Bills Digest No. 113 2004–05
National Security Information (Criminal Proceedings)
Amendment (Application) Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
National
Security Information (Criminal Proceedings) Amendment (Application)
Bill 2005
Date
Introduced: 9
February 2005
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Royal
Assent
The Bill has two purposes:
-
to enable the National Security Information (Criminal
Proceedings) Act 2004 (the Principal Act) to be applied to the
future parts of proceedings that commenced before 11 January 2005
(the date the Principal Act commenced operation), and
-
to ensure that once a notice is given applying the Principal Act
to particular criminal proceedings it applies to all subsequent
parts of those proceedings and not just to the part then on
foot.
A National Security Information (Criminal Proceedings) Bill 2004
and a National Security Information (Criminal Proceedings)
(Consequential Provisions) Bill 2004 were first introduced into the
40th Parliament in May 2004. Both were referred to a
Senate Committee which reported on 30 August 2004. The Committee
supported the Bills subject to a number of amendments being
made.(1)
The Bills lapsed when Parliament was prorogued for the 2004
election. New Bills, which adopted some of the Committee s
recommendations, were introduced into the 41st
Parliament on 17 November 2004. They passed on 8 December 2004
after being amended in both the Senate and the House of
Representatives. The legislation commenced on 11 January 2005.
In brief, the Principal Act and the National Security
Information (Criminal Proceedings) (Consequential Amendments) Act
2004 have the following purposes:
to allow prosecutors and courts to use information
the disclosure of which would be prejudicial to the national
interest (national security information) in criminal proceedings
while preventing broader disclosure of such information including,
in some circumstances, disclosure to the defendant
to allow certain witnesses, whose mere presence
might disclose national security information, to be excluded from
criminal proceedings, and
to require that defence lawyers undergo security
clearance before they can view national security information that
might be relevant to a criminal trial.(2)
For a detailed discussion of the content of the legislation and
its effects, readers of this Digest are referred to the Bills
Digests for the:
The Bill repeals and replaces section 6 of the Principal Act,
which deals with the application of the legislation. Subsection
6(1) currently provides that the Act applies to federal criminal
proceedings commenced on or after 11 January 2005 once the
prosecutor gives the requisite notice to the court and the
defendant.
A federal criminal proceeding (3) is a criminal
proceeding for a Commonwealth offence or an extradition matter. To
avoid doubt , section 13 lists matters which are part of a
criminal proceeding .(4) These include bail
proceedings, committals, sentencing, appeals and proceedings
prescribed by regulation.
As things stand, if a federal criminal proceeding , as defined,
commenced before 11 January 2005 then the Act will not apply to any
subsequent parts of that proceeding. For instance, if a person s
committal hearing commenced before 11 January 2005, then the Act
would not apply to the trial, sentencing or any appeal even if
these commenced on or after 11 January 2005.
Item 1 of the Schedule amends
subsection 6(1) of the Principal Act so that if the prosecutor
gives the requisite notice, the Act applies from that point onwards
to proceedings irrespective of whether they commenced before, on or
after the day the section commences.
Item 1 also amends subsection 6(2) of the
Principal Act. Subsection 6(2) presently provides that if, after
proceedings commence, the prosecutor has given notice that the
Principal Act applies then this Act only applies to the part of the
proceeding that takes place after the notice is given. As it
stands, subsection 6(2) may suggest that new notices must be given
at each stage of a criminal proceeding. Item 1
puts it beyond doubt that once the prosecutor has given the notice,
the Act will apply to all subsequent stages of that particular
criminal proceeding.
Concluding Comments
As the Government states, the legislation is not retrospective
in its application to pre-11 January 2005 proceedings because it
will only apply to future parts of those proceedings. The Bill does
not change the application of the Act to any parts of pre-11
January 2005 proceedings that took place before 11 January.
It is the Government s view that:
It was not intended that, simply because a person
had been charged and a bail hearing had occurred before the
commencement of the Act on 11 January 2005, the Act could not be
applied to the committal or trial of a person some months or years
later.(5)
It is also the Government s position that without the amendments
effected by the Bill there is a risk that any attempt to apply the
Act to future stages of these proceedings would be found
incompetent (6) and that the amendments are
clarifications that will ensure that the Act is not subject to
misinterpretation. (7)
Nevertheless, the operation of sections 6, 13 and 14 as they
currently stand seems clear to exclude from coverage all stages of
federal criminal proceedings if those proceedings (as defined)
commenced before 11 January 2005. Any future parts of proceedings
that commenced before 11 January 2005 will be covered by the Act
with the amendments proposed in the Bill.
In debating the Bill, Parliament may wish to weigh up its
potential impact on the protection of national security information
on the one hand and on defendants in affected terrorism-related
proceedings on the other.
The application of the Act means that a defendant s witnesses
can be excluded, lawyers already retained by them may need to be
security cleared in order to provide effective legal
representation, and defendants and their legal representatives may
be excluded from closed court hearings held to determine whether
non-disclosure and witness exclusion orders should be made. The
need to obtain a security clearance for a lawyer already retained
by a defendant will result in proceedings being adjourned with the
consequence that a defendant may be imprisoned for a longer period
while awaiting trial. The application of the Act may also affect
how a defendant and their legal counsel have planned their trial or
other proceedings based on the understanding that the Principal Act
does not apply to their case. Whether the amendments may
unacceptably compromise a defendant s right to a fair trial is one
matter that Parliament may wish to consider.(8)
-
Senate Legal and Constitutional Legislation Committee,
Provisions of the National Security Information (Criminal
Proceedings) Bill 2004 and the National Security Information
(Criminal Proceedings) (Consequential Amendments) Bill
2004, 19 August 2004.
-
Jacob Varghese, National Security Information (Criminal
Proceedings) Bill 2004; National Security Information (Criminal
Proceedings) (Consequential Amendments) Bill 2004, Bills
Digest Nos. 59-60, 2004-05, 29 November 2004.
-
Section 14, Principal Act.
-
Emphasis added.
-
Attorney-General, Second Reading Speech, National Security
Information (Criminal Proceedings) Amendment (Application) Bill
2005, House of Representatives, Hansard, 9 February 2005,
p. 1.
-
Explanatory Memorandum, p. 1.
-
Attorney-General, op. cit.
-
See Varghese, op. cit. for a discussion of the legal protections
that applied to national security information before the Principal
Act commenced.
Jennifer Norberry
14 February 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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