Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2004
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
National
Security Information (Criminal Proceedings) Bill
2004
No. ,
2004
(Attorney-General)
A
Bill for an Act relating to the protection of certain information from
disclosure in federal criminal proceedings, and for related
purposes
Contents
A Bill for an Act relating to the protection of certain
information from disclosure in federal criminal proceedings, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the National Security Information (Criminal
Proceedings) Act 2004.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Sections 3 to 49 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
(1) The object of this Act is to prevent the disclosure of information in
federal criminal proceedings where the disclosure is likely to prejudice
national security, except to the extent that preventing the disclosure would
seriously interfere with the administration of justice.
(2) In exercising powers or performing functions under this Act, a court
must have regard to the object of this Act.
This Act extends to every external Territory.
This Act binds the Crown in each of its capacities.
(1) Subject to subsection (2), this Act applies to a federal criminal
proceeding if:
(a) the proceeding begins on or after the day on which this section
commences; and
(b) the prosecutor gives notice in writing to the defendant and the court
that this Act applies to the proceeding.
(2) If the prosecutor gives the notice after the proceeding begins, this
Act only applies to the part of the proceeding that takes place after the notice
is given.
In this Act, unless the contrary intention appears:
apply to the court means apply to the court either orally or
in writing.
ceases to be subject to appeal has the meaning given by
section 20.
criminal proceeding has the meaning given by
section 13.
defendant has the meaning given by subsection
15(1).
disclose information in a criminal proceeding
means:
(a) give the information in evidence in the proceeding; or
(b) otherwise disclose the information to the court conducting the
proceeding or to any person for the purposes of the proceeding;
whether orally or by giving, or disclosing the contents of, a
document.
document has the same meaning as in the Evidence Act
1995.
federal criminal proceeding has the meaning given by
section 14.
information means information as defined in subsection
90.1(1) of the Criminal Code, whether or not in the public
domain.
in permitted circumstances has the meaning given by
section 16.
international relations has the meaning given by
section 10.
law enforcement interests has the meaning given by
section 11.
likely to prejudice national security has the meaning given
by section 17.
national interests has the meaning given by
section 12.
national security has the meaning given by
section 8.
prosecutor, in relation to a federal criminal proceeding,
means the Director of Public Prosecutions or a person representing the Director
in relation to the proceeding.
security has the meaning given by section 9.
trial includes a proceeding for the summary conviction of a
person.
In this Act, national security means Australia’s
defence, security, international relations, law enforcement interests or
national interests.
In this Act, security has the same meaning as in the
Australian Security Intelligence Organisation Act 1979.
In this Act, international relations means political,
military and economic relations with foreign governments and international
organisations.
In this Act, law enforcement interests includes interests
in the following:
(a) avoiding disruption to national and international efforts relating to
law enforcement, criminal intelligence, criminal investigation, foreign
intelligence and security intelligence;
(b) protecting the technologies and methods used to collect, analyse,
secure or otherwise deal with, criminal intelligence, foreign intelligence or
security intelligence;
(c) the protection and safety of informants and of persons associated with
informants;
(d) ensuring that intelligence and law enforcement agencies are not
discouraged from giving information to a nation’s government and
government agencies.
In this Act, national interests means economic,
technological or scientific interests important to the stability and integrity
of a nation.
(1) In this Act, criminal proceeding means a proceeding for
the prosecution, whether summarily or on indictment, of an offence or
offences.
(2) To avoid doubt, each of the following is part of a criminal
proceeding:
(a) a bail proceeding;
(b) a committal proceeding;
(c) the discovery, exchange, production, inspection or disclosure of
intended evidence, documents and reports of persons intended to be called by a
party to give evidence;
(d) a sentencing proceeding;
(e) an appeal proceeding;
(f) a proceeding with respect to any matter in which a person seeks a writ
of mandamus or prohibition or an injunction against an officer or officers of
the Commonwealth (within the meaning of subsection 39B(1B) of the Judiciary
Act 1903) in relation to:
(i) a decision to prosecute a person for one or more offences against a
law of the Commonwealth; or
(ii) a related criminal justice process decision (within the meaning of
subsection 39B(3) of that Act);
(g) any other pre-trial, interlocutory or post-trial proceeding prescribed
by regulations for the purposes of this paragraph.
