NATIONAL SECURITY INFORMATION LEGISLATION AMENDMENT BILL 2005

i National Security Information Legislation Amendment Bill 2005 No. , 2005

Contents

Short title.......................................................................................1

Commencement .............................................................................1

Schedule(s)....................................................................................2

Schedule 1--Amendments

Part 1--Amendment of the National Security Information

(Criminal Proceedings) Act 2004

Part 2--Amendment of other Acts

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903

National Security Information Legislation Amendment Bill 2005 No. , 2005 1

A Bill for an Act to amend the National Security

Information (Criminal Proceedings) Act 2004, and

for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the National Security Information

Legislation Amendment Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 National Security Information Legislation Amendment Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The 28th day after the day on which this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 3

Schedule 1--Amendments

Part 1--Amendment of the National Security

Information (Criminal Proceedings) Act 2004

1 Title

After "federal criminal proceedings", insert "and civil proceedings".

2 Section 1

Omit "(Criminal Proceedings)", substitute "(Criminal and Civil

Proceedings)".

3 Subsection 3(1)

After "federal criminal proceedings", insert "and civil proceedings".

4 Section 5

Before "This", insert "(1)".

5 At the end of section 5

Add:

(2) This Act does not make the Crown liable to be prosecuted for an

offence.

6 At the end of section 6

Add:

(3) A notice given under this section is not a legislative instrument.

Note:

The heading to section 6 is altered by adding at the end "to federal criminal

proceedings".

7 After section 6

Insert:

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

4 National Security Information Legislation Amendment Bill 2005 No. , 2005

6A Application of Act to civil proceedings

Application to civil proceedings--Attorney-General not a party to

proceedings

(1) If:

(a) the Attorney-General is not a party to a civil proceeding,

whether begun before, on or after the day on which this

section commences; and

(b) the Attorney-General gives notice in writing to the parties to

the proceeding and the court that this Act applies to the

proceeding;

then, subject to subsection (5), this Act applies to the proceeding.

Application to civil proceedings--Attorney-General a party to

proceedings

(2) If:

(a) the Attorney-General is, or becomes, a party to a civil

proceeding, whether begun before, on or after the day on

which this section commences; and

(b) the Minister appointed under subsection (3) or (4) gives

notice in writing to the parties to the proceeding and the court

that this Act applies to the proceeding;

then:

and

(d) the Minister must perform the functions and exercise the

powers, in relation to the proceeding, that are conferred on

the Attorney-General under Divisions 2, 3 and 4 of Part 3A;

and

(e) references in:

(i) Division 4 of Part 2; and

(ii) Divisions 2, 3 and 4 of Part 3A; and

(iii) Division 2 of Part 5;

to the Attorney-General (other than references to the

Attorney-General as a party to the proceeding) are to be read

as references to the Minister.

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 5

Attorney-General to appoint alternative Minister

(3) The Attorney-General must, as soon as possible after the

commencement of this section, appoint in writing another Minister

for the purposes of the operation of subsection (2) in relation to all

civil proceedings.

(4) If the Minister appointed under subsection (3) is, or becomes, a

party to a civil proceeding to which the Attorney-General also is or

becomes a party, the Attorney-General must appoint a different

Minister for the purposes of the operation of subsection (2) in

relation to that civil proceeding.

Application to civil proceedings--notice given after a proceeding

has begun

(5) If the Attorney-General or the Minister gives the notice after the

proceeding has begun, this Act only applies to the parts of the

proceeding that take place after the notice is given.

Notice and appointment are not legislative instruments

(6) A notice given under subsection (1) or (2) and an appointment

made by the Attorney-General under subsection (3) or (4) are not a

legislative instruments for the purposes of the Legislative

Instruments Act 2003.

8 Section 7

Insert:

civil proceeding has the meaning given by section 15A.

9 Section 7 (definition of defendant)

After "defendant", insert ", in relation to a federal criminal

proceeding,".

10 Section 7 (definition of disclose)

After "criminal proceeding", insert "or a civil proceeding".

Note:

The heading to section 15 is altered by adding at the end "in relation to a federal

criminal proceeding".

11 After Division 3 of Part 2

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

6 National Security Information Legislation Amendment Bill 2005 No. , 2005

Insert:

Division 3A--Civil proceeding definition

15A Meaning of civil proceeding

(1) In this Act, civil proceeding means any proceeding in a court of the

Commonwealth, a State or Territory, other than a federal criminal

proceeding, and includes a contempt proceeding in relation to

another civil proceeding or a federal criminal proceeding.

Note:

The Act only applies to a civil proceeding in respect of which a notice

has been given under section 6A.

(2) To avoid doubt, each of the following is part of a civil proceeding:

(a) any proceeding on an ex parte application (including an

application made before pleadings are filed in a court);

(b) the discovery, exchange, production, inspection or disclosure

of intended evidence, documents and reports of persons

intended to be called by a party to give evidence;

(d) any interlocutory or other proceeding prescribed by

regulations for the purposes of this paragraph.

12 After paragraph 16(a)

Insert:

(aa) the person:

(i) is a party to a civil proceeding; and

(ii) has been given a security clearance by the Department

at the level considered appropriate by the Secretary;

and discloses the information in the proceeding, or in a

closed hearing in relation to the proceeding; or

(ab) the person:

(i) is a Minister; or

(ii) is in the employment of the Commonwealth or an

authority of the Commonwealth; or

(iii) holds or performs any duties of any office or position

under a law of the Commonwealth;

and the person discloses the information in the course of his

or her duties in relation to a civil proceeding; or

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 7

(ac) the person:

(i) is the legal representative of a party to a civil

proceeding or, if section 38K applies, of the

Attorney-General; and

(ii) has been given a security clearance by the Department

at the level considered appropriate by the Secretary;

and discloses the information in the course of his or her

duties in relation to the proceeding; or

(ad) the person:

(i) is assisting a legal representative mentioned in

paragraph (ac); and

(ii) has been given a security clearance by the Department

at the level considered appropriate by the Secretary;

and discloses the information in the course of his or her

duties in relation to the proceeding; or

13 At the end of section 19

Add:

Power of a court in a civil proceeding

(3) The power of a court to control the conduct of a civil proceeding,

in particular with respect to abuse of process, is not affected by this

Act, except so far as this Act expressly or impliedly provides

otherwise.

