National Security Information (Criminal and Civil Proceedings) Regulation 2015
In ForceCTH
Jurisdiction
Commonwealth
Act Number
26 of 2015
Collection
legislative instrument
Plain English Summary
6/10 complexity
This regulation prescribes security, handling and procedural rules for classified material and national‑security information used in federal criminal and covered civil proceedings, including storage, ICT, movement, return/destruction, recordkeeping and prescribed notice forms. It applies to authorised recipients, special advocates, the Attorney‑General and Commonwealth authorities.
It also sets eligibility, duties, protections and payment rules for special advocates, and centralises key approvals (secure areas, equipment, overseas transfer, higher fees) with the Commonwealth and Attorney‑General.
This Regulation prescribes practical, operational requirements for the handling of “security classified documents” and “national security information” disclosed or to be disclosed in federal criminal proceedings and civil proceedings to which the National Security Information (Criminal and Civil Proceedings) Act 2004 (the Act) applies. The instrument is the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (s 1) and is made under the Act (s 3). Its stated purpose is to prescribe (a) requirements for accessing, storing, handling and destroying security classified documents and national security information and for creating or preparing documents that relate to them; (b) the form of notices of expected disclosure for federal criminal proceedings and civil proceedings (Forms 1 and 2 in Schedule 1); and (ba) matters relating to special advocates for specified Act provisions (s 5).
Mechanically, the Regulation imposes rules that determine where and how authorised recipients must create, copy, store, carry, handle, transmit and destroy classified material. Key operational rules include: creation/preparation in a discrete area and, if electronic, on “approved information and communications technology equipment” (s 8(2)‑(3)); a prohibition on copying except in accordance with s 8 (s 9(1)); hard copy storage in locked Class B security containers located in a security classified document storage area with heightened requirements for TOP SECRET or Codeword material (s 10); electronic storage and transmission limited to approved ICT equipment and secured when not in use (s 11); physical handling and carriage limited to discrete areas or Commonwealth‑approved areas for TOP SECRET/Codeword material and measures to ensure documents cannot be viewed by unauthorised persons (ss 12‑14). The Regulation also prescribes that classified items must remain in Australia unless the Commonwealth gives permission (s 16), and sets out return and destruction obligations for authorised recipients and Attorney‑General representatives at the end of proceedings (ss 17‑18).
Current sections
Direct links to the current provisions in National Security Information (Criminal and Civil Proceedings) Regulation 2015.
33
Part 1
Preliminary
Part 1—Preliminary
1
Name
1 Name
This is the National Security Information (Criminal and Civil Proceedings) Regulation 2015.
3
Authority
3 Authority
This instrument is made under the National Security Information (Criminal and Civil Proceedings) Act 2004.
4
Schedules
4 Schedules
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.
5
Purpose and application
5 Purpose and application
This instrument prescribes:
(a) for subsections 23(1) and 38C(1) of the Act:
(i) requirements for accessing, storing, handling and destroying security classified documents and national security information; and
(ii) requirements for creating or preparing documents that relate to security classified documents or national security information; and
(b) for paragraphs 24(2)(a) and 38D(3)(a) of the Act—the form of a notice of expected disclosure; and
(ba) for the purposes of subsection 38PA(2) or 38PI(1) of the Act—matters relating to special advocates; and
(c) related matters.
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).
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.
6
Definitions
6 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) civil proceeding;
(b) court official;
(c) document;
(d) federal criminal proceeding;
(e) national security information;
(f) special advocate.
In this instrument:
Act means the National Security Information (Criminal and Civil Proceedings) Act 2004.
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.
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:
(a) a certificate, hearing, decision, notice, order or other process under the Act; or
(b) an order or process of the court in the proceeding; or
(c) a written authorisation given by the Attorney‑General or a representative of the Attorney‑General in the proceeding;
but does not include a judicial officer.
Class B security container means a security container that is fitted with an SCEC‑endorsed combination lock.
classified document register means a register that includes details about security classified documents that are received, created, prepared or transferred in hard copy form.
Note: See section 15.
copy means to record or reproduce information in any medium.
Deputy Director‑General of Security means a person who holds, or is acting in, a position known as Deputy Director‑General of Security.
Director‑General of Security means the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979.
discrete area means an area within an enclosed building or office where:
(a) public access is restricted; and
(b) access by employees is controlled; and
(c) access by visitors is strictly controlled and is on a needs basis.
eligible former judge means a former judge of any of the following courts:
(a) the High Court;
(b) a court that is or was created by the Parliament under Chapter III of the Constitution;
(c) the Supreme Court of a State or Territory;
(d) the District Court (or equivalent) of a State or Territory.
eligible legal practitioner means a person who:
(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
(b) holds a practising certificate (however described); and
(c) has at least 5 years’ legal advocacy experience; and
(d) holds a Negative Vetting Level 2 security clearance.
eligible senior counsel means a person who:
(a) is a Queen’s Counsel or Senior Counsel; and
(b) holds a Negative Vetting Level 2 security clearance.
judicial officer means a magistrate or a judge.
Negative Vetting Level 2 security clearance means a security clearance that:
(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
(b) permits ongoing access to information that has been assigned any of the following security classifications:
(i) PROTECTED;
(ii) CONFIDENTIAL;
(iii) SECRET;
(iv) TOP SECRET.
SCEC (short for Security Construction and Equipment Committee) means the Commonwealth Government interdepartmental committee that approves protective security products and endorses protective security services.
security classification means a protective marking assigned to national security information to indicate:
(a) the value of the information; and
(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.
Note: The following are examples of security classifications that may be, or may have been, assigned to information:
(a) a document that is disclosed, or to be disclosed, in a federal criminal proceeding or a civil proceeding:
(i) to which a security classification has been assigned; or
(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
(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
(c) a document that includes national security information that is included in a document referred to in paragraph (a) or (b); or
(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.
security classified document storage area means an area in which entry and openings are secured at all times to limit access to the following:
(a) an authorised recipient in relation to security classified documents or national security information stored in the area;
(b) a person in the company of such an authorised recipient;
(c) a person authorised to access the area by such an authorised recipient;
(d) a judicial officer.
7
References to federal criminal proceeding or civil proceeding
7 References to federal criminal proceeding or civil proceeding
In this instrument:
(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
(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.
Part 2
Protection of security classified documents and national security information
Part 2—Protection of security classified documents and national security information
7A
When Part does not apply
7A When Part does not apply
If:
(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
(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
(c) the order was made on an application by the Attorney‑General or a representative of the Attorney‑General;
this Part does not apply to the extent of that inconsistency.
8
Creation or preparation of documents relating to security classified documents or national security information
8 Creation or preparation of documents relating to security classified documents or national security information
(1) This section applies to:
(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
(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.
(2) The authorised recipient must create or prepare the document in a discrete area.
(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.
