There are several federal agencies that may be involved in NSI Act-related cases.
Firstly, the national security information, or non-national security information, for which the NSI Act itself is invoked, will normally be held by the Australian Federal Police (AFP), or the Australian Security Intelligence Organisation (ASIO), or in certain cases, by both. These agencies may hold the information solely from agency-specific investigations, or as the result of a joint operation.
The Commonwealth Director of Public Prosecutions (CDPP) will manage the prosecution of any case involving national security information, and will liaise with both the AFP and ASIO regarding the information being provided to progress the prosecution’s case. The Australian Government Solicitor (AGS) manages liaison with courts, CDPP and defence lawyers, drafts the section 22 orders, and generally acts as the point of contact for all liaison between agencies involved in the NSI Act-related cases.
Lastly, the Attorney-General’s Department (AGD) administers the NSI Act, its Regulations and Requirements, and is responsible, currently, for the loan of secure equipment to ensure the protection of the national security information being disclosed during trial.
Attorney General’s Department (AGD)
The Attorney-General’s Department provides essential expert support to the Government in the maintenance and improvement of Australia’s system of law and justice and its national security and emergency management systems. The Department is the central policy and coordinating element of the Attorney-General’s portfolio for which the Attorney-General and Minister for Home Affairs are responsible.
There are two areas within the Department which perform an NSI Act-related role: The first, Security Law Branch (SLB), Security and Critical Infrastructure Division, is responsible for the administration and development of legislation and the provision of legal and policy advice on counter-terrorism and national security related legal issues. SLB is the contact area for all questions pertaining to the NSI Act itself.
Point of contact: Mr Geoff McDonald PSM First Assistant Secretary, Security and Critical Infrastructure Division Attorney-General’s Department
Telephone: (02) 6250-5425
The second area, Policy and Services Branch (PSB), Protective Security Coordination Centre, is responsible for developing and disseminating protective security policy. The branch provides policy advice to the Government on protective security issues and is responsible for formulating government standards and guidelines to assist Australian Government agencies create and foster a secure environment. Additionally, PSB provides training in protective security and a security clearance vetting service. PSB, more specifically, its Policy Section, currently provides secure equipment on loan to courts and defence lawyers, and courts on a case by case basis, to assist them in meeting the requirements of the NSI Act regarding the protection of classified information. PSB works collaboratively with courts to implement a framework for the protection of national security information in accordance with existing section 22 or 38B court orders. To date, PSB has loaned courts secure court reporting equipment for the purpose of preparing ‘Secret’ classified closed court transcripts, secure photocopiers and printers, B cabinets and secure briefcases.
The Australian Government currently funds security clearances for judges’ staff and court officials, and their security awareness training, which PSB coordinates. PSB also arranges for an Australian Government-funded comprehensive security review of court premises if the court requests such a review prior to the beginning of a proceeding for which the NSI Act has been invoked. Secure equipment including laptops, printers, briefcases and B cabinets, are also issued on loan to defence lawyers for the duration of the proceedings so that they can meet their obligations under the relevant section 22 orders.
Point of contact: Ms Leonie Horrocks Assistant Secretary, Policy and Services Branch Protective Security Coordination Centre, Attorney-General’s Department
Telephone: (02) 6250-5408
Australian Federal Police (AFP)
The AFP’s role is to enforce Commonwealth criminal law and to protect Commonwealth and national interests from crime in Australia and overseas. The AFP is Australia’s international law enforcement and policing representative, and the Government’s chief source of advice on policing issues.
Australian Government Solicitor (AGS)
The AGS is a statutory authority, within the Attorney-General’s portfolio, and was established under the Judiciary Act 1903 (Cth). AGS is the leading provider of legal and related services to Australian Government agencies and departments. AGS acts primarily for departments and agencies, and entities, in which the Australian Government has an interest. The AGS can also act for state and territory government organisations at their executive government’s request.
The AGS represents Australian Government departments and agencies in cases in which the NSI Act has been invoked. AGS’s clients in these cases typically include the Australian Attorney-General (including in relation to the Attorney-General’s role pursuant to Parts 3 and 3A of the NSI Act) and the Attorney-General’s Department (which administers the NSI Act), the Australian Federal Police and/or members of the Australian Intelligence Community. As such, AGS’s role is quite distinct from that of the CDPP. An example of AGS’s role is to respond to subpoenas served on its clients.
The AGS is generally involved in negotiating and drafting orders made pursuant to s 22 of the NSI Act (which orders require the consent of the CDPP and the defendants) as the information sought to be protected through such orders generally belongs to clients of AGS. AGS is usually also involved in practical processes which are necessary to implement the orders. In relation to national security information not covered by agreed s 22 orders, AGS represents the Attorney-General in relation to the various notices, certificates, closed court hearings, etc which are required by the NSI Act. AGS may also claim public interest immunity or seek ancillary protective orders on behalf of clients (eg under s 23(2) of the NSI Act or s 93.2 of the Criminal Code) in relation to such information.
Australian Security Intelligence Organisation (ASIO)
ASIO is Australia’s national security service. ASIO’s main role is to gather information and produce intelligence that will enable it to warn the government about activities or situations that might endanger Australia’s national security. The ASIO Act defines “security” as the protection of Australia and its people from espionage, sabotage, politically motivated violence, the promotion of communal violence, attacks on Australia’s defence system, and acts of foreign interference.
Office of the Commonwealth Director of Public Prosecutions (CDPP)
The Office of the Commonwealth Director of Public Prosecutions (CDPP) is an independent prosecuting service established by Parliament to prosecute alleged offences against Commonwealth law, and to deprive offenders of the proceeds and benefits of criminal activity.
The role of the Commonwealth Director of Public Prosecutions (CDPP) is to prosecute offences against Commonwealth law and to make applications under the Commonwealth proceeds of crime legislation. The CDPP also conducts prosecutions for offences against the laws of the Jervis Bay and Australia’s external Territories, other than Norfolk Island. Commonwealth offences include those relating to terrorism, treason, sedition, espionage, genocide, crimes against humanity and war crimes. In addition to the above prosecutorial role, the CDPP appears in Commonwealth proceedings relating to the extradition of persons from Australia.
The CDPP has the function of determining whether the NSI Act should apply to federal criminal proceedings, pursuant to section 6. Where the NSI Act is invoked in a federal criminal proceeding, the CDPP is required to give notices under sections 24 and 25 of the Act where it is expected that NSI material will be disclosed. The CDPP may also enter into arrangements with the accused relating to the handling of NSI material, to which the court may give effect pursuant to section 22.
In instances where the Attorney-General is separately represented in proceedings, normally the Attorney-General’s counsel will take the lead in relation to the protection of NSI material. The CDPP retains the power to discontinue a matter if the non-disclosure of material would result in an unfair trial.