{"id":"F2015L00368","name":"National Security Information (Criminal and Civil Proceedings) Regulation 2015","slug":"national-security-information-criminal-and-civil-proceedings-regulation-2015","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"26 of 2015","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":92902,"registerId":"commonwealth-F2015L00368-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Name","content":"#### 1 Name\n\n  This is the National Security Information (Criminal and Civil Proceedings) Regulation 2015.","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Authority","content":"#### 3 Authority\n\n  This instrument is made under the National Security Information (Criminal and Civil Proceedings) Act 2004.","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Schedules","content":"#### 4 Schedules\n\n  Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Purpose and application","content":"#### 5 Purpose and application\n\n  This instrument prescribes:\n    (a) for subsections 23(1) and 38C(1) of the Act:\n    (i) requirements for accessing, storing, handling and destroying security classified documents and national security information; and\n    (ii) requirements for creating or preparing documents that relate to security classified documents or national security information; and\n    (b) for paragraphs 24(2)(a) and 38D(3)(a) of the Act—the form of a notice of expected disclosure; and\n    (ba) for the purposes of subsection 38PA(2) or 38PI(1) of the Act—matters relating to special advocates; and\n    (c) related matters.\n\n> Note 1: A person who contravenes a requirement prescribed for subsection 23(1) or 38C(1) of the Act by this instrument may commit an offence (see sections 45A and 46FA of the Act).\n\n> Note 2: Subsections 23(2) and 38C(2) of the Act have the effect that this instrument does not apply in relation to certain matters to the extent that orders in force under section 22 or 38B of the Act apply in relation to those matters.","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Definitions","content":"#### 6 Definitions\n\n> Note: A number of expressions used in this instrument are defined in the Act, including the following:\n\n    (a) civil proceeding;\n    (b) court official;\n    (c) document;\n    (d) federal criminal proceeding;\n    (e) national security information;\n    (f) special advocate.\n  In this instrument:\n\n> Act means the National Security Information (Criminal and Civil Proceedings) Act 2004.\n\n> approved information and communications technology equipment, for a security classified document or national security information to which a particular security classification is, or is to be, assigned, means information and communications technology equipment that is supplied, or approved, by the Commonwealth for security classified documents or national security information to which that security classification is, or is to be, assigned.\n\n> authorised recipient, in relation to a security classified document or national security information, means a person to whom the document or information has been disclosed, or may be disclosed, in a federal criminal proceeding or a civil proceeding in accordance with:\n\n    (a) a certificate, hearing, decision, notice, order or other process under the Act; or\n    (b) an order or process of the court in the proceeding; or\n    (c) a written authorisation given by the Attorney‑General or a representative of the Attorney‑General in the proceeding;\n  but does not include a judicial officer.\n\n> Class B security container means a security container that is fitted with an SCEC‑endorsed combination lock.\n\n> classified document register means a register that includes details about security classified documents that are received, created, prepared or transferred in hard copy form.\n\n> Note: See section 15.\n\n> copy means to record or reproduce information in any medium.\n\n> Deputy Director‑General of Security means a person who holds, or is acting in, a position known as Deputy Director‑General of Security.\n\n> Director‑General of Security means the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979.\n\n> discrete area means an area within an enclosed building or office where:\n\n    (a) public access is restricted; and\n    (b) access by employees is controlled; and\n    (c) access by visitors is strictly controlled and is on a needs basis.\n\n> eligible former judge means a former judge of any of the following courts:\n\n    (a) the High Court;\n    (b) a court that is or was created by the Parliament under Chapter III of the Constitution;\n    (c) the Supreme Court of a State or Territory;\n    (d) the District Court (or equivalent) of a State or Territory.\n\n> eligible legal practitioner means a person who:\n\n    (a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory; and\n    (b) holds a practising certificate (however described); and\n    (c) has at least 5 years’ legal advocacy experience; and\n    (d) holds a Negative Vetting Level 2 security clearance.\n\n> eligible senior counsel means a person who:\n\n    (a) is a Queen’s Counsel or Senior Counsel; and\n    (b) holds a Negative Vetting Level 2 security clearance.\n\n> judicial officer means a magistrate or a judge.\n\n> Negative Vetting Level 2 security clearance means a security clearance that:\n\n    (a) is issued by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances; and\n    (b) permits ongoing access to information that has been assigned any of the following security classifications:\n    (i) PROTECTED;\n    (ii) CONFIDENTIAL;\n    (iii) SECRET;\n    (iv) TOP SECRET.\n\n> SCEC (short for Security Construction and Equipment Committee) means the Commonwealth Government interdepartmental committee that approves protective security products and endorses protective security services.\n\n> security classification means a protective marking assigned to national security information to indicate:\n\n    (a) the value of the information; and\n    (b) the minimum level of protection that the information must be afforded to protect it from compromise when it is being used, stored, transmitted, transferred or disposed of.\n\n> Note: The following are examples of security classifications that may be, or may have been, assigned to information:\n\n    (a) PROTECTED;\n    (b) CONFIDENTIAL;\n    (c) SECRET;\n    (d) TOP SECRET;\n    (e) Codeword material;\n    (f) Restricted.\n\n> security classified document means:\n\n    (a) a document that is disclosed, or to be disclosed, in a federal criminal proceeding or a civil proceeding:\n    (i) to which a security classification has been assigned; or\n    (ii) that the Attorney‑General, or a representative of the Attorney‑General in the proceeding, has stated, in writing, is a security classified document; or\n    (b) a document that includes national security information that is disclosed, or to be disclosed, in a federal criminal proceeding or a civil proceeding; or\n    (c) a document that includes national security information that is included in a document referred to in paragraph (a) or (b); or\n    (d) a document that is or was created or prepared as referred to in paragraph 8(1)(a) or (b) for the purpose of a federal criminal proceeding or a civil proceeding.