(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.
(5) The security classification assigned to the document must be clearly recorded at the top and bottom of each page of the document.
(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.
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).
9
Copying security classified documents
9 Copying security classified documents
(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.
(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.
(3) A request under subsection (2) must state:
(a) the number of copies of the document required; and
(b) the full name of the authorised recipient making the request; and
(c) the full name of each other authorised recipient in relation to the document who is to be given a copy of the document.
10
Storage of security classified documents in hard copy form
10 Storage of security classified documents in hard copy form
(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.
(2) The security container must have a combination that is not known by any person other than:
(a) an authorised recipient in relation to all the security classified documents stored in the container; or
(b) an APS employee whose duties include responsibilities relating to the container.
(3) The security container must, subject to subsection (4), be located in a security classified document storage area.
(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.
(5) A person must not remove a security classified document from the security container unless:
(a) either:
(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
(ii) the person is a judicial officer; and
(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.
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.
(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:
(a) make a written record of the following:
(i) the authorised recipient’s full name;
(ii) the date and time when the document was removed;
(iii) the place where the document is to be taken; and
(b) put the record in the security container.
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).
11
Storage and transmission of security classified documents or national security information in electronic form
11 Storage and transmission of security classified documents or national security information in electronic form
(1) An authorised recipient in relation to a security classified document or national security information:
(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
(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.
(2) When the approved information and communications technology equipment is not being used, the equipment must, subject to subsection (3):
(a) be stored in a locked Class B security container located in a security classified document storage area; or
(b) if it is too large to be stored in a Class B security container—be located in a security classified document storage area.
(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.
(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:
(a) an authorised recipient in relation to all the security classified documents and national security information stored in the container; or
(b) an APS employee whose duties include responsibilities relating to the container.
(5) A person must not access approved information and communications technology equipment, or remove it from a security container, unless:
(a) either:
(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
(ii) the person is a judicial officer; and
(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.
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.
(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:
(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
(b) an APS employee whose duties include responsibilities relating to the equipment.
(7) Subsection (8) applies in relation to the approved information and communications technology equipment if:
(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
(b) the equipment is stored in a Class B security container.
(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:
(a) make a written record of the following:
(i) the authorised recipient’s full name;
(ii) the date and time when the equipment was removed;
(iii) the place where the equipment is to be taken; and
(b) put the record in the security container.
12
Handling security classified documents
12 Handling security classified documents
(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.
(2) Except for the purpose of carrying the security classified document or using it in court, the authorised recipient may only:
(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
(b) in any other case—handle the document in a discrete area.
(3) When handling the document, the authorised recipient must ensure that the document cannot be viewed by any person other than:
(a) an authorised recipient in relation to the document; or
(b) a judicial officer.
13
Handling approved information and communications technology equipment
13 Handling approved information and communications technology equipment
(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.
(2) Except when the approved information and communications technology equipment is being carried or used in court, the authorised recipient may only:
(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
(b) in any other case—handle the equipment in a discrete area.
(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:
(a) an authorised recipient in relation to the document or information; or
(b) a judicial officer.
14
Carrying security classified documents
14 Carrying security classified documents
(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:
(a) an authorised recipient in relation to the document; or
(b) a judicial officer.
(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:
(a) the document is inside 2 SCEC‑approved single use bags; and
(b) the document is in a locked container approved by the SCEC; and
(c) any keys for the container are removed from the container and are retained by the authorised recipient; and
(d) the document remains in the custody and control of the authorised recipient.
(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:
(a) an SCEC endorsed courier; or
(b) another authorised recipient in relation to the document; or
(c) a judicial officer.
(4) A security classified document that is to be given to an SCEC endorsed courier must be inside 2 SCEC‑approved single use bags.
15
Classified document register
15 Classified document register
(1) An authorised recipient in relation to a security classified document must maintain, or have access to, a classified document register.
(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:
(a) if the document has a unique reference number—that number;
(b) the title or subject of the document;
(c) the security classification of the document;
(d) the authorised recipient’s full name;
(e) the date the authorised recipient received, created, prepared or transferred the document;
(f) if the document was transferred—the name of the person to whom the document was transferred;
(g) details of any carriage of the document, including the date of the carriage.
(3) However, an authorised recipient must not record any national security information in the register.
(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.
16
Security classified documents and national security information to remain in Australia
16 Security classified documents and national security information to remain in Australia
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.
17
Return and destruction of security classified documents
17 Return and destruction of security classified documents
(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.
(2) This section:
(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
(b) has effect subject to any law of a State or Territory that makes provision in relation to the archiving of documents.
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.
(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.
(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:
(a) a representative of the Attorney‑General in the proceeding; or
(b) the new legal representative (if any) of the party.
(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.
(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:
(a) the document is deleted from the approved information and communications technology equipment on which it is stored, in accordance with Commonwealth requirements; and
(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.
(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:
(a) the destruction of the document under subsection (5); or
(b) the deletion of the document under subsection (6).
18
Return of Commonwealth property relating to security classified documents
18 Return of Commonwealth property relating to security classified documents
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:
(a) the conclusion of the proceeding;
(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.
Part 3
Expected disclosure
Part 3—Expected disclosure
19
Notice by prosecutor, defendant or defendant’s legal representative of expected disclosure
19 Notice by prosecutor, defendant or defendant’s legal representative of expected disclosure
For paragraph 24(2)(a) of the Act, Form 1 of Schedule 1 is prescribed.
20
Notice by party or party’s legal representative of expected disclosure
20 Notice by party or party’s legal representative of expected disclosure
For paragraph 38D(3)(a) of the Act, Form 2 of Schedule 1 is prescribed.
Part 3A
Special advocates
Part 3A—Special advocates
20A
Appointment requirements
20A Appointment requirements
The following requirements are specified in relation to the appointment of a person as a special advocate of a party to a civil proceeding:
(a) the person is:
(i) an eligible former judge; or
(ii) an eligible senior counsel; or
(iii) an eligible legal practitioner;
(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;
(c) the person is not:
(i) a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory; or
(ii) the Director‑General of Security or a Deputy Director‑General of Security; or
(iii) the Director of Public Prosecutions or a person performing a similar function appointed under the law of a State or Territory; or
(iv) the Solicitor‑General of the Commonwealth, or of a State or Territory;
(d) the Attorney‑General is satisfied that the person is suitable for appointment because of the person’s qualifications, training or experience.
20B
Remuneration
20B Remuneration
Eligible former judges and eligible senior counsel
(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:
(a) per day—either:
(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
(ii) at such higher rate as the Attorney‑General approves;
(b) per hour—either:
(i) at one‑sixth of the maximum daily rate mentioned in paragraph (a), up to a maximum of 6 hours per day; or
(ii) at such higher rate as the Attorney‑General approves.