In this Act, federal criminal proceeding means:
(a) a criminal proceeding in any court exercising federal jurisdiction,
where the offence or any of the offences concerned are against a law of the
Commonwealth; or
(b) a court proceeding under, or in relation to a matter arising under,
the Extradition Act 1988.
(1) In this Act, unless the contrary intention appears,
defendant means:
(a) in relation to a federal criminal proceeding mentioned in paragraph
14(a)—a person charged with the offence or offences concerned (even if the
proceeding takes place after any conviction of the person); or
(b) in relation to a federal criminal proceeding mentioned in paragraph
14(b)—a person to whom the proceeding relates.
(2) If there is more than one defendant in a federal criminal proceeding,
this Act applies separately in relation to each defendant.
A person discloses information in permitted circumstances
if:
(a) the person is the prosecutor in a federal criminal proceeding and the
person discloses the information in the course of his or her duties in relation
to the proceeding; or
(b) the person is a staff member within the meaning of the Intelligence
Services Act 2001 and the person discloses the information in the course of
his or her duties.
A disclosure of national security information is likely to
prejudice national security if there is a real, and not merely a remote,
possibility that the disclosure will prejudice national security.
This Act does not affect the operation of the provisions of any other
Act, other than:
(a) sections 26, 27, 29, 43 to 45 and 48 of the Evidence Act
1995; and
(b) sections 70, 80 and 80A of the Judiciary Act
1903.
(1) The power of a court to control the conduct of a federal criminal
proceeding, in particular with respect to abuse of process, is not affected by
this Act, except so far as this Act expressly or impliedly provides
otherwise.
Consideration of a matter in relation to closed hearings not to prevent
later stay order
(2) To avoid doubt, the fact that the court considers a matter in making
an order under section 31 does not prevent the court from later ordering
that the federal criminal proceeding be stayed on a ground involving the same
matter.
An order of a court ceases to be subject to appeal
when:
(a) the period for appealing against the order ends without an appeal
being made; or
(b) if an appeal is made against the order—the appeal is finally
determined or otherwise disposed of.
(1) Before the trial in a federal criminal proceeding begins, the
prosecutor or defendant may apply to the court for the court to hold a
conference of the parties to consider issues relating to any disclosure, in the
trial, of information that relates to national security or any disclosure, of
information in the trial, that may affect national security,
including:
(a) whether the prosecutor or defendant is likely to be required to give
notice under section 24; and
(b) whether the parties wish to enter into an arrangement of the kind
mentioned in section 22.
(2) The court must hold the conference as soon as possible after the
application is made.
(1) At any time during a federal criminal proceeding, the prosecutor and
the defendant may agree to an arrangement about any disclosure, in the
proceeding, of information that relates to national security or any disclosure,
of information in the proceeding, that may affect national security.
(2) The court may make such order (if any) as it considers appropriate to
give effect to the arrangement.
(1) The regulations may prescribe ways in which information that is
disclosed, or to be disclosed, to the court in a federal criminal proceeding
must be stored.
(2) At any time during a federal criminal proceeding, the court may make
an order relating to the protection or storage of information that is disclosed,
or to be disclosed, to the court in the proceeding.
(3) A court must not make an order under subsection (2) that is
inconsistent with a regulation mentioned in subsection (1).
Note: The court may also make orders under section 93.2
of the Criminal Code and under other provisions of this Act in order to
protect information from disclosure.
(1) If the prosecutor or defendant knows or believes that:
(a) he or she will disclose, in a federal criminal proceeding, information
that relates to national security; or
(b) he or she will disclose information in a federal criminal proceeding
and the disclosure may affect national security; or
(c) a person whom the prosecutor or defendant intends to call as a witness
in a federal criminal proceeding will disclose information in giving evidence or
by his or her mere presence and:
(i) the information relates to national security; or
(ii) the disclosure may affect national security;
the prosecutor or defendant must, as soon as practicable, give the
Attorney-General notice in writing of that knowledge or belief.