\n\n> security classified document storage area means an area in which entry and openings are secured at all times to limit access to the following:\n\n    (a) an authorised recipient in relation to security classified documents or national security information stored in the area;\n    (b) a person in the company of such an authorised recipient;\n    (c) a person authorised to access the area by such an authorised recipient;\n    (d) a judicial officer.","sortOrder":5},{"sectionNumber":"7","sectionType":"section","heading":"References to federal criminal proceeding or civil proceeding","content":"#### 7 References to federal criminal proceeding or civil proceeding\n\n  In this instrument:\n    (a) a reference to a federal criminal proceeding is a reference to a federal criminal proceeding to which the Act applies under section 6 of the Act; and\n    (b) a reference to a civil proceeding is a reference to a civil proceeding to which the Act applies under section 6A of the Act.","sortOrder":6},{"sectionNumber":"Part 2","sectionType":"part","heading":"Protection of security classified documents and national security information","content":"## Part 2—Protection of security classified documents and national security information","sortOrder":7},{"sectionNumber":"7A","sectionType":"section","heading":"When Part does not apply","content":"#### 7A When Part does not apply\n\n  If:\n    (a) an order is made under subsection 19(1A) or (3A) of the Act in relation to the disclosure, protection, storage, handling or destruction of national security information in a federal criminal proceeding or a civil proceeding; and\n    (b) the order is inconsistent with this Part to the extent that this Part relates to the disclosure, protection, storage, handling or destruction of national security information in the federal criminal proceeding or the civil proceeding; and\n    (c) the order was made on an application by the Attorney‑General or a representative of the Attorney‑General;\n  this Part does not apply to the extent of that inconsistency.","sortOrder":8},{"sectionNumber":"8","sectionType":"section","heading":"Creation or preparation of documents relating to security classified documents or national security information","content":"#### 8 Creation or preparation of documents relating to security classified documents or national security information\n\n  (1) This section applies to:\n    (a) an authorised recipient in relation to a security classified document who creates or prepares a document (including a court record referred to in subsection 29(5) or 38I(5) of the Act) that includes information included in the security classified document; and\n    (b) an authorised recipient in relation to national security information that is disclosed, or to be disclosed, in a federal criminal proceeding or a civil proceeding, who creates or prepares a document (including a court record referred to in subsection 29(5) or 38I(5) of the Act) that includes the national security information.\n  (2) The authorised recipient must create or prepare the document in a discrete area.\n  (3) If the document is to be created or prepared in electronic form, the authorised recipient must do so by means of approved information and communications technology equipment for the document.\n  (4) The authorised recipient must ensure that the document is assigned a security classification that is equivalent to the most highly classified information included in the document.\n  (5) The security classification assigned to the document must be clearly recorded at the top and bottom of each page of the document.\n  (6) If the authorised recipient has any doubt about the security classification to be assigned to the document under subsection (4), the recipient must consult with the Commonwealth as to the appropriate classification to be assigned to the document.\n\n> Note: If the document is created or prepared in hard copy form, the authorised recipient must ensure that the document is recorded on the classified document register maintained by the recipient or to which the recipient has access (see section 15).","sortOrder":9},{"sectionNumber":"9","sectionType":"section","heading":"Copying security classified documents","content":"#### 9 Copying security classified documents\n\n  (1) An authorised recipient in relation to a security classified document must not copy the document or any part of the document, or any information in the document, except in accordance with section 8.\n  (2) An authorised recipient in relation to a security classified document may request, in writing, the Attorney‑General, or a representative of the Attorney‑General in the proceeding to which the document relates, to give the recipient one or more copies of the document.\n  (3) A request under subsection (2) must state:\n    (a) the number of copies of the document required; and\n    (b) the full name of the authorised recipient making the request; and\n    (c) the full name of each other authorised recipient in relation to the document who is to be given a copy of the document.","sortOrder":10},{"sectionNumber":"10","sectionType":"section","heading":"Storage of security classified documents in hard copy form","content":"#### 10 Storage of security classified documents in hard copy form\n\n  (1) An authorised recipient in relation to a security classified document that is in hard copy form must store the document in a locked Class B security container.\n  (2) The security container must have a combination that is not known by any person other than:\n    (a) an authorised recipient in relation to all the security classified documents stored in the container; or\n    (b) an APS employee whose duties include responsibilities relating to the container.\n  (3) The security container must, subject to subsection (4), be located in a security classified document storage area.\n  (4) If any of the security classified documents stored in the security container are assigned the security classification TOP SECRET or Codeword material, the security container must be located in an area approved by the Commonwealth for the purpose of storing documents with that security classification.\n  (5) A person must not remove a security classified document from the security container unless:\n    (a) either:\n    (i) the person is an authorised recipient in relation to the document, and the person needs to remove the document for the purpose of the proceeding to which the document relates; or\n    (ii) the person is a judicial officer; and\n    (b) if the security container is located in an area approved by the Commonwealth for the purpose of storing documents that are assigned the security classification TOP SECRET or Codeword material—the person is permitted by the Commonwealth to access the area.\n\n> Note: Arrangements may need to be made with the Commonwealth to permit an authorised recipient in relation to the document, or a judicial officer, to access the area where the security container is located.