Eligible legal practitioners
(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:
(a) per day—either:
(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
(ii) at such higher rate as the Attorney‑General approves;
(b) per hour—either:
(i) at one‑sixth of the maximum daily rate mentioned in paragraph (a), up to a maximum of 6 hours per day; or
(ii) at such higher rate as the Attorney‑General approves.
20C
Disclosure of interests to court
20C Disclosure of interests to court
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.
20D
Conflicts of interest
20D Conflicts of interest
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.
20E
Immunity from legal action
20E Immunity from legal action
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:
(a) in the performance, or purported performance, of his or her functions as a special advocate of the party to the proceeding; or
(b) in the exercise, or purported exercise, of his or her powers as a special advocate of the party to the proceeding.
Part 4
Application and transitional provisions
Part 4—Application and transitional provisions
21
Application of this instrument
21 Application of this instrument
This instrument applies in relation to:
(a) a security classified document that is disclosed, or to be disclosed, in or for the purpose of:
(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
(ii) a federal criminal proceeding or a civil proceeding that is commenced after the commencement of this instrument; and
(b) national security information that is disclosed, or to be disclosed, in:
(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
(ii) a federal criminal proceeding or a civil proceeding that is commenced after the commencement of this instrument.
Form 1—Notice of expected disclosure of
Form 1—Notice of expected disclosure of national security information in a federal criminal proceeding
Form 1—Notice of expected disclosure of national security information in a federal criminal proceeding
COMMONWEALTH OF AUSTRALIA
National Security Information (Criminal and Civil Proceedings) Act 2004
NOTICE BY *PROSECUTOR/*DEFENDANT/*DEFENDANT’S LEGAL REPRESENTATIVE OF EXPECTED DISCLOSURE OF NATIONAL SECURITY INFORMATION IN A FEDERAL CRIMINAL PROCEEDING
TO The Attorney‑General
I, [name], am the *prosecutor/*defendant/*defendant’s legal representative in the following federal criminal proceeding: [name or description of proceeding].
I give notice under section 24 of the National Security Information (Criminal and Civil Proceedings) Act 2004 that I *know/*believe that:
*(a) I will disclose national security information in the proceeding.
*(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.
*(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.
*3. The national security information that will be disclosed is [include a description of the information].
OR
*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].
A copy of each document, or the relevant extract from each document that contains the national security information, accompanies this notice.
Dated:
……………………………………….
[signature of *prosecutor/*defendant/*defendant’s legal representative]
[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.]
* Omit if not applicable.
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).
Form 2—Notice of expected disclosure of
Form 2—Notice of expected disclosure of national security information in a civil proceeding
Form 2—Notice of expected disclosure of national security information in a civil proceeding
COMMONWEALTH OF AUSTRALIA
National Security Information (Criminal and Civil Proceedings) Act 2004
NOTICE BY *PARTY/*PARTY’S LEGAL REPRESENTATIVE OF EXPECTED DISCLOSURE OF NATIONAL SECURITY INFORMATION IN A CIVIL PROCEEDING
TO *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
I, [name], am *a party/*the legal representative of a party to the following civil proceeding: [name or description of proceeding].
I give notice under section 38D of the National Security Information (Criminal and Civil Proceedings) Act 2004 that I *know/*believe that:
*(a) I will disclose national security information in the proceeding.
*(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.
*(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.
*3. The national security information that will be disclosed is [include a description of the information].
OR
*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].
A copy of each document, or the relevant extract from each document that contains the national security information, accompanies this notice.
Dated:
……………………………………….
[signature of *party/*party’s legal representative]
[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.]
* Omit if not applicable.
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).
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1—Preliminary
1 Name
1 Name
This is the National Security Information (Criminal and Civil Proceedings) Regulation 2015.
3 Authority
3 Authority
This instrument is made under the National Security Information (Criminal and Civil Proceedings) Act 2004.
4 Schedules
4 Schedules
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.
5 Purpose and application
5 Purpose and application
This instrument prescribes:
(a) for subsections 23(1) and 38C(1) of the Act:
(i) requirements for accessing, storing, handling and destroying security classified documents and national security information; and
(ii) requirements for creating or preparing documents that relate to security classified documents or national security information; and
(b) for paragraphs 24(2)(a) and 38D(3)(a) of the Act—the form of a notice of expected disclosure; and
(ba) for the purposes of subsection 38PA(2) or 38PI(1) of the Act—matters relating to special advocates; and
(c) related matters.
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).
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.
6 Definitions
6 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) civil proceeding;
(b) court official;
(c) document;
(d) federal criminal proceeding;
(e) national security information;
(f) special advocate.
In this instrument:
Act means the National Security Information (Criminal and Civil Proceedings) Act 2004.
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.
The instrument creates duties for authorised recipients and places a number of decision points and discretion with the Commonwealth and the Attorney‑General: approvals for ICT equipment, Commonwealth approval of areas for TOP SECRET/Codeword material, arrangements for access to those areas, and consultation on classification where the authorised recipient is in doubt (s 8(6), s 10(4)‑(5), s 11(3), s 16). It prescribes appointment, qualification, training and disclosure requirements for special advocates in civil proceedings, together with remuneration rules and immunity for special advocates (ss 20A‑20E, 20B). The instrument also prescribes Form 1 and Form 2 for notices of expected disclosure required by the Act (ss 19‑20; Schedule 1). The Regulation includes an express saving that if an order under the Act is inconsistent with this Part, the order prevails in relation to the matters of inconsistency (s 7A).
The instrument’s own note states that contravention of a requirement prescribed for specified Act subsections may constitute an offence under ss 45A and 46FA of the Act (s 5 Note 1). The Regulation applies to proceedings commenced before or after its commencement provided they had not finally concluded before commencement (s 21).
Main concepts
The Regulation relies on and elaborates a small set of core concepts from the Act and adds operational definitions that structure behaviour.
Security classified document. The instrument defines “security classified document” broadly to capture documents disclosed or to be disclosed in proceedings where a security classification has been assigned, where the Attorney‑General has stated in writing that the document is security classified, where the document includes national security information disclosed in the proceeding, or where the document was created/prepared for the purpose of a proceeding (s 6). This definition determines who is treated as an “authorised recipient” and which handling rules apply.
Authorised recipient. The instrument defines “authorised recipient” as a person to whom the document or information has been or may be disclosed in a proceeding under a certificate, hearing, decision, notice, order or other process under the Act, or an order of the court, or written authorisation by the Attorney‑General or a representative of the Attorney‑General; judicial officers are expressly excluded from that definition (s 6). Numerous duties in the Regulation are owed to authorised recipients; judicial officers occupy a separate, permissive role in several rules (for example they may view documents or handle them in court, ss 12(3), 13(3), 14).
