EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 65
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 2006 (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 20 September 2005.
The Regulations reflect that the Requirements have been re-issued to make a minor amendment and refer to them as the document issued by the Attorney‑General’s Department and as in force on 1 April 2006.
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 19 September 2005. On 31 March 2005, DSD re‑issued ACSI 33. The Requirements have been re-issued to reflect this change.
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 2 April 2006.
Overview
The National Security Information (Criminal and Civil Proceedings) Amendment Regulations 2006 (No. 1) were enacted to amend the National Security Information (Criminal and Civil Proceedings) Act 2004, with the purpose of ensuring the protection of sensitive national security information in federal criminal and civil proceedings, while maintaining the principles of a fair trial. The Act was established to address the issue of safeguarding information that pertains to national security, and the risk that disclosure of such information could pose to national interests. The Regulations were issued by the authority of the Attorney-General and aim to implement the legislative framework established by the Act. These Regulations provide the necessary details and guidelines for the handling and protection of national security information, reflecting changes to the 'Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings', and ensuring consistency with the Australian Government Information Technology Manual, ACSI 33.
Scope and Application
The National Security Information (Criminal and Civil Proceedings) Act 2004 applies to information that pertains to national security and extends to federal criminal proceedings and civil proceedings in any Australian court. Its primary aim is to protect sensitive information that, if disclosed, could potentially harm national security while ensuring that defendants receive a fair trial. The Act provides the framework for handling such sensitive information, and its regulations are designed to operationalise this framework by detailing the specific methods and locations where protected information must be accessed, prepared, and managed. These regulations refer to the 'Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings,' which were issued by the Attorney-General’s Department and updated to reflect minor amendments. The Act empowers the Governor-General to make regulations necessary or convenient for its execution, with the Regulations commencing on 2 April 2006. The Act's jurisdictional reach is federal, affecting all courts within Australia, and it does not specify any conditions or thresholds for its application. The Regulations, as subordinate instruments, extend the application by providing detailed operational guidelines.
Key Provisions
The key provisions of the National Security Information (Criminal and Civil Proceedings) Amendment Regulations 2006 (No. 1) (the Regulations) include the adjustments and updates to the requirements for the protection of national security information in federal criminal proceedings and civil proceedings. Section 3 of the Regulations outlines the amendments to the Principal Regulations, which were originally established under the National Security Information (Criminal and Civil Proceedings) Regulations 2005. These amendments are necessary to reflect the updated Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings, as issued by the Attorney-General’s Department on 1 April 2006. These Requirements now refer to the new version of ACSI 33, the Australian Government Information Technology Manual, issued by the Defence Signals Directorate on 19 September 2005.
The Regulations impose specific obligations on the parties and entities involved in federal criminal proceedings and civil proceedings concerning national security information. They mandate that such information must be accessed, prepared, and handled in accordance with the updated Requirements. This includes the implementation of appropriate security measures to protect the information from unauthorised disclosure, ensuring that only authorised personnel have access to it under strict conditions. The Regulations also require that any documents containing national security information be handled in a manner that minimises the risk of unauthorised disclosure, and that such documents be securely stored and destroyed when no longer required.
Failure to comply with the Regulations can result in significant legal consequences. While the Regulations themselves do not explicitly state the penalties for non-compliance, breaches of the Act and its regulations can lead to criminal charges under Section 53 of the Act, which pertains to the unauthorised disclosure of national security information. This can result in fines up to $22,200 for individuals and $111,000 for bodies corporate, as well as imprisonment for up to five years. Additionally, civil proceedings may be initiated for damages resulting from the unauthorised disclosure of national security information, with the potential for substantial financial penalties. The seriousness of these potential consequences underscores the importance of adhering to the requirements set forth by the Regulations.