\n\n  (6) If an authorised recipient in relation to a security classified document that is assigned the security classification TOP SECRET or Codeword material removes the document from the security container (other than for the purpose of transferring the document to another authorised recipient in relation to the document), the recipient must:\n    (a) make a written record of the following:\n    (i) the authorised recipient’s full name;\n    (ii) the date and time when the document was removed;\n    (iii) the place where the document is to be taken; and\n    (b) put the record in the security container.\n\n> Note: If the authorised recipient transfers the document to another authorised recipient in relation to the document, the authorised recipient who transfers the document must ensure that certain information is recorded on the classified document register maintained by the recipient or to which the recipient has access (see section 15).","sortOrder":11},{"sectionNumber":"11","sectionType":"section","heading":"Storage and transmission of security classified documents or national security information in electronic form","content":"#### 11 Storage and transmission of security classified documents or national security information in electronic form\n\n  (1) An authorised recipient in relation to a security classified document or national security information:\n    (a) must not store the document or information in electronic form except on approved information and communications technology equipment for the document or information; and\n    (b) must not transmit the document or information in electronic form unless the equipment used to transmit and to receive the document or information is approved information and communications technology equipment for the document or information.\n  (2) When the approved information and communications technology equipment is not being used, the equipment must, subject to subsection (3):\n    (a) be stored in a locked Class B security container located in a security classified document storage area; or\n    (b) if it is too large to be stored in a Class B security container—be located in a security classified document storage area.\n  (3) If any of the security classified documents or national security information stored on, or transmitted by or to, the approved information and communications technology equipment are assigned the security classification TOP SECRET or Codeword material, the equipment must be located in an area approved by the Commonwealth for the purpose of storing documents or information with that security classification.\n  (4) A Class B security container in which the approved information and communications technology equipment is stored must have a combination that is not known to any person other than:\n    (a) an authorised recipient in relation to all the security classified documents and national security information stored in the container; or\n    (b) an APS employee whose duties include responsibilities relating to the container.\n  (5) A person must not access approved information and communications technology equipment, or remove it from a security container, unless:\n    (a) either:\n    (i) the person is an authorised recipient in relation to all the security classified documents and national security information stored on, or transmitted by or to, the equipment, and the person needs to access any of those documents or information for the purpose of the proceeding to which the documents or information relate; or\n    (ii) the person is a judicial officer; and\n    (b) if the equipment is located in an area approved by the Commonwealth for the purpose of storing documents or information that are assigned the security classification TOP SECRET or Codeword material—the person is permitted by the Commonwealth to access the area.\n\n> Note: Arrangements may need to be made with the Commonwealth to permit an authorised recipient in relation to the document or information, or a judicial officer, to access the area where the equipment is located.\n\n  (6) When the approved information and communications technology equipment is not being used and, if it is capable of being secured by a password, the equipment must be secured by a password that is not known by any person other than:\n    (a) an authorised recipient in relation to all the security classified documents and national security information stored on, or transmitted by or to, the equipment who is handling the equipment for the purposes of the proceeding to which the documents or information relates; or\n    (b) an APS employee whose duties include responsibilities relating to the equipment.\n  (7) Subsection (8) applies in relation to the approved information and communications technology equipment if:\n    (a) a security classified document or national security information that is assigned the security classification TOP SECRET or Codeword material is stored on, or has been transmitted by or to, the equipment; and\n    (b) the equipment is stored in a Class B security container.\n  (8) If the approved information and communications technology equipment is removed from the security container by an authorised recipient in relation to a security classified document or national security information stored on, or transmitted by or to, the equipment, the recipient must:\n    (a) make a written record of the following:\n    (i) the authorised recipient’s full name;\n    (ii) the date and time when the equipment was removed;\n    (iii) the place where the equipment is to be taken; and\n    (b) put the record in the security container.","sortOrder":12},{"sectionNumber":"12","sectionType":"section","heading":"Handling security classified documents","content":"#### 12 Handling security classified documents\n\n  (1) An authorised recipient in relation to a security classified document may only handle the document for the purpose of the proceeding to which the document relates.\n  (2) Except for the purpose of carrying the security classified document or using it in court, the authorised recipient may only:\n    (a) if the document is assigned the security classification TOP SECRET or Codeword material—handle the document in an area approved by the Commonwealth for the purpose of handling documents with that security classification; or\n    (b) in any other case—handle the document in a discrete area.\n  (3) When handling the document, the authorised recipient must ensure that the document cannot be viewed by any person other than:\n    (a) an authorised recipient in relation to the document; or\n    (b) a judicial officer.","sortOrder":13},{"sectionNumber":"13","sectionType":"section","heading":"Handling approved information and communications technology equipment","content":"#### 13 Handling approved information and communications technology equipment\n\n  (1) Approved information and communications technology equipment on which a security classified document or national security information is stored may be handled only by an authorised recipient in relation to the document or information for the purpose of the proceeding to which the document or information relates.