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2002-2003-2004
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
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 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 the disclosure of which may affect, national security, where that
information may be adduced or otherwise disclosed during the course of a
criminal proceeding.
When applied to prosecutions for espionage,
treason, terrorism and other security related crimes, these cases 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 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 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 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 and
the Extradition Act 1988. Due to the close connection between section
39B proceedings and the prosecution, it is conceivable that information may
arise in such proceedings that relates to or may prejudice national security.
The Extradition Act 1988 has been included to prevent information from
being disclosed in extradition proceedings; for example, where the proceedings
involve 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 a criminal
proceeding, where that party expects to introduce information that relates to,
or the disclosure of which may affect, national security. This includes
information that may be introduced through a document, a witness’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 certificate) which prevents the
disclosure of the information or allows the information to be disclosed in a
summarised or redacted form.
Pre-trial proceedings
The
certificate prevents disclosure in all pre-trial
proceedings.
Trial
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. The court
rules on the admissibility of the original information and considers the
certificate. The court 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
2. 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 of the Attorney-General’s Department (the Department) 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 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 various 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 44 of the Act commence on the 28th day after Royal Assent. This
later date applies for administration reasons, namely, to provide sufficient
time to notify persons that the Act is likely to affect, such as court
authorities.
Clause 3: Object of this
Act
Subclause (1) states the object of the
Act.
Subclause (2) requires a court to consider this object when
exercising powers or performing functions under the Act. This requirement
reinforces the importance of balancing the protection of information 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. The Act applies if a proceeding begins on
or after the 28th day after the Act receives Royal Assent and if the
prosecutor has notified the defendant and the court in writing that the Act
applies to the proceeding. If the prosecutor gives notice after the proceeding
begins, the Act applies only to the part of the proceeding that takes place
after the notice is given.
Part 2
Interpretation
Division 1 – Definitions
Clause 7:
Definitions
This clause defines many terms, including:
‘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.
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. Security 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 interests that
are law enforcement interests, which 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
This clause defines criminal
proceeding, which forms part of the definition of federal criminal proceeding in
clause 14. This definition reinforces the intention of the Act to apply to
all stages of a proceeding for a Commonwealth offence, including pre- and
post-trial proceedings.
Section 39B of the Judiciary Act 1903
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’. Related criminal
justice process decisions are decisions that are connected with the
investigation, committal for trial or prosecution of a
defendant.
Jurisdiction to hear an application under section 39B 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 these proceedings and
the prosecution, it is conceivable that information, whose disclosure 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 1998.
Clause 15: Meaning of defendant
This clause
defines defendant.
Division 4 – Other interpretation
provisions
Clause 16: Disclosure of information in permitted
circumstances
This clause states the permitted circumstances in which
a person discloses information, namely where the person is a prosecutor or a
staff member, as defined by the Intelligence Services Act 2001,
and the person discloses the information in the course of his or her
duties.
Clause 17: 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 1995 and the Judiciary Act
1903.
Clause 18: General powers of a court
This clause
states that a court retains the power to control 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 and to exclude persons from the court.
Part 3
Protection of information
whose disclosure is likely to prejudice national security
Division 1 – Management of information
Clause 19:
Pre-trial conferences
This clause provides for pre-trial conferences
to consider issues about the disclosure of information that relates to, or the
disclosure of which may affect, national security in the trial.
This
clause intends to give the court notice of any certificates that the
Attorney-General may have already given under clause 24 or about whether
either party will give notice under clause 22.
Clause 20:
Arrangements about disclosures prejudicial to 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 a discretion
about whether to make an order to give effect to such an
arrangement.
Clause 21: Protection of certain information disclosed in
a proceeding
This clause intends to provide physical protection for
information that is disclosed or is to be disclosed to a court in a federal
criminal proceeding. This clause may apply either before or after the
information is disclosed.
A regulation or court order may prescribe ways
for storing this information. A court order may include an order under any
other provision of the Act or under section 93.2 of the Criminal Code
Act 1995 for a hearing in camera.
