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.

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.

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.

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.

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.

subsection 19(1A);

(b) Criminal Code.section 93.2 of the

the making of an arrangement of the kind mentioned in section 22; and

the giving of a notice under section 24.

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 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.

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.

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.

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

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

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

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).

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

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.

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

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.

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.

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

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

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

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

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).

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

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.

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.

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

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 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.

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

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.

decide whether to appeal against the court’s decision; and

if the recipient decides to do so—make the appeal.

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.

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.

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 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

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.

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.

decide whether to appeal against the court’s decision; and

if the statement recipient decides to do so—make the appeal.

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.

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.

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.

decide whether to appeal against the court order; and

if the defendant decides to do so—make the appeal.

subsection 19(3A);

(b) Criminal Code.section 93.2 of the

the making of an arrangement of the kind mentioned in section 38B; and

the giving of a notice under section 38D.

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 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.

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.

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.

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.

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).

Requirements for notice

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

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

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

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.

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

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.

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

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

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

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 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

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.

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.

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.

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 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

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 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

the relevant party or legal representative; and

the court;

of his or her decision.

Certificate and written advice are not legislative instruments

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

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.

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.

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

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

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.

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

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.

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

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.

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

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.

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

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

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

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.

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.

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 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

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.

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.

decide whether to appeal against the court’s decision; and

if the Attorney-General decides to do so—make the appeal.

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.

decide whether to appeal against the court order; and

if the party decides to do so—make the appeal.

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.

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.

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.

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.

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.

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.

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.

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.

Communication by special advocate—written communication with party through court

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 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.

remuneration; or

conflicts of interest; or

immunity.

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.

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 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.

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.

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.

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.

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

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.

Disclosure where advice given under subsection 24(3)

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.

Disclosure where notice given to Attorney-General under section 25

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.

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.

do an act; or

omit to perform an act.

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.

Disclosure where advice given under subsection 38D(4)

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.

Disclosure where notice given to Attorney-General under section 38E

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.

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.

do an act; or

omit to perform an act.

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.

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.

Communication by party or legal representative after disclosure of information by Attorney-General

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).

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.