Note: Section 25 deals with the situation where the
prosecutor or defendant knows or believes that a disclosure by a witness in
answering a question may relate to or affect national security.
Requirements for notice
(2) The notice must:
(a) be in the prescribed form; and
(b) if paragraph (c) does not apply—include a description of
the information; and
(c) if the information is contained in a document—be accompanied by
a copy of the document or by an extract from the document, that contains the
information.
Informing the court etc. of an expected disclosure
(3) The prosecutor or defendant must also advise, in writing, the court,
the other party and any person to whom paragraph (1)(c) applies that notice
has been given to the Attorney-General. The advice must include a description of
the information.
Note: Failure to give notice or advice as required by this
section is an offence: see section 42.
Adjournment to allow sufficient time for Attorney-General to act on the
notice
(4) On receiving the advice, the court must order that the proceeding be
adjourned until the Attorney-General gives a copy of a certificate to the court
under subsection 26(4) or gives advice to the court under subsection 26(7)
(which applies if a decision is made not to give a certificate).
Witness expected to disclose information in giving
evidence
(1) This section applies if:
(a) a witness is asked a question in giving evidence in a federal criminal
proceeding; and
(b) the prosecutor or defendant knows or believes that:
(i) information that will be disclosed in the witness’s answer
relates to national security; or
(ii) the disclosure of information in the witness’s answer may
affect national security.
(2) The prosecutor or defendant must advise the court of that knowledge or
belief.
Note: Failure to advise the court is an offence: see
section 42.
Court must hold hearing
(3) The court must adjourn the proceeding and hold a hearing.
(4) The closed hearing requirements apply.
(5) At the hearing, the witness must give the court a written answer to
the question. The court must show the answer to the prosecutor.
Prosecutor must give notice to Attorney-General etc.
(6) If the prosecutor knows or believes that, if the written answer were
to be given in evidence in the proceeding:
(a) the information that would be disclosed in the witness’s answer
relates to national security; or
(b) the disclosure of information in the witness’s answer may affect
national security;
the prosecutor must advise the court of that knowledge or belief and, as
soon as practicable, give the Attorney-General notice in writing of that
knowledge or belief.
Note: Failure to advise the court or to notify the
Attorney-General is an offence: see section 42.
Court must adjourn proceeding
(7) If the court is advised under subsection (6), it must order that
the proceeding be adjourned until the Attorney-General gives a copy of a
certificate to the court under subsection 26(4) or gives advice to the court
under subsection 26(7) (which applies if a decision is made not to give a
certificate).
(1) This section applies if:
(a) any of the following happens:
(i) the Attorney-General is notified under section 24 that the
prosecutor or defendant knows or believes that the prosecutor or defendant or
another person will disclose information in a federal criminal
proceeding;
(ii) the Attorney-General for any reason expects that any of the
circumstances mentioned in paragraphs 24(1)(a) to (c) will arise under which the
prosecutor or defendant or another person will disclose information in a federal
criminal proceeding;
(iii) the Attorney-General is notified under subsection 25(6) that the
prosecutor considers that an answer by a witness in a hearing in relation to a
federal criminal proceeding will disclose information; and
(b) paragraph 28(1)(a) (about the mere presence of a witness constituting
disclosure) does not apply; and
(c) the Attorney-General considers that the disclosure is likely to
prejudice national security.
Attorney-General may give a certificate—case where information is
in the form of a document
(2) If the information would be disclosed in a document (the source
document), the Attorney-General may give each potential discloser (see
subsection (8)) of the information in the proceeding:
(a) any of the following:
(i) a copy of the document with the information deleted;
(ii) a copy of the document with the information deleted and a summary of
the information attached to the document;
(iii) a copy of the document with the information deleted and a statement
of facts that the information would, or would be likely to, prove attached to
the document;
together with a certificate that describes the information and states
that the potential discloser must not, except in permitted circumstances,
disclose the information (whether in the proceeding or otherwise), but may
disclose the copy, or the copy and the statement or summary; or
(b) a certificate that describes the information and states that the
potential discloser must not, except in permitted circumstances, disclose the
information (whether in the proceeding or otherwise).