Consideration of a matter in relation to closed hearings in a civil

proceeding not to prevent later stay order

(4) An order under section 38L does not prevent the court from later

ordering that the civil proceeding be stayed on a ground involving

the same matter, including that an order made under section 38L

would have a substantial adverse effect on the substantive hearing

in the proceeding.

Note 1: The following heading to subsection 19(1) is inserted "Power of a court in a federal

criminal proceeding".

Note 2: The heading to subsection 19(2) is altered by inserting "in a federal criminal

proceeding" after "closed hearings".

14 Part 3 (heading)

Repeal the heading, substitute:

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

8 National Security Information Legislation Amendment Bill 2005 No. , 2005

Part 3--Protection of information whose disclosure

in federal criminal proceedings is likely to

prejudice etc. national security

15 Division 1 of Part 3 (heading)

Repeal the heading, substitute:

Division 1--Management of information in federal

criminal proceedings

Note 1: The heading to section 22 is altered by inserting "for federal criminal proceedings"

after "Arrangements".

Note 2: The heading to section 23 is altered by inserting "federal criminal" after "disclosed in

a".

16 Division 2 of Part 3 (heading)

Repeal the heading, substitute:

Division 2--Attorney-General's certificates for protection

of information in federal criminal proceedings

17 Subdivision A of Division 2 of Part 3 (heading)

Repeal the heading, substitute:

Subdivision A--Notifying Attorney-General etc. of expected

disclosure in federal criminal proceedings

Note:

The heading to section 24 is altered by inserting "in federal criminal proceedings"

after "disclosure".

18 Subdivision B of Division 2 of Part 3 (heading)

Repeal the heading, substitute:

Subdivision B--Notifying Attorney-General etc. where

disclosure expected by witness answering question in

federal criminal proceedings

Note:

The heading to section 25 is altered by inserting "in federal criminal proceedings"

after "information".

19 Subdivision C of Division 2 of Part 3 (heading)

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 9

Repeal the heading, substitute:

Subdivision C--Attorney-General's federal criminal

proceedings certificates

Note 1: The heading to section 26 is altered by inserting "criminal" after

"Attorney-General's".

Note 2: The heading to section 27 is altered by inserting "criminal" after "giving".

Note 3: The heading to section 28 is altered by inserting "criminal" after

"Attorney-General's".

20 Division 3 of Part 3 (heading)

Repeal the heading, substitute:

Division 3--Closed hearings and non-disclosure or witness

exclusion orders in federal criminal proceedings

Note 1: The heading to section 29 is altered by adding at the end "in federal criminal

proceedings".

Note 2: The headings to sections 30 and 31 are altered by adding at the end "in federal

criminal proceedings".

21 Division 4 of Part 3 (heading)

Repeal the heading, substitute:

Division 4--Appeals in federal criminal proceedings

22 After Part 3

Insert:

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

10 National Security Information Legislation Amendment Bill 2005 No. , 2005

Part 3A--Protection of information whose

disclosure in civil proceedings is likely to

prejudice etc. national security

Division 1--Management of information in civil

proceedings

38A Conferences before the substantive hearings in civil proceedings

begin

(1) Before the substantive hearing in a civil proceeding begins, a party

to the proceeding may apply to the court for the court to hold a

conference of the parties to consider issues relating to:

(a) any disclosure, in the substantive hearing in the proceeding,

of information that relates to national security; or

(b) any disclosure, of information in the substantive hearing in

the proceeding, that may affect national security;

including:

section 38D; and

(d) whether the parties wish to enter into an arrangement of the

kind mentioned in section 38B.

(2) If the Attorney-General is not a party to the proceeding, the

Attorney-General, on behalf of the Commonwealth, must be given

notice of the conference and either the Attorney-General or his or

her legal representative, or both, may attend it.

(3) If the Attorney-General is a party to the proceeding, the Minister

appointed by the Attorney-General under section 6A must be given

notice of the conference and either the Minister or his or her legal

representative, or both, may attend it.

(4) The court must hold the conference as soon as possible after the

application is made.

38B Arrangements for civil proceedings about disclosures relating to

or affecting national security

(1) At any time during a civil proceeding:

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 11

(a) if the Attorney-General is not a party to the proceeding--the

Attorney-General, on behalf of the Commonwealth, and the

parties to the proceeding; or

(b) if the Attorney-General is a party to the proceeding--the

Minister appointed by the Attorney-General under section 6A

and the parties to the proceeding;

may agree to an arrangement about any disclosure, in the

proceeding, of information that relates to national security or any

disclosure, of information in the proceeding, that may affect

national security.

(2) The court may make such order (if any) as it considers appropriate

to give effect to the arrangement.

38C Protection of certain information disclosed in a civil proceeding

(1) The regulations may prescribe:

(a) ways in which information that is disclosed, or to be

disclosed, to the court in a civil proceeding must be stored,

handled or destroyed; and

(b) ways in which, and places at which, such information may be

accessed and documents or records relating to such

information may be prepared.

(2) At any time during a civil proceeding, the court may make an order

relating to the protection, storage, handling or destruction of

information that is disclosed, or to be disclosed, to the court in the

proceeding.

(3) A court must not make an order under subsection (2) that is

inconsistent with a regulation mentioned in subsection (1).

Note:

The court may also make orders under section 93.2 of the Criminal

Code and under other provisions of this Act in order to protect

information from disclosure.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

12 National Security Information Legislation Amendment Bill 2005 No. , 2005

Division 2--Attorney-General's certificates for protection

of information in civil proceedings

Subdivision A--Notifying Attorney-General etc. of expected

disclosure in civil proceedings

38D Parties must notify expected disclosure in civil proceedings of

information relating to or affecting national security

(1) If a party to a civil proceeding knows or believes that:

(a) he or she will disclose, in the proceeding, information that

relates to national security; or

(b) he or she will disclose information in the proceeding and the

disclosure may affect national security; or

proceeding will disclose information in giving evidence or by

his or her mere presence and:

(i) the information relates to national security; or

(ii) the disclosure may affect national security;

the party must, as soon as practicable, give the Attorney-General

notice in writing of that knowledge or belief.

