National Security Information (Criminal and Civil Proceedings) Regulations 2005

National Security Information (Criminal and Civil Proceedings) Regulations 2005

Select Legislative Instrument 2005 No. 1 as amended

made under the

National Security Information (Criminal and Civil Proceedings) Act 2004

This compilation was prepared on 1 October 2006
taking into account amendments up to SLI 2006 No. 243

The text of any of those amendments not in force
on that date is appended in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

Contents

Part 1 Preliminary 

 1 Name of Regulations [see Note 1]

 2 Commencement [see Note 1]

 3 Definitions 

Part 2 Protection of information in federal criminal proceedings             

 4 Definitions 

 4A Protection of certain information disclosed in a federal criminal proceeding — storage, handling or destruction             

 4B Protection of certain information disclosed in a federal criminal proceeding — access to information             

 4C Protection of certain information disclosed in a federal criminal proceeding — preparation of documents or records relating to information             

 5 Notice by prosecutor or defendant of expected disclosure in a federal criminal proceeding of information relating to or affecting national security             

 6 Closed hearing requirements in federal criminal proceedings — access to record of hearing by legal representative of defendant             

Part 3 Protection of information in civil proceedings 

 7 Protection of certain information disclosed in a civil proceeding             

 8 Notice by party to a civil proceeding of expected disclosure in the proceeding of information relating to or affecting national security             

 9 Closed hearing requirements in civil proceedings — access to record of hearing by party to the proceedings or party’s legal representative             

Schedule 1 Forms 

Form 1 Notice of expected disclosure in a federal criminal proceeding of information relating to or affecting national security             

Form 2 Notice of expected disclosure in a civil proceeding of information relating to or affecting national security             

Notes   

Part 1 Preliminary

1 Name of Regulations [see Note 1]

  These Regulations are the National Security Information (Criminal and Civil Proceedings) Regulations 2005.

2 Commencement [see Note 1]

  These Regulations commence on the day on which they are registered.

3 Definitions

  In these Regulations:

Act means the National Security Information (Criminal and Civil Proceedings) Act 2004.

national security information means information:

 (a) that relates to national security, or the disclosure of which may affect national security; and

 (b) that is disclosed, or to be disclosed, to the court in a federal criminal proceeding or a civil proceeding.

Note   Information is defined in section 7 of the Act. National security is defined in section 8 of the Act.

Requirements for the Protection of National Security Information means the document titled ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings and Civil Proceedings’, issued by the Attorney‑General’s Department and as in force on 30 September 2006.

Note   This document is available from the Attorney‑General’s Department, or at www.nationalsecurity.gov.au — select the link to the Legislation page, and then select the National Security Information (Criminal and Civil Proceedings) Act 2004 hyperlink.

Part 2 Protection of information in federal criminal proceedings

4 Definitions

  In this Part:

arrangement means an arrangement under subsection 22 (1) of the Act.

order means an order made by a court under subsection 22 (2) of the Act.

4A Protection of certain information disclosed in a federal criminal proceeding — storage, handling or destruction

 (1) For paragraph 23 (1) (a) of the Act, national security information must be stored, handled or destroyed in accordance with the Requirements for the Protection of National Security Information.

 (2) This regulation does not apply to national security information the disclosure of which is the subject of an arrangement or order relating to the storage, handling or destruction of that information.

4B Protection of certain information disclosed in a federal criminal proceeding — access to information

 (1) For paragraph 23 (1) (b) of the Act, the ways in which, and the places at which, national security information may be accessed are as set out in the Requirements for the Protection of National Security Information.

 (2) This regulation does not apply to national security information the disclosure of which is the subject of an arrangement or order relating to the ways in which, and the places at which, that information may be accessed.

4C Protection of certain information disclosed in a federal criminal proceeding — preparation of documents or records relating to information

 (1) For paragraph 23 (1) (b) of the Act, the ways in which, and the places at which, documents or records relating to national security information may be prepared are as set out in the Requirements for the Protection of National Security Information.

 (2) This regulation does not apply to national security information the disclosure of which is the subject of an arrangement or order relating to the ways in which, and the places at which, documents or records relating to that information may be prepared.

5 Notice by prosecutor or defendant of expected disclosure in a federal criminal proceeding of information relating to or affecting national security

  For paragraph 24 (2) (a) of the Act, Form 1 set out in Schedule 1 is prescribed.

6 Closed hearing requirements in federal criminal proceedings — access to record of hearing by legal representative of defendant

  For paragraph 29 (5) (d) of the Act:

 (a) the ways in which, and the places at which, the record of the hearing mentioned in subsection 29 (5) may be accessed are as provided by the Requirements for the Protection of National Security Information; and

 (b) the ways in which, and the places at which, documents and records in relation to the record of that hearing may be prepared are as provided by the Requirements for the Protection of National Security Information.

Part 3 Protection of information in civil proceedings

7 Protection of certain information disclosed in a civil proceeding

 (1) For paragraph 38C (1) (a) of the Act, national security information must be stored, handled or destroyed in accordance with the applicable standards set out in the Requirements for the Protection of National Security Information.

Note   The applicable method is determined by reference to the classification of the relevant information.

 (2) For paragraph 38C (1) (b) of the Act:

 (a) the ways in which, and the places at which, national security information may be accessed are as provided by the Requirements for the Protection of National Security Information; and

 (b) the ways in which, and the places at which, documents and records relating to national security information may be prepared are as provided by the Requirements for the Protection of National Security Information.