Division 2 –
Attorney-General’s certificates for protection of
information
Subdivision A – Notifying Attorney-General etc.
of expected disclosure
Clause 22: Prosecutor and defendant must
notify expected disclosure of information prejudicial to national
security
This clause states that where a party to a proceeding
reasonably expects to disclose information that relates to, or the disclosure of
which may affect, national security, or where a party intends to call a witness
who will disclose information that relates to, or the disclosure of which may
affect, national security, that party must notify the Attorney-General, the
court and the other party. Notice must be in a prescribed form.
This
clause intends to provide the Attorney-General with sufficient time to consider
whether to issue a certificate under clause 24 of the Act.
Clause 37
states that it is an offence to contravene this
requirement.
Subdivision B – Notifying Attorney-General etc.
where disclosure expected by witness answering question
Clause 23:
Preventing witnesses from disclosing information by not allowing them to answer
questions
This clause sets out a procedure for protecting information
that a witness will disclose in giving evidence in a federal criminal
proceeding, where the information relates to, or the disclosure of which may
affect, national security.
If the prosecutor or defendant reasonably
expects the disclosure may prejudice national security, the prosecutor or
defendant must advise the court and the court must adjourn the proceedings and
hold a closed hearing. At the closed hearing, the witness must give a written
answer to the question, which is shown to the prosecutor and the court. If the
prosecutor considers that the answer may prejudice national security if
disclosed, the prosecutor must advise the court and notify the Attorney-General
under clause 22. If the Attorney-General is notified, the court must
adjourn the proceeding until the Attorney-General gives a certificate under
subclause 24(4) or advises the court under subclause 24(5) that a
certificate will not be issued.
Clause 27 sets out the closed
hearing requirements.
Subdivision C – Attorney-General’s
certificates
Clause 24: Attorney-General’s non-disclosure
certificate
This clause applies if the Attorney-General has been
notified under clause 22 or subclause 23(6), or the Attorney-General
expects that any of the circumstances in paragraphs 22(1)(a) to (c)
will arise and the Attorney-General considers that the disclosure of the
information is likely to prejudice national security. This clause does not
apply where the mere presence of a witness may prejudice national security.
Clause 26 applies in that situation.
If this clause applies, the
Attorney-General may give the potential discloser and the court a certificate
that states that the information in question must not be disclosed at all or in
part. Subclause 25(1) provides that during any part of the proceeding that
occurs before the trial, this certificate is conclusive evidence of the matters
contained inside it.
The certificate is not conclusive of any matters
relating to evidence during a trial. Before a trial commences, the court must
hold a closed hearing to decide whether to make an order under clause 29.
The Attorney-General may intervene in such proceedings. If the Attorney-General
issues a certificate during trial proceedings, the court must adjourn the
proceedings to hold a closed hearing to decide whether to make an order under
clause 29.
Clause 27 sets out the closed hearing requirements.
If the Attorney-General decides that the information is not information
whose disclosure will prejudice national security, the Attorney-General must
advise the potential discloser and court in writing so that the proceeding can
continue.
Clauses 35 and 38 state that it is an offence to disclose
information that relates to, or the disclosure of which may affect, national
security before or contrary to the Attorney-General’s non-disclosure
certificate respectively.
Clause 25: Consequences of Attorney-General
giving non-disclosure certificate
Subclause (1) states that in a
pre-trial proceeding under paragraph 14(a), where the Attorney-General has
given a potential discloser a certificate under clause 24 before the trial
begins, the certificate is conclusive evidence before the trial that disclosure
of the information in the proceeding is likely to prejudice national security.
If this subclause applies, the court must hold a hearing as soon as the trial
begins, adjourn or continue to adjourn the proceedings to decide whether to make
an order under clause 29.
Subclause (2) states that in an
extradition proceeding under paragraph 14(b), where the Attorney-General
has given a potential discloser a certificate under clause 24 either before
or during the proceeding, the certificate is conclusive evidence during the
proceeding that disclosure of the information in the proceeding is likely to
prejudice national security. If this subclause applies, the court must hold a
hearing as soon as the trial begins or adjourn the proceedings to decide whether
to make an order under clause 29.