Note:

Section 38E deals with the situation where a party knows or believes

that a disclosure by a witness in answering a question may relate to or

affect national security.

(2) Despite subsection (1), a party need not give the Attorney-General

notice if:

(a) the information to be disclosed:

(i) is the subject of a certificate given to the party under

section 38F and the certificate still has effect; or

(ii) is the subject of an order in force under section 38B or

38L; or

(b) the disclosure of information by the witness to be called:

(i) is the subject of a certificate given to the party under

section 38H and the certificate still has effect; or

(ii) is the subject of an order in force under section 38B or

38L.

Note:

Subsections 38F(6) and 38H(5) specify when a certificate ceases to

have effect.

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 13

Requirements for notice

(3) The notice must:

(a) be in the prescribed form; and

(b) if paragraph (c) does not apply--include a description of the

information; and

accompanied by a copy of the document or by an extract

from the document, that contains the information.

Informing the court etc. of an expected disclosure

(4) A party who gives notice under subsection (1) must also advise, in

writing:

(a) the court; and

(b) the other parties to the proceeding; and

that notice has been given to the Attorney-General. The advice

must include a description of the information.

Note:

Failure to give notice or advice as required by this section is an

offence: see section 46C.

Adjournment to allow sufficient time for Attorney-General to act

on the notice

(5) On receiving the advice, the court must order that the proceeding

be adjourned until the Attorney-General gives a copy of a

certificate to the court under subsection 38F(5) or gives advice to

the court under subsection 38F(7) (which applies if a decision is

made not to give a certificate).

Subdivision B--Notifying Attorney-General etc. where

disclosure expected by witness answering question in

civil proceedings

38E Preventing witnesses from disclosing information in civil

proceedings by not allowing them to answer questions

Witness expected to disclose information in giving evidence

(1) This section applies if:

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

14 National Security Information Legislation Amendment Bill 2005 No. , 2005

(a) a witness is asked a question in giving evidence in a civil

proceeding; and

(b) a party to the proceeding knows or believes that:

(i) information that will be disclosed in the witness's

answer relates to national security; or

(ii) the disclosure of information in the witness's answer

may affect national security.

(2) The party must advise the court of that knowledge or belief.

Note:

Failure to advise the court is an offence: see section 46C.

Witness must give written answer to question

(3) If the court is advised under subsection (2), the court must order

that the witness give the court a written answer to the question.

Court must adjourn proceeding

(4) The court must adjourn the proceeding on receiving the written

answer. However, the court need not adjourn the proceeding if the

information disclosed by the written answer:

(a) is the subject of a certificate given to the court under

section 38F and the certificate still has effect; or

(b) is the subject of an order in force under section 38B or 38L.

Note:

Subsection 38F(6) specifies when a certificate ceases to have effect.

(5) If the court adjourns the proceeding, the court must give the written

answer to the Attorney-General.

(6) The court must continue the adjournment of the proceeding until

the Attorney-General gives a copy of a certificate to the court

under subsection 38F(5) or gives advice to the court under

subsection 38F(7) (which applies if a decision is made not to give a

certificate).

Subdivision C--Attorney-General's civil proceedings

certificates

38F Attorney-General's civil non-disclosure certificate

(1) This section applies if:

(a) any of the following happens:

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 15

(i) the Attorney-General is notified under section 38D that

a party to a civil proceeding knows or believes that he

or she or another person will disclose information in the

proceeding;

(ii) the Attorney-General for any reason expects that any of

the circumstances mentioned in paragraphs 38D(1)(a) to

disclose information in a civil proceeding;

(iii) the Attorney-General considers that a written answer

given by a witness under section 38E in a civil

proceeding will disclose information; and

(b) paragraph 38H(1)(a) (about the mere presence of a witness

constituting disclosure) does not apply; and

prejudice national security.

Attorney-General may give a certificate--case where information

is in the form of a document

(2) If the information would be disclosed in a document (the source

document), the Attorney-General may give each potential discloser

(see subsection (9)) of the information in the proceeding:

(a) any of the following:

(i) a copy of the document with the information deleted;

(ii) a copy of the document with the information deleted

and a summary of the information attached to the

document;

(iii) a copy of the document with the information deleted

and a statement of facts that the information would, or

would be likely to, prove attached to the document;

together with a certificate that describes the information and

states that the potential discloser must not, except in

permitted circumstances, disclose the information (whether

in the proceeding or otherwise), but may disclose the copy, or

the copy and the statement or summary; or

(b) a certificate that describes the information and states that the

potential discloser must not, except in permitted

circumstances, disclose the information (whether in the

proceeding or otherwise).

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

16 National Security Information Legislation Amendment Bill 2005 No. , 2005

Attorney-General may give a certificate--case where information

is not in the form of a document

(3) If the information would be disclosed other than in a document, the

Attorney-General may give each potential discloser of the

information in the proceeding:

(a) either:

(i) a written summary of the information; or

(ii) a written statement of facts that the information would,

or would be likely to, prove;

together with a certificate that describes the information and

states that the potential discloser must not, except in

permitted circumstances, disclose the information (whether

in the proceeding or otherwise), but may disclose the

summary or statement; or

(b) a certificate that describes the information and states that the

potential discloser must not, except in permitted

circumstances, disclose the information (whether in the

proceeding or otherwise).

Certificate may be given at same time as notice is given under

section 6A

(4) If subparagraph (1)(a)(ii) applies in respect of the proceeding, the

certificate may be given at the same time as notice is given under

section 6A that this Act applies to the proceeding.

Copy of certificate must be given to the court

(5) The Attorney-General must give the court a copy of:

(a) in any case--the certificate; and

(b) if paragraph (2)(a) applies--the source document, the

document mentioned in subparagraph (2)(a)(i), (ii) or (iii)

and the summary or statement mentioned in

subparagraph (2)(a)(ii) or (iii); and

mentioned in that paragraph.

