Compilation #10 | Effective 2021-12-09
FRBR Work URI: /akn/au/act/2004/150
This Act may be cited as the National Security Information (Criminal and Civil Proceedings) Act 2004.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.
In exercising powers or performing functions under this Act, a court must have regard to the object of this Act.
This Act extends to every external Territory.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
Subject to subsection (2), this Act applies to a federal criminal proceeding, whether begun before, on or after the day on which this section commences, if the prosecutor gives notice in writing to the defendant, the defendant’s legal representative and the court that this Act applies to the proceeding.
If the prosecutor gives the notice after the proceeding begins, this Act only applies to the parts of the proceeding that occur after the notice is given (whether or not those parts began before that time).
A notice given under this section is not a legislative instrument.
Application to civil proceedings—Attorney-General not a party to proceedings
If:
the Attorney-General is not a party to a civil proceeding, whether begun before, on or after the day on which this section commences; and
the Attorney-General gives notice in writing to the parties to the proceeding, the legal representatives of the parties to the proceeding and the court that this Act applies to the proceeding;
then, subject to subsection (5), this Act applies to the proceeding.
Application to civil proceedings—Attorney-General a party to proceedings
If:
the Attorney-General is, or becomes, a party to a civil proceeding, whether begun before, on or after the day on which this section commences; and
the Minister appointed under subsection (3) or (4) gives notice in writing to the parties to the proceeding, the legal representatives of the parties to the proceeding and the court that this Act applies to the proceeding;
then:
subject to subsection (5), this Act applies to the proceeding; and
the Minister must perform the functions and exercise the powers, in relation to the proceeding, that are conferred on the Attorney-General under Divisions 1A, 1, 2, 3 and 4 of Part 3A; and
references in:
Division 4 of Part 2; and
Divisions 1A, 1, 2, 3 and 4 of Part 3A; and
Division 2 of Part 5;
to the Attorney-General (other than references to the Attorney-General as a party to the proceeding) are to be read as references to the Minister.
Attorney-General to appoint alternative Minister
The Attorney-General must, as soon as possible after the commencement of this section, appoint in writing another Minister for the purposes of the operation of subsection (2) in relation to all civil proceedings.
If the Minister appointed under subsection (3) is, or becomes, a party to a civil proceeding to which the Attorney-General also is or becomes a party, the Attorney-General must appoint a different Minister for the purposes of the operation of subsection (2) in relation to that civil proceeding.
Application to civil proceedings—notice given after a proceeding has begun
If the Attorney-General or the Minister gives the notice after the proceeding has begun, this Act only applies to the parts of the proceeding that occur after the notice is given (whether or not those parts began before that time).
Notice and appointment are not legislative instruments
A notice given under subsection (1) or (2) and an appointment made by the Attorney-General under subsection (3) or (4) are not legislative instruments.
In this Act, unless the contrary intention appears:
apply to the court means apply to the court either orally or in writing.
CDO or continuing detention order means a continuing detention order made under Division 105A of the Criminal Code.
ceases to be subject to appeal has the meaning given by section 20.
civil proceeding has the meaning given by section 15A.
control order has the meaning given by section 100.1 of the Criminal Code.
court official means an individual who: is employed or engaged by a court to perform services in the court in relation to a proceeding in the court; or in relation to a federal criminal proceeding in a court—supervises the defendant in the court.
is employed or engaged by a court to perform services in the court in relation to a proceeding in the court; or
in relation to a federal criminal proceeding in a court—supervises the defendant in the court.
criminal proceeding has the meaning given by section 13.
defendant, in relation to a federal criminal proceeding, has the meaning given by subsection 15(1).
disclose information in a criminal proceeding or a civil proceeding means:
give the information in evidence in the proceeding; or
otherwise disclose the information to the court conducting the proceeding or to any person for the purposes of the proceeding;
whether orally or by giving, or disclosing the contents of, a document.
Division 105A ESO proceeding means a proceeding under Division 105A of the Criminal Code in relation to an application: for an extended supervision order in relation to a terrorist offender; or for a variation of an extended supervision order in relation to a terrorist offender; or for a review of an extended supervision order in relation to a terrorist offender; or to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender if, in the proceeding: the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) of the Code; and the Court is considering making an extended supervision order as mentioned in paragraph 105A.7(2)(b).
for an extended supervision order in relation to a terrorist offender; or
for a variation of an extended supervision order in relation to a terrorist offender; or
for a review of an extended supervision order in relation to a terrorist offender; or
to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender if, in the proceeding:
the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) of the Code; and
the Court is considering making an extended supervision order as mentioned in paragraph 105A.7(2)(b).
Note: See also the definition of ESO or extended supervision order in this section.
document has the same meaning as in the Evidence Act 1995.
ESO or extended supervision order means:
(a) an order made under subsection 105A.7A(1) of the Criminal Code; or
(b) an interim supervision order made under Criminal Code.Division 105A of the
federal criminal proceeding has the meaning given by section 14.
information means information as defined in subsection 90.1(1) of the Criminal Code, whether or not in the public domain.
in permitted circumstances has the meaning given by section 16.
international relations has the meaning given by section 10.
law enforcement interests has the meaning given by section 11.
likely to prejudice national security has the meaning given by section 17.
national security has the meaning given by section 8.
national security information means information: that relates to national security; or the disclosure of which may affect national security.
that relates to national security; or
the disclosure of which may affect national security.
prosecutor means the Director of Public Prosecutions or a person representing the Director in relation to the proceeding.
security has the meaning given by section 9.
special advocate, of a party to a civil proceeding, has the meaning given by subsection 38PA(1).
substantial adverse effect means an effect that is adverse and not insubstantial, insignificant or trivial.
terrorist offender has the meaning given by section 105A.2 of the Criminal Code.
trial includes a proceeding for the summary conviction of a person.
In this Act, national security means ’s defence, security, international relations or law enforcement interests.
In this Act, security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
In this Act, international relations means political, military and economic relations with foreign governments and international organisations.
In this Act, law enforcement interests includes interests in the following:
avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;
protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;
the protection and safety of informants and of persons associated with informants;
ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.
(1) In this Act, criminal proceeding means a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences.
(2) To avoid doubt, each of the following is part of a criminal proceeding:
a bail proceeding;
a committal proceeding;
the discovery, exchange, production, inspection or disclosure of intended evidence, documents or reports;
a sentencing proceeding;
an appeal proceeding;
(f) a proceeding with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (Judiciary Act 1903) in relation to:within the meaning of subsection 39B(1B) of the
a decision to prosecute a person for one or more offences against a law of the Commonwealth; or
a related criminal justice process decision (within the meaning of subsection 39B(3) of that Act);
any other pre-trial, interlocutory or post-trial proceeding prescribed by regulations for the purposes of this paragraph.
To avoid doubt, a re-trial, and proceedings relating to the re-trial (including those mentioned in subsection (2)), are part of the same criminal proceeding as the trial.
In this Act, federal criminal proceeding means a criminal proceeding in any court exercising federal jurisdiction, where the offence or any of the offences concerned are against a law of the Commonwealth.
(1) In this Act, defendant, in relation to a federal criminal proceeding, means a person charged with the offence or offences concerned (even if the proceeding occurs after any conviction of the person).
If there is more than one defendant in a federal criminal proceeding, this Act applies separately in relation to each defendant.
(1) In this Act, civil proceeding means any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.
Note: The Act only applies to a civil proceeding in respect of which a notice has been given under section 6A.
(2) To avoid doubt, each of the following is part of a civil proceeding:
any proceeding on an ex parte application (including an application made before pleadings are filed in a court);
the discovery, exchange, production, inspection or disclosure of intended evidence, documents or reports;
an appeal proceeding;
any interlocutory or other proceeding prescribed by regulations for the purposes of this paragraph.
To avoid doubt, a re-hearing, and proceedings relating to the re-hearing (including those mentioned in subsection (2)), are part of the same civil proceeding as the hearing.
A person discloses information in permitted circumstances if:
the person is the prosecutor in a federal criminal proceeding and the person discloses the information in the course of his or her duties in relation to the proceeding; or
the person discloses the information in circumstances specified by the Attorney-General in a certificate or advice given under section 26, 28, 38F or 38H.
Something is likely to prejudice national security if there is a real, and not merely a remote, possibility that it will prejudice national security.
This Act does not affect the operation of the provisions of any other Act, other than:
(a) sections 26, 27, 29, 43 to 45 and 48 of the Evidence Act 1995; and
(b) sections 70, 80 and 80A of the Judiciary Act 1903.
Power of a court in a federal criminal proceeding
The power of a court to control the conduct of a federal criminal proceeding, in particular with respect to abuse of process, is not affected by this Act, except so far as this Act expressly or impliedly provides otherwise.
In addition to the powers of a court under this Act in a federal criminal proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information if:
the court is satisfied that it is in the interest of national security to make such orders; and
the orders are not inconsistent with this Act; and
the orders are not inconsistent with regulations made under this Act.
Paragraph (1A)(c) does not apply to orders made on an application by the Attorney-General or a representative of the Attorney-General for the orders.
Consideration of a matter in relation to closed hearings in a federal criminal proceeding not to prevent later stay order
An order under section 31 does not prevent the court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under section 31 would have a substantial adverse effect on a defendant’s right to receive a fair hearing.
Power of a court in a civil proceeding
The power of a court to control the conduct of a civil proceeding, in particular with respect to abuse of process, is not affected by this Act, except so far as this Act expressly or impliedly provides otherwise.
In addition to the powers of a court under this Act in a civil proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information if:
the court is satisfied that it is in the interest of national security to make such orders; and
the orders are not inconsistent with this Act; and
the orders are not inconsistent with regulations made under this Act.
Paragraph (3A)(c) does not apply to orders made on an application by the Attorney-General or a representative of the Attorney-General for the orders.
Consideration of a matter in relation to closed hearings in a civil proceeding not to prevent later stay order
An order under section 38J or 38L does not prevent the court from later ordering that the civil proceeding be stayed on a ground involving the same matter, including that an order made under section 38J or 38L would have a substantial adverse effect on the substantive hearing in the proceeding.