Attorney-General may give a certificate—case where information is
not in the form of a document
(3) If the information would be disclosed other than in a document, the
Attorney-General may give each potential discloser of the information in the
proceeding:
(a) either:
(i) a written summary of the information; or
(ii) a written statement of facts that the information would, or would be
likely to, prove;
together with a certificate that describes the information and states
that the potential discloser must not, except in permitted circumstances,
disclose the information (whether in the proceeding or otherwise), but may
disclose the summary or statement; or
(b) a certificate that describes the information and states that the
potential discloser must not, except in permitted circumstances, disclose the
information (whether in the proceeding or otherwise).
(4) The Attorney-General must give the court a copy of:
(a) in any case—the certificate; and
(b) if paragraph (2)(a) applies—the source document, the
document mentioned in subparagraph (2)(a)(i), (ii) or (iii) and the summary
or statement mentioned in subparagraph (2)(a)(ii) or (iii); and
(c) if paragraph (3)(a) applies—the summary or statement
mentioned in that paragraph.
Duration of a certificate
(5) The certificate ceases to have effect when any order by the court
under section 31 on the hearing in relation to the certificate ceases to be
subject to appeal, unless the certificate is revoked by the Attorney-General
before then.
Certificate is not a legislative instrument
(6) A certificate given to a potential discloser under this section is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
Attorney-General may decide not to give a certificate
(7) If the Attorney-General decides not to do as mentioned in
subsection (2) or (3), the Attorney-General must, in writing, advise each
potential discloser and the court of his or her decision.
Definition of potential discloser
(8) Each of the following persons is a potential discloser
of the information in the proceeding:
(a) if subparagraph (1)(a)(i) or (ii) applies and the disclosure is
by the prosecutor or defendant—the prosecutor or defendant; or
(b) if subparagraph (1)(a)(i) or (ii) applies and the disclosure is
by a person other than the prosecutor or defendant—the prosecutor or
defendant and the other person; or
(c) if subparagraph (1)(a)(iii) applies—the prosecutor,
defendant and the witness mentioned in that subparagraph.
Consequences of certificate for pre-trial proceedings
(1) If a proceeding is covered by paragraph 14(a) (about a proceeding
involving a trial) and, under section 26, the Attorney-General gives a
potential discloser a certificate at any time during a part of the proceeding
that takes place before the trial begins, the certificate is conclusive
evidence, during that part of the proceeding and any later part that takes place
before the hearing mentioned in paragraph (3)(a) begins, that disclosure of
the information in the proceeding is likely to prejudice national
security.
Consequences of certificate for extradition proceedings
(2) If a proceeding is covered by paragraph 14(b) (about extradition
proceedings) and, under section 26, the Attorney-General gives a potential
discloser a certificate at any time 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.
Court hearing
(3) If a proceeding is covered by paragraph 14(a) (about a proceeding
involving a trial) and, under section 26, the Attorney-General gives a
potential discloser a certificate at any time during the proceeding, the court
must:
(a) in any case where the certificate is given to the court before the
trial begins—before the trial begins, hold a hearing to decide whether to
make an order under section 31 in relation to the disclosure of the
information; or
(b) if subparagraph 26(1)(a)(i) or (iii) applies and the certificate is
given to the court after the trial begins—continue the adjournment of the
proceeding mentioned in subsection 24(4) or 25(7) for the purpose of holding a
hearing to decide whether to make an order under section 31 in relation to
the disclosure of the information; or
(c) if subparagraph 26(1)(a)(ii) applies and the certificate is given to
the court after the trial begins—adjourn the proceeding for the purpose of
holding a hearing to decide whether to make an order under section 31 in
relation to the disclosure of the information.
(4) If the Attorney-General revokes the certificate at any time while the
proceeding is adjourned or the hearing is being held, the court must end the
adjournment or the hearing.
(5) The closed hearing requirements apply to the hearing.