Duration of a certificate

(6) The certificate ceases to have effect when:

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 17

(a) the court makes an order under section 38B about the

disclosure, in the proceeding, of information that is the

subject of the certificate, unless the certificate is revoked by

the Attorney-General before then; or

(b) any order by the court under section 38L on the hearing in

relation to the certificate ceases to be subject to appeal,

unless the certificate is revoked by the Attorney-General

before then.

Attorney-General may decide not to give a certificate

(7) If the Attorney-General decides not to do as mentioned in

subsection (2) or (3), the Attorney-General must, in writing, advise

each potential discloser and the court of his or her decision.

Certificate and written advice are not legislative instruments

(8) A certificate given under subsection (2) or (3) and a written advice

given under subsection (7) are not legislative instruments for the

purposes of the Legislative Instruments Act 2003.

Definition of potential discloser

(9) Each of the following persons is a potential discloser of the

information in the proceeding:

(a) any of the following persons:

(i) if subparagraph (1)(a)(i) or (ii) applies and the

disclosure is by a party to the proceeding--the party; or

(ii) if subparagraph (1)(a)(i) or (ii) applies and the

disclosure is by a person other than a party to the

proceeding--the relevant party and the other person; or

(iii) if subparagraph (1)(a)(iii) applies--the parties to the

proceeding and the witness mentioned in that

subparagraph; and

(b) if a party to the proceeding is a potential discloser under

paragraph (a)--the party's legal representative.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

18 National Security Information Legislation Amendment Bill 2005 No. , 2005

38G Consequences of Attorney-General giving civil non-disclosure

certificate

(1) If, under section 38F, the Attorney-General gives a potential

discloser a certificate at any time during a civil proceeding, the

court must:

(a) in any case where the certificate is given to the court before

the substantive hearing in the proceeding begins--before the

substantive hearing in the proceeding begins, hold a hearing

to decide whether to make an order under section 38L in

relation to the disclosure of the information; or

(b) if subparagraph 38F(1)(a)(i) or (iii) applies and the certificate

is given to the court after the substantive hearing in the

proceeding begins--continue the adjournment of the

proceeding mentioned in subsection 38D(5) or 38E(6) for the

purpose of holding a hearing to decide whether to make an

order under section 38L in relation to the disclosure of the

information; or

given to the court after the substantive hearing in the

proceeding begins--adjourn the proceeding for the purpose

of holding a hearing to decide whether to make an order

under section 38L in relation to the disclosure of the

information.

(2) If, while the proceeding is adjourned or the hearing is being held:

(a) the court makes an order under section 38B about the

disclosure, in the proceeding, of information that is the

subject of the certificate; or

(b) the Attorney-General revokes the certificate;

the court must end the adjournment or the hearing.

(3) The closed hearing requirements apply to the hearing to decide

whether to make an order under section 38L.

38H Attorney-General's civil witness exclusion certificate

(1) This section applies if:

(a) either:

(i) the Attorney-General is notified under section 38D that

a party to a civil proceeding knows or believes that a

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 19

person whom the party intends to call as a witness in the

proceeding will disclose information by his or her mere

presence; or

(ii) the Attorney-General for any reason expects that a

person whom a party to a civil proceeding intends to

call as a witness in the proceeding will disclose

information by his or her mere presence; and

(b) the Attorney-General considers that the disclosure is likely to

prejudice national security.

Attorney-General may give a certificate

(2) The Attorney-General may give a certificate to:

(a) the relevant party to the proceeding; and

(b) the party's legal representative;

that states that the party must not call the person as a witness in the

proceeding.

Certificate may be given at same time as notice is given under

section 6A

(3) If subparagraph (1)(a)(ii) applies in respect of the proceeding, the

certificate may be given at the same time as notice is given under

section 6A that this Act applies to the proceeding.

Copy of certificate must be given to the court

(4) The Attorney-General must give a copy of the certificate to the

court.

Duration of a certificate

(5) The certificate ceases to have effect when:

(a) the court makes an order under section 38B about the

disclosure, in the proceeding, of information by the mere

presence of the person who is the subject of the certificate,

unless the certificate is revoked by the Attorney-General

before then; or

(b) any order by the court under section 38L on the hearing in

relation to the certificate ceases to be subject to appeal,

unless the certificate is revoked by the Attorney-General

before then.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

20 National Security Information Legislation Amendment Bill 2005 No. , 2005

Court hearing

(6) The court must:

(a) if the certificate is given to the court before the substantive

hearing in the proceeding begins--before the substantive

hearing in the proceeding begins, hold a hearing to decide

whether to make an order under section 38L in relation to the

calling of the witness; or

(b) if the certificate is given to the court after the substantive

hearing in the proceeding begins--adjourn the proceeding for

the purpose of holding a hearing to decide whether to make

an order under section 38L in relation to the calling of the

witness.

(7) The closed hearing requirements apply to the hearing to decide

whether to make an order under section 38L.

(8) If, while the proceeding is adjourned or the hearing is being held:

(a) the court makes an order under section 38B about the

disclosure, in the proceeding, of information by the mere

presence of the person who is the subject of the certificate; or

(b) the Attorney-General revokes the certificate;

the court must end the adjournment or the hearing.

Attorney-General may decide not to give a certificate

(9) If the Attorney-General decides not to do as mentioned in

subsection (2), the Attorney-General must, in writing, advise the

relevant party and the court of his or her decision.

Certificate and written advice are not legislative instruments

(10) A certificate given under subsection (2) and a written advice given

under subsection (9) are not legislative instruments for the

purposes of the Legislative Instruments Act 2003.

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 21

Division 3--Closed hearings and non-disclosure or witness

exclusion orders in civil proceedings

38I Closed hearing requirements in civil proceedings

(1) This section sets out the closed hearing requirements for a hearing

under subsection 38G(1) or 38H(6).

Note:

The fact that those provisions provide that the closed hearing

requirements apply to certain hearings does not prevent the court from

exercising any powers that it otherwise has eg to exclude persons

(such as members of the public) from other hearings or to prevent

publication of evidence.