\n  (2) Except when the approved information and communications technology equipment is being carried or used in court, the authorised recipient may only:\n    (a) if any security classified document or national security information stored on the equipment is assigned the security classification TOP SECRET or Codeword material—handle the equipment in an area approved by the Commonwealth for the purpose of handling documents or information with that security classification; or\n    (b) in any other case—handle the equipment in a discrete area.\n  (3) When handling the approved information and communications technology equipment, the authorised recipient must ensure that any security classified document or national security information stored on the equipment cannot be viewed by any person other than:\n    (a) an authorised recipient in relation to the document or information; or\n    (b) a judicial officer.","sortOrder":14},{"sectionNumber":"14","sectionType":"section","heading":"Carrying security classified documents","content":"#### 14 Carrying security classified documents\n\n  (1) An authorised recipient in relation to a security classified document must, when carrying the document in a discrete area, ensure that the document cannot be viewed by any person other than:\n    (a) an authorised recipient in relation to the document; or\n    (b) a judicial officer.\n  (2) An authorised recipient in relation to a security classified document must not carry the document in an area other than a discrete area unless:\n    (a) the document is inside 2 SCEC‑approved single use bags; and\n    (b) the document is in a locked container approved by the SCEC; and\n    (c) any keys for the container are removed from the container and are retained by the authorised recipient; and\n    (d) the document remains in the custody and control of the authorised recipient.\n  (3) An authorised recipient in relation to a security classified document (including a security classified document that is in a locked security container) must not give the document to another person for the purpose of carrying it unless the other person is:\n    (a) an SCEC endorsed courier; or\n    (b) another authorised recipient in relation to the document; or\n    (c) a judicial officer.\n  (4) A security classified document that is to be given to an SCEC endorsed courier must be inside 2 SCEC‑approved single use bags.","sortOrder":15},{"sectionNumber":"15","sectionType":"section","heading":"Classified document register","content":"#### 15 Classified document register\n\n  (1) An authorised recipient in relation to a security classified document must maintain, or have access to, a classified document register.\n  (2) As soon as practicable after an authorised recipient receives, creates or prepares a security classified document in hard copy form, or transfers such a document to another person, the recipient must record the following information in the classified document register:\n    (a) if the document has a unique reference number—that number;\n    (b) the title or subject of the document;\n    (c) the security classification of the document;\n    (d) the authorised recipient’s full name;\n    (e) the date the authorised recipient received, created, prepared or transferred the document;\n    (f) if the document was transferred—the name of the person to whom the document was transferred;\n    (g) details of any carriage of the document, including the date of the carriage.\n  (3) However, an authorised recipient must not record any national security information in the register.\n  (4) For the purposes of this section, an authorised recipient who removes a security classified document from a security container as referred to in section 10 is not taken to have received the document.","sortOrder":16},{"sectionNumber":"16","sectionType":"section","heading":"Security classified documents and national security information to remain in Australia","content":"#### 16 Security classified documents and national security information to remain in Australia\n\n  An authorised recipient in relation to a security classified document or national security information must not take, or send (including by electronic transmission), the document or information out of Australia without the permission of the Commonwealth.","sortOrder":17},{"sectionNumber":"17","sectionType":"section","heading":"Return and destruction of security classified documents","content":"#### 17 Return and destruction of security classified documents\n\n  (1) This section does not apply in relation to security classified documents that are in the possession of a court or a registry of a court.\n  (2) This section:\n    (a) has effect subject to the Archives Act 1983 and is not a requirement for the purposes of paragraph 24(2)(a) of that Act; and\n    (b) has effect subject to any law of a State or Territory that makes provision in relation to the archiving of documents.\n\n> Note: This subsection preserves the operation of the Archives Act 1983 and equivalent State and Territory laws in relation to security classified documents to which those laws apply. This section will not apply in relation to the documents.\n\n  (3) Subject to subsection (4), an authorised recipient who has custody or control of a security classified document that relates to a federal criminal proceeding or a civil proceeding must give the document to a representative of the Attorney‑General in the proceeding within 28 days after the conclusion of the proceeding.\n  (4) If the authorised recipient is a legal representative who has ceased to act for a party in the proceeding, the recipient must, within 28 days after ceasing to act, give the security classified document to:\n    (a) a representative of the Attorney‑General in the proceeding; or\n    (b) the new legal representative (if any) of the party.\n  (5) If, under subsection (3) or (4), a security classified document is given to a representative of the Attorney‑General in hard copy form, the representative must ensure that the document is destroyed in accordance with Commonwealth requirements.\n  (6) If, under subsection (3) or (4), a security classified document is given to a representative of the Attorney‑General in electronic form, the representative must ensure that:\n    (a) the document is deleted from the approved information and communications technology equipment on which it is stored, in accordance with Commonwealth requirements; and\n    (b) as far as practicable, all record of the document is removed from that equipment, including, if necessary, by destroying all or part of the equipment in accordance with Commonwealth requirements.