(1) This section applies if:
(a) either:
(i) the Attorney-General is notified under section 24 that the
prosecutor or defendant knows or believes that a person whom the prosecutor or
defendant intends to call as a witness in a federal criminal proceeding will
disclose information by his or her mere presence; or
(ii) the Attorney-General for any reason expects that a person whom the
prosecutor or defendant intends to call as a witness in a federal criminal
proceeding will disclose information by his or her mere presence; and
(b) the Attorney-General considers that the disclosure is likely to
prejudice national security.
Attorney-General may give a certificate
(2) The Attorney-General may give a certificate to the prosecutor or
defendant, as the case may be, that states that the prosecutor or defendant must
not call the person as a witness in the federal criminal proceeding.
(3) The Attorney-General must give a copy of the certificate to the
court.
Duration of a certificate
(4) The certificate ceases to have effect when any order by the court
under section 31 on the hearing in relation to the certificate ceases to be
subject to appeal, unless the certificate is revoked by the Attorney-General
before then.
Court hearing
(5) If the proceeding is covered by paragraph 14(a) (about a proceeding
involving a trial), the court must:
(a) if the certificate is given to the court before the trial
begins—before the trial begins, hold a hearing to decide whether to make
an order under section 31 in relation to the calling of the witness;
or
(b) if the certificate is given to the court after the trial
begins—adjourn the proceeding for the purpose of holding a hearing to
decide whether to make an order under section 31 in relation to the calling
of the witness.
(6) If the proceeding is covered by paragraph 14(b) (about extradition
proceedings), 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 that the disclosure is likely to prejudice
national security.
(7) The closed hearing requirements apply to the hearing.
(8) If the Attorney-General revokes the certificate at any time while the
proceeding is adjourned or the hearing is being held, the court must end the
adjournment or the hearing.
Certificate is not a legislative instrument
(9) A certificate given to the prosecutor or defendant under this section
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Attorney-General may decide not to give a certificate
(10) If the Attorney-General decides not to do as mentioned in
subsection (2), the Attorney-General must, in writing, advise the
prosecutor or defendant, as the case requires, and the court of his or her
decision.
(1) This section sets out the closed hearing requirements
for a hearing under subsection 25(3), 27(3) or 28(5).
Note: The fact that those provisions provide that the closed
hearing requirements apply to certain hearings does not prevent the court from
exercising any powers that it otherwise has eg to exclude persons (such as
members of the public) from other hearings or to prevent publication of
evidence.
Who may be present
(2) Subject to this section, no-one, including the jury (if any), must be
present at the hearing except:
(a) the magistrate, judge or judges comprising the court; and
(b) court officials; and
(c) the prosecutor; and
(d) the defendant; and
(e) any legal representative of the defendant; and
(f) if section 30 applies—the Attorney-General and any legal
representative of the Attorney-General; and
(g) any witnesses allowed by the court.
(3) If the court considers that the information concerned would be
disclosed to:
(a) the defendant; or
(b) any legal representative of the defendant who has not been given a
security clearance at the level considered appropriate by the Secretary in
relation to the information concerned; or
(c) any court official who has not been given a security clearance at the
level considered appropriate by the Secretary in relation to the information
concerned;
and that the disclosure would be likely to prejudice national security, the
court may order that the defendant, the legal representative or the court
official is not entitled to be present during any part of the hearing in which
the prosecutor or any person mentioned in paragraph (2)(f):
(d) gives details of the information; or
(e) gives information in arguing why the information should not be
disclosed, or why the witness should not be called to give evidence, in the
proceeding.
Defendant’s submissions about prosecutor’s non-disclosure
arguments
(4) If, at the hearing, the prosecutor or any person mentioned in
paragraph (2)(f) argues that any information should not be
disclosed, or that the witness should not be called to give evidence, in the
proceeding, the defendant and any legal representative of the defendant must be
given the opportunity to make submissions to the court about the argument that
the information should not be disclosed or the witness should not be
called.
Court to make etc. record of hearing
(5) The court must:
(a) make and keep a sealed record of the hearing; and
(b) make the record available to, and only to, a court that hears an
appeal against, or reviews, its decision on the hearing.