8 Notice by party to a civil proceeding of expected disclosure in the proceeding of information relating to or affecting national security

  For paragraph 38D (3) (a) of the Act, Form 2 set out in Schedule 1 is prescribed.

9 Closed hearing requirements in civil proceedings — access to record of hearing by party to the proceedings or party’s legal representative

  For paragraph 38I (9) (a) of the Act:

 (a) the ways in which, and the places at which, the record of the hearing mentioned in subparagraph 38I (9) (a) (iii) or (iv), as applicable, may be accessed are as provided by the Requirements for the Protection of National Security Information; and

 (b) the ways in which, and the places at which, documents and records in relation to that record may be prepared are as provided by the Requirements for the Protection of National Security Information.

Schedule 1 Forms

(regulations 5 and 8)

Form 1 Notice of expected disclosure in a federal criminal proceeding of information relating to or affecting national security

COMMONWEALTH OF AUSTRALIA

National Security Information (Criminal and Civil Proceedings) Act 2004

NOTICE BY *PROSECUTOR/*DEFENDANT OF EXPECTED DISCLOSURE IN A FEDERAL CRIMINAL PROCEEDING OF INFORMATION RELATING TO OR AFFECTING NATIONAL SECURITY

TO   The Attorney‑General

1. I, [name], am *the prosecutor/*the defendant in the following federal criminal proceeding: [name or description of proceeding].

2. I give notice under section 24 of the National Security Information (Criminal and Civil Proceedings) Act 2004 that I *know/*believe that:

*(a) I will disclose, in the federal criminal proceeding, information that relates to national security.

*(b) I will disclose information in the federal criminal proceeding and the disclosure may affect national security.

*(c) The person known as [name or code] whom *I intend/*the prosecutor intends/*the defendant intends to call as a witness in the federal criminal proceeding will disclose information *in giving evidence/*by the person’s mere presence, and:

*(i) the information relates to national security; or

*(ii) the disclosure may affect national security.

*3. The information that will be disclosed is [include a description of the information].

 OR

*3. The information that will be disclosed is contained in the following *document/*documents: [give details of each document, for example, the title, author and date of issue, if applicable].

 A copy of each document, or the relevant extract from each document that contains the information, accompanies this notice.

Dated:

……………………………………….

(signature of *prosecutor/*defendant)

[Insert particulars of *prosecutor/*defendant, including: full name; full address; telephone number; facsimile number; e‑mail address; and name, address, telephone number, facsimile number and e‑mail address of agent solicitor, if applicable.]

*   Omit if not applicable

Note   The prosecutor or defendant must also advise, in writing, the court, the other party, and any person to whom paragraph 2 (c) applies that this notice has been given to the Attorney‑General. The advice must include a description of the information that will be disclosed. See subsection 24 (3) of the National Security Information (Criminal and Civil Proceedings) Act 2004.

Form 2 Notice of expected disclosure in a civil proceeding of information relating to or affecting national security

COMMONWEALTH OF AUSTRALIA

National Security Information (Criminal and Civil Proceedings) Act 2004

NOTICE BY PARTY OF EXPECTED DISCLOSURE IN A CIVIL PROCEEDING OF INFORMATION RELATING TO OR AFFECTING NATIONAL SECURITY

TO   *The Attorney‑General/*The Minister appointed under subsection 6A (3) of the National Security Information (Criminal and Civil Proceedings) Act 2004/*The Minister appointed under subsection 6A (4) of the National Security Information (Criminal and Civil Proceedings) Act 2004

1. I, [name], am a party to the following civil proceeding: [name or description of proceeding].

2. I give notice under section 38D of the National Security Information (Criminal and Civil Proceedings) Act 2004 that I *know/*believe that:

*(a) I will disclose, in the civil proceeding, information that relates to national security.

*(b) I will disclose information in the civil proceeding and the disclosure may affect national security.

*(c) The person known as [name or code] whom I intend to call as a witness in the civil proceeding will disclose information *in giving evidence/*by the person’s mere presence, and:

*(i) the information relates to national security; or

*(ii) the disclosure may affect national security.

*3. The information that will be disclosed is [include a description of the information].

 OR

*3. The information that will be disclosed is contained in the following *document/*documents: [give details of each document, for example, the title, author and date of issue, if applicable].

 A copy of each document, or the relevant extract from each document that contains the information, accompanies this notice.

Dated:

……………………………………….

(signature of party)

[Insert particulars of party, including: full name; full address; telephone number; facsimile number; e‑mail address; and name, address, telephone number, facsimile number and e‑mail address of agent solicitor, if applicable.]

*   Omit if not applicable

Note   The party must also advise, in writing, the court, the other parties to the proceeding, and any person to whom paragraph 2 (c) applies that this notice has been given to the Attorney‑General (or to the Minister appointed by the Attorney‑General under subsection 6A (3) or  (4) of the National Security Information (Criminal and Civil Proceedings) Act 2004). The advice must include a description of the information that will be disclosed. See subsection 38D (4) of the Act.

Notes to the National Security Information (Criminal and Civil Proceedings) Regulations 2005

Note 1

The National Security Information (Criminal and Civil Proceedings) Regulations 2005 (in force under the National Security Information (Criminal and Civil Proceedings) Act 2004) as shown in this compilation comprise Select Legislative Instrument 2005 No. 1 amended as indicated in the Tables below.

Table of Instruments

Table of Amendments