a certificate together with a copy of the document with the information deleted or a copy of 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 attached.  In this case, the certificate describes the information and prevents the information from being disclosed except in permitted circumstances but may permit the disclosure of the copy, statement or summary.

 

The Attorney-General must give the court a copy of the certificate, the source document if available, a copy of the document and the summary or statement of facts.  This ensures that the court has the original documents before it when making an order under clause 31.

 

If the Attorney-General decides not to issue a certificate, the Attorney-General must advise the potential discloser and the court of his or her decision so that the proceeding may continue.

 

A certificate of the Attorney-General will only lapse where the Attorney-General revokes it or after the decision of the court in relation to the certificate is final, that is, it is no longer subject to a possible appeal.  If the certificate was to lapse before this time, a person could disclose information in accordance with a court order, which the Attorney-General later successfully appeals.

 

A certificate given to a potential discloser under this clause is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

 

Clause 27: Consequences of Attorney-General giving non-disclosure certificate

 

This clause states that if, before a trial commences in a federal criminal proceeding, the Attorney-General gives a potential discloser a certificate under clause 26, the certificate is conclusive evidence before the trial that the disclosure of the information in the proceeding is likely to prejudice national security.  The court must hold a closed hearing before the trial begins to decide what order to make under clause 31.  If a certificate is given to the court after the trial begins, the court must adjourn or continue to adjourn the trial and hold a closed hearing to decide what order to make under clause 31.

 

The hearing or adjournment ends if the Attorney-General revokes the certificate at any time during the hearing or adjournment so that the proceeding can continue.

 

Clause 29 sets out the closed hearing requirements.

 

If before or during an extradition proceeding the Attorney-General gives a potential discloser a certificate, the certificate is conclusive evidence during the proceeding that disclosure of the information in the proceeding is likely to prejudice national security. 

 

Clause 43 states that it is an offence to disclose information contrary to Attorney-General’s non-disclosure certificate.

 

Clause 28: Attorney-General’s witness exclusion certificate

 

Where the Attorney-General is notified under clause 24 that the prosecutor or defendant knows or believes a witness in a federal criminal proceeding will disclose information by his or her mere presence, this clause sets out a procedure to protect the disclosure where the Attorney-General considers that the disclosure relates to or would affect national security.

 

The Attorney-General may give a certificate to the prosecutor or defendant, depending on the case, stating that the prosecutor or defendant must not call the intended witness.  If the Attorney-General gives the potential discloser a certificate, the Attorney-General must also give a copy of the certificate to the court.  If the Attorney-General decides not to give the prosecutor or defendant a certificate, the Attorney-General must advise the prosecutor or defendant and the court in writing of his or her decision so that the proceeding can continue.

 

A certificate of the Attorney-General will only lapse where the Attorney-General revokes it or after the decision of the court in relation to the certificate is final, that is, it is no longer subject to a possible appeal.

 

The court must hold a closed hearing to consider the certificate and to decide what order to make under clause 31.  If the certificate is received before the trial begins, a closed hearing is held before the trial begins.  If the certificate is received during the trial, then the proceeding is adjourned to hold a closed hearing.



The hearing or adjournment ends if the Attorney-General revokes the certificate at any time during the hearing or adjournment so that the proceeding can continue.

Clause 29 contains the closed hearing requirements. 

 

In the case of an extradition proceeding, the certificate is conclusive evidence during the proceeding that the person, if called as a witness in the proceeding, will disclose information by his or her mere presence and the disclosure is likely to prejudice national security.  Therefore, there is no need for the court to adjourn the proceeding to hold a closed hearing.

 

A certificate given to a potential discloser under this clause is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

 

Clause 44 states that it is an offence to call a witness contrary to Attorney-General’s witness exclusion certificate.

 

Division 3 - Closed hearings and non-disclosure or witness exclusion orders

 

Clause 29: Closed hearing requirements

 

This clause sets out the closed hearing requirements.  It states the persons who may attend a closed hearing.  The court has a discretion to exclude from part of a closed proceeding the defendant, the defendant’s legal representative if the representative does not have an appropriate security clearance or a court official without an appropriate security clearance if information would be disclosed to that person and the disclosure would be likely to prejudice national security. 

 

Therefore, the court may only exclude the defendant, the defendant’s legal representative or a court official from that part of the hearing in which the prosecutor, the Attorney-General or the Attorney-General’s legal representative, if the Attorney-General is an intervener under clause 30, gives details of the information or gives information in arguing either why the information should not be disclosed or a witness should not be called to give evidence in the proceeding.  The defendant and his or her legal representative would not be excluded from the entire closed hearing.  Furthermore, the court can only exclude the defendant’s legal representative or court official if the representative or official is not security cleared to the appropriate level.