(1) The Attorney-General may, on behalf of the Commonwealth, intervene in
a hearing in a federal criminal proceeding in relation to which the closed
hearing requirements apply.
(2) If the Attorney-General intervenes in the hearing, he or she is
treated as if he or she is a party to the hearing.
Non-disclosure certificate hearings
(1) After holding a hearing required under subsection 27(3) in relation to
the disclosure of information in a federal criminal proceeding, the court must
make an order under one of subsections (2), (4) and (5) of this
section.
(2) If the information is in the form of a document, the court may order
under this subsection that:
(a) any person to whom the certificate mentioned in subsection 26(2) or
(3) was given in accordance with that subsection; and
(b) any person to whom the contents of the certificate have been disclosed
for the purposes of the hearing; and
(c) any other specified person;
must not, except in permitted circumstances, disclose the information
(whether in the proceeding or otherwise), but may, subject to
subsection (3), disclose (which disclosure may or may not be the same as
was permitted in the Attorney-General’s certificate) in the
proceeding:
(d) a copy of the document with the information deleted; or
(e) a copy of the document with the information deleted and a summary of
the information, as set out in the order, attached to the document; or
(f) a copy of the document with the information deleted and a statement of
facts, as set out in the order, that the information would, or would be likely
to, prove attached to the document.
(3) If the court makes an order under subsection (2), the copy of the
document is admissible in evidence if, apart from the order, it is admissible.
However if:
(a) a person who is the subject of the order seeks to adduce evidence of
the contents of the document; and
(b) the contents of the document are admissible in evidence in the
proceeding;
the person may adduce evidence of the contents of the document by tendering
the copy, or the copy and the summary or statement, mentioned in that
subsection.
(4) The court may, regardless of the form of the information, order under
this subsection that:
(a) any person to whom the certificate mentioned in subsection 26(2) or
(3) was given in accordance with that subsection; and
(b) any person to whom the contents of the certificate have been disclosed
for the purposes of the hearing; and
(c) any other specified person;
must not, except in permitted circumstances, disclose the information
(whether in the proceeding or otherwise).
(5) The court may, regardless of the form of the information, order under
this subsection that any person may disclose the information in the proceeding.
However, the information is only admissible in evidence in the proceeding if,
apart from the order, it is admissible.
Witness exclusion certificate hearings
(6) After holding a hearing required under subsection 28(5), the court
must order that:
(a) the prosecutor or defendant must not call the person as a witness in
the federal criminal proceeding; or
(b) the prosecutor or defendant may call the person as a witness in the
federal criminal proceeding.
Factors to be considered by court
(7) The Court must, in deciding what order to make under this section,
consider the following matters:
(a) whether, having regard to the Attorney-General’s certificate,
there would be a risk of prejudice to national security if:
(i) where the certificate was given under subsection 26(2) or
(3)—the information were disclosed in contravention of the certificate;
or
(ii) where the certificate was given under subsection 28(2)—the
witness were called;
(b) whether any such order would have a substantial adverse effect on the
defendant’s right to receive a fair hearing, including in particular on
the conduct of his or her defence;
(c) any other matter the court considers relevant.
(8) In making its decision, the Court must give greatest weight to the
matter mentioned in paragraph (7)(a).
Requirement to give reasons
(1) The court must give a written statement of its reasons for making an
order under section 31 to the following people:
(a) the person who is the subject of the order;
(b) the prosecutor;
(c) the defendant;
(d) any legal representative of the defendant;
(e) if section 30 applies—the Attorney-General and any legal
representative of the Attorney-General.
Copy of proposed statement to be given to prosecutor etc.
(2) Before the court gives its statement under subsection (1), the
court must give a copy of the proposed statement to the prosecutor and, if
section 30 applies, the Attorney-General (each of whom is a statement
recipient).
Statement recipient may request variation of proposed
statement
(3) If a statement recipient considers that giving the proposed statement
will disclose information and the disclosure is likely to prejudice national
security, the statement recipient may request that the court vary the proposed
statement so that the national security information will not be
disclosed.