Security classifications and approved items. The instrument uses “security classification” as the protective marking that sets the minimum protective measures and lists examples (PROTECTED, CONFIDENTIAL, SECRET, TOP SECRET, Codeword material, Restricted) (s 6). “Approved information and communications technology equipment” is equipment supplied or approved by the Commonwealth for use with documents to which a security classification is or will be assigned (s 6). The Security Construction and Equipment Committee (SCEC) is the interdepartmental committee that endorses protective security products and services; a “Class B security container” is a container fitted with an SCEC‑endorsed combination lock (s 6). These approvals determine the pool of permissible equipment and containers (ss 10, 11).
Discrete area and security classified document storage area. A “discrete area” is an enclosed building or office area with restricted public access, controlled employee access and strictly controlled visitor access on a needs basis (s 6). A “security classified document storage area” limits access to authorised recipients or persons approved by authorised recipients or judicial officers (s 6). Many handling and carriage duties require use of these areas and define exceptions where endorsed containers and SCEC approvals can be used for carriage (ss 8, 10‑14).
Negative Vetting Level 2. Defined as a clearance that permits ongoing access to PROTECTED, CONFIDENTIAL, SECRET and TOP SECRET, and issued by AGSVA or an authorised agency (s 6). It is necessary for eligibility as a special advocate (s 6; s 20A).
Special advocate. The Regulation sets out who may be appointed as a special advocate in civil proceedings (eligible former judges, eligible senior counsel, eligible legal practitioners), training, exclusions (for example members of Parliament, Director‑General of Security), remuneration rules, disclosure of interests, conflict avoidance and immunity for acts done in good faith (ss 20A‑20E, 20B).
These concepts interlock. For example, the classification attached to the most highly classified information in a created document dictates the protective measures (s 8(4)‑(5)), which in turn determines whether equipment or storage must be placed in areas approved by the Commonwealth for TOP SECRET or Codeword material (ss 10(4), 11(3)). The instrument creates a compliance architecture that ties physical, digital and personnel security to Commonwealth approvals and SCEC endorsements.
Who it affects
The Regulation structures duties around a limited set of actors. Each provision identifies who pays, who decides and who must change behaviour.
Authorised recipients. The primary regulated party is the “authorised recipient” in relation to a security classified document or national security information (defined at s 6). Authorised recipients include legal practitioners, parties or other persons who have been or may be disclosed to under the Act, a court order, or written authorisation of the Attorney‑General, but exclude judicial officers (s 6). These persons must follow creation and preparation rules (s 8), cannot copy except in limited ways (s 9), must store hard copy documents in locked Class B containers (s 10), must use approved ICT for electronic storage/transmission (s 11), must handle and carry documents only in specified areas and subject to viewability limitations (ss 12‑14), keep entries in a classified document register (s 15), not move material overseas without Commonwealth permission (s 16), and comply with return/destruction obligations after the proceeding concludes (ss 17‑18).
Legal representatives and firms. Legal representatives who act for parties will be authorised recipients when they have custody or control of classified documents under the Act (s 8(1)(a)). There is a specific rule for legal representatives who cease to act: they must give security classified documents to an Attorney‑General representative or new legal representative within 28 days of ceasing to act (s 17(4)). Law firms that accept classified material will face infrastructure and administrative costs: discrete areas, approved ICT, SCEC‑approved containers, and maintaining classified document registers (s 15).
The Attorney‑General and Commonwealth decision‑makers. The Attorney‑General (and representatives) make key decisions and authorisations: they may authorise disclosure, receive returned documents for destruction or deletion in accordance with Commonwealth requirements (ss 8(6), 17(5)‑(6)); they must be served with prescribed notices of expected disclosure via Forms 1 and 2 (ss 19‑20; Schedule 1). The Attorney‑General also has approval functions in relation to remuneration ceilings for special advocates (s 20B) and satisfaction-based appointment decisions (s 20A(d)).
Commonwealth agencies and APS employees. The Australian Government Security Vetting Agency (or authorised agencies) certify Negative Vetting Level 2 clearances (s 6). APS employees whose duties include responsibilities relating to Class B containers or approved ICT are permitted limited knowledge of combinations and passwords under several provisions (ss 10(2), 11(4), 11(6)). The Commonwealth determines which areas are approved for TOP SECRET or Codeword material and must provide arrangements for authorised access where needed (ss 10(4)‑(5), 11(3), notes).
Special advocates. Persons appointed as special advocates in civil proceedings are affected by eligibility, training and exclusion rules (s 20A), remuneration payable by the Commonwealth (s 20B), requirements to disclose interests to the appointing court (s 20C), to take steps to avoid conflicts (s 20D), and immunity for good faith acts or omissions (s 20E). Eligibility is tied to legal standing and a Negative Vetting Level 2 clearance (s 20A; s 6).
SCEC and suppliers. The Security Construction and Equipment Committee’s endorsements determine acceptable containers and single use bags and thereby shape the market for secure containers, approved single‑use bags and approved ICT equipment (s 6, s 14(2), s 10(1)). Suppliers of security containers, approved bags and approved ICT will need SCEC approvals to be usable under the Regulation.
Consequences for these actors include compliance costs, procedural steps in litigation (notice forms prescribed in Schedule 1; see ss 19‑20), and record‑keeping obligations (classified document register, s 15). The Regulation also narrows some existing freedoms: authorised recipients cannot take classified material overseas without Commonwealth permission (s 16) and are restricted in copying and electronic transmission (ss 9, 11).
Key duties and rights
The instrument imposes specific duties and confers limited rights. The obligations are procedural and protective; rights are mainly procedural (e.g. to view destruction) and remunerative for special advocates.
Creation and classification duties
Create/prepare in a discrete area. An authorised recipient who creates or prepares a document including classified information must do so in a discrete area (s 8(2)). Electronic creation must use approved ICT (s 8(3)).
Assign security classification. The authorised recipient must ensure the document is assigned a security classification equivalent to the most highly classified information in the document and record that classification at the top and bottom of each page (ss 8(4)‑(5)). If in doubt, the recipient must consult with the Commonwealth (s 8(6)).
Copying
Copy prohibition. An authorised recipient must not copy a security classified document or information except in accordance with s 8 (s 9(1)). Requests for copies must be made in writing to the Attorney‑General or their representative and state number of copies and recipient details (s 9(2)‑(3)).
Storage and container duties
Class B container for hard copy. Hard copy classified documents must be stored in locked Class B security containers; combinations must be known only to authorised recipients in relation to all documents in the container or relevant APS employees (s 10(1)‑(2)).
Location requirements. Containers should be located in a security classified document storage area; TOP SECRET or Codeword material requires storage in Commonwealth‑approved areas (s 10(3)‑(4)).
Access limits. Removal from containers is allowed only where the remover is an authorised recipient for the purpose of the proceeding or a judicial officer, and, if in an approved area, permission by the Commonwealth to access the area is required (s 10(5)).
