1Short title
This Act may be cited as the National Security Information (Criminal and Civil Proceedings) Act 2004.
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Bill homepage (APH)This Act may be cited as the National Security Information (Criminal and Civil Proceedings) Act 2004.
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. | 14 December 2004 |
2. Sections 3 to 49 | The 28th day after the day on which this Act receives the Royal Assent. | 11 January 2005 |
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.
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.
The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil 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.
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.
This Act does not make the Crown liable to be prosecuted for an offence.
Subject to subsection (2), this Act applies to a federal criminal proceeding, whether begun before, on or after the day on which this section commences, if the prosecutor gives notice in writing to the defendant, the defendant’s legal representative and the court that this Act applies to the proceeding.
If the prosecutor gives the notice after the proceeding begins, this Act only applies to the parts of the proceeding that occur after the notice is given (whether or not those parts began before that time).
A notice given under this section is not a legislative instrument.
Application to civil proceedings—Attorney‑General not a party to proceedings
If:
the Attorney‑General is not a party to a civil proceeding, whether begun before, on or after the day on which this section commences; and
the Attorney‑General gives notice in writing to the parties to the proceeding, the legal representatives of the parties to the proceeding and the court that this Act applies to the proceeding;
then, subject to subsection (5), this Act applies to the proceeding.
Application to civil proceedings—Attorney‑General a party to proceedings
If:
the Attorney‑General is, or becomes, a party to a civil proceeding, whether begun before, on or after the day on which this section commences; and
the Minister appointed under subsection (3) or (4) gives notice in writing to the parties to the proceeding, the legal representatives of the parties to the proceeding and the court that this Act applies to the proceeding;
then:
subject to subsection (5), this Act applies to the proceeding; and
the Minister must perform the functions and exercise the powers, in relation to the proceeding, that are conferred on the Attorney‑General under Divisions 1A, 1, 2, 3 and 4 of Part 3A; and
references in:
Division 4 of Part 2; and
Divisions 1A, 1, 2, 3 and 4 of Part 3A; and
Division 2 of Part 5;
to the Attorney‑General (other than references to the Attorney‑General as a party to the proceeding) are to be read as references to the Minister.
Attorney‑General to appoint alternative Minister
The Attorney‑General must, as soon as possible after the commencement of this section, appoint in writing another Minister for the purposes of the operation of subsection (2) in relation to all civil proceedings.
If the Minister appointed under subsection (3) is, or becomes, a party to a civil proceeding to which the Attorney‑General also is or becomes a party, the Attorney‑General must appoint a different Minister for the purposes of the operation of subsection (2) in relation to that civil proceeding.
Application to civil proceedings—notice given after a proceeding has begun
If the Attorney‑General or the Minister gives the notice after the proceeding has begun, this Act only applies to the parts of the proceeding that occur after the notice is given (whether or not those parts began before that time).
Notice and appointment are not legislative instruments
A notice given under subsection (1) or (2) and an appointment made by the Attorney‑General under subsection (3) or (4) are not legislative instruments.
In this Act, unless the contrary intention appears:
apply to the court means apply to the court either orally or in writing.
CDO or continuing detention order means a continuing detention order made under Division 105A of the Criminal Code.
ceases to be subject to appeal has the meaning given by section 20.
civil proceeding has the meaning given by section 15A.
control order has the meaning given by section 100.1 of the Criminal Code.
court official means an individual who:
is employed or engaged by a court to perform services in the court in relation to a proceeding in the court; or
in relation to a federal criminal proceeding in a court—supervises the defendant in the court.
criminal proceeding has the meaning given by section 13.
defendant, in relation to a federal criminal proceeding, has the meaning given by subsection 15(1).
disclose information in a criminal proceeding or a civil proceeding means:
give the information in evidence in the proceeding; or
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.
Division 105A ESO proceeding means a proceeding under Division 105A of the Criminal Code in relation to an application:
for an extended supervision order in relation to a terrorist offender; or
for a variation of an extended supervision order in relation to a terrorist offender; or
for a review of an extended supervision order in relation to a terrorist offender; or
to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender if, in the proceeding:
the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) of the Code; and
the Court is considering making an extended supervision order as mentioned in paragraph 105A.7(2)(b).
See also the definition of ESO or extended supervision order in this section.
document has the same meaning as in the Evidence Act 1995.
ESO or extended supervision order means:
an order made under subsection 105A.7A(1) of the Criminal Code; or
an interim supervision order made under Division 105A of the Criminal Code.
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 security has the meaning given by section 8.
national security information means information:
that relates to national security; or
the disclosure of which may affect national security.
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.
special advocate, of a party to a civil proceeding, has the meaning given by subsection 38PA(1).
substantial adverse effect means an effect that is adverse and not insubstantial, insignificant or trivial.
terrorist offender has the meaning given by section 105A.2 of the Criminal Code.
trial includes a proceeding for the summary conviction of a person.
In this Act, national security means Australia’s defence, security, international relations or law enforcement 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:
avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;
protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;
the protection and safety of informants and of persons associated with informants;
ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.
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