Who may be present

(2) Subject to this section, no-one, including the jury (if any), must be

present at the hearing except:

(a) the magistrate, judge or judges comprising the court; and

(b) court officials; and

(d) the parties' legal representatives; and

(e) if section 38K applies--the Attorney-General and his or her

legal representative; and

(f) any witnesses allowed by the court.

(3) If the court considers that:

(a) the information concerned would be disclosed to any of the

following persons:

(i) a party to the proceeding;

(ii) a party's legal representative;

(iii) any court official;

who have not been given a security clearance at the level

considered appropriate by the Secretary in relation to the

information concerned; and

(b) the disclosure would be likely to prejudice national security;

the court may order that the party, the legal representative or the

court official is not entitled to be present during any part of the

hearing in which any person referred to in paragraph (2)(e):

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2004

22 National Security Information Legislation Amendment Bill 2005 No. , 2005

(d) gives information in arguing why the information should not

be disclosed, or why the witness should not be called to give

evidence, in the proceeding.

Submissions about non-disclosure arguments

(4) If, at the hearing, any person referred to in paragraph (2)(e) argues

that:

(a) any information should not be disclosed; or

(b) the witness should not be called to give evidence in the

proceeding;

the other parties to the proceeding and any legal representatives of

the other parties must be given the opportunity to make

submissions to the court about the argument that the information

should not be disclosed or the witness should not be called.

Court to make etc. record of hearing

(5) The court must:

(a) whether before or after it makes an order under section 38L,

make a record of the hearing; and

(b) keep the record; and

against, or reviews, its decision on the hearing; and

(d) not make the record available to, nor allow the record to be

accessed by, anyone except as mentioned in this section.

Copy of record to be given to the Attorney-General etc.

(6) If section 38K applies, the court must give a copy of the record to

the Attorney-General and his or her legal representative.

Request to vary record

(7) If the Attorney-General considers that:

(a) allowing access to the record by:

(i) a party who has been given a security clearance at the

level considered appropriate by the Secretary but who

has not engaged a legal representative; or

(ii) any party's legal representative who has been given a

security clearance at the level considered appropriate by

the Secretary;

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 23

will disclose information; and

(b) the disclosure is likely to prejudice national security;

the Attorney-General or his or her legal representative may request

that the court vary the record so that the national security

information will not be disclosed.

Decision by the court

(8) The court must make a decision on the request.

Access to the record by a party or party's legal representative

(9) The court must:

(a) allow:

(i) a party who has been given a security clearance at the

level considered appropriate by the Secretary but who

has not engaged a legal representative; or

(ii) any party's legal representative who has been given a

security clearance at the level considered appropriate by

the Secretary;

to have access to:

(iii) the record as varied in accordance with this section, and

if applicable, section 38J; or

(iv) if subparagraph (iii) does not apply--the record;

and to prepare documents or records in relation to the varied

record or the record, in a way and at a place prescribed by the

regulations for the purposes of this paragraph; and

(b) not make the varied record available to, nor allow the varied

record to be accessed by, anyone except as mentioned in this

subsection.

38J Request to delay making record available pending appeal

decision

(1) If the court makes a decision under subsection 38I(8), the

Attorney-General or his or her legal representative may request

that the court delay allowing access to the varied record or the

record as mentioned in paragraph 38I(9)(a) to allow time for the

Attorney-General to:

(a) decide whether to appeal against the court's decision; and

(b) if the Attorney-General decides to do so--make the appeal.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

24 National Security Information Legislation Amendment Bill 2005 No. , 2005

(2) The court must grant the request.

38K Intervention by Attorney-General in civil proceedings

(1) The Attorney-General may, on behalf of the Commonwealth,

intervene in a hearing in a civil proceeding in relation to which the

closed hearing requirements apply.

(2) If the Attorney-General intervenes in the hearing, he or she is

treated as if he or she is a party to the hearing.

Note:

The Attorney-General is not treated as a party to the civil proceeding

itself.

38L Court orders in civil proceedings

Civil non-disclosure certificate hearings

(1) After holding a hearing required under subsection 38G(1) in

relation to the disclosure of information in a civil proceeding, the

court must make an order under one of subsections (2), (4) and (5)

of this section.

(2) If the information is in the form of a document, the court may order

under this subsection that:

(a) any person to whom the certificate mentioned in subsection

38F(2) or (3) was given in accordance with that subsection;

and

(b) any person to whom the contents of the certificate have been

disclosed for the purposes of the hearing; and

must not, except in permitted circumstances, disclose the

information (whether in the proceeding or otherwise), but may,

subject to subsection (3), disclose (which disclosure may or may

not be the same as was permitted in the Attorney-General's

certificate) in the proceeding:

(d) a copy of the document with the information deleted; or

(e) a copy of the document with the information deleted and a

summary of the information, as set out in the order, attached

to the document; or

(f) a copy of the document with the information deleted and a

statement of facts, as set out in the order, that the information

would, or would be likely to, prove attached to the document.

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

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National Security Information Legislation Amendment Bill 2005 No. , 2005 25

(3) If the court makes an order under subsection (2), the copy of the

document is admissible in evidence if, apart from the order, it is

admissible. However, if:

(a) a person who is the subject of the order seeks to adduce

evidence of the contents of the document; and

(b) the contents of the document are admissible in evidence in

the proceeding;

the person may adduce evidence of the contents of the document

by tendering the copy, or the copy and the summary or statement,

mentioned in that subsection.

(4) The court may, regardless of the form of the information, order

under this subsection that:

(a) any person to whom the certificate mentioned in subsection

38F(2) or (3) was given in accordance with that subsection;

and

(b) any person to whom the contents of the certificate have been

disclosed for the purposes of the hearing; and

must not, except in permitted circumstances, disclose the

information (whether in the proceeding or otherwise).

(5) The court may, regardless of the form of the information, order

under this subsection that any person may disclose the information

in the proceeding. However, the information is only admissible in

evidence in the proceeding if, apart from the order, it is admissible.

Civil witness exclusion certificate hearings

(6) After holding a hearing required under subsection 38H(6), the

court must order that:

(a) the relevant party must not call the person as a witness in the

civil proceeding; or

(b) the relevant party may call the person as a witness in the civil

proceeding.