Factors to be considered when deciding whether to order a stay of a civil proceeding
In deciding whether to order a stay of the civil proceeding, the court must consider:
the extent of any financial loss that a party would suffer as a result of the proceeding being stayed; and
whether a party has reasonable prospects of obtaining a remedy in the proceeding; and
any other matter the court considers relevant.
An order of a court ceases to be subject to appeal when:
the period for appealing against the order ends without an appeal being made; or
if an appeal is made against the order—the appeal is finally determined or otherwise disposed of.
If, in a federal criminal proceeding, an issue arises relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information, then any or all of the following may attend and be heard at the proceeding:
the Attorney-General;
the Attorney-General’s legal representative;
any other representative of the Attorney-General.
If, during a hearing in a federal criminal proceeding, an issue arises relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information, then before hearing the issue, the court must consider making an order under either or both of the following:
subsection 19(1A);
(b) Criminal Code.section 93.2 of the
Subsection (1) does not apply if the issue is the subject of an order that is in force under section 22.
At any time during a federal criminal proceeding, the Attorney-General, the Attorney-General’s legal representative, the prosecutor, the defendant or the defendant’s legal representative may apply to the court for the court to hold a hearing to consider issues relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information, including:
the making of an arrangement of the kind mentioned in section 22; and
the giving of a notice under section 24.
As soon as possible after making the application, the applicant must notify each of the following that the application has been made:
if the applicant is the Attorney-General or the Attorney-General’s legal representative—the prosecutor, the defendant and the defendant’s legal representative;
if the applicant is the prosecutor—the Attorney-General, the defendant and the defendant’s legal representative;
if the applicant is the defendant or the defendant’s legal representative—the Attorney-General and the prosecutor.
The court must hold the hearing as soon as possible after the application is made.
At any time during a federal criminal proceeding:
the Attorney-General, on the Commonwealth’s behalf; and
the prosecutor; and
the defendant, or the defendant’s legal representative on the defendant’s behalf;
may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information.
The court may make such order (if any) as it considers appropriate to give effect to the arrangement.
The regulations may prescribe:
ways in which national security information that is disclosed, or to be disclosed, in a federal criminal proceeding must be stored, handled or destroyed; and
ways in which, and places at which, such information may be accessed and documents or records relating to such information may be prepared.
Regulations prescribing a matter described in paragraph (1)(a) or (b) of this section apply in relation to national security information disclosed, or to be disclosed, in a federal criminal proceeding only if:
there is not an order in force under section 22 relating to that information; or
there is an order in force under section 22 relating to that information but the order does not deal with that matter.
Example: Suppose regulations made for the purpose of subsection (1) of this section deal with ways of storing, handling and destroying information, and an order is in force under section 22 dealing with storing and handling, but not destroying, particular information. The regulations do not apply to the storage and handling of the information dealt with by the order, but that information must be destroyed in accordance with the regulations.
Subdivision A—Notifying Attorney-General etc. of expected disclosure in federal criminal proceedings
If the prosecutor, the defendant or the defendant’s legal representative knows or believes that:
he or she will disclose national security information in a federal criminal proceeding; or
a person whom he or she intends to call as a witness in a federal criminal proceeding will disclose national security information in giving evidence or by the person’s mere presence; or
on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in a federal criminal proceeding;
then he or she must, as soon as practicable, give the Attorney-General notice in writing of that knowledge or belief.
When not required to give notice
Note 1: Failure to give notice as required by this subsection is an offence in certain circumstances: see section 42.
Note 2: Section 25 deals with the situation where the prosecutor, the defendant or the defendant’s legal representative knows or believes that information that will be disclosed in a witness’s answer is national security information.
However, a person need not give notice about the disclosure of information under subsection (1) if:
another person has already given notice about the disclosure of the information under that subsection; or
the disclosure of the information:
is the subject of a certificate given to the person under section 26 and the certificate still has effect; or
is the subject of an order that is in force under section 22 or 31; or
the disclosure of the information by the witness to be called:
is the subject of a certificate given to the person under section 28 and the certificate still has effect; or
is the subject of an order that is in force under section 22 or 31; or
the Attorney-General has given the person advice about the disclosure of the information under subsection 26(7) or 28(10).
Requirements for notice
The notice must:
be in the prescribed form; and
if paragraph (c) does not apply—include a description of the information; and
if the information is contained in a document—be accompanied by a copy of the document or by an extract from the document, that contains the information.
Informing the court etc. of an expected disclosure
A person who gives notice under subsection (1) must also advise the following, in writing, that notice has been given to the Attorney-General:
if the person is the prosecutor:
the court; and
the defendant; and
the defendant’s legal representative; and
any other person mentioned in paragraph (1)(b) or (c); and
if the person is the defendant or the defendant’s legal representative:
the court; and
the prosecutor; and
any other person mentioned in paragraph (1)(b) or (c).
Note: Failure to give advice as required by this subsection is an offence in certain circumstances: see section 42.
The advice must include a description of the information, unless the advice is being given by the defendant or the defendant’s legal representative to the prosecutor.
Note: A contravention of this subsection is an offence in certain circumstances: see section 42.
Adjournment to allow sufficient time for Attorney-General to act on the notice
On receiving the advice, the court must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. The court must continue the adjournment until the Attorney-General:
gives a copy of a certificate to the court under subsection 26(4) or 28(3); or
gives advice to the court under subsection 26(7) or 28(10) (which applies if a decision is made not to give a certificate).
Subdivision B—Notifying Attorney-General etc. where disclosure expected by witness answering question in federal criminal proceedings
Witness expected to disclose information in giving evidence
This section applies if:
a witness is asked a question in giving evidence in a federal criminal proceeding; and
the prosecutor, the defendant or the defendant’s legal representative knows or believes that information that will be disclosed in the witness’s answer is national security information.
The prosecutor, the defendant or the defendant’s legal representative must advise the court of that knowledge or belief.
Note: Failure to advise the court is an offence: see section 42.
However, a person need not advise the court under subsection (2) about the disclosure of information if:
another person has already advised the court about the disclosure of the information under that subsection; or
a notice has been given to the Attorney-General under subsection 24(1) about the disclosure of the information; or
the disclosure of the information:
is the subject of a certificate given to the person under section 26 and the certificate still has effect; or
is the subject of an order that is in force under section 22 or 31; or
the Attorney-General has given the person advice about the disclosure of the information under subsection 26(7).
Witness to give written answer
If the court is advised under subsection (2) and the witness would, apart from this section, be required to answer the question, the court must order that the witness give the court a written answer to the question.
The court must show the written answer to the prosecutor and, if present, the Attorney-General, the Attorney-General’s legal representative and any other representative of the Attorney-General.
If:
under subsection (4), the Attorney-General’s representative (other than the Attorney-General’s legal representative) is shown the written answer; and
he or she knows or believes that, if the written answer were to be given in evidence in the proceeding, the information that would be disclosed in the witness’s answer is national security information;
then he or she must advise the prosecutor of that knowledge or belief.
Prosecutor must give notice to Attorney-General etc.
If the prosecutor knows, believes, or is advised under subsection (5), that, if the written answer were to be given in evidence in the proceeding, the information that would be disclosed in the witness’s answer is national security information, then the prosecutor must:
advise the court of that knowledge, belief or advice; and
as soon as practicable, give the Attorney-General notice in writing of that knowledge, belief or advice.
Note: Failure to advise the court or to notify the Attorney-General is an offence in certain circumstances: see section 42.
However, the prosecutor need not advise the court or give the Attorney-General notice about the written answer under subsection (6) if the information disclosed by the written answer:
is the subject of a certificate or advice given to the prosecutor under section 26 and the certificate still has effect; or
is the subject of an order that is in force under section 22 or 31.
Adjournment to allow sufficient time for Attorney-General to act on the notice
If the court is advised under subsection (6), it must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. The court must continue the adjournment until the Attorney-General:
gives a copy of a certificate to the court under subsection 26(4); or
gives advice to the court under subsection 26(7) (which applies if a decision is made not to give a certificate).
Subdivision C—Attorney-General’s federal criminal proceedings certificates
This section applies if:
any of the following happens:
the Attorney-General is notified under section 24 that the prosecutor, the defendant or the defendant’s legal representative knows or believes that he or she, or another person, will disclose information in a federal criminal proceeding;
the Attorney-General for any reason expects that any of the circumstances mentioned in paragraphs 24(1)(a) to (c) will arise under which the prosecutor, the defendant, the defendant’s legal representative or another person will disclose information in a federal criminal proceeding;
the Attorney-General is notified under subsection 25(6) that the prosecutor knows, believes or is advised that an answer by a witness in a hearing in relation to a federal criminal proceeding will disclose information; and
paragraph 28(1)(a) (about the mere presence of a witness constituting disclosure) does not apply; and
the Attorney-General considers that the disclosure is likely to prejudice national security.
Attorney-General may give a certificate—case where information is in the form of a document
(2) If the information would be disclosed in a document (the source document), the Attorney-General may give each potential discloser (see subsection (8)) of the information in the proceeding:
any of the following:
a copy of the document with the information deleted;
a copy of the document with the information deleted and a summary of the information attached to the document;
a copy of the document with the information deleted and a statement of facts that the information would, or would be likely to, prove attached to the document;
together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the copy, or the copy and the statement or summary; or
a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
Attorney-General may give a certificate—case where information is not in the form of a document
If the information would be disclosed other than in a document, the Attorney-General may give each potential discloser of the information in the proceeding:
either:
a written summary of the information; or
a written statement of facts that the information would, or would be likely to, prove;
together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the summary or statement; or
a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
The Attorney-General must give the court a copy of:
in any case—the certificate; and
if paragraph (2)(a) applies—the source document, the document mentioned in subparagraph (2)(a)(i), (ii) or (iii) and the summary or statement mentioned in subparagraph (2)(a)(ii) or (iii); and
if paragraph (3)(a) applies—the summary or statement mentioned in that paragraph.
Duration of a certificate
The certificate ceases to have effect when any order by the court under section 31 on the hearing in relation to the certificate ceases to be subject to appeal, unless the certificate is revoked by the Attorney-General before then.
Certificate is not a legislative instrument
A certificate given to a potential discloser under this section is not a legislative instrument.
Attorney-General may decide not to give a certificate
If the Attorney-General decides not to do as mentioned in subsection (2) or (3), the Attorney-General must, in writing, advise each potential discloser and the court of his or her decision.
