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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
28th 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.