 

If the prosecutor, the Attorney-General or the Attorney-General’s legal representative, if the Attorney-General is an intervener under clause 30, argues that either the information should not be disclosed or the witness should not be called, the defendant and his or her legal representative must be given the opportunity to address the court on these arguments. 

 

The court must maintain a sealed record of the hearing, which it must make available to, and only to, an appeal or review court.

 



Clause 30: Intervention by Attorney-General

 

This clause permits the Attorney-General to intervene on behalf of the Commonwealth in a closed hearing in a federal criminal proceeding.  If the Attorney-General intervenes, he or she would be treated as a party to the proceeding.

 

Clause 31: Court orders

 

This clause states that a court must make one of three orders after holding a closed hearing under subclause 27(3).

 

Regardless of the form of information, the court may order that the information must not be disclosed, other than in the permitted circumstances in clause 16. 

 

Alternatively, the court may, regardless of the form of information, order that the information may be disclosed in the proceeding.

 

Where the information is in the form of a document, the court may make an order specifying 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. 

 

Subclause 31(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.

 

Where the court has held a closed hearing under subclause 28(5) about whether to call a witness, the court must order that the prosecutor or defendant either must not or may call the person as a witness in the federal criminal proceeding.

 

In deciding what order to make under this clause, the court must give greatest weight to the need to protect national security.  However, it must also consider the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence, and any other matters the court considers relevant.

 

Once the closed hearing is completed, the trial judge retains his or her discretion to control the conduct of the trial in the normal course of the federal criminal proceeding. This means that even if the trial judge has made an order under clause 31 the trial judge may stay the proceedings, or make other orders to ensure fairness to the defendant, and may make suppression orders in order to prevent the publication of information the subject of a disclosure order.

 

Clause 45 states that it is an offence if a person intentionally contravenes a court order made under the Act.

 

 

Clause 32: Reasons for court orders

 

This clause requires the court to give a written statement of reasons for its decision under clause 31 for admitting, excluding or redacting information, or excluding a witness.  The statement must be given to the person who is the subject of the order, the prosecutor, defendant, any legal representative and the Attorney-General and his or her legal representative, if the Attorney-General is an intervener under clause 30.

 

Before the court provides a statement of reasons, the court must give a copy of the proposed statement of reasons to the prosecutor and the Attorney-General, if the Attorney-General is an intervener under clause 30. 

 

If the prosecutor or Attorney-General considers that the proposed statement of reasons will disclose information which is likely to prejudice, national security, the prosecutor or Attorney-General may request that the court vary the proposed statement to prevent the disclosure.  The court must then make a decision about this request.

 

Clause 33: Request to delay giving section 32 statement pending appeal decision

 

This clause provides that if the court makes a decision under subclause 32(4), the prosecutor or the Attorney-General, if the Attorney-General is an intervener under clause 30, may request that the court delay giving its statement of reasons to give the prosecutor or Attorney-General sufficient time to decide whether to appeal the court’s decision and if necessary, to make the appeal.  The court must grant the request.

 

Clause 34: Period of operation of court orders

 

This clause states that a court order made under Division 3 of the Act does not enter into force until it ceases to be subject to appeal and remains in force until a court revokes it.  This operation prevents the disclosure of information in accordance with a court order that is later successfully appealed.

 

Clause 35: Consequence of certain court orders

 

This clause seeks to avoid the time and cost of re-conducting any part of the pre-trial proceeding where the court makes an order under subclause 31(5) or paragraph 31(6)(b) during the trial in relation to information that was not disclosed pre-trial.

 

Clause 36: Adjournment after certain court orders

 

This clause states that where the court makes an order under clause 31, the prosecutor or defendant may apply to the court to adjourn the proceeding to decide whether to appeal against the order or, in the case of the prosecutor only, to withdraw the proceeding, and if necessary, to make the appeal or withdrawal.  The court must grant the adjournment.

 

 



Division 4 - Appeals

 

Clause 37: Appeals against court orders under section 31

 

This clause provides that the prosecutor, defendant and the Attorney-General, if the Attorney-General is an intervener under clause 30, may appeal any court orders under clause 31.  The court with jurisdiction to hear and determine appeals from the trial also has the jurisdiction to hear and determine any appeal under this clause.

 

Clause 38: Appeal against court decisions under section 32

 

This clause provides that the prosecutor and the Attorney-General, if the Attorney-General is an intervener under clause 30, may appeal a court’s decision under clause 32.  The court with jurisdiction to hear and determine appeals from the trial also has the jurisdiction to hear and determine any appeal under this clause.

 

 

Part 4

 

Security Clearances

 

 

Clause 39: Security clearance for defendant’s legal representative etc.