Factors to be considered by court

(7) The court must, in deciding what order to make under this section,

consider the following matters:

(a) whether, having regard to the Attorney-General's certificate,

there would be a risk of prejudice to national security if:

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Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

26 National Security Information Legislation Amendment Bill 2005 No. , 2005

(i) where the certificate was given under subsection 38F(2)

or (3)--the information were disclosed in contravention

of the certificate; or

(ii) where the certificate was given under subsection

38H(2)--the witness were called;

(b) whether any such order would have a substantial adverse

effect on the substantive hearing in the proceeding;

(8) In making its decision, the court must give greatest weight to the

matter mentioned in paragraph (7)(a).

38M Reasons for court orders

Requirement to give reasons

(1) The court must give a written statement of its reasons for making

an order under section 38L to the following people:

(a) the person who is the subject of the order;

(b) the parties to the proceeding;

(d) if section 38K applies--the Attorney-General and his or her

legal representative.

Copy of proposed statement to be given to the Attorney-General

etc.

(2) If section 38K applies, before the court gives its statement under

subsection (1), the court must give a copy of the proposed

statement to the Attorney-General and his or her legal

representative.

Request to vary proposed statement

(3) If the Attorney-General considers that giving the proposed

statement will disclose information and the disclosure is likely to

prejudice national security, the Attorney-General or his or her legal

representative may request that the court vary the proposed

statement so that the national security information will not be

disclosed.

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 27

Court's decision

(4) The court must make a decision on the request.

38N Request to delay giving section 38M statement pending appeal

decision

(1) If the court makes a decision under section 38M, the

Attorney-General or his or her legal representative may request

that the court delay giving its statement of reasons to allow time for

the Attorney-General to:

(a) decide whether to appeal against the court's decision; and

(b) if the Attorney-General decides to do so--make the appeal.

(2) The court must grant the request.

38O Period of operation of court orders

An order made by the court under this Division:

(a) does not come into force until the order ceases to be subject

to appeal; and

(b) remains in force until it is revoked by the court.

38P Adjournment after certain court orders

(1) If the court makes an order under section 38L, a party who brought

the civil proceeding may apply to the court for an adjournment of

the proceeding to allow time for the party to:

(a) decide whether to appeal against the court order or to

withdraw the proceeding; and

(b) if the party decides to do so--make the appeal or withdrawal.

(2) If the court makes an order under section 38L, a party against

whom the civil proceeding was brought may apply to the court for

an adjournment of the proceeding to allow time for the party to:

(a) decide whether to appeal against the court order; and

(b) if the party decides to do so--make the appeal.

(3) The court must grant the adjournment.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

28 National Security Information Legislation Amendment Bill 2005 No. , 2005

Division 4--Appeals in civil proceedings

38Q Appeal against court decision under section 38I

(1) The Attorney-General may appeal against a decision of the court

made under subsection 38I(8).

(2) The court that has jurisdiction to hear and determine appeals from

the judgment in the proceeding has jurisdiction to hear and

determine any appeal under this section.

38R Appeals against court orders under section 38L

(1) A party to a civil proceeding, or if the Attorney-General is an

intervener under section 38K, the Attorney-General may appeal

against any order of the court made under section 38L.

(2) The court that has jurisdiction to hear and determine appeals from

the judgment in the proceeding has jurisdiction to hear and

determine any appeal under this section.

38S Appeal against court decisions under section 38M

(1) The Attorney-General may appeal against any decision of the court

made under section 38M.

(2) The court that has jurisdiction to hear and determine appeals from

the judgment in the proceeding has jurisdiction to hear and

determine any appeal under this section.

23 Before section 39

Insert:

Division 1--Security clearances required in federal

criminal proceedings

24 At the end of Part 4

Add:

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 29

Division 2--Security clearances required in civil

proceedings

39A Security clearance for parties etc. to a civil proceeding

(1) This section applies if, in a civil proceeding, the Secretary of the

Attorney-General's Department gives written notice to any of the

following persons:

(a) a party to the proceeding;

(b) a party's legal representative;

that in the proceeding an issue is likely to arise relating to a

disclosure, of information in the proceeding, that is likely to

prejudice national security.

Person may apply for security clearance

(2) A person who receives a notice under subsection (1) may apply to

the Secretary for a security clearance by the Department at the

level considered appropriate by the Secretary in relation to the

information.

Note 1:

Security clearances are given in accordance with the Australian

Government Protective Security Manual.

Note 2:

If the person does not obtain the security clearance, anyone who

discloses such information to the person will, except in limited

circumstances, commit an offence under section 46G.

Adjournment to allow sufficient time for a person to be given

security clearance

(3) A party to the proceeding may apply to the court for a deferral or

adjournment of the proceeding to allow time for:

(a) a person who receives a notice under subsection (1) to apply

for and be given a security clearance by the Department at

the level considered appropriate by the Secretary in relation

to the information; or

(b) if the party's legal representative is not given such a security

clearance--another legal representative to apply for and be

given such a security clearance.

(4) The court must defer or adjourn the proceeding accordingly.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

30 National Security Information Legislation Amendment Bill 2005 No. , 2005

Secretary may advise the court that a party has not been given a

security clearance

(5) If:

(a) a party is not given a security clearance; or

(b) a party does not apply for the security clearance within 14

days after the day on which the notice is received, or within

such further period as the Secretary allows;

then:

(d) the court may advise the party of the consequences of not

being given a security clearance by the Department at the

level considered appropriate by the Secretary in relation to

the information and:

(i) if the party is not given a security clearance and has not

engaged a legal representative--recommend that the

party engage a legal representative who has been given,

or is prepared to apply for, such a security clearance; or

(ii) if the party has not applied for the security clearance

and has not engaged a legal representative--recommend

that the party apply for the security clearance or engage

a legal representative who has been given, or is prepared

to apply for, such a security clearance.

Secretary may advise the court that a party's legal representative

etc. has not been given a security clearance etc.