Definition of potential discloser
(8) Each of the following persons is a potential discloser of the information in the proceeding:
in all cases—the prosecutor, the defendant and the defendant’s legal representative;
if subparagraph (1)(a)(i) or (ii) applies and the disclosure is by a person other than the prosecutor, the defendant or the defendant’s legal representative—the other person;
if subparagraph (1)(a)(iii) applies—the witness mentioned in that subparagraph.
Consequences of certificate for pre-trial proceedings
If, in a federal criminal proceeding, the Attorney-General gives a potential discloser a certificate under section 26 at any time during a part of the proceeding that occurs before the trial begins, then the certificate is conclusive evidence, during that part of the proceeding and any later part that occurs before the hearing mentioned in paragraph (3)(a) begins, that disclosure of the information in the proceeding is likely to prejudice national security.
Court hearing
If, in a federal criminal proceeding, the Attorney-General gives a potential discloser a certificate under section 26 at any time during the proceeding, the court must:
in any case where the certificate is given to the court before the trial begins—before the trial begins, hold a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information; or
if subparagraph 26(1)(a)(i) or (iii) applies and the certificate is given to the court after the trial begins—continue the adjournment of the proceeding mentioned in subsection 24(5) or 25(8) for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information; or
if subparagraph 26(1)(a)(ii) applies and the certificate is given to the court after the trial begins—adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information.
If the Attorney-General revokes the certificate at any time while the proceeding is adjourned or the hearing is being held, the court must end the adjournment or the hearing.
The closed hearing requirements apply to the hearing.
This section applies if:
either:
the Attorney-General is notified under section 24 that the prosecutor, the defendant or the defendant’s legal representative knows or believes that a person whom he or she intends to call as a witness in a federal criminal proceeding will disclose information by the person’s mere presence; or
the Attorney-General for any reason expects that a person whom the prosecutor, the defendant or the defendant’s legal representative intends to call as a witness in a federal criminal proceeding will disclose information by his or her mere presence; and
the Attorney-General considers that the disclosure is likely to prejudice national security.
Attorney-General may give a certificate
The Attorney-General may give a certificate to the prosecutor, the defendant or the defendant’s legal representative, as the case may be, that states that the prosecutor, the defendant or the defendant’s legal representative must not call the person as a witness in the federal criminal proceeding.
The Attorney-General must give a copy of the certificate to the court.
Duration of a certificate
The certificate ceases to have effect when any order by the court under section 31 on the hearing in relation to the certificate ceases to be subject to appeal, unless the certificate is revoked by the Attorney-General before then.
Court hearing
The court must:
if the certificate is given to the court before the trial begins—before the trial begins, hold a hearing to decide whether to make an order under section 31 in relation to the calling of the witness; or
if the certificate is given to the court after the trial begins—adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the calling of the witness.
The closed hearing requirements apply to the hearing.
If the Attorney-General revokes the certificate at any time while the proceeding is adjourned or the hearing is being held, the court must end the adjournment or the hearing.
Certificate is not a legislative instrument
A certificate given to the prosecutor, the defendant or the defendant’s legal representative under this section is not a legislative instrument.
Attorney-General may decide not to give a certificate
If the Attorney-General decides not to do as mentioned in subsection (2), the Attorney-General must, in writing, advise the prosecutor, the defendant or the defendant’s legal representative, as the case requires, and the court of his or her decision.
(1) This section sets out the closed hearing requirements for a hearing under subsection 27(3) or 28(5).
Note: The fact that those provisions provide that the closed hearing requirements apply to certain hearings does not prevent the court from exercising any powers that it otherwise has eg to exclude persons (such as members of the public) from other hearings or to prevent publication of evidence.
Who may be present
Subject to this section, no-one, including the jury (if any), must be present at the hearing except:
the magistrate, judge or judges comprising the court; and
court officials; and
the prosecutor; and
the defendant; and
any legal representative of the defendant; and
the Attorney-General, the Attorney-General’s legal representative and any other representative of the Attorney-General; and
any witnesses allowed by the court.
If the court considers that the information concerned would be disclosed to:
the defendant; or
any legal representative of the defendant who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned; or
any court official who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned;
and that the disclosure would be likely to prejudice national security, the court may order that the defendant, the legal representative or the court official is not entitled to be present during any part of the hearing in which the prosecutor or any person mentioned in paragraph (2)(f):
gives details of the information; or
gives information in arguing why the information should not be disclosed, or why the witness should not be called to give evidence, in the proceeding.
Defendant’s submissions about prosecutor’s non-disclosure arguments
(4) If, at the hearing, the prosecutor or any person mentioned in paragraph (2)(f) argues that any information should not be disclosed, or that the witness should not be called to give evidence, in the proceeding, the defendant and any legal representative of the defendant must be given the opportunity to make submissions to the court about the argument that the information should not be disclosed or the witness should not be called.
Court to make etc. record of hearing
The court must:
whether before or after it makes an order under section 31, make a record of the hearing; and
keep the record; and
make the record available to:
a court that hears an appeal against, or reviews, its decision on the hearing; and
the prosecutor; and
the Attorney-General and any legal representative of the Attorney-General; and
allow any legal representative of the defendant, who has been given a security clearance at the level considered appropriate by the Secretary, to have access to the record, and to prepare documents or records in relation to the record, in a way and at a place prescribed by the regulations for the purposes of this paragraph; and
not make the record available to, nor allow the record to be accessed by, anyone except as mentioned in this subsection.
Copy of proposed record to be given to prosecutor etc.
(6) Before the court makes the record under subsection (5), the court must give a copy of the proposed record to the prosecutor and the Attorney-General (each of whom is a record recipient).
Statement recipient may request variation of proposed record
If a record recipient considers that making the proposed record available as mentioned in subparagraph (5)(c)(i) and allowing access to it as mentioned in paragraph (5)(d) will disclose information and the disclosure is likely to prejudice national security, the record recipient may request that the court vary the proposed record so that the information will not be disclosed.
Court’s decision
The court must make a decision on the request.
If the court makes a decision under subsection 29(8), a record recipient (within the meaning of subsection 29(6)) may request that the court delay making the record to allow time for the record recipient to:
decide whether to appeal against the court’s decision; and
if the recipient decides to do so—make the appeal.
The court must grant the request.
Non-disclosure certificate hearings
After holding a hearing required under subsection 27(3) in relation to the disclosure of information in a federal criminal proceeding, the court must make an order under one of subsections (2), (4) and (5) of this section.
If the information is in the form of a document, the court may order under this subsection that:
any person to whom the certificate mentioned in subsection 26(2) or (3) was given in accordance with that subsection; and
any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and
any other specified person;
must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may, subject to subsection (3), disclose (which disclosure may or may not be the same as was permitted in the Attorney-General’s certificate) in the proceeding:
a copy of the document with the information deleted; or
a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or
a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document.
If the court makes an order under subsection (2), the copy of the document is admissible in evidence if, apart from the order, it is admissible. However if:
a person who is the subject of the order seeks to adduce evidence of the contents of the document; and
the contents of the document are admissible in evidence in the proceeding;
the person may adduce evidence of the contents of the document by tendering the copy, or the copy and the summary or statement, mentioned in that subsection.
The court may, regardless of the form of the information, order under this subsection that:
any person to whom the certificate mentioned in subsection 26(2) or (3) was given in accordance with that subsection; and
any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and
any other specified person;
must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
The court may, regardless of the form of the information, order under this subsection that any person may disclose the information in the proceeding. However, the information is only admissible in evidence in the proceeding if, apart from the order, it is admissible.
Witness exclusion certificate hearings
After holding a hearing required under subsection 28(5), the court must order that:
the prosecutor, the defendant or the defendant’s legal representative must not call the person as a witness in the federal criminal proceeding; or
the prosecutor, the defendant or the defendant’s legal representative may call the person as a witness in the federal criminal proceeding.
Factors to be considered by court
The Court must, in deciding what order to make under this section, consider the following matters:
whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if:
where the certificate was given under subsection 26(2) or (3)—the information were disclosed in contravention of the certificate; or
where the certificate was given under subsection 28(2)—the witness were called;
whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;
any other matter the court considers relevant.
In making its decision, the Court must give greatest weight to the matter mentioned in paragraph (7)(a).
Requirement to give reasons
The court must give a written statement of its reasons for making an order under section 31 to the following people:
the person who is the subject of the order;
the prosecutor;
the defendant;
any legal representative of the defendant;
the Attorney-General and any legal representative of the Attorney-General.
Copy of proposed statement to be given to prosecutor etc.
(2) Before the court gives its statement under subsection (1), the court must give a copy of the proposed statement to the prosecutor and the Attorney-General (each of whom is a statement recipient).
Statement recipient may request variation of proposed statement
If a statement recipient considers that giving the proposed statement will disclose information and the disclosure is likely to prejudice national security, the statement recipient may request that the court vary the proposed statement so that the information will not be disclosed.
Court’s decision
The court must make a decision on the request.
If the court makes a decision under section 32, a statement recipient (within the meaning of that section) may request that the court delay giving its statement of reasons to allow time for the statement recipient to:
decide whether to appeal against the court’s decision; and
if the statement recipient decides to do so—make the appeal.
The court must grant the request.
An order made by the court under this Division:
does not come into force until the order ceases to be subject to appeal; and
remains in force until it is revoked by the court.
If:
in accordance with paragraph 27(3)(a), the court holds a hearing to decide whether to make an order under section 31 in relation to information described in a certificate given to the court before the trial in a federal criminal proceeding began; and
after holding the hearing, the court makes an order under subsection 31(5) that any person may disclose the information;
the order does not have the effect that there are grounds for re-conducting any part of the proceeding that took place before the trial began.
If:
in accordance with paragraph 28(5)(a), the court holds a hearing to decide whether to make an order under section 31 in relation to the calling of a witness that is the subject of a certificate given to the court before the trial in a federal criminal proceeding began; and
after holding the hearing, the court makes an order under paragraph 31(6)(b) that the person may be called as a witness;
the order does not have the effect that there are grounds for re-conducting any part of the proceeding that took place before the trial began.
