National Security Information Act
The National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) provides a framework for how national security information is disclosed and protected in civil and federal criminal proceedings.
The purpose of the NSI Act is to:
- safeguard national security
- facilitate prosecutions and civil proceedings
- maintain the integrity of the judicial process
- adhere to the principles of open justice.
Balancing these interests, the court is the ultimate decision-maker under the NSI Act. The court controls the conduct of a proceeding and has powers to make orders it considers appropriate in that proceeding. For example, to enable the disclosure and protection of national security information.
The NSI Act complements other information protection mechanisms available in legal proceedings. The NSI Act must be invoked before it applies to a particular proceeding, but once invoked, its protective framework applies to all national security information that may be disclosed in the proceeding.
The NSI Act’s framework allows courts, parties and parties’ legal representatives to handle, disclose, use and rely on sensitive national security information in a way that guards against prejudice to Australia’s national security.
For more information about the Attorney-General’s role administering the NSI Act and our work to support the Attorney-General, read our submission to the 2023 INSLM review of the NSI Act.
National Security Information (Criminal and Civil Proceedings) Regulation 2015
The NSI Act is supported by the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (the Regulation). The Regulation prescribes, for the purposes of the NSI Act, the requirements for accessing, storing, handling, destroying and preparing security classified documents and national security information in federal criminal and civil proceedings to which the NSI Act applies.
The Regulation complements, and in part supports, the court’s powers to make orders for the protected disclosure of national security information. The Regulation also includes arrangements for the use of special advocates and procedures for parties to give notice of expected disclosures of national security information.
NSI Act annual reports
Under section 47 of the NSI Act, the Attorney-General must table a report in the Parliament (as soon as practicable after 30 June each year) detailing the operation of certain provisions of the NSI Act the preceding financial year. This includes:
- the number of non-disclosure and witness exclusion certificates given (also identifying the criminal proceedings and civil proceedings to which the certificates relate)
- the number of special court orders and special advocate appointments in control order or extended supervision order proceedings (also identifying the proceedings to which the orders or appointments relate) (Divisions 104 and 105A of the Criminal Code).
As a transparency measure, since 2021-22 the annual reports have also stated the proceedings in which notices were given in the preceding financial year that invoked the NSI Act in a new proceeding.