(6) If:

(a) a party's legal representative or a person assisting the legal

representative is not given a security clearance; or

(b) a party's legal representative or a person assisting the legal

representative does not apply for the security clearance

within 14 days after the day on which the notice is received,

or within such further period as the Secretary allows;

then:

(d) the court may:

(i) advise the relevant party of the consequences of

engaging a legal representative who has not been given

a security clearance by the Department at the level

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 31

considered appropriate by the Secretary in relation to

the information; and

(ii) recommend that the relevant party engage a legal

representative who has been given, or is prepared to

apply for, such a security clearance.

Notice given by Secretary not a legislative instrument

(7) A notice given under subsection (1) is not a legislative instrument

for the purposes of the Legislative Instruments Act 2003.

25 Before section 40

Insert:

Division 1--Offences relating to federal criminal

proceedings

Note 1: The heading to section 40 is altered by omitting "non-disclosure certificate etc." and

substituting "criminal non-disclosure certificate etc. under section 26".

Note 2: The heading to section 41 is altered by omitting "witness exclusion certificate etc."

and substituting "criminal witness exclusion certificate etc. under section 28".

Note 3: The heading to section 42 is altered by adding at the end "under sections 24 and 25".

Note 4: The heading to section 43 is altered by omitting "non-disclosure certificate" and

substituting "criminal non-disclosure certificate given under section 26".

Note 5: The heading to section 44 is altered by omitting "witness exclusion certificate" and

substituting "criminal witness exclusion certificate given under section 28".

26 Paragraph 45(a)

After "this Act", insert "in relation to a federal criminal proceeding".

Note:

The heading to section 46 is altered by inserting "in federal criminal proceedings"

after "disclose information".

27 At the end of Part 5

Add:

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

32 National Security Information Legislation Amendment Bill 2005 No. , 2005

Division 2--Offences relating to civil proceedings

46A Offence to disclose information before Attorney-General gives

civil non-disclosure certificate etc. under section 38F

Disclosure where notice given to Attorney-General under

section 38D

(1) If:

(a) a party to a civil proceeding gives notice to the

Attorney-General under subsection 38D(1) about the

disclosure of information in the proceeding by the party or

another person; and

(b) section 46B does not apply; and

(i) if the disclosure is by the party--the party; or

(ii) if the disclosure is by a person other than the party--the

party or the other person;

discloses the information (whether in the proceeding or

otherwise) at any time before the Attorney-General gives the

party, or both the party and the other person, a certificate

under subsection 38F(2) or (3) or advice under subsection

38F(7) in relation to the disclosure of the information; and

(d) the disclosure does not take place in permitted circumstances;

and

(e) the disclosure is likely to prejudice national security;

the person who discloses the information commits an offence.

Penalty: Imprisonment for 2 years.

Disclosure where notice given to Attorney-General under

section 38E

(2) If:

(a) a witness gives a written answer to the court under

section 38E in a civil proceeding; and

(b) section 46B does not apply; and

(whether in the proceeding or otherwise) at any time after the

written answer is given to the court and before the

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 33

Attorney-General gives the witness a certificate under

subsection 38F(2) or (3) or advice under subsection 38F(7) in

relation to the disclosure of the information; and

(d) the disclosure does not take place in permitted circumstances;

and

(e) the disclosure is likely to prejudice national security;

the witness commits an offence.

Penalty: Imprisonment for 2 years.

46B Offence to disclose information before Attorney-General gives

civil witness exclusion certificate etc. under section 38H

If:

(a) a party to a civil proceeding notifies the Attorney-General

under section 38D that the party knows or believes that a

person whom the party intends to call as a witness in the

proceeding will disclose information by his or her mere

presence; and

(b) the party calls the person as a witness in the proceeding at

any time before the Attorney-General gives the party a

certificate under subsection 38H(2) or advice under

subsection 38H(9) in relation to the calling of the witness;

and

person is likely to prejudice national security;

the party commits an offence.

Penalty: Imprisonment for 2 years.

46C Offence to contravene requirement to notify Attorney-General

etc. under sections 38D and 38E

A party to a civil proceeding commits an offence if:

(a) the party contravenes subsection 38D(1), (3) or (4) or 38E(2);

and

(b) the disclosure of information mentioned in that subsection is

likely to prejudice national security.

Penalty: Imprisonment for 2 years.

Schedule 1 Amendments

Part 1 Amendment of the National Security Information (Criminal Proceedings) Act

2004

34 National Security Information Legislation Amendment Bill 2005 No. , 2005

46D Offence to disclose information contrary to Attorney-General's

civil non-disclosure certificate given under section 38F

A person commits an offence if:

(a) the person is given a certificate under subsection 38F(2) or

(3) in relation to the disclosure of information; and

(b) the person discloses the information in contravention of the

certificate.

Penalty: Imprisonment for 2 years.

46E Offence to call witness contrary to Attorney-General's civil

witness exclusion certificate given under section 38H

A person commits an offence if:

(a) the person is given a certificate under subsection 38H(2) in

relation to the calling of a witness; and

(b) the person calls the witness in contravention of the

certificate.

Penalty: Imprisonment for 2 years.

46F Offence to contravene court order

If:

(a) the court makes an order under this Act in relation to a civil

proceeding; and

(b) a person intentionally contravenes the order;

the person commits an offence.

Penalty: Imprisonment for 2 years.

46G Offence to disclose information in civil proceedings to certain

persons without security clearance etc.

A person commits an offence if:

(a) for the purposes of a civil proceeding, the person discloses,

other than in giving evidence in that proceeding or in

permitted circumstances, information to:

(i) a party to the proceeding; or

(ii) a party's legal representative; or

Amendments Schedule 1

Amendment of the National Security Information (Criminal Proceedings) Act 2004

Part 1

National Security Information Legislation Amendment Bill 2005 No. , 2005 35

(iii) a person assisting a party's legal representative; and

(b) the disclosure is likely to prejudice national security; and

(i) the Attorney-General's Department has given the party

to the proceeding, the legal representative or the person

mentioned in subparagraph (a)(iii) a security clearance

at the level considered appropriate by the Secretary in

relation to the information;

(ii) the disclosure has been approved by the Secretary;

(iii) the disclosure takes place in compliance with conditions

approved by the Secretary.