Electronic storage and transmission
Approved ICT only. Electronic storage and transmission of classified documents or national security information is allowed only on approved ICT equipment; equipment not in use must be stored in locked Class B containers or in a security classified document storage area (s 11(1)‑(2)).
Password and removal record requirements. Where equipment can be password secured, the password must be known only to authorised recipients handling the equipment for the proceeding and relevant APS employees (s 11(6)). If equipment storing TOP SECRET/Codeword material is removed from a Class B container, the authorised recipient must record name, date/time, place and place the record in the container (s 11(8)).
Handling and carriage duties
Handling for purposes of proceeding only, in specified areas. Authorised recipients may only handle documents for the purpose of the proceeding, in Commonwealth‑approved areas for TOP SECRET/Codeword or in discrete areas for other classifications (s 12(1)‑(2)). The handler must ensure no unauthorised persons can view the material (s 12(3)). Similar rules apply to approved ICT equipment (s 13).
Carrying outside discrete area requires double SCEC‑approved single‑use bags, locked SCEC‑approved container, keys retained by authorised recipient and continuous custody (s 14(2)). Carriage to another person is limited to SCEC‑endorsed couriers, other authorised recipients, or judicial officers (s 14(3)‑(4)).
Record‑keeping
Classified document register. Authorised recipients must maintain or have access to a classified document register and as soon as practicable record details when they receive/create/prepare or transfer a hard copy classified document, including unique reference number, title, security classification, name of authorised recipient, date, transferee and carriage details. The register must not record national security information itself (s 15(1)‑(3)).
Return, destruction and property return
Return within 28 days. Authorised recipients with custody or control of classified documents must give the documents to an Attorney‑General representative within 28 days after the conclusion of the proceeding, or, if a legal representative has ceased to act, within 28 days of ceasing to act to the Attorney‑General representative or new legal representative (s 17(3)‑(4)). The Attorney‑General representative must ensure destruction or deletion in accordance with Commonwealth requirements (s 17(5)‑(6)). Commonwealth property relating to classified documents must be returned within 28 days after conclusion or ceasing to act (s 18).
Overseas transfer restriction
Not take or send out of Australia without permission. Authorised recipients must not take or send classified documents or national security information out of Australia without Commonwealth permission (s 16).
Special advocates
Appointment and training. Special advocates for civil proceedings must satisfy eligibility (former judge, senior counsel or legal practitioner), have Negative Vetting Level 2 clearance, receive training in accessing/storing/handling/destroying classified material, and must not be certain office holders (s 20A).
Remuneration and disclosure. Special advocates may charge the Commonwealth at prescribed rates tied to Appendix D of the Legal Services Directions 2017, subject to Attorney‑General approval for higher rates (s 20B). They must disclose conflicts and take steps to avoid them; they are immune from suit for acts or omissions done in good faith (ss 20C‑20E).
Rights
Right to view destruction/deletion. An authorised recipient who gives a document to the Attorney‑General’s representative may view the destruction or deletion of the document (s 17(7)).
Fee entitlement for special advocates. Special advocates have a right to claim fees from the Commonwealth under the scales set out in s 20B, subject to Attorney‑General approval for higher rates.
These duties create a compliance ecosystem where authorised recipients must implement physical, electronic and administrative controls; the Commonwealth and Attorney‑General retain decision rights over approvals, permissions and remuneration.
Penalties and enforcement
The Regulation itself does not set out penalty amounts or enforcement processes in detail, but it activates criminal exposure by prescribing requirements tied to the Act. The instrument’s Note refers to the Act’s offence provisions: it states that a person who contravenes a requirement prescribed for subsection 23(1) or 38C(1) of the Act by this instrument may commit an offence and refers expressly to ss 45A and 46FA of the Act (s 5 Note 1). The instrument also contains an express saving that, where an order is made under the Act that is inconsistent with this Part, the order prevails as to the inconsistent matters (s 7A); that establishes how conflicts between court or Attorney‑General orders and these Regulation requirements are to be resolved.
Enforcement mechanics implied by the instrument
Criminal liability via the Act. The instrument prescribes operational requirements which, if contravened, potentially engage the Act’s offence provisions (s 5 Note 1). The specified cross‑references indicate that enforcement and penalties are to be found in the Act, not the Regulation.
Control through approvals and permissions. Several provisions require Commonwealth approvals or permissions , for storage locations for TOP SECRET/Codeword material, approved ICT equipment and access to approved areas (ss 10(4)‑(5), 11(3), 16). These approvals are administrative levers that can be used to enforce compliance by refusing access or approval where obligations are not met.
Record‑keeping and audit trace. Obligations to maintain a classified document register and to record removal events for TOP SECRET/Codeword material (ss 15, 10(6), 11(8)) create documentary trails that can be used to detect non‑compliance and support enforcement actions. The register may not record national security information itself (s 15(3)), limiting what is logged to metadata.
Court role. The Regulation prescribes forms for notices of expected disclosure (Forms 1 and 2; ss 19‑20; Schedule 1) and notes that the person giving notice must advise the court and other people involved that the notice has been given (Forms, note referencing subsections 24(3) and 38D(4) of the Act). This embeds the court within the procedural enforcement architecture: courts will be notified of expected disclosure and can oversee compliance in proceedings.
Immunities and protections. The Regulation grants immunity from suit for special advocates for acts or omissions done in good faith while performing their functions (s 20E). That limits private civil recourse against special advocates but does not negate criminal liability where the Act specifies it.
Discretion and enforcement risk
Discretion concentrated with Commonwealth and Attorney‑General. Many of the Regulation’s permissive rules hinge on Commonwealth approval or Attorney‑General satisfaction, including approvals for ICT and storage areas and remuneration levels for special advocates (ss 8(6), 10(4), 11(3), 20B). Enforcement therefore depends on administrative decisions and access controls that are under executive control.
Compliance evidence. The record‑keeping duties (classified document register and removal records) provide concrete evidence for enforcement. However, since the register must not record national security information itself (s 15(3)), the evidence base is limited to metadata.
In short, enforcement is twofold: criminal exposure under the Act for prescribed contraventions and administrative enforcement through approvals, access control and record‑keeping. The Regulation creates duties likely to be monitored through documentary compliance and controlled access, with ultimate sanctioning mechanisms provided by the Act.
How it interacts with other laws
The Regulation is explicitly made under and operates alongside the National Security Information (Criminal and Civil Proceedings) Act 2004 and engages a small number of other legal instruments and administrative regimes.
Primary Act. The Regulation is subordinate legislation under the Act (s 3). It operationalises the Act by prescribing the procedures and means by which requirements in the Act are to be satisfied (s 5). The Regulation cross‑references specific Act provisions (for example, it prescribes requirements for subsections 23(1) and 38C(1) and prescribes forms for paragraphs 24(2)(a) and 38D(3)(a) of the Act, s 5). Where an order under the Act is inconsistent with this Part, the order prevails (s 7A).