Court’s decision
(4) The court must make a decision on the request.
(1) If the court makes a decision under section 32, a statement
recipient (within the meaning of that section) may request that the court delay
giving its statement of reasons to allow time for the statement recipient
to:
(a) decide whether to appeal against the court’s decision;
and
(b) if the statement recipient decides to do so—make the
appeal.
(2) The court must grant the request.
An order made by the court under this Division:
(a) does not come into force until the order ceases to be subject to
appeal; and
(b) remains in force until it is revoked by the court.
(1) If:
(a) in accordance with paragraph 27(3)(a), the court holds a hearing to
decide whether to make an order under section 31 in relation to information
described in a certificate given to the court before the trial in a federal
criminal proceeding began; and
(b) after holding the hearing, the court makes an order under subsection
31(5) that any person may disclose the information;
the order does not have the effect that there are grounds for re-conducting
any part of the proceeding that took place before the trial began.
(2) If:
(a) in accordance with paragraph 28(5)(a), the court holds a hearing to
decide whether to make an order under section 31 in relation to the calling
of a witness that is the subject of a certificate given to the court before the
trial in a federal criminal proceeding began; and
(b) after holding the hearing, the court makes an order under paragraph
31(6)(b) that the person may be called as a witness;
the order does not have the effect that there are grounds for re-conducting
any part of the proceeding that took place before the trial began.
(1) If the court makes an order under section 31, the prosecutor may
apply to the court for an adjournment of the federal criminal proceeding to
allow time for the prosecutor to:
(a) decide whether to appeal against the court order or to withdraw the
proceeding; and
(b) if the prosecutor decides to do so—make the appeal or
withdrawal.
(2) If the court makes an order under section 31, the defendant may
apply to the court for an adjournment of the federal criminal proceeding to
allow time for the defendant to:
(a) decide whether to appeal against the court order; and
(b) if the defendant decides to do so—make the appeal.
(3) The court must grant the adjournment.
(1) The prosecutor, the defendant or, if the Attorney-General is an
intervener under section 30, the Attorney-General may appeal against any
order of the court made under section 31.
(2) The court that has jurisdiction to hear and determine appeals from the
judgment on the trial in the proceeding has jurisdiction to hear and determine
any appeal under this section.
(1) A statement recipient (within the meaning of section 32) may
appeal against any decision of the court made under section 32.
(2) The court that has jurisdiction to hear and determine appeals from the
judgment on the trial in the proceeding has jurisdiction to hear and determine
any appeal under this section.
(1) This section applies if, before or during a federal criminal
proceeding, the Secretary of the Attorney-General’s Department gives
written notice to any of the following persons:
(a) a legal representative of the defendant;
(b) a person assisting a legal representative of the defendant;
that in the proceeding an issue is likely to arise relating to a
disclosure, of information in the proceeding, that is likely to prejudice
national security.
Person may apply for security clearance
(2) A person who receives a notice under subsection (1) may apply to
the Secretary for a security clearance by the Department at the level considered
appropriate by the Secretary in relation to the information.
Note 1: Security clearances are given in accordance with the
Australian Government Protective Security Manual.
Note 2: If the person does not obtain the security
clearance, anyone who discloses such information to the person will, except in
limited circumstances, commit an offence under section 46.
Adjournment to allow sufficient time for defendant’s legal
representative to be given security clearance
(3) The defendant may apply to the court for a deferral or adjournment of
the proceeding until:
(a) the legal representative has been given a security clearance by the
Department at the level considered appropriate by the Secretary in relation to
the information; or
(b) if the legal representative is not given such a security
clearance—another legal representative is given such a security
clearance.
(4) The court must defer or adjourn the proceeding accordingly.
Prosecutor may advise the court that the defendant’s legal
representative has not been given a security clearance etc.
(5) 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:
(a) the prosecutor may advise the court of the fact; and
(b) the court may:
(i) advise the defendant of the consequences of engaging a legal
representative who has not been given a security clearance by the Department at
the level considered appropriate by the Secretary in relation to the
information; and
(ii) recommend that the defendant engage a legal representative who has
been given, or is prepared to apply for, such a security
clearance.
