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

Schedule 15   Protecting national security information in control order proceedings

Part 2   Special advocates

National Security Information (Criminal and Civil Proceedings) Act 2004

41   At the end of Division 3 of Part 3A

Add:

Subdivision C - Special advocates in control order proceedings

38PA Appointment of special advocate

(1) The court may appoint a person as a special advocate of a party to a civil proceeding if:

(a) the proceeding is a proceeding under Division 104 of the Criminal Code relating to a request to the court to make, confirm or vary a control order in relation to the party; and

(b) 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: For the function of the special advocate, see section 38PB.

(2) The court may appoint a person under subsection (1) only if:

(a) the person meets any requirements specified in the regulations; and

(b) the court has given:

(i) the parties to the proceeding and the parties' legal representatives; and

(iii) the Attorney-General and the Attorney-General's legal representative;

the opportunity to make submissions to the court about who the court should appoint.

(3) 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:

(a) appointing the person requested would result in the proceeding being unreasonably delayed; or

(b) appointing the person requested would result in the person having an actual or potential conflict of interest; or

(c) both:

(i) the person requested has knowledge of national security information and disclosure of the information would be likely to prejudice national security; and

(ii) in the circumstances, there is a risk of inadvertent disclosure of that information.

38PB Function of special advocate

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:

(a) 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

(b) adducing evidence and cross-examining witnesses at such a part of a hearing in the proceeding; and

(c) making written submissions to the court.

38PC Relationship of special advocate and relevant person

(1) The relationship between a special advocate of a party to a civil proceeding and the party is not that of legal representative and client.

(2) 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.

(3) The special advocate is not a party to the proceeding.

(4) For the purposes of this Act, the special advocate is not a court official.

38PD Communication before disclosure of information to special advocate by Attorney-General

(1) This Subdivision, other than subsection (2), does not restrict communication that:

(a) is between:

(i) a special advocate of a party to a civil proceeding; and

(ii) the party or the party's legal representative; and

(b) 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.

(2) 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:

(a) the court is satisfied that it is in the interest of national security to make such orders; and

(b) the orders are not inconsistent with this Act or regulations made under this Act.

38PE Disclosure of information to special advocate by Attorney-General

(1) 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:

(a) disclose to the special advocate the information that is subject to whichever of the following is in effect at that time:

(i) a certificate given to the party or the party's legal representative under section 38F or 38H in relation to the proceeding;

(ii) an order made under subsection 38J(2), (3) or (4) in relation to the proceeding; and

(b) 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.

(2) The Attorney-General must comply with the order.

(3) 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:

(a) 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

(b) to:

(i) the person who applied for the relevant control order (within the meaning of Part 5.3 of the Criminal Code) or that person's legal representative; or

(ii) the Attorney-General, the Attorney-General's legal representative or any other representative of the Attorney-General; or

(c) 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).

(4) 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.

38PF Communication after disclosure of information to special advocate by Attorney-General

(1) 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

(2) The special advocate must not communicate with any person about any matter connected with the proceeding, other than communicating:

(a) with:

(i) the magistrate, judge or judges comprising the court; or

(ii) the person who applied for the relevant control order (within the meaning of Part 5.3 of the Criminal Code) or that person's legal representative; or

(iii) the Attorney-General, the Attorney-General's legal representative or any other representative of the Attorney-General; or

(b) with the party or the party's legal representative in accordance with subsections (3) and (4) or (10); or

(c) with any other person if the communication is:

(i) about matters not connected with the substance of the proceeding; and

(ii) 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

(3) 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.

(4) The court must:

(a) 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

(b) if paragraph (a) does not apply:

(i) amend the communication to the extent necessary for the court to be satisfied that the communication is not likely to prejudice national security; and

(ii) forward the amended communication to the relevant person or the person's legal representative; or

(c) 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:

(i) decline to forward the communication; and

(ii) notify the special advocate of that decision.

(5) 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).

(6) 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:

(a) the person who applied for the relevant control order or that person's legal representative; and

(b) the Attorney-General, the Attorney-General's legal representative or any other representative of the Attorney-General.

(7) The description must not disclose information that is the subject of legal professional privilege (see subsection 38PC(2)).

Communication by party

(8) 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).

(9) 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).

(10) 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).

38PG Communication after end of proceeding or by or to former special advocate

Subsections 38PD(2) and 38PE(3) and sections 38PF and 46H apply:

(a) in relation to a civil proceeding even if the proceeding has ended; and

(b) 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.

38PH Hearings under subsection 38G(1) or 38H(6)

To avoid doubt, for the purposes of this Subdivision and section 46H:

(a) a hearing under subsection 38G(1) or 38H(6) relating to the disclosure of information in a civil proceeding; or

(b) proceedings relating to such a hearing;

are taken to be part of the civil proceeding.

38PI Regulations

(1) The regulations may determine matters relating to special advocates.

(2) 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:

(a) remuneration; or

(b) conflicts of interest; or

(c) immunity.