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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL SECURITY INFORMATION (CRIMINAL PROCEEDINGS)
AMENDMENT (APPLICATION) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
NATIONAL SECURITY INFORMATION
(CRIMINAL PROCEEDINGS) AMENDMENT (APPLICATION) BILL 2005
GENERAL OUTLINE
The National Security Information (Criminal Proceedings) Amendment (Application)
Bill 2005 (the Bill) amends the National Security Information (Criminal Proceedings)
Act 2004 (the Act) to clarify how the Act applies to certain federal criminal
proceedings.
The Bill will amend the Act to ensure that it can be applied to future proceedings even
though the proceedings began before 11 January 2005, the day on which the main
provisions of the Act commenced. There are currently underway a number of
terrorism-related proceedings to which the Act could possibly apply if the prosecutor
gives the requisite notice to the court and defendant. Without this amendment, there
is a risk that any attempt to apply the Act to future stages of these proceedings would
be found incompetent.
The Bill will also amend the Act to clarify how it applies to a proceeding where the
prosecutor gives the requisite notice to the court and defendant after the proceeding
begins. This amendment ensures that in such cases, the Act would apply to all stages
of the proceeding that take place after the prosecutor gives the requisite notice. It may
otherwise be possible to misinterpret the Act as requiring the prosecutor to give
further notices for the Act to apply to each subsequent part of the proceeding.
Financial impact
The Bill is not expected to have a direct financial impact.
NOTES ON CLAUSES
Clause 1: Short title
This clause is a formal provision stating the short title of the Act.
Clause 2: Commencement
This clause states that the Act commences on the day of Royal Assent.
Clause 3: Schedule(s)
This clause states that each Act specified in a Schedule to the Act is amended or
repealed as set out in the Schedule concerned.
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Schedule 1-Amendment of the National Security Information (Criminal
Proceedings) Act 2004
Item 1
This item amends section 6 of the Act in two ways.
First, it amends subsection 6(1) to ensure that the Act can be applied to a federal
criminal proceeding that began before the day on which section 6 commenced. Prior
to this amendment, it is arguable that the Act could only apply to a federal criminal
proceeding that began on or after the day on which section 6 commenced.
This amendment ensures that the Act can have transitional operation to federal
criminal proceedings that commenced prior to 11 January 2005, if the prosecutor
gives the requisite notice. The Act would not have any retrospective effect, given that
it would only apply to the future stages of a proceeding and not affect anything that
occurred before the notice was given.
Second, the item amends subsection 6(2) to ensure that if the prosecutor gives the
requisite notice after the proceeding begins, then the Act will apply to all parts of the
proceeding that occur after the notice is given.
Without this clarification, it may be possible to misinterpret subsection 6(2) to mean
that the Act would only apply to the part of the proceeding that takes place
immediately after the notice is given. According to this interpretation, the prosecutor
would have to give a further notice for the Act to apply to each subsequent part of the
proceeding. Instead, the provision is intended to mean that once the prosecutor has
given the requisite notice, the Act will apply to all subsequent stages of the
proceeding.
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