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2004
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
NATIONAL
SECURITY INFORMATION (CRIMINAL PROCEEDINGS) (CONSEQUENTIAL AMENDMENTS) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the Attorney-General,
the Honourable Philip Ruddock MP)
NATIONAL SECURITY INFORMATION
(CRIMINAL
PROCEEDINGS) (CONSEQUENTIAL AMENDMENTS) BILL 2004
GENERAL OUTLINE
The National Security Information (Criminal
Proceedings) (Consequential Amendments) Bill 2004 (the Bill) amends the
Administrative Decisions (Judicial Review) Act 1977 and the Judiciary
Act 1903 in regards to a court’s jurisdiction to hear or determine an
application by a defendant in a federal criminal proceeding (the defendant),
where the application relates to a decision of the Attorney-General to issue a
certificate under section 26 or 28of the National Security
Information (Criminal Proceedings) Act 2004 (certificate
decision).
Specifically, the Bill amends the Administrative Decisions
(Judicial Review) Act 1977 to include a certificate decision of the
Attorney-General as a related criminal justice process decision. This
amendment will have the effect of limiting the jurisdiction of a court to hear
or determine a defendant’s application under that Act, where the
application relates to a certificate decision of the Attorney-General. In
addition, the amendment will prevent a person from requesting the
Attorney-General to provide reasons for the certificate decision.
The
Bill amends the Judiciary Act 1903 to include a certificate decision of
the Attorney-General as a related criminal justice process decision.
This amendment will have the effect of generally giving the Supreme Court of the
State or Territory in which the prosecution or appeal is before, jurisdiction
with respect to any matter in which the defendant seeks a writ of mandamus or
prohibition or an injunction against the Attorney-General in relation to a
certificate decision.
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 specifying the short title of the Bill.
Clause 2:
Commencement
This clause specifies the days on which the various
provisions of the Bill commence. Section 1 to 3 of the Bill (and anything in
the Bill not covered elsewhere by this clause) commence on the day on which the
Act receives Royal Assent.
Schedules 1 and 2 of the Bill commences
immediately after the commencement of sections 3 to 49 of the
National Security Information (Criminal Proceedings) Act
2004.
Clause 3: Schedule(s)
This clause is the
operative clause that gives effect to the amendments set out in the Schedules to
the Act.
Schedule 1 - Amendment of the Administrative Decisions
(Judicial Review) Act 1977
Item 1
This item repeals and
substitutes the definition of related criminal justice process decision in
subsection 9A (4) to include a reference to a certificate decision of the
Attorney-General. The effect of this amendment is to limit, via
subsection 9A (1), the jurisdiction of courts to hear a
defendant’s application under the Administrative Decisions (Judicial
Review) Act 1977 in relation to a certificate decision of the
Attorney-General while the prosecution or appeal is before a court.
This
amendment ensures that an application under the Act does not delay a prosecution
or appeal that is before a court.
Item 2
This item inserts
in Schedule 2 a certificate decision of the Attorney-General. The effect of
this amendment is that section 13 will not apply to a certificate decision
of the Attorney-General. This means that a person cannot request the
Attorney-General 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.
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, the Attorney-General is not required to provide a statement of
reasons under section 13 of the Act.
Schedule 2 - Amendment of the
Judiciary Act 1903
Item 1
This item repeals and
substitutes the definition of related criminal justice process decision in
subsection 39B (3) to include a reference to a certificate decision of the
Attorney-General. The effect of this amendment is to give the Supreme Court of
the State or Territory in which the prosecution or appeal is before a court,
jurisdiction with respect to any matter in which the defendant seeks a writ of
mandamus or prohibition or an injunction against the Attorney-General in
relation to a certificate decision.
This amendment promotes
administrative efficiency by ensuring that the application for a writ of
mandamus or prohibition or an injunction is heard by the same court that is
likely to hear the prosecution or appeal.