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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