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Commonwealth act
This Act creates a special legal framework for handling sensitive national security information when it comes up in Australian court cases — both criminal trials and civil lawsuits.
Sometimes, during a court case, information that could harm Australia's national security (think: intelligence sources, spy methods, diplomatic secrets) needs to be discussed. Without rules, this creates a dilemma: either the case can't proceed properly, or dangerous information gets exposed publicly. This Act tries to balance a fair trial against protecting national security.
Step 1 — Triggering the Act For criminal cases: the prosecutor sends written notice to the court and defendant. For civil cases: the Attorney-General sends notice to all parties.
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Direct links to the current provisions in National Security Information (Criminal and Civil Proceedings) Act 2004.
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View on official registerSourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Step 2 — Early Warning System If anyone involved — a lawyer, prosecutor, or party — knows that national security information is about to come out in court, they must warn the Attorney-General in writing (failing to do so is a criminal offence).
Step 3 — The Attorney-General Steps In The Attorney-General can issue one of two types of certificates:
Step 4 — Closed Hearings When these certificates are issued, the court holds a closed hearing (private, with restricted attendance — no jury, no public, and sometimes even the defendant and their lawyer can be excluded from parts of it) to decide what to do.
Step 5 — Court Orders After the closed hearing, the court makes an order that either:
Step 6 — Special Rules for Terrorism Cases For control orders (court orders restricting someone's movements due to terrorism risk) and extended supervision orders (post-sentence supervision of terrorist offenders), there are extra rules allowing courts to consider secret evidence that the subject of the order may never see — a significant restriction on the usual right to know the case against you.
Step 7 — Special Advocates In civil cases, a special advocate (a security-cleared lawyer appointed to represent a party's interests when that party is excluded from secret hearings) can be appointed. This provides some protection for parties who can't see the evidence being used against them.
This law explicitly acknowledges the tension: national security comes first, except where keeping information secret would seriously interfere with justice. In criminal cases, courts must consider whether secrecy orders would unfairly harm the defendant's ability to run their defence. Courts retain power to stay (halt) proceedings if they decide the situation is too unfair to continue.
Lawyers, prosecutors and parties who fail to warn the Attorney-General when they know national security information is about to be disclosed face criminal penalties.