If the court makes an order under section 31, the prosecutor may apply to the court for an adjournment of the federal criminal proceeding to allow time for the prosecutor to:
decide whether to appeal against the court order or to withdraw the proceeding; and
if the prosecutor decides to do so—make the appeal or withdrawal.
If the court makes an order under section 31, the defendant may apply to the court for an adjournment of the federal criminal proceeding to allow time for the defendant to:
decide whether to appeal against the court order; and
if the defendant decides to do so—make the appeal.
The court must grant the adjournment.
A record recipient (within the meaning of subsection 29(6)) may appeal against a decision of the court made under subsection 29(8).
The court that has jurisdiction to hear and determine appeals from the judgment on the trial in the proceeding has jurisdiction to hear and determine any appeal under this section.
The prosecutor, the defendant or the Attorney-General may appeal against any order of the court made under section 31.
The court that has jurisdiction to hear and determine appeals from the judgment on the trial in the proceeding has jurisdiction to hear and determine any appeal under this section.
A statement recipient (within the meaning of section 32) may appeal against any decision of the court made under section 32.
The court that has jurisdiction to hear and determine appeals from the judgment on the trial in the proceeding has jurisdiction to hear and determine any appeal under this section.
If, in a civil proceeding, an issue arises relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information, then any or all of the following may attend and be heard at the proceeding:
the Attorney-General;
the Attorney-General’s legal representative;
any other representative of the Attorney-General.
If, during a hearing in a civil proceeding, an issue arises relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information, then before hearing the issue, the court must consider making an order under either or both of the following:
subsection 19(3A);
(b) Criminal Code.section 93.2 of the
Subsection (1) does not apply if the issue is the subject of an order that is in force under section 38B.
At any time during a civil proceeding, the Attorney General, the Attorney-General’s legal representative, a party to the proceeding or a party’s legal representative may apply to the court for the court to hold a hearing to consider issues relating to the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information, including:
the making of an arrangement of the kind mentioned in section 38B; and
the giving of a notice under section 38D.
As soon as possible after making the application, the applicant must notify each of the following that the application has been made:
if the applicant is the Attorney-General or the Attorney-General’s legal representative—the parties and the parties’ legal representatives;
if the applicant is a party or a party’s legal representative—the Attorney-General, the other parties and the other parties’ legal representatives.
The court must hold the hearing as soon as possible after the application is made.
At any time during a civil proceeding:
the Attorney-General, on the Commonwealth’s behalf; and
the parties to the proceeding, or their legal representatives on their behalf;
may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information.
The court may make such order (if any) as it considers appropriate to give effect to the arrangement.
The regulations may prescribe:
ways in which national security information that is disclosed, or to be disclosed, in a civil proceeding must be stored, handled or destroyed; and
ways in which, and places at which, such information may be accessed and documents or records relating to such information may be prepared.
Regulations prescribing a matter described in paragraph (1)(a) or (b) of this section apply in relation to national security information disclosed, or to be disclosed, in a civil proceeding only if:
there is not an order in force under section 38B relating to that information; or
there is an order in force under section 38B relating to that information but the order does not deal with that matter.
Example: Suppose regulations made for the purpose of subsection (1) of this section deal with ways of storing, handling and destroying information, and an order is in force under section 38B dealing with storing and handling, but not destroying, particular information. The regulations do not apply to the storage and handling of the information dealt with by the order, but that information must be destroyed in accordance with the regulations.
Subdivision A—Notifying Attorney-General etc. of expected disclosure in civil proceedings
If a party, or the legal representative of a party, to a civil proceeding knows or believes that:
he or she will disclose national security information in the proceeding; or
a person whom he or she intends to call as a witness in the proceeding will disclose national security information in giving evidence or by the person’s mere presence; or
on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in the proceeding;
then he or she must, as soon as practicable, give the Attorney-General notice in writing of that knowledge or belief.
Note 1: Failure to give notice as required by this section is an offence in certain circumstances: see section 46C.
Note 2: Section 38E deals with the situation where a party, or a party’s legal representative, knows or believes that information that will be disclosed in a witness’s answer is national security information.
However, a party or a party’s legal representative need not give the Attorney-General notice about the disclosure of the information under subsection (1) if:
another person has already given notice about the disclosure of the information under that subsection; or
the information to be disclosed:
is the subject of a certificate given to the party or the legal representative under section 38F and the certificate still has effect; or
is the subject of an order in force under section 38B, 38J or 38L; or
the disclosure of information by the witness to be called:
is the subject of a certificate given to the party or the legal representative under section 38H and the certificate still has effect; or
is the subject of an order in force under section 38B, 38J or 38L; or
the Attorney-General has given the party or the legal representative advice about the disclosure of the information under subsection 38F(7) or 38H(9).
Note: Subsections 38F(6) and 38H(5) specify when a certificate ceases to have effect.
Requirements for notice
The notice must:
be in the prescribed form; and
if paragraph (c) does not apply—include a description of the information; and
if the information is contained in a document—be accompanied by a copy of the document or by an extract from the document, that contains the information.
Informing the court etc. of an expected disclosure
A person who gives notice under subsection (1) must also advise, in writing:
the court; and
the other parties; and
the other parties’ legal representatives; and
any other person mentioned in paragraph (1)(b) or (c);
that notice has been given to the Attorney-General. The advice must include a description of the information.
Adjournment to allow sufficient time for Attorney-General to act on the notice
Note: Failure to give advice as required by this section is an offence in certain circumstances: see section 46C.
On receiving the advice, the court must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. The court must continue the adjournment until the Attorney-General:
gives a copy of a certificate to the court under subsection 38F(5) or 38H(4); or
gives advice to the court under subsection 38F(7) or 38H(9) (which applies if a decision is made not to give a certificate).
Subdivision B—Notifying Attorney-General etc. where disclosure expected by witness answering question in civil proceedings
Witness expected to disclose information in giving evidence
This section applies if:
a witness is asked a question in giving evidence in a civil proceeding; and
a party, or the legal representative of a party, to the proceeding knows or believes that information that will be disclosed in the witness’s answer is national security information.
The party or legal representative must advise the court of that knowledge or belief.
Note: Failure to advise the court is an offence: see section 46C.
However, a person need not advise the court under subsection (2) about the disclosure of information if:
another person has already advised the court about the disclosure of the information under that subsection; or
a notice has been given to the Attorney-General under subsection 38D(1) about the disclosure of the information; or
the disclosure of the information:
is the subject of a certificate given to the person under section 38F and the certificate still has effect; or
is the subject of an order that is in force under section 38B, 38J or 38L; or
the Attorney-General has given the person advice about the disclosure of the information under subsection 38F(7).
Witness must give written answer to question
If the court is advised under subsection (2), the court must order that the witness give the court a written answer to the question.
Court must adjourn proceeding
On receiving the written answer, the court must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. However, the court need not do so if the information disclosed by the written answer:
is the subject of a certificate given to the court under section 38F and the certificate still has effect; or
is the subject of an order in force under section 38B, 38J or 38L.
Note: Subsection 38F(6) specifies when a certificate ceases to have effect.
If the court adjourns a part of the proceeding under subsection (4), the court must give the written answer to the Attorney-General.
The court must continue the adjournment until the Attorney-General gives a copy of a certificate to the court under subsection 38F(5) or gives advice to the court under subsection 38F(7) (which applies if a decision is made not to give a certificate).
Subdivision C—Attorney-General’s civil proceedings certificates
This section applies if:
any of the following happens:
the Attorney-General is notified under section 38D that a party, or the legal representative of a party, to a civil proceeding knows or believes that he or she or another person will disclose information in the proceeding;
the Attorney-General for any reason expects that any of the circumstances mentioned in paragraphs 38D(1)(a) to (c) will arise under which a party, the legal representative of a party or another person will disclose information in a civil proceeding;
the Attorney-General considers that a written answer given by a witness under section 38E in a civil proceeding will disclose information; and
paragraph 38H(1)(a) (about the mere presence of a witness constituting disclosure) does not apply; and
the Attorney-General considers that the disclosure is likely to prejudice national security.
Attorney-General may give a certificate—case where information is in the form of a document
(2) If the information would be disclosed in a document (the source document), the Attorney-General may give each potential discloser (see subsection (9)) of the information in the proceeding:
any of the following:
a copy of the document with the information deleted;
a copy of the document with the information deleted and a summary of the information attached to the document;
a copy of the document with the information deleted and a statement of facts that the information would, or would be likely to, prove attached to the document;
together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the copy, or the copy and the statement or summary; or
a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
Attorney-General may give a certificate—case where information is not in the form of a document
If the information would be disclosed other than in a document, the Attorney-General may give each potential discloser of the information in the proceeding:
either:
a written summary of the information; or
a written statement of facts that the information would, or would be likely to, prove;
together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the summary or statement; or
a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
Certificate may be given at same time as notice is given under section 6A
If subparagraph (1)(a)(ii) applies in respect of the proceeding, the certificate may be given at the same time as notice is given under section 6A that this Act applies to the proceeding.
Copy of certificate must be given to the court
The Attorney-General must give the court a copy of:
in any case—the certificate; and
if paragraph (2)(a) applies—the source document, the document mentioned in subparagraph (2)(a)(i), (ii) or (iii) and the summary or statement mentioned in subparagraph (2)(a)(ii) or (iii); and
if paragraph (3)(a) applies—the summary or statement mentioned in that paragraph.
Duration of a certificate
The certificate ceases to have effect when:
the court makes an order under section 38B about the disclosure, in the proceeding, of information that is the subject of the certificate, unless the certificate is revoked by the Attorney-General before then; or
(b) any order by the court under on the hearing in relation to the certificate ceases to be subject to appeal, unless the certificate is revoked by the Attorney-General before then.section 38J or 38L
Attorney-General may decide not to give a certificate
If the Attorney-General decides not to do as mentioned in subsection (2) or (3), the Attorney-General must, in writing, advise each potential discloser and the court of his or her decision.
Certificate and written advice are not legislative instruments
A certificate given under subsection (2) or (3) and a written advice given under subsection (7) are not legislative instruments.