Clause 27 sets out the closed
hearing requirements.
Clause 26: Attorney-General’s witness
exclusion certificate
This clause sets out a procedure for protecting
information that is reasonably expected to be disclosed by the mere presence of
a witness to be called in a federal criminal proceeding.
This clause
applies if the Attorney-General has been notified under clause 22 or if the
Attorney-General considers that the mere presence of an intended witness will
disclose information and the Attorney-General considers that the disclosure is
likely to prejudice national security.
If this clause applies, the
Attorney-General may give a certificate to the prosecutor or defendant and the
court, stating that the prosecutor or defendant must not call that intended
witness.
As soon as the trial begins, the court must hold a closed
hearing to decide whether to make an order under clause 29. If the
Attorney-General issues a certificate during trial proceedings, the court must
adjourn the proceedings to hold a closed hearing to decide whether to make an
order under clause 29.
Clause 27 sets out the closed hearing
requirements.
Clauses 36 and 39 state that it is an offence to
disclose information that relates to, or the disclosure of which may affect,
national security before the Attorney-General gives a witness exclusion
certificate or contrary to a witness exclusion certificate
respectively.
Division 3 – Closed hearings and
non-disclosure or witness exclusion orders
Clause 27: Closed
hearing requirements
This clause sets out the requirements for a
closed hearing. It lists the persons who may be present at the hearing. This
clause also states that a court may order that the defendant or his or her legal
representative is not entitled to be present during any part of the closed
hearing where his or her presence is likely to prejudice national security. If
present during any part of the hearing, the defendant or his or her legal
representative must be able to make representations to the court about the
certificate that resulted in the hearing. The court must maintain a sealed
record of the hearing, which is made available only to an appeal or review
court.
The requirement of showing the certificate issued by the
Attorney-General to the defendant ensures that the defendant can make
representations about the application or certificate.
Clause 28:
Intervention by Attorney-General
The Attorney-General may intervene
on behalf of the Commonwealth in a hearing in relation to which the closed
hearing requirements apply. As a result of the intervention, the
Attorney-General will be treated as a party to the proceeding.
Clause
29: Court orders
A court may make orders under subclauses (2),
(4) and (5) after it has held a hearing required under
subclause 25(3) or 25(4).
Subclause (2) states that if the
information is in a document, the court may make an order specifying the way the
information must be disclosed. A person subject to this order may adduce
evidence of the contents of the document by tendering the document in the way
that the court has ordered.
Subclause (4) states that regardless of
the form of information, the court may make an order prohibiting the disclosure
of information, except in permitted circumstances, by any person to whom a
certificate under subclause 24(2) or 24(3) was given and any person to whom
the certificate has been disclosed for the purposes of the hearing.
Subclause (5) states that the court may order that any person may
disclose the information in the proceeding, regardless of the form of the
information.
Subclause (6) states that before a court makes an order
under subclause (2), (4) or (5), the court must first decide whether the
information in question is admissible in evidence in the proceeding. If the
information is not admissible in evidence, the court must not make the
order.
Subclause (7) states that after a court has held a hearing
required under subclause 26(4), the court may order that the prosecutor or
defendant either must not or may call the person as a witness in the federal
criminal proceeding.
Subclause (8) lists a number of factors that a
court must consider in deciding whether to make an order under clause 29,
and if so, what order to make. A court need not consider these factors where
subclause (6) prevents the court from making an order under clause 29.
Subclause (9) states that a court must give the factor in
paragraph (8)(a) the greatest weight.
Clause 40 provides that it is
an offence to contravene a court order.
Clause 30: Duration of court
orders
This clause states that court orders made under
Division 4 of the Act remain in force until the court or another court
cancels the order or otherwise causes it to cease to have
effect.
Clause 31: 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 29(5)
or 29(7) during the trial in relation to information that was not disclosed
pre-trial.
Clause 32: Adjournment after certain court
orders
This clause states that where the court makes an order under
clause 29, 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 so, to make the appeal
or withdrawal. The court must grant the adjournment.