Archives Act 1983 and State/Territory archiving laws. The Regulation states that its return and destruction rules are subject to the Archives Act 1983 and to any State or Territory law concerning archiving (s 17(2)). It notes that those laws take precedence in relation to classified documents to which they apply and that such documents may be outside the operation of s 17 (s 17(2) note and subsection). This creates a layering: the Regulation’s destruction/return obligations do not displace archival obligations imposed by those other statutory regimes.
Security vetting and Commonwealth security regimes. The Regulation depends on administrative regimes for security vetting and approvals: Negative Vetting Level 2 clearances are to be issued by the Australian Government Security Vetting Agency or other authorised Commonwealth/State/Territory agency (s 6). “Approved information and communications technology equipment” must be supplied or approved by the Commonwealth (s 6). The SCEC endorses security containers and services (s 6). These references mean that compliance with the Regulation will require interaction with Commonwealth security policies, vetting processes and procurement/endorsement systems.
Attorney‑General and court orders. The instruments integrate with court processes under the Act: prescribed forms for expected disclosure (Forms 1 and 2) are to be served on the Attorney‑General (ss 19‑20, Schedule 1) and the forms reference subsections in the Act requiring the notifier to advise the court and other people in the proceeding (Forms). The Regulation defers to orders under the Act that are inconsistent (s 7A).
Commonwealth property rules. Return of Commonwealth property related to classified documents is required (s 18). The Regulation thus intersects with any Commonwealth administrative law or property management rules governing return and custody of government property.
Legal Services Directions 2017. Remuneration rates prescribed for special advocates reference Appendix D of the Legal Services Directions 2017 as the baseline maximum daily rates for senior and junior counsel; the Attorney‑General may approve higher rates (s 20B). The Regulation thus links special advocate fees to an existing administrative pricing framework.
Taken together, these interactions mean the Regulation is not stand‑alone; it operates within and depends upon: (a) the Act for criminal and procedural consequences; (b) Commonwealth security and vetting systems for approvals and clearances; (c) archival legislation which may constrain destruction obligations; and (d) the Legal Services Directions for fee scales.
Amendment history
The instrument identifies itself as the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (s 1) and declares that it is made under the National Security Information (Criminal and Civil Proceedings) Act 2004 (s 3). Section 4 states a generic mechanism: each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule has effect according to its terms (s 4). The provided text does not reproduce any Schedules other than Schedule 1 (Forms 1 and 2) which prescribe the notices of expected disclosure for federal criminal and civil proceedings (ss 19‑20; Schedule 1).
The Regulation contains an application clause that governs transitional effect: it applies to security classified documents and national security information disclosed or to be disclosed in proceedings that either had commenced before commencement but had not been finally determined before commencement or proceedings commenced after commencement (s 21). That provision clarifies that the instrument applies to in‑progress proceedings subject to the caveat that proceedings finally determined before its commencement are not caught.
No further amendments, amendment dates, or historical versions are contained within the supplied text. Section 4 anticipates that Schedules may amend other instruments, but the only Schedule provided in the text is Schedule 1 (Forms). The instrument’s Notes cross‑reference the Act’s offence provisions (s 5 Note 1) and the Act’s order provisions (s 5 Note 2; s 7A), but the text does not set out later amendments, revocations or a legislative history.
Practical implications of the limited amendment information in the instrument:
Users must check Schedules attached to any circulated or published version for amendments to other instruments as they are not included in the body text (s 4).
The transitional provision sets out the cut‑off for application to proceedings around commencement but does not itself indicate the commencement date in the extracted text; the text therefore leaves the instrument’s temporal operation to the instrument’s promulgation record outside the textual extract (s 21).
Because the supplied text does not detail a chronology or subsequent amending instruments, a user looking for amendment history must rely on the statutory instrument register or legislative database where commencement dates and schedules are recorded; the instrument itself gives the mechanism by which Schedules operate and sets the scope of application to pending and future proceedings (ss 4, 21).
Litigation history
The supplied Regulation text contains no case law, decisions or judicial interpretations. It prescribes procedural requirements and forms, references the Act and other administrative instruments but does not record any litigation that has considered its provisions.
What the text does indicate about legal contestability:
Criminal liability under the Act. The Regulation’s Note points users to the Act’s offence provisions (s 5 Note 1) which would be the provisions invoked in prosecutions for non‑compliance with the Regulation’s prescribed requirements. Any litigation about criminal liability would therefore be under the Act’s provisions, informed by the Regulation’s operational duties.
Court discretion and orders under the Act. Section 7A expressly provides that if an order is made under subsection 19(1A) or (3A) of the Act in relation to disclosure, protection, storage, handling or destruction and is inconsistent with this Part as to those matters, and the order was made on an application by the Attorney‑General or representative, then this Part does not apply to the extent of that inconsistency (s 7A). That provision invites possible litigation about whether a court order under the Act is inconsistent with the Regulation and whether an order was made on an Attorney‑General application; disputes of that kind would be resolved under judicial processes using the Act and the Regulation.
Special advocate issues. The Regulation sets eligibility, training and conflict rules for special advocates (ss 20A‑20D) and grants immunity for acts or omissions done in good faith (s 20E). Litigation may arise around claimed conflicts of interest, adequacy of training, appointment suitability or the ambit of the immunity, but the instrument itself contains no adjudicative history addressing these points.
Because the Regulation is procedural and administrative in character, potential litigation vectors include challenges to administrative decisions by the Commonwealth (for approvals, permissions, remembrances), prosecutions for contraventions of the Act with reference to the Regulation, and disputes in proceedings where court orders under the Act displace the Regulation (s 7A). None of these disputes or outcomes are recorded in the instrument text provided.
Gotchas
The Regulation contains a number of specific operational traps and small print features that are likely to create compliance risk or operational friction if overlooked.
Authorised recipient definition excludes judicial officers. The instrument defines “authorised recipient” for the purposes of many duties and then expressly excludes judicial officers from that definition (s 6). Several provisions nevertheless permit judicial officers to view or handle documents (ss 12(3), 13(3), 14(1)). Practitioners must therefore be careful not to treat judicial officers as authorised recipients for the purpose of duties such as register entries and container access rules.
Register must not contain national security information. The classified document register must record metadata (unique reference, title, classification, names, dates, transfers, carriage details) but must not record any national security information itself (s 15(2)‑(3)). Practitioners who are used to keeping substantive indices must avoid including national security content in the register , that means redaction and careful drafting of metadata entries. The instrument also clarifies that removal from a container is not a “receipt” for register purposes (s 15(4)), so some physical movements need separate recording.
