EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 29
ISSUED BY THE AUTHORITY OF THE ATTORNEY‑GENERAL
National Security Information (Criminal Proceedings) Act 2004
NATIONAL SECURITY INFORMATION (CRIMINAL PROCEEDINGS) AMENDMENT REGULATIONS 2005 (No. 1)
The National Security Information (Criminal Proceedings) Act 2004 (the Act) seeks to protect, in certain federal criminal proceedings, 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. The main provisions of the Act commenced on 11 January 2005.
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 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’ (the Requirements), a document issued by the Attorney‑General’s Department on 10 January 2005.
Appendix C to the Requirements contains an explanation of terms. The term ‘ACSI 33’ is explained as the ‘Australian Government Information and Communications Technology Security Manual issued by Defence Signals Directorate (DSD) as in force on 17 September 2004.’ On 1 March 2005, DSD re-issued ACSI 33. The Requirements have been re-issued to reflect this change. The proposed Regulations would 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 10 March 2005.
The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The amended Regulations are a legislative instrument for the purposes of the Legislative Instrument Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Overview
The National Security Information (Criminal Proceedings) Amendment Regulations 2005 (No. 1) were enacted to align with the re-issue of the 'Requirements for the Protection of National Security Information in Federal Criminal Proceedings' document by the Attorney-General’s Department, reflecting the updated Australian Government Information and Communications Technology Security Manual issued by Defence Signals Directorate on 10 March 2005. This legislative instrument was issued under the authority of the Attorney-General and serves to update the handling and protection of national security information within the federal criminal justice system as stipulated by the National Security Information (Criminal Proceedings) Act 2004. The Act aims to safeguard sensitive information that pertains to national security while ensuring that defendants in criminal proceedings receive a fair trial. The Regulations, which came into effect following their registration on the Federal Register of Legislative Instruments, ensure that the procedures and protocols for managing national security information remain current and effective.
Scope and Application
The National Security Information (Criminal Proceedings) Act 2004 applies to all federal criminal proceedings where there is information that relates to national security or that may affect national security if disclosed. The Act aims to protect such sensitive information while ensuring the defendant’s right to a fair trial is upheld. The Act’s jurisdiction extends across the Commonwealth of Australia, impacting entities and individuals involved in federal criminal proceedings. The Act does not specify exclusions, exemptions, or thresholds for its application; instead, it relies on the Regulations to provide the necessary details. The National Security Information (Criminal Proceedings) Regulations 2005 outline how to access, prepare, and handle protected information, and they refer to the ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings’. The Regulations can be amended through subordinate instruments to reflect changes such as updates to referenced documents like ACSI 33. The Act empowers the Governor-General to make additional regulations as necessary for its effective implementation.
Key Provisions
The National Security Information (Criminal Proceedings) Amendment Regulations 2005 (No. 1) amends the National Security Information (Criminal Proceedings) Regulations 2005. The key provision of the amendment is that it updates the reference to the ‘Requirements for the Protection of National Security Information in Federal Criminal Proceedings’ to the version issued by the Attorney-General’s Department on 10 March 2005, instead of the 10 January 2005 version (section 2). This is to reflect the reissued Requirements which were updated to incorporate the re-issuance of the Australian Government Information and Communications Technology Security Manual issued by Defence Signals Directorate (DSD) as in force on 17 September 2004. The Regulations are designed to ensure that the methods and procedures for handling national security information in federal criminal proceedings are current and compliant with the most recent security standards.
Under the Regulations, parties involved in federal criminal proceedings, including legal representatives, must adhere to the updated Requirements for the Protection of National Security Information. This means they must follow specific protocols for accessing, preparing, and handling national security information to prevent unauthorised disclosure and ensure the information's integrity and confidentiality. The Requirements provide detailed instructions on the physical and digital measures to be taken, including secure storage, handling procedures, and the use of secure communication channels. These obligations are intended to protect sensitive information while still allowing for a fair trial.
Breaches of the Regulations can lead to significant consequences. While the Act itself does not detail specific penalties, the unauthorised disclosure of national security information can result in criminal charges under other legislation, such as the Crimes Act 1914. Penalties for such offences can include substantial fines and imprisonment. Additionally, civil liabilities may arise if individuals or entities fail to comply with the Regulations, potentially leading to lawsuits for damages caused by the unauthorised disclosure of sensitive information. The severity of these consequences underscores the importance of strict adherence to the Regulations.