Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (82 of 2016)

Schedule 15   Protecting national security information in control order proceedings

Part 1   Main amendments

National Security Information (Criminal and Civil Proceedings) Act 2004

21   Section 38J

Repeal the section, substitute:

38J Special court orders in control order proceedings

When this section applies

(1) This section applies if:

(a) the court has held a hearing required by subsection 38G(1) or 38H(6) about the disclosure of information in a proceeding under Division 104 of the 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 ); and

(b) 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

(c) the court is satisfied that the relevant person has been given sufficient information about the allegations on which the control order request was based to enable effective instructions to be given in relation to those allegations.

Non-disclosure certificate hearings

(2) 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:

(a) the following persons must not, except in permitted circumstances or in accordance with this subsection, disclose the information (whether in the proceeding or otherwise):

(i) any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection;

(ii) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing;

(iii) any other specified person; and

(b) those persons may disclose in the proceeding:

(i) a copy of the document with the information deleted; or

(ii) 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

(iii) 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

(c) the information may be disclosed to the court in the proceeding; and

(d) 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

(e) 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

(f) 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.

(3) If the hearing was required by subsection 38G(1), the court may, regardless of the form of the information, order under this subsection that:

(a) 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):

(i) any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection;

(ii) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing;

(iii) any other specified person; and

(b) the information may be disclosed to the court in the proceeding; and

(c) 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

(d) 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

(e) 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

(4) 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:

(a) the relevant person and the relevant person's legal representative must not call the witness at a hearing in the proceeding; and

(b) the closed hearing requirements in section 38I are to apply if the witness is called at a hearing in the proceeding; and

(c) 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

(5) The court must, in deciding whether to make an order under subsection (2), (3) or (4), consider the following matters:

(a) whether, having regard to the Attorney-General's certificate, there would be a risk of prejudice to national security if:

(i) where the certificate was given under subsection 38F(2) or (3) - the information were disclosed in contravention of the certificate; or

(ii) where the certificate was given under subsection 38H(2) - the witness were called;

(b) whether any such order would have a substantial adverse effect on the substantive hearing in the proceeding;

(c) any other matter the court considers relevant.

Proceedings relating to making and confirming control order

(6) 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

(7) 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.