TOP SECRET/Codeword material escalates requirements. Any TOP SECRET or Codeword material triggers higher thresholds: Class B containers and approved ICT must be in areas approved by the Commonwealth (ss 10(4)‑(5), 11(3)); removal of such items from containers requires written records to be placed in the container (ss 10(6), 11(8)). The Commonwealth must permit access to those areas (notes to ss 10 and 11). Practitioners must plan for arrangements with the Commonwealth to obtain access; otherwise handling may be impractical.
Approved ICT and equipment approvals. Electronic creation, storage and transmission are permitted only on approved ICT equipment (ss 8(3), 11(1)). Equipment approvals are Commonwealth decisions (s 6). Firms without approved secure ICT cannot lawfully process electronic classified documents, which may require investment, procurement delays or reliance on Commonwealth facilities.
Password and combination knowledge restrictions. Combination locks and passwords must be known only to authorised recipients in relation to all classified items in a container or to APS employees whose duties include responsibility for the container or equipment (ss 10(2), 11(4), 11(6)). This can complicate ordinary IT support: service providers or third‑party IT staff will not be permitted knowledge of passwords or combinations unless they are authorised recipients or APS employees with that duty. Where equipment is taken out of containers, log entries must be made and placed back into the container (ss 10(6), 11(8)).
Carriage and courier restrictions. Carrying outside a discrete area requires two SCEC‑approved single use bags and a locked SCEC‑approved container, with keys removed and retained by the authorised recipient and continuous custody (s 14(2)). Transfer to another person for carriage is constrained to SCEC endorsed couriers, other authorised recipients or judicial officers (s 14(3)). Practitioners cannot rely on regular commercial couriers unless they are SCEC endorsed; arranging transport may therefore be more complex and costly.
Overseas transmission prohibition. Material cannot be taken or sent out of Australia without Commonwealth permission (s 16). Electronic transmission overseas is captured by “send (including by electronic transmission)”, so cloud solutions with overseas servers will likely be excluded without explicit Commonwealth permission.
Interaction with archival law. The return/destruction obligations are subject to the Archives Act 1983 and State/Territory archiving laws (s 17(2)). Where archival retention applies, the Regulation’s destruction requirement may not be operative. Practitioners must check archival obligations before planning destruction.
Remuneration and appointment discretion. Attorneys‑General control suitability decisions for special advocates and approvals for higher remuneration rates (ss 20A(d), 20B). Parties depending on special advocates will need to accept that appointment and fee levels involve executive discretion.
Requesting copies through the Attorney‑General. The only mechanism the Regulation provides for copying is a written request to the Attorney‑General or their representative that specifies number of copies and recipient details (s 9(2)‑(3)). There is no private commercial right to reproduce documents; requests may be refused, and delay can impede litigation preparation.
Immunity for special advocates is limited to acts done in good faith. While s 20E provides that no action, suit or proceeding may be brought against a special advocate for acts or omissions done in good faith in performing functions, “good faith” is the operative limitation and does not extend to acts outside the scope of functions or to bad faith conduct.
Each of these points is concretely anchored in the Regulation’s text. Overlooking any of them may lead to inability to access, process or present classified material in proceedings, administrative refusal of approvals or potential criminal exposure where the Act’s offence provisions are engaged.
How to comply
Compliance requires a programme covering personnel vetting and training, physical infrastructure, ICT procurement/approval, administrative processes and litigation practices. The Regulation prescribes precise tasks; compliance is achieved by aligning operational practices with those tasks.
Identify authorised recipients and scope
Confirm whether a person is an authorised recipient under the instrument’s definition in s 6 (note judicial officers are excluded from that definition). Ensure any person who will access classified documents has the appropriate status under the Act, court orders or written Attorney‑General authorisation (s 6).
Personnel vetting and training
For personnel who will be special advocates, ensure eligibility criteria are met: eligible former judge, eligible senior counsel, or eligible legal practitioner, and obtain Negative Vetting Level 2 security clearance as defined (s 20A; s 6). Provide training in accessing, storing, handling and destroying classified documents and national security information as required by s 20A(b).
For non‑special advocate authorised recipients, verify who can access containers and equipment in accordance with s 10(2) and s 11(6) and limit knowledge of combinations/passwords to authorised recipients and APS employees who have the relevant duties.
Physical infrastructure and procurement
Secure discrete areas and security classified document storage areas that meet the definition in s 6 and restrict public, employee and visitor access as required. For TOP SECRET or Codeword material, arrange use of Commonwealth‑approved areas (ss 6, 10(3)‑(4), 11(3)). Liaise with the Commonwealth early to obtain access permissions where required (s 10(5) note; s 11 note).
Procure SCEC‑endorsed Class B security containers and SCEC‑approved single use bags, ensuring containers are fitted with SCEC‑endorsed combination locks (s 6; s 10(1); s 14(2)). Confirm SCEC endorsement status with suppliers to ensure legal compliance.
For ICT, procure or obtain Commonwealth approval for “approved information and communications technology equipment” before creating, storing or transmitting classified information electronically (ss 6, 8(3), 11(1)). If the approved ICT is large and cannot be containerised, ensure it is located in an appropriate security classified document storage area (s 11(2)).
Operational controls and process changes
Create and prepare documents only in discrete areas (s 8(2)) and assign the document a security classification equivalent to the most highly classified content; record the classification at top and bottom of each page (ss 8(4)‑(5)). Where uncertain about classification, consult the Commonwealth (s 8(6)).
Do not copy classified documents except in accordance with the Regulation. If copies are required, make a written request to the Attorney‑General or their representative specifying the number of copies and names of recipients (s 9(2)‑(3)).
Maintain a classified document register that captures required metadata for any hard copy classified document received, created, prepared or transferred as soon as practicable; do not record national security information in the register (s 15(1)‑(3)). Include carriage details where applicable (s 15(2)(g)). Understand that removal from a container is not a “receipt” for register purposes (s 15(4)).
For TOP SECRET/Codeword removals from containers, produce the required written record (name, date/time, place) and put the record in the security container (s 10(6)). Do the same for approved ICT removed from a container (s 11(8)).
Ensure passwords to approved ICT are kept only by authorised recipients handling the equipment for the proceeding and APS employees whose duties include responsibilities relating to the equipment (s 11(6)).
When carrying documents in non‑discrete areas comply with the carriage rules: two SCEC‑approved single use bags, locked SCEC‑approved container, keys removed and retained by the authorised recipient, and continuous custody; use only SCEC endorsed couriers where transferring courier duties (s 14(2)‑(4)).
Litigation practice and notification
Use prescribed Forms 1 and 2 for notices of expected disclosure in federal criminal proceedings and civil proceedings respectively, as mandated in ss 19‑20 and Schedule 1. The Forms set out required contents (identity, description of information or documents, copies attached where relevant) and the obligation to advise the court and parties that the notice has been given (Schedule 1 Notes referencing ss 24(3) and 38D(4) of the Act).