\n  (7) If an authorised recipient gives a security classified document to a representative of the Attorney‑General under subsection (3) or (4), the authorised recipient may view:\n    (a) the destruction of the document under subsection (5); or\n    (b) the deletion of the document under subsection (6).","sortOrder":18},{"sectionNumber":"18","sectionType":"section","heading":"Return of Commonwealth property relating to security classified documents","content":"#### 18 Return of Commonwealth property relating to security classified documents\n\n  If an authorised recipient has custody and control of Commonwealth property relating to a security classified document for the purpose of a federal criminal proceeding or a civil proceeding, the authorised recipient must return the property to the Attorney‑General’s Department, or a representative of the Attorney‑General in the proceeding, within 28 days after the earlier of the following:\n    (a) the conclusion of the proceeding;\n    (b) if the authorised recipient is a legal representative who has ceased to act in the proceeding—the recipient ceasing to act in the proceeding.","sortOrder":19},{"sectionNumber":"Part 3","sectionType":"part","heading":"Expected disclosure","content":"## Part 3—Expected disclosure","sortOrder":20},{"sectionNumber":"19","sectionType":"section","heading":"Notice by prosecutor, defendant or defendant’s legal representative of expected disclosure","content":"#### 19 Notice by prosecutor, defendant or defendant’s legal representative of expected disclosure\n\n  For paragraph 24(2)(a) of the Act, Form 1 of Schedule 1 is prescribed.","sortOrder":21},{"sectionNumber":"20","sectionType":"section","heading":"Notice by party or party’s legal representative of expected disclosure","content":"#### 20 Notice by party or party’s legal representative of expected disclosure\n\n  For paragraph 38D(3)(a) of the Act, Form 2 of Schedule 1 is prescribed.","sortOrder":22},{"sectionNumber":"Part 3A","sectionType":"part","heading":"Special advocates","content":"## Part 3A—Special advocates","sortOrder":23},{"sectionNumber":"20A","sectionType":"section","heading":"Appointment requirements","content":"#### 20A Appointment requirements\n\n  The following requirements are specified in relation to the appointment of a person as a special advocate of a party to a civil proceeding:\n    (a) the person is:\n    (i) an eligible former judge; or\n    (ii) an eligible senior counsel; or\n    (iii) an eligible legal practitioner;\n    (b) the person has received training in accessing, storing, handling and destroying security classified documents and national security information for the purposes of exercising powers, or performing functions, as a special advocate of a party to a civil proceeding;\n    (c) the person is not:\n    (i) a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory; or\n    (ii) the Director‑General of Security or a Deputy Director‑General of Security; or\n    (iii) the Director of Public Prosecutions or a person performing a similar function appointed under the law of a State or Territory; or\n    (iv) the Solicitor‑General of the Commonwealth, or of a State or Territory;\n    (d) the Attorney‑General is satisfied that the person is suitable for appointment because of the person’s qualifications, training or experience.","sortOrder":24},{"sectionNumber":"20B","sectionType":"section","heading":"Remuneration","content":"#### 20B Remuneration\n\n  Eligible former judges and eligible senior counsel\n  (1) If a special advocate of a party to a civil proceeding is an eligible former judge or eligible senior counsel, the special advocate may charge the Commonwealth for the time spent by the special advocate in the performance of his or her functions, or the exercise of his or her powers, as a special advocate of the party to the proceeding as follows:\n    (a) per day—either:\n    (i) at the maximum daily rate payable to senior counsel without the approval of the Attorney‑General, as set out in Appendix D of the Legal Services Directions 2017; or\n    (ii) at such higher rate as the Attorney‑General approves;\n    (b) per hour—either:\n    (i) at one‑sixth of the maximum daily rate mentioned in paragraph (a), up to a maximum of 6 hours per day; or\n    (ii) at such higher rate as the Attorney‑General approves.\n  Eligible legal practitioners\n  (2) If a special advocate of a party to a civil proceeding is an eligible legal practitioner, the special advocate may charge the Commonwealth for the time spent by the special advocate in the performance of his or her functions, or the exercise of his or her powers, as a special advocate of the party to the proceeding as follows:\n    (a) per day—either:\n    (i) at the maximum daily rate payable to junior counsel without the approval of the Attorney‑General, as set out in Appendix D of the Legal Services Directions 2017; or\n    (ii) at such higher rate as the Attorney‑General approves;\n    (b) per hour—either:\n    (i) at one‑sixth of the maximum daily rate mentioned in paragraph (a), up to a maximum of 6 hours per day; or\n    (ii) at such higher rate as the Attorney‑General approves.","sortOrder":25},{"sectionNumber":"20C","sectionType":"section","heading":"Disclosure of interests to court","content":"#### 20C Disclosure of interests to court\n\n  A special advocate of a party to a civil proceeding must give the court that appointed the special advocate written notice of all interests, pecuniary or otherwise, that the special advocate has or acquires and that conflict or could conflict with the proper performance of his or her functions, or the exercise of his or her powers, as a special advocate of the party to the proceeding.","sortOrder":26},{"sectionNumber":"20D","sectionType":"section","heading":"Conflicts of interest","content":"#### 20D Conflicts of interest\n\n  A special advocate of a party to a civil proceeding must take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the proper performance of his or her functions, or the exercise of his or her powers, as a special advocate of the party to the proceeding.","sortOrder":27},{"sectionNumber":"20E","sectionType":"section","heading":"Immunity from legal action","content":"#### 20E Immunity from legal action\n\n  No action, suit or proceeding may be brought against a person who is, or has been, a special advocate of a party to a civil proceeding in relation to anything done, or omitted to be done, in good faith by the person:\n    (a) in the performance, or purported performance, of his or her functions as a special advocate of the party to the proceeding; or\n    (b) in the exercise, or purported exercise, of his or her powers as a special advocate of the party to the proceeding.","sortOrder":28},{"sectionNumber":"Part 4","sectionType":"part","heading":"Application and transitional provisions","content":"## Part 4—Application and transitional provisions","sortOrder":29},{"sectionNumber":"21","sectionType":"section","heading":"Application of this instrument","content":"#### 21 Application of this instrument\n\n  This instrument applies in relation to:\n    (a) a security classified document that is disclosed, or to be disclosed, in or for the purpose of:\n    (i) a federal criminal proceeding or a civil proceeding that had commenced before the commencement of this instrument but