EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 203
ISSUED BY THE AUTHORITY OF THE ATTORNEY‑GENERAL
National Security Information (Criminal and Civil Proceedings) Act 2004
NATIONAL SECURITY INFORMATION (CRIMINAL AND CIVIL PROCEEDINGS) AMENDMENT REGULATIONS 2005 (No. 1)
The National Security Information (Criminal and Civil Proceedings) Act 2004 (the Act) seeks to protect, in certain federal criminal proceedings and in civil proceedings in any Australian Court, information that relates to national security, and information which may affect national security if disclosed. At the same time, the Act seeks to uphold the right of the defendant to a fair trial.
Section 49 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The National Security Information (Criminal and Civil Proceedings) Regulations 2005 (the Principal Regulations) specify how and where information that requires protection under the Act must be accessed, prepared and otherwise handled. The Principal Regulations refer to the methods and places specified in the ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings’ (the Requirements), a document issued by the Attorney‑General’s Department on 2 August 2005.
Appendix C to the Requirements contains an explanation of terms. The term ‘ACSI 33’ is explained as the Australian Government Information Technology Manual issued by Defence Signals Directorate (DSD), as in force on 1 March 2005. On 19 September 2005, DSD re‑issued ACSI 33. The Requirements have been re-issued to reflect this change. The Regulations reflect that the Requirements have been re-issued and refer to them as the document issued by the Attorney‑General’s Department and as in force on 20 September 2005.
The Department has consulted with DSD about the release of the new version of ACSI 33.
The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on 21 September 2005.
Overview
The National Security Information (Criminal and Civil Proceedings) Amendment Regulations 2005 (No. 1) were enacted to address the need for updated references within the National Security Information (Criminal and Civil Proceedings) Act 2004, specifically to align with the re-issued requirements for the protection of national security information. This was necessary following the re-issuance of the Australian Government Information Technology Manual (ACSI 33) by the Defence Signals Directorate on 19 September 2005. The Regulations, made under the authority of the Attorney-General, ensure that the legislative framework remains current and effective in protecting sensitive national security information while allowing for fair judicial processes. The policy objective remains to balance the protection of national security information with the upholding of fair trial rights, as stipulated in the original Act.
Scope and Application
The National Security Information (Criminal and Civil Proceedings) Act 2004 applies to all persons and entities involved in federal criminal proceedings and civil proceedings in any Australian court, specifically focusing on the protection of sensitive information that pertains to national security or could potentially compromise it if disclosed. The Act's jurisdictional reach extends across the Commonwealth of Australia, ensuring that all courts and legal proceedings within this domain are governed by its provisions. It aims to balance the protection of national security information with the fundamental right of defendants to a fair trial. The Act’s application is broad, encompassing any information that is classified or protected under national security laws. However, the Act does not specify any exclusions, exemptions, or thresholds for its application. The scope of the Act is further defined and expanded through subordinate legislation, specifically the National Security Information (Criminal and Civil Proceedings) Regulations 2005, which detail the methods and places where protected information must be handled, accessed, and prepared. These Regulations, in turn, refer to the ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings’ issued by the Attorney-General’s Department.
Key Provisions
The National Security Information (Criminal and Civil Proceedings) Amendment Regulations 2005 (No. 1) primarily focus on modifying the original National Security Information (Criminal and Civil Proceedings) Regulations 2005. These amendments are designed to align with updates and changes in relevant security protocols and documentation. For instance, Section 1 of the Amendment Regulations updates references to the ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings’ to reflect the re-issued version by the Attorney-General’s Department on 20 September 2005. This ensures that the regulations adhere to the most current standards and practices in handling sensitive national security information.
These Regulations impose specific obligations on parties involved in federal criminal and civil proceedings. They must ensure that any national security information is handled according to the updated requirements, which include the methods and places specified in the re-issued document from the Attorney-General’s Department. This involves strict protocols for accessing, preparing, and otherwise managing information that requires protection under the Act. These obligations are critical to maintaining the integrity and confidentiality of sensitive national security information while still allowing for a fair trial for defendants.
In terms of enforcement, breaches of the provisions set out in these Regulations can result in various consequences. Although the explanatory statement does not explicitly outline specific offences or penalties, it is reasonable to infer that non-compliance with these regulations could lead to legal repercussions under the Act. Typically, violations of such sensitive information protocols could result in civil or criminal penalties, including fines and imprisonment, depending on the severity of the breach and the intent behind it. The exact penalties would be in line with the provisions of the main Act, which may impose substantial fines and imprisonment terms to deter non-compliance.