 

This clause applies where before or during a proceeding the Secretary of the Department gives notice to the defendant’s legal representative and his or her assistant that an issue is likely to arise in the proceeding about the disclosure of information which is likely to prejudice national security.

 

Upon receiving notice from the Secretary, the representative or assistant may apply to the Secretary for an appropriate security clearance.  The defendant may apply to the court for the proceedings to be deferred or adjourned until the legal representative or another representative obtains an appropriate security clearance.  The court must defer or adjourn the proceeding accordingly.

 

If the defendant’s legal representative does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows, the prosecutor may advise the court that the defendant’s counsel has not sought clearance.  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, an appropriate security clearance.

 

Uncleared defence counsel cannot receive information that relates to, or the disclosure of which may affect, national security.  Clause 46 provides that it is an offence to disclose such information to an uncleared person, except in limited circumstances.

 

 



Part 5

 

Offences

 

 

This Part creates a number of offences, each with a maximum penalty of two years imprisonment.  The offences reflect the serious harm that the Commonwealth may suffer from the disclosure of information that is likely to prejudice national security. 

 

Clause 40: Offence to disclose information before Attorney-General gives non-disclosure certificate etc.

 

This clause contains two offences relating to the disclosure of information.  The offences do not apply where the disclosure occurs in the permitted circumstances in clause 16 or where the disclosure may occur through a witness’s mere presence under clause 41.

 

Where the Attorney-General receives notice under subclause 24(1), it is an offence for a person to disclose information, where the disclosure is likely to prejudice national security, before the Attorney-General gives the person a certificate under subclause 26(2) or (3), or advice under subclause 26(7). 

 

Where the Attorney-General receives notice under subclause 25(6), it is an offence for the prosecutor or witness to disclose information, where the disclosure is likely to prejudice national security, before receiving a certificate under subclause 26(2) or (3), or advice under subclause 26(7).

 

Clause 41: Offence to disclose information before Attorney-General gives witness exclusion certificate etc.

 

This clause states that where the Attorney-General receives notice under clause 24, it is an offence for the prosecutor or defendant to call the relevant person as a witness at any time before the Attorney-General gives the prosecutor or defendant a certificate under subclause 28(2) or advice under subclause 28(10), where the disclosure of information by the mere presence of the person is likely to prejudice national security.

 

Clause 42: Offence to contravene requirement to notify Attorney-General etc.

 

This clause states that it is an offence if a person contravenes subclause  24(1), 24(2), 24(3), 25(2) or 25(6) , which require notice to be given to the Attorney-General, and the related disclosure of information is likely to prejudice national security.  The elements of this offence are to be derived from the relevant substantive provisions, clauses 24(1), 24(2), 24(3), 25(2) or 25(6), rather than this clause 42.

 

Clause 43: Offence to disclose information contrary to Attorney-General’s non-disclosure certificate

 

This clause states that it is an offence if a person is given a certificate under subclause 26(2) or 26(3) and the person discloses the information in contravention of that certificate.  However, the person does not commit an offence if the disclosure occurs after the court orders disclosure under subclause 31(2) or (4) and the disclosure is in accordance with the court order.

 

This offence addresses the disclosure of information that relates to, or the disclosure of which may affect, national security outside of a criminal proceeding itself.

 

Clause 44: Offence to call witness contrary to Attorney-General’s witness exclusion certificate

 

This clause states that it is an offence if a person is given a certificate under subclause 28(2) and that person calls a witness in contravention of that certificate.  However, the person does not commit an offence if the person calls the witness after the court orders that the witness may be called under subclause 31(6).

 

Clause 45: Offence to contravene court order

 

This clause states that it is an offence if a person intentionally contravenes a court order made under the Act.

 

This criminal penalty reinforces the serious nature of a court order.

 

Clause 46: Offence to disclose information to certain persons without security clearance etc.

 

This clause states that a person commits an offence if, for the purposes of a federal criminal proceeding, a person discloses information to a defendant’s legal representative or his or her assistant, the disclosure of which is likely to prejudice national security.  However, an offence is not committed where the disclosure occurs in permitted circumstances, in giving evidence in the proceeding, 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 compliance with conditions that the Secretary has approved.

 

 

Part 6

 

Miscellaneous

 

 

Clause 47: Report to Parliament on certificates given by Attorney-General etc.

 

This clause requires the Attorney-General to give, as soon as practicable after 30 June each year, both Houses of Parliament a report stating the number of certificates the Attorney-General has given under clauses 26 and 28 throughout the past year and identifying the criminal proceedings to which each certificate relates.

 



Clause 48: Rules of court

 

This clause describes the power to make rules of court that prescribe matters relating to the Act.

 

Clause 49: Regulations

 

This clause describes the Governor-General’s power to make regulations that prescribe matters relating to the Act.