had not been finally determined before that commencement; or\n    (ii) a federal criminal proceeding or a civil proceeding that is commenced after the commencement of this instrument; and\n    (b) national security information that is disclosed, or to be disclosed, in:\n    (i) a federal criminal proceeding or a civil proceeding that had commenced before the commencement of this instrument but had not been finally determined before that commencement; or\n    (ii) a federal criminal proceeding or a civil proceeding that is commenced after the commencement of this instrument.","sortOrder":30},{"sectionNumber":"Form 1—Notice of expected disclosure of ","sectionType":"part","heading":"Form 1—Notice of expected disclosure of national security information in a federal criminal proceeding","content":"## Form 1—Notice of expected disclosure of national security information in a federal criminal proceeding\n\nCOMMONWEALTH OF AUSTRALIA\n\nNational Security Information (Criminal and Civil Proceedings) Act 2004\n\nNOTICE BY \\*PROSECUTOR/\\*DEFENDANT/\\*DEFENDANT’S LEGAL REPRESENTATIVE OF EXPECTED DISCLOSURE OF NATIONAL SECURITY INFORMATION IN A FEDERAL CRIMINAL PROCEEDING\n\nTO The Attorney‑General\n\n1. I, \\[name\\], am the \\*prosecutor/\\*defendant/\\*defendant’s legal representative in the following federal criminal proceeding: \\[name or description of proceeding\\].\n\n2. I give notice under section 24 of the National Security Information (Criminal and Civil Proceedings) Act 2004 that I \\*know/\\*believe that:\n\n    \\*(a) I will disclose national security information in the proceeding.\n    \\*(b) The person known as \\[name or code\\] whom I intend to call as a witness will disclose national security information \\*in giving evidence/\\*by the person’s mere presence in the proceeding.\n    \\*(c) The person known as \\[name or code\\] is required by subpoena or other order of the court, issued or made on my application, to disclose national security information, other than as a witness, in the proceeding.\n\n\\*3. The national security information that will be disclosed is \\[include a description of the information\\].\n\nOR\n\n\\*3. The national security 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\\].\n\nA copy of each document, or the relevant extract from each document that contains the national security information, accompanies this notice.\n\nDated:\n\n……………………………………….\n\n\\[signature of \\*prosecutor/\\*defendant/\\*defendant’s legal representative\\]\n\n\\[Insert particulars of person signing this notice, including: full name; full address; telephone number; fax number; email address; and (if not already inserted) name, address, telephone number, fax number and email address of defendant’s legal representative.\\]\n\n\\* Omit if not applicable.\n\n> Note: The person giving this notice must advise the court and the other people involved in the proceeding that the notice has been given (see subsection 24(3) of the National Security Information (Criminal and Civil Proceedings) Act 2004).","sortOrder":31},{"sectionNumber":"Form 2—Notice of expected disclosure of ","sectionType":"part","heading":"Form 2—Notice of expected disclosure of national security information in a civil proceeding","content":"## Form 2—Notice of expected disclosure of national security information in a civil proceeding\n\nCOMMONWEALTH OF AUSTRALIA\n\nNational Security Information (Criminal and Civil Proceedings) Act 2004\n\nNOTICE BY \\*PARTY/\\*PARTY’S LEGAL REPRESENTATIVE OF EXPECTED DISCLOSURE OF NATIONAL SECURITY INFORMATION IN A CIVIL PROCEEDING\n\nTO \\*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\n\n1. I, \\[name\\], am \\*a party/\\*the legal representative of a party to the following civil proceeding: \\[name or description of proceeding\\].\n\n2. I give notice under section 38D of the National Security Information (Criminal and Civil Proceedings) Act 2004 that I \\*know/\\*believe that:\n\n    \\*(a) I will disclose national security information in the proceeding.\n    \\*(b) The person known as \\[name or code\\] whom I intend to call as a witness in the proceeding will disclose national security information \\*in giving evidence/\\*by the person’s mere presence in the proceeding.\n    \\*(c) The person known as \\[name or code\\] is required by subpoena or other order of the court, issued or made on my application, to disclose national security information, other than as a witness, in the proceeding.\n\n\\*3. The national security information that will be disclosed is \\[include a description of the information\\].\n\nOR\n\n\\*3. The national security 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\\].\n\nA copy of each document, or the relevant extract from each document that contains the national security information, accompanies this notice.\n\nDated:\n\n……………………………………….\n\n\\[signature of \\*party/\\*party’s legal representative\\]\n\n\\[Insert particulars of person signing this notice, including: full name; full address; telephone number; fax number; email address; and (if not already inserted) name, address, telephone number, fax number and email address of party’s legal representative.\\]\n\n\\* Omit if not applicable.\n\n> Note: The person giving this notice must advise the court and the other people involved in the proceeding that the notice has been given (see subsection 38D(4) of the National Security Information (Criminal and Civil Proceedings) Act 2004).","sortOrder":32}],"analysis":{"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The instrument prescribes requirements and forms under particular subsections of the National Security Information (Criminal and Civil Proceedings) Act 2004 and applies to proceedings that began before commencement (but were not finally determined) and to proceedings commenced after commencement (section 21). The instrument itself sets out procedural and security requirements rather than expanding or narrowing the Act’s jurisdictional scope as expressed in the regulation (see section 5 and section 21)."},"complexity_factors":["Cross‑references to the parent Act for scope and offence provisions (see sections 5, 7 and notes referencing subsections 23(1), 38C(1), 24(2)(a), 38D(3)(a)).","Multiple security classifications with different handling, storage and location rules (PROTECTED up to TOP SECRET/Codeword) requiring Commonwealth approvals for highest classifications (see definitions and sections 10(4), 11(3), 12(2)(a), 13(2)(a)).","Technical physical and ICT security requirements: Class B containers, SCEC approvals, approved ICT equipment, password and custody rules (sections 10–14, 11).","Detailed recordkeeping obligations (classified document register and removal logs) with limits on the substance that can be recorded (section 15).","Appointment, eligibility, training and conflict rules for special advocates plus a specified Commonwealth payment regime that allows Attorney‑General discretion to approve higher rates (sections 20A–20B, 20C–20E).","Multiple places where Commonwealth or Attorney‑General permission/approval is required, creating administrative coordination points and potential delays (sections 8(6), 10(4)–(5), 11(3), 16, 20A(d), 20B).","Transitional and application provisions covering proceedings that began before commencement as well as after (section 21), which create timing and retrospective application considerations."],"plain_english_summary":"# What this regulation does\n\nThis regulation sets out detailed security and procedural rules for handling, storing, creating, transferring, disclosing and destroying documents or information that have been labelled as security classified or that include national security information when they are used in federal criminal or covered civil proceedings. It also prescribes the forms for giving notice that national security information is expected to be disclosed, and specifies who may be appointed, how they are paid, and the duties and protections of \"special advocates\" in certain civil proceedings. (See sections 5, 8–18, 19–20, 20A–20E.)