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SLI 2005 No. 165 Regulations as made
These Regulations amend the National Security Information (Criminal Proceedings) Regulations 2005 (the Principal Regulations), as a consequence of amendments to the National Security Information (Criminal Proceedings) Act 2004. The Principal Regulations currently only apply to federal criminal proceedings. The Regulations extend the application of the Principal Regulations to civil proceedings. In particular, the Regulations specify how and where information that requires protection under the Act must be accessed, prepared and otherwise handled in civil proceedings.
Administered by: Attorney-General's
Registered 22 Jul 2005
Tabling HistoryDate
Tabled HR09-Aug-2005
Tabled Senate09-Aug-2005
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

National Security Information (Criminal Proceedings) Amendment Regulations 2005 (No. 2)1

Select Legislative Instrument 2005 No. 165

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the National Security Information (Criminal Proceedings) Act 2004.

Dated 21 July 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

PHILIP RUDDOCK


1              Name of Regulations

                These Regulations are the National Security Information (Criminal Proceedings) Amendment Regulations 2005 (No. 2).

2              Commencement

                These Regulations commence on the commencement of Schedule 1 to the National Security Information Legislation Amendment Act 2005.

3              Amendment of National Security Information (Criminal Proceedings) Regulations 2005

                Schedule 1 amends the National Security Information (Criminal Proceedings) Regulations 2005.


Schedule 1        Amendments

(regulation 3)

  

[1]           Before regulation 1

insert

Part 1                 Preliminary

[2]           Regulation 1

omit

the National Security Information (Criminal Proceedings) Regulations 2005.

insert

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

[3]           Regulation 3, definition of Act

substitute

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

[4]           Regulation 3, definition of national security information, paragraph (b)

omit

in a federal criminal proceeding.

insert

in a federal criminal proceeding or a civil proceeding.

[5]           Regulation 3, definition of Requirements for the Protection of National Security Information, except the note

substitute

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 the commencement of Schedule 1 to the National Security Information Legislation Amendment Act 2005.

[6]           After regulation 3

insert

Part 2                 Protection of information in federal criminal proceedings

[7]           Regulation 5, heading

substitute

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

[8]           Regulation 5

omit

the form of notice

insert

Form 1

[9]           Regulation 6, heading

substitute

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

[10]         After regulation 6

insert

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.

[11]         Schedule 1

substitute

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.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.