Definition of potential discloser
(9) Each of the following persons is a potential discloser of the information in the proceeding:
in all cases—the parties and the parties’ legal representatives;
if subparagraph (1)(a)(i) or (ii) applies and the disclosure is by a person other than a party or a party’s legal representative—the other person;
if subparagraph (1)(a)(iii) applies—the witness mentioned in that subparagraph.
If, under section 38F, the Attorney-General gives a potential discloser a certificate at any time during a civil proceeding, the court must:
in any case where the certificate is given to the court before the substantive hearing in the proceeding begins—before the substantive hearing in the proceeding begins, hold a hearing to decide whether to make an order under section 38J or 38L in relation to the disclosure of the information; or
if subparagraph 38F(1)(a)(i) or (iii) applies and the certificate is given to the court after the substantive hearing in the proceeding begins—continue the adjournment of the proceeding mentioned in subsection 38D(5) or 38E(6) for the purpose of holding a hearing to decide whether to make an order under section 38J or 38L in relation to the disclosure of the information; or
if subparagraph 38F(1)(a)(ii) applies and the certificate is given to the court after the substantive hearing in the proceeding begins—adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 38J or 38L in relation to the disclosure of the information.
If, while the proceeding is adjourned or the hearing is being held:
the court makes an order under section 38B about the disclosure, in the proceeding, of information that is the subject of the certificate; or
the Attorney-General revokes the certificate;
the court must end the adjournment or the hearing.
The closed hearing requirements apply to the hearing to decide whether to make an order under section 38J or 38L.
This section applies if:
either:
the Attorney-General is notified under section 38D that a party, or the legal representative of a party, to a civil proceeding knows or believes that a person whom the party or legal representative intends to call as a witness in the proceeding will disclose information by his or her mere presence; or
the Attorney-General for any reason expects that a person whom a party, or the legal representative of a party, to a civil proceeding intends to call as a witness in the proceeding will disclose information by his or her mere presence; and
the Attorney-General considers that the disclosure is likely to prejudice national security.
Attorney-General may give a certificate
The Attorney-General may give a certificate to the relevant party or legal representative that states that he or she must not call the person as a witness in the proceeding.
Certificate may be given at same time as notice is given under section 6A
If subparagraph (1)(a)(ii) applies in respect of the proceeding, the certificate may be given at the same time as notice is given under section 6A that this Act applies to the proceeding.
Copy of certificate must be given to the court
The Attorney-General must give a copy of the certificate to the court.
Duration of a certificate
The certificate ceases to have effect when:
the court makes an order under section 38B about the disclosure, in the proceeding, of information by the mere presence of the person who is the subject of the certificate, unless the certificate is revoked by the Attorney-General before then; or
(b) any order by the court under on the hearing in relation to the certificate ceases to be subject to appeal, unless the certificate is revoked by the Attorney-General before then.section 38J or 38L
Court hearing
The court must:
if the certificate is given to the court before the substantive hearing in the proceeding begins—before the substantive hearing in the proceeding begins, hold a hearing to decide whether to make an order under section 38J or 38L in relation to the calling of the witness; or
if the certificate is given to the court after the substantive hearing in the proceeding begins—adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 38J or 38L in relation to the calling of the witness.
The closed hearing requirements apply to the hearing to decide whether to make an order under section 38J or 38L.
If, while the proceeding is adjourned or the hearing is being held:
the court makes an order under section 38B about the disclosure, in the proceeding, of information by the mere presence of the person who is the subject of the certificate; or
the Attorney-General revokes the certificate;
the court must end the adjournment or the hearing.
Attorney-General may decide not to give a certificate
If the Attorney-General decides not to do as mentioned in subsection (2), the Attorney-General must, in writing, advise:
the relevant party or legal representative; and
the court;
of his or her decision.
Certificate and written advice are not legislative instruments
A certificate given under subsection (2) and a written advice given under subsection (9) are not legislative instruments.
Subdivision A—Closed hearing requirements
(1) This section sets out the closed hearing requirements that apply:
for a hearing under subsection 38G(1) or 38H(6) relating to the disclosure of information in a civil proceeding; or
if the court makes an order under subsection 38J(2), (3) or (4) that the closed hearing requirements in this section are to apply when information that is the subject of the order is disclosed to the court at a hearing:
(i) in a proceeding under Criminal Code (about control orders); orDivision 104 of the
in a Division 105A ESO proceeding;
when the information is disclosed to the court at that hearing.
Who may be present
Note 1: The fact that subsections 38G(1) and 38H(6), and an order under subsection 38J(2), (3) or (4), provide that the closed hearing requirements apply to certain hearings does not prevent the court from exercising any powers that it otherwise has eg to exclude persons (such as members of the public) from other hearings or to prevent publication of evidence.
Note 2: The court may not make an order under subsection 38J(2), (3) or (4) if the proceeding under Criminal Code relates to an application for a CDO (see subsections 38J(1) and (1A) of this Act, and the definition of Division 105A ESO proceeding in section 7 of this Act). If the court decides not to make the CDO and hears evidence in a closed hearing in relation to an ESO, the court could reconsider whether to make the CDO. However, the court could not take that evidence into account in determining whether to make the CDO.Division 105A of the
Subject to this section, no-one, including the jury (if any), must be present at the hearing except:
the magistrate, judge or judges comprising the court; and
court officials; and
the parties to the proceeding; and
the parties’ legal representatives or special advocates; and
the Attorney-General, the Attorney-General’s legal representative and any other representative of the Attorney-General; and
any witnesses allowed by the court.
If the court considers that:
the information concerned would be disclosed to any of the following persons:
a party to the proceeding;
a party’s legal representative;
any court official;
who have not been given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned; and
the disclosure would be likely to prejudice national security;
the court may order that the party, the legal representative or the court official is not entitled to be present during any part of the hearing in which any person referred to in paragraph (2)(e):
gives details of the information; or
gives information in arguing why the information should not be disclosed, or why the witness should not be called to give evidence, in the proceeding.
Despite subsections (2) and (3), if:
the hearing is under subsection 38G(1) or 38H(6); and
the proceeding is:
(i) under Criminal Code (about control orders); orDivision 104 of the
a Division 105A ESO proceeding; and
a person referred to in paragraph (2)(e) requests the court to make an order that one or more specified parties to the proceeding, and their legal representatives, are not entitled to be present during any part of the hearing in which a person referred to in paragraph (2)(e) gives information of the kind referred to in paragraph (3)(c) or (d);
then the court may make that order.
Submissions about non-disclosure arguments
Note: An order made under subsection 38J(2), (3) or (4) in relation to the proceeding will contain a similar restriction in relation to a hearing in the proceeding: see paragraph 38J(2)(e), 38J(3)(d) or 38J(4)(c).
If, at the hearing, any person referred to in paragraph (2)(e) argues that:
any information should not be disclosed; or
the witness should not be called to give evidence in the proceeding;
the other parties to the proceeding and any legal representatives of the other parties must be given the opportunity to make submissions to the court about the argument that the information should not be disclosed or the witness should not be called.
Court to make etc. record of hearing
The court must:
whether before or after it makes an order under section 38J or 38L, make a record of the hearing; and
keep the record; and
make the record available to a court that hears an appeal against, or reviews, its decision on the hearing; and
not make the record available to, nor allow the record to be accessed by, anyone except as mentioned in this section.
Copy of record to be given to the Attorney-General etc.
The court must give a copy of the record to the Attorney-General and his or her legal representative.
Request to vary record
If the Attorney-General considers that:
allowing access to the record by:
a party who has been given a security clearance at the level considered appropriate by the Secretary but who has not engaged a legal representative; or
any party’s legal representative who has been given a security clearance at the level considered appropriate by the Secretary;
will disclose information; and
the disclosure is likely to prejudice national security;
the Attorney-General or his or her legal representative may request that the court vary the record so that the information will not be disclosed.
Decision by the court
The court must make a decision on the request.
Access to the record by a party, legal representative or special advocate
The court must:
allow the following persons (other than a person who, because of an order under subsection (3A) or 38J(2), (3) or (4), is not entitled to be present during any part of the hearing):
a party who has been given a security clearance at the level considered appropriate by the Secretary but who has not engaged a legal representative;
any party’s legal representative who has been given a security clearance at the level considered appropriate by the Secretary;
to have access to:
the record as varied in accordance with this section; or
if subparagraph (iii) does not apply—the record;
and to prepare documents or records in relation to the varied record or the record, in a way and at a place prescribed by the regulations for the purposes of this paragraph; and
allow any party’s special advocate:
to have access to the record; and
to prepare documents or records in relation to the record in a way and at a place prescribed by the regulations for the purposes of this paragraph; and
not make the varied record available to, nor allow the varied record to be accessed by, anyone except as mentioned in this subsection.
If the court makes a decision under subsection (8), the Attorney-General or his or her legal representative may request that the court delay allowing access to the varied record or the record as mentioned in paragraph (9)(a) to allow time for the Attorney-General to:
decide whether to appeal against the court’s decision; and
if the Attorney-General decides to do so—make the appeal.
The court must grant the request.
Subdivision B—Orders
When this section applies
This section applies if:
the court has held a hearing required by subsection 38G(1) or 38H(6) about the disclosure of information in:
(i) a proceeding under Criminal Code relating to a request (the control order request) to the court to make, confirm or vary a control order in relation to a person (the relevant person); orDivision 104 of the
(ii) a relevant application) to make, vary or review an extended supervision order in relation to a terrorist offender (the relevant person); orDivision 105A ESO proceeding relating to an application (the
(iii) a relevant application) for a continuing detention order in relation to a terrorist offender (the relevant person); andDivision 105A ESO proceeding relating to an application (the
the Attorney-General or the Attorney-General’s legal representative has requested the court to make an order under subsection (2), (3) or (4) of this section about the disclosure and consideration of the information in the proceeding; and
the court is satisfied that the relevant person has been given sufficient information about the allegations on which the control order request or relevant application was based to enable effective instructions to be given in relation to those allegations.
Note: For the definition of Division 105A ESO proceeding, see section 7.
To avoid doubt, the court may not make an order under subsection (2), (3) or (4) if the proceeding mentioned in subparagraph (1)(a)(iii) is a proceeding:
relating to an application for a continuing detention order if:
(i) the court is considering whether to make the order under Criminal Code; orsection 105A.7 of the
the court is considering whether to make an interim supervision order under section 105A.9A of the Code as mentioned in paragraph 105A.9(8)(b) of the Code; or
relating to an application for an interim detention order under section 105A.9 of the Code.