Plan for timelines: return or transfer of classified documents to an Attorney‑General representative within 28 days after conclusion of the proceeding, or within 28 days of ceasing to act if a legal representative ceases to act (ss 17(3)‑(4)). Ensure procedures with Attorney‑General representatives cover destruction, deletion and evidence of destruction where required (ss 17(5)‑(7)).
Anticipate the requirement that Commonwealth property must be returned within 28 days after conclusion or ceasing to act (s 18), and coordinate internal asset registers accordingly.
Engagement with Commonwealth and SCEC
Early engagement with the Commonwealth for approval of ICT, access to approved TOP SECRET areas, and arrangements for the return and destruction of classified material is necessary (ss 8(6), 10(4)‑(5), 11(3), 17(5)‑(6)). Where the Commonwealth is the source of approval or permission, build lead time into project and litigation plans.
Engage with SCEC for endorsement of containers and single use bags; confirm courier endorsements where courier services are required (s 6; s 14).
Special advocate appointment and management
If a special advocate is to be appointed, ensure they meet the eligibility, clearance and training requirements (s 20A). Budget for fees payable by the Commonwealth under the Regulation and ensure the Attorney‑General’s approvals required for higher rates are sought if anticipated (s 20B). Require the special advocate to disclose relevant interests to the court and adopt internal conflict avoidance procedures (ss 20C‑20D).
Audit, supervision and documentation
Put in place audit trails for register entries, container access logs, equipment removal records and requests for copies. Ensure records of communications with the Commonwealth regarding approvals, permissions and consultations on classification are preserved.
Provide training and written procedures to ensure personnel understand restrictions on copying, overseas transmission, password and combination knowledge, carriage rules, and archival exceptions (ss 9, 11(6), 14, 16, 17(2)).
Following these steps aligns operational practice with the Regulation’s specific prescriptions. Compliance requires investment in secure facilities and approved equipment, personnel vetting and training, administrative process redesign and active coordination with Commonwealth approval processes.
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:
(a) a certificate, hearing, decision, notice, order or other process under the Act; or
(b) an order or process of the court in the proceeding; or
(c) a written authorisation given by the Attorney‑General or a representative of the Attorney‑General in the proceeding;
but does not include a judicial officer.
Class B security container means a security container that is fitted with an SCEC‑endorsed combination lock.
classified document register means a register that includes details about security classified documents that are received, created, prepared or transferred in hard copy form.
Note: See section 15.
copy means to record or reproduce information in any medium.
Deputy Director‑General of Security means a person who holds, or is acting in, a position known as Deputy Director‑General of Security.
Director‑General of Security means the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979.
discrete area means an area within an enclosed building or office where:
(a) public access is restricted; and
(b) access by employees is controlled; and
(c) access by visitors is strictly controlled and is on a needs basis.
eligible former judge means a former judge of any of the following courts:
(a) the High Court;
(b) a court that is or was created by the Parliament under Chapter III of the Constitution;
(c) the Supreme Court of a State or Territory;
(d) the District Court (or equivalent) of a State or Territory.
eligible legal practitioner means a person who:
(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
(b) holds a practising certificate (however described); and
(c) has at least 5 years’ legal advocacy experience; and
(d) holds a Negative Vetting Level 2 security clearance.
eligible senior counsel means a person who:
(a) is a Queen’s Counsel or Senior Counsel; and
(b) holds a Negative Vetting Level 2 security clearance.
judicial officer means a magistrate or a judge.
Negative Vetting Level 2 security clearance means a security clearance that:
(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
(b) permits ongoing access to information that has been assigned any of the following security classifications:
(i) PROTECTED;
(ii) CONFIDENTIAL;
(iii) SECRET;
(iv) TOP SECRET.
SCEC (short for Security Construction and Equipment Committee) means the Commonwealth Government interdepartmental committee that approves protective security products and endorses protective security services.
security classification means a protective marking assigned to national security information to indicate:
(a) the value of the information; and
(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.
Note: The following are examples of security classifications that may be, or may have been, assigned to information:
(a) a document that is disclosed, or to be disclosed, in a federal criminal proceeding or a civil proceeding:
(i) to which a security classification has been assigned; or
(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
(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
(c) a document that includes national security information that is included in a document referred to in paragraph (a) or (b); or
(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.
security classified document storage area means an area in which entry and openings are secured at all times to limit access to the following:
(a) an authorised recipient in relation to security classified documents or national security information stored in the area;
(b) a person in the company of such an authorised recipient;
(c) a person authorised to access the area by such an authorised recipient;
(d) a judicial officer.
7 References to federal criminal proceeding or civil proceeding
7 References to federal criminal proceeding or civil proceeding
In this instrument:
(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
(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.
Part 2 Protection of security classified documents and national security information
Part 2—Protection of security classified documents and national security information
7A When Part does not apply
7A When Part does not apply
If:
(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
(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
(c) the order was made on an application by the Attorney‑General or a representative of the Attorney‑General;
this Part does not apply to the extent of that inconsistency.
8 Creation or preparation of documents relating to security classified documents or national security information
8 Creation or preparation of documents relating to security classified documents or national security information
(1) This section applies to:
(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
(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.
(2) The authorised recipient must create or prepare the document in a discrete area.
(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.
(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.
(5) The security classification assigned to the document must be clearly recorded at the top and bottom of each page of the document.
(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.
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).
9 Copying security classified documents
9 Copying security classified documents
(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.
(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.
(3) A request under subsection (2) must state:
(a) the number of copies of the document required; and
(b) the full name of the authorised recipient making the request; and
(c) the full name of each other authorised recipient in relation to the document who is to be given a copy of the document.
10 Storage of security classified documents in hard copy form
10 Storage of security classified documents in hard copy form
(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.
(2) The security container must have a combination that is not known by any person other than:
(a) an authorised recipient in relation to all the security classified documents stored in the container; or
(b) an APS employee whose duties include responsibilities relating to the container.
(3) The security container must, subject to subsection (4), be located in a security classified document storage area.
(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.
(5) A person must not remove a security classified document from the security container unless:
(a) either:
(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
(ii) the person is a judicial officer; and
(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.
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.
(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:
(a) make a written record of the following:
(i) the authorised recipient’s full name;
(ii) the date and time when the document was removed;
(iii) the place where the document is to be taken; and
(b) put the record in the security container.
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).
11 Storage and transmission of security classified documents or national security information in electronic form
11 Storage and transmission of security classified documents or national security information in electronic form
(1) An authorised recipient in relation to a security classified document or national security information:
(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
(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.
(2) When the approved information and communications technology equipment is not being used, the equipment must, subject to subsection (3):
(a) be stored in a locked Class B security container located in a security classified document storage area; or
(b) if it is too large to be stored in a Class B security container—be located in a security classified document storage area.
(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 equi
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