\n\n# Who it affects\n\n- \"Authorised recipients\": people to whom security classified documents or national security information may be disclosed in covered proceedings (definition in section 6). Typical examples include legal representatives and other persons authorised under the Act to receive such material. (See section 6.)\n- Special advocates and persons who might be appointed as special advocates in civil proceedings (sections 20A–20E and definition items in section 6).\n- The Attorney‑General and Commonwealth authorities, who exercise approvals, provide permissions and receive returned material (see sections 5, 8(6), 10(4)–(5), 11(3), 16–18, 20A(d), 20B).\n\n# How it works mechanically (key obligations and processes)\n\n- Creation and preparation: authorised recipients must prepare documents containing classified material only in a \"discrete area,\" and must use Commonwealth‑approved IT equipment if electronic; every created document must be assigned a security classification equal to its highest‑classification content and the classification must be shown on every page. If uncertain, the authorised recipient must consult the Commonwealth. (See section 8.)\n\n- Copying: authorised recipients may only copy classified documents under the rules in section 8; they may request copies in writing from the Attorney‑General or a representative. A written request must state the number of copies and the names of recipients. (See section 9.)\n\n- Physical storage: hard‑copy classified documents must be kept in locked Class B security containers in a security classified document storage area; TOP SECRET or Codeword material requires an area specifically approved by the Commonwealth. Only authorised recipients (or certain APS employees or judicial officers) may know container combinations or remove material, and additional written recordkeeping applies to removal of TOP SECRET/Codeword material. (See section 10.)\n\n- Electronic storage and transmission: classified material in electronic form must be stored and transmitted only on Commonwealth‑approved information and communications technology equipment. When not in use the equipment must be secured (locked container or stored in an approved area); TOP SECRET/Codeword material again requires Commonwealth‑approved premises. Removal of approved equipment from secure storage requires written recording. Password knowledge is restricted to authorised recipients or authorised APS staff. (See section 11.)\n\n- Handling and carrying: authorised recipients may handle and carry classified material only for the proceeding and only in appropriate secure areas (discrete areas or Commonwealth‑approved areas for TOP SECRET/Codeword). Special packaging and SCEC approvals apply when carrying documents outside discrete areas and when using endorsed couriers. Documents must not be given to other persons for carriage except to SCEC‑endorsed couriers, other authorised recipients or judicial officers. (See sections 12–14.)\n\n- Register and records: recipients must maintain or have access to a classified document register and log specific metadata (title, classification, who received/created/transferred it, dates, carriage details). The register must not themselves contain national security information. (See section 15.)\n\n- Movement and international transfer: authorised recipients must not take or send classified documents or national security information out of Australia without Commonwealth permission. (See section 16.)\n\n- Return and destruction: at the end of the proceeding (or when a legal representative ceases to act) authorised recipients must return classified documents or Commonwealth property to the Attorney‑General or a representative within 28 days. Representatives must ensure destruction or deletion in accordance with Commonwealth requirements; electronic deletion must be carried out on approved equipment and, where necessary, equipment destroyed in accordance with Commonwealth requirements. The person returning material may observe destruction. (See sections 17–18.)\n\n- Notices of expected disclosure: the regulation prescribes the exact forms for giving notice that national security information will be disclosed in a federal criminal proceeding (Form 1) or in a civil proceeding (Form 2). Those forms set out what must be included and remind the notifier to advise the court and other participants. (See sections 19–20 and Schedule Forms 1–2.)\n\n- Special advocates: the regulation sets eligibility and appointment requirements (eligible former judges, eligible senior counsel, or eligible legal practitioners; training required; disqualifying offices), requires disclosure and avoidance of conflicts of interest, gives immunity for good‑faith acts and omissions in the role, and allows special advocates to charge the Commonwealth for their time under specified daily or hourly rates (with the Attorney‑General able to approve higher rates). (See sections 20A–20E.)\n\n# Who pays, who decides, and incentives created\n\n- Who pays: Special advocates may invoice the Commonwealth for their time and be paid at specified maximum daily or hourly rates or at higher rates if approved by the Attorney‑General (section 20B). Other direct costs of meeting the regulation (secure containers, approved ICT equipment, discrete areas, security clearances, recordkeeping) are obligations on authorised recipients and therefore primarily borne by the parties, their legal representatives, or their employers, unless the Commonwealth provides or subsidises the facilities. (See sections 8–15, 11.)\n\n- Who decides and exercises discretion: the Commonwealth and the Attorney‑General have operational discretion in several places: approving areas for TOP SECRET/Codeword storage or handling (sections 10(4), 11(3), 12(2)(a), 13(2)(a)); approving or supplying approved ICT equipment (definitions and section 8(3), 11(1)); permission to take information or documents out of Australia (section 16); and confirming suitability of persons for special advocate appointment and higher remuneration rates (sections 20A(d), 20B). These rules create points where central approval or permission is required before certain behaviours are permitted.