Penalty: Imprisonment for 2 years.

28 Section 47

Repeal the section, substitute:

47 Report to Parliament on certificates given by Attorney-General

etc.

As soon as practicable after 30 June in each year, the

Attorney-General must cause to be laid before each House of the

Parliament a report that:

(a) states the number of certificates given during the year:

(i) under sections 26, 28, 38F and 38H by the

Attorney-General; and

(ii) under sections 38F and 38H by the Minister appointed

by the Attorney-General under section 6A; and

(b) identifies the criminal proceedings and civil proceedings to

which the certificates relate.

Schedule 1 Amendments

Part 2 Amendment of other Acts

36 National Security Information Legislation Amendment Bill 2005 No. , 2005

Part 2--Amendment of other Acts

Administrative Decisions (Judicial Review) Act 1977

29 Subsection 9A(4) (paragraph (b) of the definition of related

criminal justice process decision)

Omit "(Criminal Proceedings)", substitute "(Criminal and Civil

Proceedings)".

30 After section 9A

Insert:

9B Limitation of jurisdiction to review related civil proceeding

decisions

(1) At any time when a civil proceeding, or an appeal arising out of a

civil proceeding, is taking place, no court has jurisdiction to hear,

continue to hear or determine an application under this Act, by a

person who is or was a party to the proceeding, in relation to a

related civil proceeding decision.

(2) In this section:

appeal includes a proceeding to review or call in question the

proceedings, decision or jurisdiction of a court or judge.

civil proceeding has the same meaning as in the National Security

Information (Criminal and Civil Proceedings) Act 2004.

related civil proceeding decision, in relation to a civil proceeding,

means:

(a) a decision of the Attorney-General to give:

(i) notice under section 6A of the National Security

Information (Criminal and Civil Proceedings) Act 2004

in relation to the proceeding; or

(ii) a certificate under section 38F or 38H of that Act in

relation to the proceeding; or

(b) a decision of the Minister appointed by the Attorney-General

under section 6A of that Act to give:

Amendments Schedule 1

Amendment of other Acts Part 2

National Security Information Legislation Amendment Bill 2005 No. , 2005 37

(i) notice under section 6A of that Act in relation to the

proceeding; or

(ii) a certificate under section 38F or 38H of that Act in

relation to the proceeding.

31 Paragraph (da) of Schedule 2

Repeal the paragraph, substitute:

(da) decisions of the Attorney-General to give:

(i) notice under section 6A of the National Security

Information (Criminal and Civil Proceedings) Act 2004;

(ii) a certificate under section 26, 28, 38F or 38H of that

Act;

(db) decisions of the Minister appointed by the Attorney-General

under section 6A of the National Security Information

(Criminal and Civil Proceedings) Act 2004 to give:

(i) notice under section 6A of that Act; or

(ii) a certificate under section 38F or 38H of that Act;

Judiciary Act 1903

32 Subsection 39B(1)

Omit "and (1C)", substitute ", (1C) and (1EA)".

Note 1: The following heading to subsection 39B(1) is inserted "Scope of original jurisdiction".

Note 2: The following heading to subsection 39B(1B) is inserted "Jurisdiction for certain writs

that relate to criminal prosecutions etc.".

33 After subsection 39B(1E)

Insert:

Jurisdiction for certain writs that relate to civil proceedings

(1EA) If:

(a) a civil proceeding is before the Family Court of Australia, the

Federal Magistrates Court or a court of a State or Territory;

(b) an appeal arising out of such a proceeding is before the

Family Court of Australia or a court of a State or Territory;

the following apply:

Schedule 1 Amendments

Part 2 Amendment of other Acts

38 National Security Information Legislation Amendment Bill 2005 No. , 2005

respect to any matter in which a person who is or was a party

to the proceeding seeks a writ of mandamus or prohibition or

an injunction against an officer or officers of the

Commonwealth in relation to a related civil proceeding

decision;

(d) the following court is invested with, or has conferred on it,

jurisdiction with respect to any such matter:

(i) if the civil proceeding or appeal is before the Family

Court of Australia--that court; or

(ii) if the civil proceeding is before the Federal Magistrates

Court--that court; or

(iii) if the civil proceeding or appeal is before a court of a

State or Territory--the Supreme Court of the State or

Territory.

34 Subsection 39B(1F)

Omit "and (1E)", substitute ", (1E) and (1EA)".

Note:

The following heading to subsection 39B(1F) is inserted "Jurisdictional rules to apply

despite any other law".

35 Paragraphs 39B(1F)(a) and (b)

Omit "or (1C)", substitute ", (1C) or (1EA)".

36 Subsection 39B(2)

Omit "or (1C)", substitute ", (1C) or (1D)".

Note:

The following heading to subsection 39B(2) is inserted "References to officer or officers

of the Commonwealth".

37 Subsection 39B(3)

Insert:

civil proceeding has the same meaning as in the National Security

Information (Criminal and Civil Proceedings) Act 2004.

Note:

The following heading to subsection 39B(3) is inserted "Definitions".

38 Subsection 39B(3)

Insert:

Amendments Schedule 1

Amendment of other Acts Part 2

National Security Information Legislation Amendment Bill 2005 No. , 2005 39

related civil proceeding decision, in relation to a civil proceeding,

means:

(a) a decision of the Attorney-General to give:

(i) notice under section 6A of the National Security

Information (Criminal and Civil Proceedings) Act 2004

in relation to the proceeding; or

(ii) a certificate under section 38F or 38H of that Act in

relation to the proceeding; or

(b) a decision of the Minister appointed by the Attorney-General

under section 6A of that Act to give:

(i) notice under section 6A of that Act in relation to the

proceeding; or

(ii) a certificate under section 38F or 38H of that Act in

relation to the proceeding.

39 Subsection 39B(3) (paragraph (b) of the definition of

related criminal justice process decision)

Omit "(Criminal Proceedings)", substitute "(Criminal and Civil

Proceedings)".

Commonwealth of Australia Bills

NATIONAL SECURITY INFORMATION LEGISLATION AMENDMENT BILL 2005