Non-disclosure certificate hearings
If the hearing was required by subsection 38G(1) and the information is in the form of a document, the court may order under this subsection that:
the following persons must not, except in permitted circumstances or in accordance with this subsection, disclose the information (whether in the proceeding or otherwise):
any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection;
any person to whom the contents of the certificate have been disclosed for the purposes of the hearing;
any other specified person; and
those persons may disclose in the proceeding:
a copy of the document with the information deleted; or
a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or
a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document;
(which disclosure may or may not be the same as was permitted in the certificate); and
the information may be disclosed to the court in the proceeding; and
the closed hearing requirements in section 38I are to apply when the information is disclosed to the court at a hearing in the proceeding; and
the relevant person and the relevant person’s legal representative are not entitled to be present during any part of a hearing in the proceeding in which the information is disclosed to the court; and
if the information is disclosed to the court in the proceeding and, apart from the order, the information is admissible in evidence in the proceeding—the court may consider the information in the proceeding, even if the information has not been disclosed to the relevant person or the relevant person’s legal representative.
If the hearing was required by subsection 38G(1), the court may, regardless of the form of the information, order under this subsection that:
any of the following persons must not, except in permitted circumstances or in accordance with this subsection, disclose the information (whether in the proceeding or otherwise):
any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection;
any person to whom the contents of the certificate have been disclosed for the purposes of the hearing;
any other specified person; and
the information may be disclosed to the court in the proceeding; and
the closed hearing requirements in section 38I are to apply when the information is disclosed to the court at a hearing in the proceeding; and
the relevant person and the relevant person’s legal representative are not entitled to be present during any part of a hearing in the proceeding in which the information is disclosed to the court; and
if the information is disclosed to the court in the proceeding and, apart from the order, the information is admissible in evidence in the proceeding—the court may consider the information in the proceeding, even if the information has not been disclosed to the relevant person or the relevant person’s legal representative.
Witness exclusion certificate hearings
If the hearing was required by subsection 38H(6) in relation to the calling of a witness in the proceeding, the court may order under this subsection that:
the relevant person and the relevant person’s legal representative must not call the witness at a hearing in the proceeding; and
the closed hearing requirements in section 38I are to apply if the witness is called at a hearing in the proceeding; and
the relevant person and the relevant person’s legal representative are not entitled to be present if the witness is called at a hearing in the proceeding.
Factors to be considered by court
The court must, in deciding whether to make an order under subsection (2), (3) or (4), consider the following matters:
whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if:
where the certificate was given under subsection 38F(2) or (3)—the information were disclosed in contravention of the certificate; or
where the certificate was given under subsection 38H(2)—the witness were called;
whether any such order would have a substantial adverse effect on the substantive hearing in the proceeding;
any other matter the court considers relevant.
Proceedings relating to making and confirming control order
If the court makes an order under subsection (2), (3) or (4) in relation to a proceeding for the making of a control order in relation to the relevant person, then the order under that subsection also applies in relation to a proceeding for the confirmation of the control order in relation to the person.
If order is not made
If the court decides not to make an order under subsection (2), (3) or (4), then the court must make an order under section 38L.
Civil non-disclosure certificate hearings
After holding a hearing required under subsection 38G(1) in relation to the disclosure of information in a civil proceeding, the court must make an order under one of subsections (2), (4) and (5) of this section, unless the court has made an order under subsection 38J(2) or (3) in relation to the information.
Note: Subsections 38J(2) and (3) allow the court to make an order about the disclosure and consideration of information in control order proceedings under Criminal Code or in Division 105A ESO proceedings.Division 104 of the
If the information is in the form of a document, the court may order under this subsection that:
any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection; and
any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and
any other specified person;
must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may, subject to subsection (3), disclose (which disclosure may or may not be the same as was permitted in the Attorney-General’s certificate) in the proceeding:
a copy of the document with the information deleted; or
a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or
a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document.
If the court makes an order under subsection (2), the copy of the document is admissible in evidence if, apart from the order, it is admissible. However, if:
a person who is the subject of the order seeks to adduce evidence of the contents of the document; and
the contents of the document are admissible in evidence in the proceeding;
the person may adduce evidence of the contents of the document by tendering the copy, or the copy and the summary or statement, mentioned in that subsection.
The court may, regardless of the form of the information, order under this subsection that:
any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection; and
any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and
any other specified person;
must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).
The court may, regardless of the form of the information, order under this subsection that any person may disclose the information in the proceeding. However, the information is only admissible in evidence in the proceeding if, apart from the order, it is admissible.
Civil witness exclusion certificate hearings
After holding a hearing required under subsection 38H(6), the court must order that:
the relevant party or legal representative must not call the person as a witness in the civil proceeding; or
the relevant party or legal representative may call the person as a witness in the civil proceeding.
However, this subsection does not apply if the court has made an order under subsection 38J(4) about the calling of the person as a witness.
Factors to be considered by court
Note: Subsection 38J(4) allows the court to make an order about the calling of witnesses in control order proceedings under Criminal Code or in Division 105A ESO proceedings.Division 104 of the
The court must, in deciding what order to make under this section, consider the following matters:
whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if:
where the certificate was given under subsection 38F(2) or (3)—the information were disclosed in contravention of the certificate; or
where the certificate was given under subsection 38H(2)—the witness were called;
whether any such order would have a substantial adverse effect on the substantive hearing in the proceeding;
any other matter the court considers relevant.
In making its decision, the court must give greatest weight to the matter mentioned in paragraph (7)(a).
Requirement to give reasons
The court must give a written statement of its reasons for making an order under section 38J or 38L to the following people:
the person who is the subject of the order;
the parties to the proceeding;
the parties’ legal representatives;
the Attorney-General and his or her legal representative.
Copy of proposed statement to be given to the Attorney-General etc.
Before the court gives its statement under subsection (1), the court must give a copy of the proposed statement to the Attorney-General and his or her legal representative.
Request to vary proposed statement
If the Attorney-General considers that giving the proposed statement will disclose information and the disclosure is likely to prejudice national security, the Attorney-General or his or her legal representative may request that the court vary the proposed statement so that the information will not be disclosed.
Court’s decision
The court must make a decision on the request.
Special advocate
The court must give a written statement of its reasons for making an order under section 38J or 38L to any special advocate of a party to the proceeding.
Note: Subsections (2) to (4) of this section do not apply to the statement the court gives to the special advocate.
If the court makes a decision under subsection 38M(4), the Attorney-General or his or her legal representative may request that the court delay giving its statement of reasons to allow time for the Attorney-General to:
decide whether to appeal against the court’s decision; and
if the Attorney-General decides to do so—make the appeal.
The court must grant the request.
An order made by the court under this Subdivision:
does not come into force until the order ceases to be subject to appeal; and
remains in force until it is revoked by the court.
If the court makes an order under section 38J or 38L, a party who brought the civil proceeding may apply to the court for an adjournment of the proceeding to allow time for the party to:
decide whether to appeal against the court order or to withdraw the proceeding; and
if the party decides to do so—make the appeal or withdrawal.
If the court makes an order under section 38J or 38L, a party against whom the civil proceeding was brought may apply to the court for an adjournment of the proceeding to allow time for the party to:
decide whether to appeal against the court order; and
if the party decides to do so—make the appeal.
The court must grant the adjournment.
Subdivision C—Special advocates in control order or extended supervision order proceedings
(1) The court may appoint a person as a special advocate of a party to a civil proceeding if:
the proceeding is:
(i) a proceeding under Criminal Code relating to a request to the court to make, confirm or vary a control order in relation to the party; orDivision 104 of the
a Division 105A ESO proceeding to make, vary or review an extended supervision order in relation to the party; or
a Division 105A ESO proceeding relating to an application for a continuing detention order in relation to the party; and
the court makes an order under subsection 38I(3A) or subsection 38J(2), (3) or (4) that the party and the party’s legal representative are not entitled to be present during part of a hearing in the proceeding.
Note 1: For the function of the special advocate, see section 38PB.
Note 2: For the definition of Division 105A ESO proceeding, see section 7.
The court may appoint a person under subsection (1) only if:
the person meets any requirements specified in the regulations; and
the court has given:
the parties to the proceeding and the parties’ legal representatives; and
the Attorney-General and the Attorney-General’s legal representative;
the opportunity to make submissions to the court about who the court should appoint.
If the party for whom the court is appointing a special advocate, or the party’s legal representative, requests the court under paragraph (2)(b) to appoint a particular person who meets the requirements mentioned in paragraph (2)(a), the court may appoint a different person only if the court is satisfied that:
appointing the person requested would result in the proceeding being unreasonably delayed; or
appointing the person requested would result in the person having an actual or potential conflict of interest; or
both:
the person requested has knowledge of national security information and disclosure of the information would be likely to prejudice national security; and
in the circumstances, there is a risk of inadvertent disclosure of that information.
The function of a special advocate of a party to a civil proceeding is to represent the interests of the party in the proceeding by:
making submissions to the court at any part of a hearing in the proceeding during which the party and the party’s legal representative are not entitled to be present; and
adducing evidence and cross-examining witnesses at such a part of a hearing in the proceeding; and
making written submissions to the court.
The relationship between a special advocate of a party to a civil proceeding and the party is not that of legal representative and client.
However, legal professional privilege applies to a communication between the party, or the party’s legal representative, and the special advocate in the same way as it applies to a communication between the party and the party’s legal representative.
The special advocate is not a party to the proceeding.
For the purposes of this Act, the special advocate is not a court official.
This Subdivision, other than subsection (2), does not restrict communication that:
is between:
a special advocate of a party to a civil proceeding; and
the party or the party’s legal representative; and
occurs before the Attorney-General discloses information to the special advocate under subsection 38PE(2) in relation to the proceeding.
Note: For communication between the special advocate and the party after such a disclosure, see section 38PF.
The court may make such orders as the court considers appropriate prohibiting or restricting communication mentioned in subsection (1) about any matter connected with the proceeding if:
the court is satisfied that it is in the interest of national security to make such orders; and
the orders are not inconsistent with this Act or regulations made under this Act.