\n\n# Compliance burden, implementation risks and trade‑offs (source‑grounded)\n\n- Compliance burden: the regulation requires secure premises or discrete areas, Class B containers, SCEC‑approved packaging and couriers for some movements, approved ICT, specific register entries, written records when certain items are removed from secure storage, security clearances for eligible advocates and training for special advocates. These requirements impose administrative, facility and procedural costs on authorised recipients and on the Commonwealth when it must supply approvals or equipment. (See sections 6 (definitions), 8–15, 11, 14, 15, 20A–20B.)\n\n- Implementation risk and access coordination: the regulation anticipates that arrangements must be made with the Commonwealth to permit authorised recipients or judicial officers to access Commonwealth‑approved areas or equipment (notes to sections 10 and 11). If such arrangements are not in place, access to material could be delayed or require additional coordination. (See notes to sections 10 and 11.)\n\n- Concentrated benefits and approval control: special advocates are paid by the Commonwealth under specified rates and may be paid higher rates if the Attorney‑General agrees (section 20B). The Attorney‑General and Commonwealth approvals for secure areas and equipment are centralised decision points that determine who may access or handle the most highly classified material (sections 10(4), 11(3), 20A(d), 20B). These provisions create focused payments and central gatekeeping roles that affect who can practically participate in proceedings involving the most sensitive material.\n\n# Legal consequences\n\nThe instrument warns that contravening any requirement prescribed for subsections 23(1) or 38C(1) of the Act may amount to an offence (see note to section 5). The instrument also creates an immunity for special advocates for acts or omissions done in good faith in carrying out their functions (section 20E).\n\n# How the instrument applies in time\n\nThe regulation applies to classified documents and national security information disclosed in covered proceedings that began before the instrument commenced but were not finally determined at commencement, and to proceedings commenced after commencement. (See section 21.)\n\n# Short summary of effects on private choice and enterprise\n\n- Private legal practitioners and parties who become authorised recipients must comply with substantial security and recordkeeping obligations, and may be required to use Commonwealth‑approved equipment and premises (sections 8–15, 11).\n- Special advocates are independent actors whose fees in civil proceedings are chargeable to the Commonwealth under the prescribed scheme (section 20B). The Attorney‑General has a formal role in approving appointments and higher fees (sections 20A(d), 20B).\n\n(Primary sources: sections 5, 6, 7A, 8–18, 19–21, 20A–20E, Schedule Forms 1–2.)"},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The regulation appears consistent with its original purpose under the parent Act. It operationalises the Act's framework by prescribing specific security procedures, forms, and special advocate requirements. The 2017 amendments adding Part 3A (special advocates for civil proceedings) expanded coverage but within the Act's existing structure for handling national security information in legal proceedings."},"complexity_factors":["18 defined terms in section 6, many cross-referencing the parent Act","Nested conditional logic throughout Part 2 (e.g., sections 10-11 have multiple subsections with 'if/then' exceptions for TOP SECRET/Codeword material vs other classifications)","Dual regime structure covering both criminal proceedings (Part 2) and civil proceedings (Part 3A) with overlapping but distinct requirements","Extensive cross-referencing to the parent Act (National Security Information (Criminal and Civil Proceedings) Act 2004) and other instruments like the Legal Services Directions 2017","Multiple exceptions and carve-outs (e.g., section 7A excludes Part 2 where inconsistent with court orders; section 17 preserves Archives Act 1983; judicial officers exempted from many requirements)","Technical security terminology requiring external knowledge (SCEC, Negative Vetting Level 2, Codeword material, protective markings)","Prescribed forms with conditional fields and asterisked 'omit if not applicable' instructions"],"plain_english_summary":"This regulation sets out the practical rules for handling secret government information during court cases. It applies to both criminal trials (like terrorism prosecutions) and civil lawsuits where national security information might be revealed.\n\n**What it does:**\n\n*   **Protects classified documents:** It creates strict rules for how lawyers, judges, and court staff must store, copy, transport, and destroy documents marked with security classifications like 'SECRET' or 'TOP SECRET'.\n*   **Controls electronic information:** It requires special government-approved computers and equipment for storing or sending classified information electronically.\n*   **Sets up special advocates:** It establishes who can be appointed as a 'special advocate'—a security-cleared lawyer who can see secret evidence in civil cases even when the party they're representing cannot.\n*   **Provides standard forms:** It includes template forms that prosecutors or parties must use to notify the Attorney-General when they plan to reveal national security information in court.\n\n**Who it affects:**\n\n*   Lawyers representing defendants in federal criminal cases (especially terrorism or espionage trials)\n*   Parties and lawyers in civil proceedings involving national security\n*   Special advocates appointed in civil proceedings\n*   Court officials and judges handling these sensitive cases\n*   The Attorney-General's Department and security agencies\n\n**Why it matters:**\n\nThis regulation tries to balance two competing needs: allowing fair court proceedings where defendants can defend themselves, while preventing genuinely sensitive national secrets from being accidentally leaked or falling into the wrong hands. It creates a detailed 'chain of custody' for secret documents, similar to how evidence is handled in police investigations, but with much stricter security requirements."}},"importantCases":[],"_links":{"self":"/api/acts/national-security-information-criminal-and-civil-proceedings-regulation-2015","history":"/api/acts/national-security-information-criminal-and-civil-proceedings-regulation-2015/history","analysis":"/api/acts/national-security-information-criminal-and-civil-proceedings-regulation-2015/analysis","conflicts":"/api/acts/national-security-information-criminal-and-civil-proceedings-regulation-2015/conflicts","importantCases":"/api/acts/national-security-information-criminal-and-civil-proceedings-regulation-2015/important-cases","documents":"/api/acts/national-security-information-criminal-and-civil-proceedings-regulation-2015/documents"}}