Division 4
– Appeals
Clause 33: Appeals
This clause
reinforces the appeal rights of the prosecutor and defendant, as well as the
Attorney-General if the Attorney-General is an intervener under
clause 28.
The Rules of Court of the appeal court will determine the
time period for appeals.
Part 4
Security
Clearances
Clause 34: Defendant’s legal representative etc. must apply for
a security clearance
This clause relates
to security clearances by counsel and provides that the defendant’s legal
representative must apply to the Secretary for a security clearance by the
Department at the level considered appropriate by the Secretary in relation to
the information.
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, a security clearance by the Department at the level
considered appropriate by the Secretary in relation to the information.
Uncleared defence counsel cannot receive information that relates to, or
the disclosure of which may affect, national security.
Part 5
Offences
This Part creates a number of offences and imposes a penalty for each,
reflecting the serious harm that the Commonwealth may suffer from the disclosure
of information that may prejudice national security.
Clause 35:
Offence to disclose information before Attorney-General gives non-disclosure
certificate etc.
This clause contains two offences. It is an offence
to disclose information, where the disclosure is likely to prejudice national
security, if the Attorney-General has received notice under subclause 22(1)
or 23(6) and the disclosure occurs before the Attorney-General gives a
certificate under subclause 24(2) or (3) or advice under
subclause 24(5) in relation to the disclosure of information. This clause
does not apply where clause 36 applies or the disclosure takes place in
permitted circumstances.
The maximum penalty for these offences is 2
years imprisonment.
Clause 36: Offence to disclose information before
Attorney-General gives witness exclusion certificate etc.
This clause
applies if the prosecutor or defendant notifies the Attorney-General under
subclause 22(6). The prosecutor or defendant, as the case may be, must not
call the person as a witness in the federal criminal proceeding before the
Attorney-General gives a certificate under subclause 26(2) or advice under
subclause 26(6) in relation to the calling of the witness.
The
maximum penalty for this offence is 2 years imprisonment.
Clause 37:
Offence to contravene requirement to notify Attorney-General etc.
This clause states that it is an offence if a person intentionally
contravenes subclause 22(1), 22(2), 23(2) or 23(6), and the disclosure of
information mentioned in that subclause is likely to prejudice national
security.
The maximum penalty for this offence is 2 years
imprisonment.
Clause 38: 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 24(2) or 24(3) and that person discloses the information in
contravention of the certificate. However, the person does not commit an
offence where disclosure occurs after the court orders disclosure under
subclause 29(5).
The maximum penalty for this offence is 2 years
imprisonment.
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 39: 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 26(2), and that person calls the
witness in contravention of the certificate. However, the person does not
commit an offence where disclosure occurs after the court orders that a witness
may be called under paragraph 29(7)(b).
The maximum penalty for this
offence is 2 years imprisonment.
Clause 40: 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.
The maximum
penalty for this offence is 2 years imprisonment.
This criminal penalty
reinforces the serious nature of a court order.
Clause 41: Offence to
disclose information to certain persons without security clearance
etc
This clause states that it is an offence if, for the purposes of
a federal criminal proceeding, a person discloses to a legal representative of
the defendant or a person assisting a legal representative of the defendant
information the disclosure of which is likely to prejudice national security.
However, an offence is not committed where the disclosure occurs in giving
evidence in the proceeding, the legal representative or his or her assistant has
received from the Department a security clearance considered appropriate by the
Secretary, the Secretary has approved the disclosure or the disclosure takes
place in compliance with conditions that the Secretary has approved.
The
maximum penalty for this offence is 2 years imprisonment.
Part 6
Miscellaneous
Clause 42: 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, each House of Parliament a report
stating the number of certificates the Attorney-General has given under
clauses 24 and 26 throughout that year and identifying the criminal
proceedings to which the certificates relate.
Clause 43: Rules of
Court
This clause describes the power to make rules of court that
prescribe matters relating to the Act.
Clause 44:
Regulations
This clause describes the Governor-General’s power
to make regulations that prescribe matters relating to the Act.