At the same time as the court appoints a special advocate of a party to a civil proceeding, the court must make an order setting a day on which the Attorney-General must:
disclose to the special advocate the information that is subject to whichever of the following is in effect at that time:
a certificate given to the party or the party’s legal representative under section 38F or 38H in relation to the proceeding;
an order made under subsection 38J(2), (3) or (4) in relation to the proceeding; and
if subparagraph (a)(i) applies—give to the special advocate a statement of the Attorney-General’s reasons for withholding the information from the party.
The Attorney-General must comply with the order.
After the Attorney-General discloses the information to the special advocate under subsection (2), the special advocate must not disclose the information (whether in the proceeding or otherwise) other than:
in permitted circumstances specified in the certificate given under section 38F or 38H or in accordance with the order (if any) made under subsection 38J(2), (3) or (4); or
to:
the applicant in the proceedings for the control order, or the applicant’s legal representative, except if the applicant is or would be the subject of the control order; or
the applicant in the Division 105A ESO proceedings, or the applicant’s legal representative, except if the applicant is or would be the subject of the extended supervision order; or
the Attorney-General, the Attorney-General’s legal representative or any other representative of the Attorney-General; or
to the court at a part of a hearing in the proceeding during which the party and the party’s legal representative are not entitled to be present.
Note: The special advocate commits an offence if he or she contravenes this subsection: see subsection 46H(1).
Paragraphs 38J(2)(a) and (3)(a) and subsections 38L(2) and (4) (about the persons covered by special court orders) do not apply to the special advocate.
This section applies after the Attorney-General discloses information to a special advocate of a party to a civil proceeding under subsection 38PE(2) in relation to the proceeding.
Communication by special advocate
The special advocate must not communicate with any person about any matter connected with the proceeding, other than communicating:
with:
the magistrate, judge or judges comprising the court; or
the applicant in the proceedings for the control order, or the applicant’s legal representative, except if the applicant is or would be the subject of the control order; or
the applicant in the Division 105A ESO proceedings, or the applicant’s legal representative, except if the applicant is or would be the subject of the extended supervision order; or
the Attorney-General, the Attorney-General’s legal representative or any other representative of the Attorney-General; or
with the party or the party’s legal representative in accordance with subsections (3) and (4) or (10); or
with any other person if the communication is:
about matters not connected with the substance of the proceeding; and
necessary for administrative purposes.
Note 1: The special advocate commits an offence if he or she contravenes this subsection: see subsection 46H(3).
Note 2: The restriction in this subsection continues to apply to communication by the special advocate after the proceeding ends, or after he or she ceases to be a special advocate: see section 38PG.
Communication by special advocate—written communication with party through court
The special advocate may submit a written communication to the court for the court’s approval and for forwarding to the relevant person or the person’s legal representative.
The court must:
if the court is satisfied that the communication is not likely to prejudice national security—forward the communication without amendment to the relevant person or the person’s legal representative; or
if paragraph (a) does not apply:
amend the communication to the extent necessary for the court to be satisfied that the communication is not likely to prejudice national security; and
forward the amended communication to the relevant person or the person’s legal representative; or
if paragraph (a) does not apply and the court is satisfied that it is not practicable to amend the communication so that it is not likely to prejudice national security:
decline to forward the communication; and
notify the special advocate of that decision.
The court may consult the Attorney-General, the Attorney-General’s legal representative or any other representative of the Attorney-General before making a decision under subsection (4).
If the court forwards a communication from the special advocate to the relevant person or the person’s legal representative under paragraph (4)(a) or (b), the court must give a description of the communication to:
the applicant in the proceedings for the control order or the Division 105A ESO proceedings, or the applicant’s legal representative, except if the applicant is or would be the subject of the control order or extended supervision order; or
the Attorney-General, the Attorney-General’s legal representative or any other representative of the Attorney-General.
The description must not disclose information that is the subject of legal professional privilege (see subsection 38PC(2)).
Communication by party
The party may communicate with the special advocate about any matter connected with the proceeding only in writing through the party’s legal representative.
Note: The party commits an offence if he or she contravenes this subsection: see subsection 46H(4).
The party’s legal representative may communicate with the special advocate about any matter connected with the proceeding only in writing.
Note: The party’s legal representative commits an offence if he or she contravenes this subsection: see subsection 46H(5).
The special advocate may give to the party or the party’s legal representative a bare acknowledgement of receipt of a written communication to which subsection (8) or (9) applies.
Note: The special advocate may also reply to the communication through the court in accordance with subsections (3) and (4).
Subsections 38PD(2) and 38PE(3) and sections 38PF and 46H apply:
in relation to a civil proceeding even if the proceeding has ended; and
in relation to a person who has ceased to be a special advocate of a party to a civil proceeding in the same way as those provisions apply in relation to a special advocate of the party.
To avoid doubt, for the purposes of this Subdivision and section 46H:
a hearing under subsection 38G(1) or 38H(6) relating to the disclosure of information in a civil proceeding; or
proceedings relating to such a hearing;
are taken to be part of the civil proceeding.
The regulations may determine matters relating to special advocates.
Without limiting subsection (1), the regulations may determine matters relating to the terms on which a person serves as a special advocate, including terms relating to:
remuneration; or
conflicts of interest; or
immunity.
The Attorney-General may appeal against a decision of the court made under subsection 38I(8).
The court that has jurisdiction to hear and determine appeals from the judgment in the proceeding has jurisdiction to hear and determine any appeal under this section.
A party to a civil proceeding or the Attorney-General may appeal against any order of the court made under section 38J or 38L.
The court that has jurisdiction to hear and determine appeals from the judgment in the proceeding has jurisdiction to hear and determine any appeal under this section.
The Attorney-General may appeal against any decision of the court made under subsection 38M(4).
The court that has jurisdiction to hear and determine appeals from the judgment in the proceeding has jurisdiction to hear and determine any appeal under this section.
This section applies if, before or during a federal criminal proceeding, the Secretary of the Attorney-General’s Department gives written notice to any of the following persons:
a legal representative of the defendant;
a person assisting a legal representative of the defendant;
that in the proceeding an issue is likely to arise relating to a disclosure, of information in the proceeding, that is likely to prejudice national security.
When considering, for the purposes of subsection (1), whether a disclosure of the information would be likely to prejudice national security, the Secretary is to consider the nature of the information itself, and not the character of the person to whom it is to be disclosed.
Person may apply for security clearance
A person who receives a notice under subsection (1) may apply to the Secretary for a security clearance at the level considered appropriate by the Secretary in relation to the information.
Note 1: Security clearances are given in accordance with the Australian Government Protective Security Manual.
Note 2: If the person does not obtain the security clearance, anyone who discloses such information to the person will, except in limited circumstances, commit an offence under section 46.
Adjournment to allow sufficient time for defendant’s legal representative to be given security clearance
The defendant, or the defendant’s legal representative (on the defendant’s behalf), may apply to the court for a deferral or adjournment of the proceeding until:
the legal representative has been given a security clearance at the level considered appropriate by the Secretary in relation to the information; or
if the legal representative is not given such a security clearance—another legal representative is given such a security clearance.
The court must defer or adjourn the proceeding accordingly.
Prosecutor may advise the court that the defendant’s legal representative has not been given a security clearance etc.
If the defendant’s legal representative does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows:
the prosecutor may advise the court of the fact; and
the court may:
advise the defendant of the consequences of engaging a legal representative who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information; and
recommend that the defendant engage a legal representative who has been given, or is prepared to apply for, such a security clearance.
This section applies if, in a civil proceeding, the Secretary of the Attorney-General’s Department gives written notice to any of the following persons:
a party to the proceeding;
a party’s legal representative;
a person assisting a party’s legal representative;
that in the proceeding an issue is likely to arise relating to a disclosure, of information in the proceeding, that is likely to prejudice national security.
When considering, for the purposes of subsection (1), whether a disclosure of the information would be likely to prejudice national security, the Secretary is to consider the nature of the information itself, and not the character of the person to whom it is to be disclosed.
Person may apply for security clearance
A person who receives a notice under subsection (1) may apply to the Secretary for a security clearance at the level considered appropriate by the Secretary in relation to the information.
Note 1: Security clearances are given in accordance with the Australian Government Protective Security Manual.
Note 2: If the person does not obtain the security clearance, anyone who discloses such information to the person will, except in limited circumstances, commit an offence under section 46G.
Adjournment to allow sufficient time for a person to be given security clearance
A party to the proceeding, or the party’s legal representative (on the party’s behalf), may apply to the court for a deferral or adjournment of the proceeding to allow time for:
a person who receives a notice under subsection (1) to apply for and be given a security clearance at the level considered appropriate by the Secretary in relation to the information; or
if the party’s legal representative is not given such a security clearance—another legal representative to apply for and be given such a security clearance.
The court must defer or adjourn the proceeding accordingly.
Secretary may advise the court that a party has not been given a security clearance
If:
a party is not given a security clearance; or
a party does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows;
then:
the Secretary may advise the court of the fact; and
the court may advise the party of the consequences of not being given a security clearance at the level considered appropriate by the Secretary in relation to the information and:
if the party is not given a security clearance and has not engaged a legal representative—recommend that the party engage a legal representative who has been given, or is prepared to apply for, such a security clearance; or
if the party has not applied for the security clearance and has not engaged a legal representative—recommend that the party apply for the security clearance or engage a legal representative who has been given, or is prepared to apply for, such a security clearance.
Secretary may advise the court that a party’s legal representative etc. has not been given a security clearance etc.
If:
a party’s legal representative or a person assisting the legal representative is not given a security clearance; or
a party’s legal representative or a person assisting the legal representative does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows;
then:
the Secretary may advise the court of the fact; and
the court may:
advise the relevant party of the consequences of engaging a legal representative who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information; and
recommend that the relevant party engage a legal representative who has been given, or is prepared to apply for, such a security clearance.
Notice given by Secretary not a legislative instrument
A notice given under subsection (1) is not a legislative instrument.