Disclosure where notice given to Attorney-General under
section 24
(1) If:
(a) the prosecutor or defendant gives notice to the Attorney-General under
subsection 24(1) about the disclosure of information in a federal criminal
proceeding by the prosecutor or defendant or another person; and
(b) section 41 does not apply; and
(c) the following person:
(i) if the disclosure is by the prosecutor or defendant—the
prosecutor or defendant, as the case may be; or
(ii) if the disclosure is by a person other than the prosecutor or
defendant—the prosecutor or the defendant, as the case may be, or the
other person;
discloses the information (whether in the proceeding or otherwise) at any
time before the Attorney-General gives the person a certificate under subsection
26(2) or (3) or advice under subsection 26(7) in relation to the disclosure of
the information; and
(d) the disclosure does not take place in permitted circumstances;
and
(e) the disclosure is likely to prejudice national security;
the person who discloses the information commits an offence.
Penalty: Imprisonment for 2 years.
Disclosure where notice given to Attorney-General under
section 25
(2) If:
(a) the prosecutor gives notice to the Attorney-General under subsection
25(6) that the prosecutor knows or believes that an answer by a witness in a
hearing in relation to a federal criminal proceeding will disclose information;
and
(b) section 41 does not apply; and
(c) the prosecutor or the witness discloses the information (whether in
the proceeding or otherwise) at any time before the Attorney-General gives the
prosecutor or the witness a certificate under subsection 26(2) or (3) or advice
under subsection 26(7) in relation to the disclosure of the information;
and
(d) the disclosure does not take place in permitted circumstances;
and
(e) the disclosure is likely to prejudice national security;
the prosecutor or the witness commits an offence.
Penalty: Imprisonment for 2 years.
If:
(a) the prosecutor or defendant notifies the Attorney-General under
section 24 that the prosecutor or defendant knows or believes that a person
whom the prosecutor or defendant intends to call as a witness in a federal
criminal proceeding will disclose information by his or her mere presence;
and
(b) the prosecutor or the defendant calls the person as a witness in the
federal criminal proceeding at any time before the Attorney-General gives the
prosecutor or defendant a certificate under subsection 28(2) or advice under
subsection 28(10) in relation to the calling of the witness; and
(c) the disclosure of the information by the mere presence of the person
is likely to prejudice national security;
the prosecutor or the defendant commits an offence.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
(a) the person contravenes subsection 24(1), (2) or (3) or 25(2) or (6);
and
(b) the disclosure of information mentioned in that subsection is likely
to prejudice national security.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
(a) the person is given a certificate under subsection 26(2) or (3) in
relation to the disclosure of information; and
(b) the person discloses the information in contravention of the
certificate.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
(a) the person is given a certificate under subsection 28(2) in relation
to the calling of a witness; and
(b) the person calls the witness in contravention of the
certificate.
Penalty: Imprisonment for 2 years.
If:
(a) the court makes an order under this Act; and
(b) a person intentionally contravenes the order;
the person commits an offence.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
(a) for the purposes of a federal criminal proceeding, the person
discloses, other than in giving evidence in that proceeding or in permitted
circumstances, information to:
(i) a legal representative of the defendant; or
(ii) a person assisting a legal representative of the defendant;
and
(b) the disclosure is likely to prejudice national security; and
(c) none of the following subparagraphs apply:
(i) the Attorney-General’s Department has given the legal
representative or person mentioned in subparagraph (a)(ii) a security
clearance at the level considered appropriate by the Secretary in relation to
the information;
(ii) the disclosure has been approved by the Secretary;
(iii) the disclosure takes place in compliance with conditions approved by
the Secretary.
Penalty: Imprisonment for 2 years.
As soon as practicable after 30 June in each year, the
Attorney-General must cause to be laid before each House of the Parliament a
report that:
(a) states the number of certificates given by the Attorney-General under
sections 26 and 28 during the year; and
(b) identifies the criminal proceedings to which the certificates
relate.
The power to make rules of court extends to making rules, not
inconsistent with this Act or the regulations, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.