Disclosure where notice given to Attorney-General under subsection 24(1)
A person commits an offence if:
the person is the prosecutor, the defendant or the defendant’s legal representative in a federal criminal proceeding; and
the person gives notice to the Attorney-General under subsection 24(1) about the disclosure of information in the proceeding; and
section 41 does not apply; and
after giving the notice, the person discloses the information (whether in the proceeding or otherwise) at any time before the Attorney-General gives the person a certificate under subsection 26(2) or (3) or advice under subsection 26(7) in relation to the disclosure of the information; and
the disclosure does not take place in permitted circumstances; and
the disclosure is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
Disclosure where advice given under subsection 24(3)
A person commits an offence if:
the person is advised under subsection 24(3) that a notice about the disclosure of information in a federal criminal proceeding has been given to the Attorney-General; and
the advice includes a description of the information; and
section 41 does not apply; and
after being advised, the person discloses the information (whether in the proceeding or otherwise) at any time before the Attorney-General gives the person a certificate under subsection 26(2) or (3) or advice under subsection 26(7) in relation to the disclosure of the information; and
the disclosure does not take place in permitted circumstances; and
the disclosure is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
Disclosure where notice given to Attorney-General under section 25
If:
the prosecutor gives notice to the Attorney-General under subsection 25(6) that the prosecutor knows, believes or is advised that an answer by a witness in a hearing in relation to a federal criminal proceeding will disclose information; and
section 41 does not apply; and
the prosecutor or the witness discloses the information (whether in the proceeding or otherwise) at any time before the Attorney-General gives the prosecutor or the witness a certificate under subsection 26(2) or (3) or advice under subsection 26(7) in relation to the disclosure of the information; and
the disclosure does not take place in permitted circumstances; and
the disclosure is likely to prejudice national security;
the prosecutor or the witness commits an offence.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is the prosecutor, the defendant or the defendant’s legal representative in a federal criminal proceeding; and
(b) the person notifies the Attorney-General under subsection 24(1) that he or she knows or believes that a person (the second person) whom he or she intends to call as a witness in a federal criminal proceeding will disclose information by the second person’s mere presence; and
after giving the notice, the person calls the second person as a witness in the proceeding at any time before the Attorney-General gives the person a certificate under subsection 28(2) or advice under subsection 28(10) in relation to the calling of the second person as a witness; and
the disclosure of the information by the mere presence of the second person is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person contravenes subsection 24(1), (2), (3) or (4) or 25(2) or (6); and
the disclosure of information mentioned in that subsection is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is given a certificate under subsection 26(2) or (3) in relation to the disclosure of information; and
the person discloses the information in contravention of the certificate.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is given a certificate under subsection 28(2) in relation to the calling of a witness; and
the person calls the witness in contravention of the certificate.
Penalty: Imprisonment for 2 years.
If:
the court makes an order under this Act in relation to a federal criminal proceeding; and
a person intentionally contravenes the order;
the person commits an offence.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
regulations made under section 23 require the person to comply with a requirement relating to the storage, handling or destruction of national security information; and
the person engages in conduct; and
the conduct results in the requirement being contravened; and
the contravention of the requirement is likely to prejudice national security.
Penalty: 6 months imprisonment.
In this section:
engage in conduct means:
do an act; or
omit to perform an act.
A person commits an offence if:
for the purposes of a federal criminal proceeding, the person discloses, other than in giving evidence in that proceeding or in permitted circumstances, information to:
a legal representative of the defendant; or
a person assisting a legal representative of the defendant; and
the disclosure is likely to prejudice national security; and
none of the following subparagraphs apply:
the legal representative or person mentioned in subparagraph (a)(ii) has a security clearance at the level considered appropriate by the Secretary in relation to the information;
the disclosure has been approved by the Secretary;
the disclosure takes place in compliance with conditions approved by the Secretary.
Penalty: Imprisonment for 2 years.
Disclosure where notice given to Attorney-General under subsection 38D(1)
A person commits an offence if:
the person is a party, or a legal representative of a party, to a civil proceeding; and
the person gives notice to the Attorney-General under subsection 38D(1) about the disclosure of information in the proceeding; and
section 46B does not apply; and
after giving the notice, the person discloses the information (whether in the proceeding or otherwise) at any time before the Attorney-General gives the person a certificate under subsection 38F(2) or (3) or advice under subsection 38F(7) in relation to the disclosure of the information; and
the disclosure does not take place in permitted circumstances; and
the disclosure is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
Disclosure where advice given under subsection 38D(4)
A person commits an offence if:
the person is advised under subsection 38D(4) that a notice about the disclosure of information in a civil proceeding has been given to the Attorney-General; and
the advice includes a description of the information; and
section 46B does not apply; and
after being advised, the person discloses the information (whether in the proceeding or otherwise) at any time before the Attorney-General gives the person a certificate under subsection 38F(2) or (3) or advice under subsection 38F(7) in relation to the disclosure of the information; and
the disclosure does not take place in permitted circumstances; and
the disclosure is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
Disclosure where notice given to Attorney-General under section 38E
If:
a witness gives a written answer to the court under section 38E in a civil proceeding; and
section 46B does not apply; and
the witness discloses information given in the written answer (whether in the proceeding or otherwise) at any time after the written answer is given to the court and before the Attorney-General gives the witness a certificate under subsection 38F(2) or (3) or advice under subsection 38F(7) in relation to the disclosure of the information; and
the disclosure does not take place in permitted circumstances; and
the disclosure is likely to prejudice national security;
the witness commits an offence.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is a party, or the legal representative of a party, to a civil proceeding; and
(b) the person notifies the Attorney-General under subsection 38D(1) that he or she knows or believes that a person (the second person) whom he or she intends to call as a witness in the proceeding will disclose information by the second person’s mere presence; and
after giving the notice, the person calls the second person as a witness in the proceeding at any time before the Attorney-General gives the person a certificate under subsection 38H(2) or advice under subsection 38H(9) in relation to the calling of the second person as a witness; and
the disclosure of the information by the mere presence of the second person is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is a party, or the legal representative of a party, to a civil proceeding; and
the person contravenes subsection 38D(1), (3) or (4) or 38E(2); and
the disclosure of information mentioned in that subsection is likely to prejudice national security.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is given a certificate under subsection 38F(2) or (3) in relation to the disclosure of information; and
the person discloses the information in contravention of the certificate.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the person is given a certificate under subsection 38H(2) in relation to the calling of a witness; and
the person calls the witness in contravention of the certificate.
Penalty: Imprisonment for 2 years.
If:
the court makes an order under this Act in relation to a civil proceeding; and
a person intentionally contravenes the order;
the person commits an offence.
Penalty: Imprisonment for 2 years.
A person commits an offence if:
regulations made under section 38C require the person to comply with a requirement relating to the storage, handling or destruction of national security information; and
the person engages in conduct; and
the conduct results in the requirement being contravened; and
the contravention of the requirement is likely to prejudice national security.
Penalty: 6 months imprisonment.
In this section:
engage in conduct means:
do an act; or
omit to perform an act.
A person commits an offence if:
for the purposes of a civil proceeding, the person discloses, other than in giving evidence in that proceeding or in permitted circumstances, information to:
a party to the proceeding; or
a party’s legal representative; or
a person assisting a party’s legal representative; and
the disclosure is likely to prejudice national security; and
none of the following subparagraphs apply:
the party to the proceeding, the legal representative or the person mentioned in subparagraph (a)(iii) has a security clearance at the level considered appropriate by the Secretary in relation to the information;
the disclosure has been approved by the Secretary;
the disclosure takes place in compliance with conditions approved by the Secretary.
Penalty: Imprisonment for 2 years.
Disclosure of information by special advocate
A person commits an offence if:
the Attorney-General discloses information to the person under subsection 38PE(2) in relation to a civil proceeding; and
the person discloses the information (whether in the proceeding or otherwise); and
paragraphs 38PE(3)(a), (b) and (c) do not apply to the disclosure by the person.
Penalty: Imprisonment for 2 years.
To avoid doubt, for the purposes of subsection (1) it does not matter whether the person also obtains the information in some way additional to that mentioned in paragraph (1)(a).
Communication by special advocate after disclosure of information by Attorney-General
A person commits an offence if:
the Attorney-General discloses information to the person under subsection 38PE(2) in relation to a civil proceeding; and
the person communicates with another person about any matter connected with the proceeding; and
the communication occurs after the disclosure mentioned in paragraph (a); and
paragraphs 38PF(2)(a), (b) and (c) do not apply to the communication.
Penalty: Imprisonment for 2 years.
Communication by party or legal representative after disclosure of information by Attorney-General
A person commits an offence if:
the person is or was a party to a civil proceeding; and
the Attorney-General discloses information to a special advocate of the person under subsection 38PE(2) in relation to the proceeding; and
the person communicates with the special advocate about any matter connected with the proceeding, other than in writing through the party’s legal representative; and
the communication occurs after the disclosure mentioned in paragraph (b).
Penalty: Imprisonment for 2 years.
A person commits an offence if:
the Attorney-General discloses information to a special advocate of a party to a civil proceeding under subsection 38PE(2) in relation to the proceeding; and
the person communicates with the special advocate about any matter connected with the proceeding, other than in writing; and
the communication occurs after the disclosure mentioned in paragraph (a); and
the first person is the legal representative of the party:
at or after the time disclosure occurs; and
at or before the time the communication occurs.
Penalty: Imprisonment for 2 years.
As soon as practicable after 30 June in each year, the Attorney-General must cause to be laid before each House of the Parliament a report that:
states the number of certificates given during the year:
under sections 26, 28, 38F and 38H by the Attorney-General; and
under sections 38F and 38H by the Minister appointed by the Attorney-General under section 6A; and
identifies the criminal proceedings and civil proceedings to which the certificates relate; and
(c) states the number of orders made under Criminal Code or a Division 105A ESO proceeding); andsection 38J (about special court orders in a proceeding under Division 104 of the
(d) identifies the proceedings under Criminal Code or the Division 105A ESO proceedings to which the orders relate; andDivision 104 of the
states the number of special advocates appointed during the year under section 38PA; and
(f) identifies the proceedings under Criminal Code or the Division 105A ESO proceedings in relation to which the special advocates were appointed.Division 104 of the
The power to make rules of court extends to making rules, not inconsistent with this Act or the regulations, prescribing matters:
required or permitted by this Act to be prescribed; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The Governor-General may make regulations prescribing matters:
required or permitted by this Act to be prescribed; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history